Rajendra Krishna v The State (Trinidad and Tobago)

In a criminal trial involving a disputed confession, a trial judge should not tell the jury that the confession has been ruled voluntary after a voire dire. Repeated references may materially prejudice the accused, even where the jury is told to assess the confession’s weight. Where evidence reasonably suggests that a prosecution witness was an accomplice, the judge must leave that issue to the jury and give the appropriate warning about relying on uncorroborated evidence. Failure in either respect may constitute a material irregularity. An omission of a good-character direction, where character was not raised, does not necessarily invalidate a conviction. The proviso should not be applied unless conviction would have been inevitable. Exceptional delay and lengthy custody may justify allowing an appeal without a retrial and ordering immediate release.

The appellant was convicted of murder by the High Court of Justice in Trinidad and Tobago in 1988. His death sentence was later commuted to life imprisonment. The Court of Appeal dismissed his application for leave to appeal in 1995 and affirmed the conviction and sentence.

On appeal by special leave to the Privy Council, the issues were whether the trial judge’s references to his voire dire ruling, failure to give an accomplice direction concerning the principal prosecution witness, and failure to give a good-character direction constituted material irregularities. The Board also considered whether the statutory proviso could be applied on the basis that conviction was inevitable.

Sir Henry Brooke delivered the judgment of the Board, which allowed the appeal.

1. Confession evidence. The general rule stated in Mitchell v The Queen [1998] UKPC 1; [1998] AC 695 and Thompson v The Queen [1998] UKPC 6; [1998] AC 811 is that a judge should not reveal to the jury, which was absent during the voire dire, that the judge ruled a confession admissible or voluntary. Such disclosure may suggest that the judge accepted the police evidence and rejected the accused’s account. The present case was materially different from Thompson v The Queen, where the reference was brief and accompanied by directions emphasising the jury’s responsibility for assessing the confession. Here the judge referred repeatedly to his ruling and created confusion by leaving the jury to decide whether the statement had been voluntarily signed. This was a material irregularity.
2. Accomplice evidence. The evidence concerning Bissoon was capable of supporting the conclusion that he had participated in the crime. The issue whether he was an accomplice should therefore have been left to the jury. In accordance with the guidance in Davies v Director of Public Prosecutions [1954] AC 378, the jury should have been warned that it was dangerous to act on accomplice evidence unless corroborated, although they remained competent to do so after the warning if they considered it proper. The warning actually given was insufficient, particularly in light of the judge’s favourable comments about Bissoon and the failure to remind the jury of material inconsistencies. This too was a material irregularity.
3. Good character. There was no general duty to inquire into the accused’s character where the defence had not raised the issue: Barrow v The State [1998] AC 846, following Thompson v The Queen. Given the age of the trial and the uncertainty about counsel’s decisions, the absence of a good-character direction would not alone have justified disturbing the conviction. If that ground had stood alone, the Board would have been disposed to apply the proviso.
4. Proviso and remedy. Although the evidence against the appellant was strong, the Board could not conclude that the jury would inevitably have convicted if the irregularities had not occurred. The proviso in section 44(1) of the Supreme Court of Judicature Act therefore could not be applied. Although the ordinary course would have been to remit the case for consideration of a retrial, the lapse of 27 years and the appellant’s 23 years in custody meant that a retrial was not in the interests of justice. The appeal was allowed and the appellant was to be immediately released.

1. Privy Council: Appeal allowed on 6 July 2011. The conviction was not upheld under the statutory proviso, no retrial was ordered, and the appellant was to be immediately released.
2. Court of Appeal of the Republic of Trinidad and Tobago: On 5 October 1995, the court dismissed the application for leave to appeal and affirmed the conviction and sentence.
3. High Court of Justice: On 12 January 1988, the appellant was convicted of murder by Douglin J and a jury. He was sentenced to death, later commuted to life imprisonment.