Hunte and Khan v The State

A breach of a constitutional right or the Judges’ Rules does not automatically require confession evidence to be excluded. The court must first determine whether the statement was voluntary and then whether admission would nevertheless make the trial unfair. The judge decides admissibility, while the jury ordinarily decides whether the statement was made and whether it is true. A lesser alternative verdict is required only where the evidence provides an obvious basis for it; a bare possibility is insufficient. The Board’s appellate jurisdiction is limited to the powers possessed by the Court of Appeal. It cannot commute a lawfully imposed mandatory death sentence on a criminal appeal where no sentence appeal lay. Earlier decisions to the contrary were not followed.

Hunte and Khan were convicted of murder at the Port of Spain Assizes and sentenced to the mandatory death penalty. The Court of Appeal of Trinidad and Tobago dismissed their appeals.

Hunte challenged the admission of oral and written confessions, relying on police misconduct and the denial of private access to his attorney. Khan argued that the jury should have received further directions concerning secondary liability and an alternative verdict. Both appellants also sought leave to appeal against sentence, relying on the constitutional consequences of prolonged delay and the Board’s power to commute the sentences. The central issues concerned confession evidence, alternative verdicts, and appellate jurisdiction.

Lord Toulson delivered the leading judgment, with Lord Mance, Lord Clarke, Lord Reed and Lord Sumption agreeing. Lord Neuberger concurred. Lady Hale dissented on the sentence jurisdiction issue.

1. Hunte’s appeal. The police had seriously and inexcusably breached Hunte’s constitutional right to communicate privately with his attorney. That breach did not automatically make the confession inadmissible. The correct sequence was to determine whether the statements were voluntary and, if so, whether fairness nevertheless required exclusion. The trial judge applied the correct test and was entitled also to consider whether the statements had been made, although that issue ordinarily belonged to the jury. The jury received proper directions. Hunte had been advised of his right to remain silent and later signed a written confession after speaking privately with the justice of the peace. The appeal against conviction was dismissed.
2. Khan’s appeal. Further directions based on parasitic secondary liability would have been irrelevant and confusing because that was not the case presented to the jury. A lesser alternative verdict need be left only where the evidence provides an obvious basis for it. A bare possibility is insufficient, and an alternative may be omitted if reasonably regarded as remote from the real point of the case. The evidence did not realistically support a conspiracy to rob followed by an unplanned murder. Khan’s appeal was dismissed.
3. Sentence jurisdiction. Although the Board accepted the constitutional principle concerning prolonged delay before execution, its jurisdiction was statutory and appellate. Under section 109 of the Constitution, it possessed only the jurisdiction and powers of the Court of Appeal in the case. The mandatory death sentence was fixed by law and lawfully imposed. The Court of Appeal therefore had no jurisdiction to entertain an appeal against sentence, and the Board could not grant leave or commute the sentence in the absence of a decision below. Constitutional redress had to be sought in the High Court.
4. The Board declined to follow Matthew v State of Trinidad and Tobago [2004] UKPC 33 and Ramdeen v The State of Trinidad and Tobago [2014] UKPC 7, and followed the jurisdictional reasoning in Walker v The Queen [1994] 2 AC 36. The applications for leave to appeal against sentence were refused.
5. The ruling did not invalidate commutation orders already made by superior courts of record. Such orders remained valid until set aside, even if made in excess of jurisdiction.
6. Lady Hale would have followed Ramdeen and allowed the Board to use an existing criminal appellate jurisdiction to prevent unconstitutional execution, avoiding separate constitutional proceedings.

1. Privy Council: Appeals against conviction dismissed. Applications for leave to appeal against sentence refused.
2. Court of Appeal of Trinidad and Tobago: Appeals against conviction dismissed.
3. Port of Spain Assizes: Hunte and Khan convicted of murder and sentenced to the mandatory death penalty.