Deenish Benjamin and another v The State of Trinidad and Tobago (Trinidad and Tobago)

A Mushtaq direction is required where the evidence leaves open that the accused made the statement, that it was true, and that it may have been induced by oppression. A denial that the statement was made does not remove the oppression issue. The need for caution about an oral admission is fact-sensitive. A specific witness warning depends on evidence of an improper motive. Fresh expert evidence first produced on final appeal requires close scrutiny, but may justify remittal where it raises substantial issues about trial fairness and conviction safety. The proviso requires an inevitable conviction on properly directed consideration of all the evidence.

The appellants were convicted of murder and sentenced to death after trial before a judge and jury. The Court of Appeal of the Republic of Trinidad and Tobago dismissed their appeals on 3 July 2008. Before the Board, they challenged the directions on confessions, special knowledge, an oral admission and the evidence of the principal witness. They also raised fitness to plead for the first time, relied on fresh psychiatric and psychological evidence, challenged application of the proviso, and argued that the death penalty was unconstitutional for a mentally impaired person. The central questions included whether the convictions were safe and whether the case should be remitted for consideration of the fresh evidence.

The appeal was allowed and the matter was remitted to the Court of Appeal of Trinidad and Tobago for further hearing.

1. Confessions. A Mushtaq direction was required because the jury could find that the appellants made the statements, that they were true, and that they had been obtained through oppression. The fact that the appellants denied making the statements did not extinguish the separate issue of oppression. The judge’s direction contained the necessary elements. The Board declined to adopt the contrary reasoning in Barry Wizzard v The Queen [2007] UKPC 21.
2. Special knowledge. The judge was wrong to imply that the timing of the admissions and post-mortem established special knowledge, since the police already treated the death as homicidal on the basis of the witness’s account. The error was trifling in the context of the evidence and caused no miscarriage of justice.
3. Oral admission and witness evidence. The need for caution about an oral admission depends on the facts. A warning is plainly important where the admission is the only evidence, particularly if it was not recorded or verified. It may mislead where the admission is a minor part of a case supported by an elaborate written statement. A specific warning about a witness is required where there is material suggesting an improper motive. The directions on the witness’s evidential weaknesses were sufficient.
4. Fresh evidence and remittal. Late expert evidence requires close scrutiny. The reports indicating possible learning disability raised substantial issues concerning fitness to plead, confession reliability and diminished responsibility. The Court of Appeal should determine which issues require review and may admit rebutting evidence. The Board should not pre-empt that assessment, consistently with Pitman v The State [2008] UKPC 16. The possibility of a presidential reference under section 64(2) of the Supreme Court of Judicature Act 1964 did not justify refusing remittal.
5. Proviso. Under section 44(1) of the Supreme Court of Judicature Act 1962, the question was whether a properly directed jury would inevitably have convicted on the whole evidence. The proviso was properly applied to the special-knowledge misdirection, assessed without relying on the new expert opinions.
6. Constitutional issue. The Board declined to decide whether imposing the death penalty on a mentally impaired person would breach section 5(2)(b) of the Constitution of Trinidad and Tobago. The issue had not been considered by the Court of Appeal and should first be addressed in that jurisdiction.

1. Privy Council allowed the appeal and remitted the matter for further hearing: [2012] UKPC 8.
2. Court of Appeal of the Republic of Trinidad and Tobago dismissed the appeals against conviction on 3 July 2008.
3. San Fernando Assizes convicted the appellants of murder and imposed the mandatory death sentence.