Maharaj and others v The State (Trinidad and Tobago)

Fresh evidence on a criminal appeal requires a rigorous qualitative assessment of its integrity, relevance and cogency before admission. The Court of Appeal must decide whether receiving it is necessary or expedient in the interests of justice. Recantation evidence ordinarily demands especially careful scrutiny, including examination of the recanting witness where reasonably possible. Admission is distinct from assessing the effect on conviction safety. The jury-impact question is a discretionary aid for difficult cases, not an automatic step. A retraction may impeach trial evidence where it reveals fundamental unreliability, but the mere fact of retraction is insufficient. Appellate courts should defer to lower appellate assessments of credibility and evidential context.

Nine appellants were convicted of murder in Trinidad and Tobago, principally on the evidence of Junior Grandison. Years later, Grandison made a statutory declaration retracting his trial evidence, but subsequently repudiated that declaration. The appellants relied on the retraction and audio-recorded telephone conversations as fresh evidence.

The Court of Appeal heard evidence de bene esse, refused to admit the fresh evidence, and dismissed the appeals on 16 May 2018. The central issues before the Board were whether the Court of Appeal applied too high a credibility threshold, whether it misunderstood the recordings, whether it overlooked the impeachment value of the retraction, and whether limited supporting evidence affected the analysis.

Appeals against conviction dismissed. The application to appeal against sentence was adjourned pending State v Naresh Boodram.

1. Section 47 of the Supreme Court of Judicature Act creates a two-stage process. First, the Court of Appeal must conduct its own rigorous assessment of the integrity, relevance and cogency of the fresh evidence and decide whether receiving it is necessary or expedient in the interests of justice. Only if the evidence is admitted does the court assess its effect on the safety of the conviction. The approach was consistent with R v Parks [1961] 1 WLR 1484, Stafford v Director of Public Prosecutions [1974] AC 878 and Dial v State of Trinidad and Tobago [2005] 1 WLR 1660.
2. Recantation evidence requires particularly rigorous scrutiny because it can readily be fabricated. A recanting witness will ordinarily be expected to attend so that the court can examine the circumstances and reasons for both the original evidence and the retraction. Grandison’s unexplained absence was a significant consideration.
3. The jury-impact test associated with R v Pendleton [2002] 1 WLR 72 is not automatically triggered by admission of fresh evidence. It is a useful check in a difficult case, but will rarely be necessary.
4. The Court of Appeal was entitled to find the statutory declaration and recordings unreliable because of the appellants’ influence, prompting and manipulation. It considered the conversations as a whole, and its conclusions were neither perverse nor irrational. The Board owed substantial deference to those credibility assessments under Clarke v The Queen [2004] UKPC 5 and Dial v State of Trinidad and Tobago [2005] 1 WLR 1660.
5. A retraction can have impeachment value beyond its substantive truth if it reveals that a witness is fundamentally unreliable. However, the mere fact of retraction does not require a new trial. Provenance, the reasons for the change, and the circumstances prevailing at trial must be assessed, as explained in R v Flower [1966] 1 QB 146. The Court of Appeal did not ignore this issue.
6. The limited independent support provided by Amoroso and Sumai did not advance the appeal, given the Court of Appeal’s conclusions on the unreliability and inadmissibility of the fresh evidence.

Procedural history

• Privy Council (11 October 2021): appeals against conviction dismissed. The prospective appeal against sentence was adjourned.
• Court of Appeal of the Republic of Trinidad and Tobago (16 May 2018): fresh evidence was refused and the appeals were dismissed, affirming the convictions and sentences.
• Privy Council (13 March 2006): permission to appeal against conviction was dismissed; the death sentences were quashed and sentences of life imprisonment substituted.
• Trial court (7 August 2001): the appellants were convicted of murder and sentenced to death.