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Boodram v. The State (Trinidad and Tobago)  UKPC 20 (10 April 2001)
Privy Council Appeal No. 65 of 2000
Ann Marie Boodram Appellant
The State Respondent
THE COURT OF APPEAL OF TRINIDAD AND TOBAGO
JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL
DELIVERED the 10th April 2001
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Present at the hearing:-
Lord Cooke of Thorndon
[Delivered by Lord Steyn]
I. The question
- The principal question is whether a retrial of the appellant ("the defendant") on a charge of murder was unfair in circumstances where her counsel was unaware of the first trial until near the end of the retrial and, when he became aware of it, he did not try to obtain the transcript of the first trial in order to assess what could be done to redress any prejudice or potential prejudice to the defendant.
II. The background
- On 20th January 1989 Alston Boodram, the husband of the appellant, died at Debe in the county of Victoria, Trinidad and Tobago. The deceased was aged 37 years, the defendant 34 years and they had three children Simon (aged 17 years), Sheldon (aged 11 years) and Marie (aged 6 years). The deceased died as a result of the ingestion of the herbicide Paraquat. On 3rd February 1989 the police arrested the defendant and charged her with murder. The case against her was that she had poisoned the deceased on about 12th January 1989 when she gave him curried chicken, potato and rice which later that day he ate at work. The police marshalled a formidable case against the defendant. On 15th March 1990 the defendant was committed to stand trial at the next sitting of the San Fernando Assizes. The defendant engaged the services of Mr Selwyn Mohammed and two juniors who appeared for her at the trial. Between 8th March 1994 and 15th April 1994 the defendant was tried before Koylass J and a jury. On 15th April 1994 the defendant was convicted of murder and sentenced to death.
III. A bird's eye view of the evidence at the first trial
- Given the nature of the principal ground of appeal it is necessary to explain the thrust of the evidence and issues at the first trial as well as certain rulings of the judge. The prosecution tendered in evidence two written statements signed by the appellant. The first statement was taken on 1st February 1989 by Sergeant Tom. The defendant signed the statement at 5pm that day. It was not an outright confession but it did contain important admissions. The defendant said that she gave the deceased a packed lunch of chicken, potato and rice on 12th January 1989. Over the next few days he complained of pain. For some days he went to work returning after having had meals with his family with whom the defendant did not get on. She gave the remainder of the rice in her husband's lunch kit to a dog and a cat. On 19th January 1989 she discovered that the dog and cat had died. At about 4.30pm on 20th January 1989 her husband died. Given that her husband died of Paraquat poisoning, the jury would have been entitled to regard these statements as pointing towards guilt.
- The defendant challenged the admissibility of the first statement. A voir dire was held. The defendant's case was as follows. The statement had in fact been written by Sergeant Tom. Although the defendant asked three or four times for Sergeant Tom to read the statement to her, he refused to do so. Sergeant Tom also refused to allow the defendant to read the statement before it was signed. She had asked, and was concerned, about her children whom she had not seen since she had been taken to the Homicide Office on 1st February 1989. Superintendent Philbert and Sergeant Tom told her that if she signed the statement she could go home in an hour's time. Finally she said that she had not been cautioned at any time before she signed the first statement. Koylass J ruled that the first statement was admissible.
- The second statement records that it was taken between 3.30pm and 5.45pm on 2nd February 1989. It contained an unequivocal confession. The defendant said that her husband was a heavy drinker, beat her, and was unable to have sexual intercourse with her. She said that she became intimate with a policeman called Tony Montegue. The statement contains the following passage:
"Tony told me on several occasions that my husband better off dead, that it just got into my head. I got the impression that Tony was telling me to kill my husband and he would support me, so on Thursday 12th January, 1989 I got up around 6.00am and cooked curried chicken, potato and rice for my husband to carry for his lunch. After putting the rice, curry chicken and potato in my husband's lunch kit, I went downstairs and took a plastic bottle containing either weedicide or pesticide and emptied the bluish liquid from it on my husband's food. I covered my husband's lunch kit and put it in a brown paper bag. I then returned the empty bottle downstairs from where I had taken it below the house."
She said she gave the remainder of the lunch to the dog and the cat and they died after 3 days. She added that she told her son Simon to dispose of the empty bottles. The defendant confirmed this statement before Mr Ali Hosein, a justice of the peace, at 5.30pm on the same day when she identified "the bottle which contained the paraquat . . . which I placed on my husband's food".
- The defence vigorously contested the admissibility of the second statement. A voir dire was held. Her account was to the following effect: By the time that she signed the statement, at about 5.00pm in the late afternoon of 2nd February 1989, she had not eaten or drunk anything, and had not been offered anything to eat or drink since the 1st February 1989. She was taken to a room at the Siparia CID on the evening of 1st February, where Inspector Douglas and Superintendent Philbert repeatedly told her that she killed her husband and Inspector Douglas slapped her hard several times on her head and her back. She asked Inspector Douglas to allow her to telephone her children and he refused to allow her so to do. She asked Inspector Douglas to telephone her family lawyer. He refused. Inspector Douglas returned to the room on his own later in the evening of 1st February 1989. He started to pass his hands through her hair. He told her that if she co-operated with him he would let her go. He kept on asking her to have sex with him. She refused and told him that she was pregnant. Thereafter, Inspector Douglas threw her to the ground and forced himself on her. He lay down on top of her. She was crying. He pushed her whole body down on the ground and he raped her. By the afternoon of 2nd February 1989 she was very frightened, nervous and hungry. She was bleeding from her vagina. Her feet were cold and her ankles were swollen and she was suffering from pain in her ankles and her belly and getting cramps in her feet. Sergeant Tom came into the room with blue sheets of paper with writing which she asked her to sign. Inspector Douglas pounded the table and told her to sign the document. Somebody slapped her on the back of her head. Eventually she did sign the papers. The first time she was aware of the contents of the statement was when it was read out at the Magistrate's Court.
- Despite the fact that Superintendent Philbert, Mr Ali Hosein, Sergeant Tom and Constable Gordon had given evidence that the defendant made this statement voluntarily Koylass J ruled that the statement was inadmissible. The judge's contemporary note states as his reasons "Statement was involuntarily made". The note does not reveal whether the judge was influenced by all the defendants allegations or only by some. According to the note the judge came to an affirmative conclusion rather than deciding the matter on the basis that there was doubt about the voluntariness of the statement.
- Superintendent Philbert gave evidence before the jury that on the 1st February 1989 together with WPC Gordon and Inspector Douglas he went to the defendant's home with a search warrant. He spoke to Simon Boodram, who took him to a pond at the back of the house where he pointed out something. The police officers recovered a cellophane bag. Superintendent Philbert opened the bag and found among other things a bottle. Subsequent analysis revealed the presence of Paraquat in the bottle. This is the bottle which the defendant is alleged to have identified when Mr Ali Hosein spoke to her and when she stated that it was the bottle from which she poured the poison into her husband's food. Being in the nature of real evidence this was a powerful plank of the prosecution case.
- The Prosecution called Simon Boodram. In examination in chief he confirmed the police evidence about events at the defendant's home on 1st February 1989. Three days later under cross-examination, however, Simon retracted his first account and gave evidence to the following effect: Superintendent Philbert, Inspector Douglas and Devika Persad (the defendant's sister) instructed him as to the evidence that he should give against his mother. The police gave him a copy of a statement to sign and then instructed him to memorise it for the court proceedings. The police threatened to lock him up and charge him together with the defendant if he did not give evidence against her. Superintendent Philbert told him to say that he found two bottles containing poison. The defendant never told him to throw any bottles in the pond. No bottles were ever found in the pond. The police had taken an Angostura bitters bottle from the house. There was neither a dead dog nor a dead cat. The defendant told him that Inspector Douglas had 'brutalised' her.
- The prosecution relied on two other witnesses. Devika Persad, the defendant's sister, gave evidence that the defendant confessed to her on 20th January 1989 that she had poisoned her husband. The defendant denied this evidence and testified to bad blood between her and her sister. Philoman Soobiah, the deceased's manager and friend, testified that on 20th January 1989 before Alston Boodram died, the defendant enquired from him about the life insurance cover of her husband. He said that the defendant said that the doctor told her that her husband had been poisoned with Paraquat, that being at a time when there was no medical opinion to that effect. The defendant accepted that a conversation had taken place but her account was that she merely told Soobiah that a doctor told her "that they were doing their best for Alston". In other words, she did not deny the occasion but disputed what was said.
- The defendant testified. She denied that she had poisoned her husband. She also denied the incriminating parts of the first statement, and in particular the death of the dog and the cat. The second statement had, of course, been excluded. She disputed the substance of the evidence of her sister and of Soobiah. These were issues for the jury.
- After the judge summed up, the jury retired and in due course unanimously returned a verdict of guilty of murder. The judge sentenced the defendant to death.
IV. The first Court of Appeal decision
- On the 30th April 1997 the Court of Appeal of Trinidad and Tobago (Sharma JA, Hamel-Smith JA, Hosein, JA) allowed the defendant's appeal against her conviction. The basis of the Court of Appeal's decision was that, having ruled the defendant's second written statement was inadmissible, the trial judge forgot to direct the jury to disregard the linked oral confession, evidence of which had been placed before the jury prior to the voir dire hearing on the written confession. The Court of Appeal went on to doubt whether any direction could have cured the prejudicial effect of this error of the judge. A second ground of appeal relating to the failure by the judge to direct the jury about "the effects" of the evidence of Simon Boodram also succeeded, leading the Court of Appeal to remark that "we were quite concerned that the Appellant may not have received a fair trial". Reading this observation in the context of the summing up, which their Lordships have studied since the hearing, it appears clear that the Court of Appeal's concern was twofold, viz that the judge did not correctly summarise the general effect of the evidence and, in any event, did not properly direct the jury on what the specific effect would be if it was reasonably possible that Simon Boodram's final account was correct or may have been substantially correct. However, despite the delay of 8 years and 2 months between the arrest of the defendant and appeal, the Court of Appeal ordered that the defendant should face a retrial "at the next Assizes".
V. Legal representation at the retrial.
- The retrial did not commence at the next assizes. It only began on 13th February 1998, i.e. some 8 ½ months later and some 9 years after the defendant's arrest. The defendant states that she asked Mr Mohammed to appear for her again. He did in fact appear for her as an "amicus" at one preliminary hearing. But she could not pay his fees. He therefore ceased to act for her. For several months leading up to the retrial the defendant was unrepresented. Towards the end of 1997 Mr Ramlal was appointed by the Legal Aid Authority to appear for the defendant. In an affidavit the defendant asserts Mr Ramlal visited her in prison "and took full instructions from me as to what transpired at my first trial and as to my defence generally". On 9th December 1998 Mr Ramlal appeared at a preliminary hearing for the defendant. He indicated that he was ready for trial. On 5th January 1998, at the next hearing, he was not personally present. Two days later Mr Ramlal sought and was given leave to withdraw.
- Shortly after 7 January 1998 the Legal Aid Authority appointed Mr Sawh to act for the defendant. He appeared for her at preliminary hearings on 27th January 1998 and 9th February 1998. On each of these occasions Mr Sawh told the court that the defence was ready for trial. On Friday, 13th February 1998, the retrial began. While the first trial had lasted 21 working days the second trial was completed within 6 working days, ending with the summing up by the judge and a verdict of guilty by the jury on Friday, 20th February 1998.
- Until the end of the prosecution case on 17th February 1998, Mr Sawh was unaware that he was appearing at a retrial. When he became aware that there had been an earlier trial, Mr Sawh did not ask for the transcript or record of the trial which had been prepared for the first appeal; he made no enquiries; he did not raise the matter with the prosecution; he did not alert the judge to it; and he did not take instructions about the course of proceedings at the first trial or the reasons for the quashing of the first verdict. For anyone versed in criminal practice this must be an astonishing situation. It is necessary to explain how this state of affairs was revealed.
- After her conviction at the retrial the defendant at first said through her solicitor by letter dated 15th September 1998 that Mr Sawh never took any instructions from her. She now accepts she was in error because Mr Sawh has produced three sets of brief instructions signed by her. In their letter of 15th September 1998 the defendant's solicitors also said that on the third day of the trial (the 17th) the defendant raised the question of obtaining "the notes from the previous trial" to which Mr Sawh responded by saying that he "did not need to go through the foolishness which other lawyers do". The letter also indicated that she wanted him to withdraw. In his reply of 17th September 1998 Mr Sawh laconically observed "I had no knowledge of the first trial" and rejected all allegations. In a letter of 1st October 1998 Mr Sawh enclosed the three sets of written instructions and said that he spoke to the defendant in the cells at the Supreme Court on 9 occasions from 14th January 1998.
- In an affidavit sworn on 6th November 1998 the defendant deposed as follows:
"21 Now that I have seen these instructions I recollect having spoken to Mr Sawh in the cell at San Fernando downstairs of the Court. . . .
"22 I expected that as Mr Mohammed and Mr Ramlal had done, Mr Sawh would have come to Golden Grove to have a proper interview with me. After my trial started on the 13th February 1998 before Madam Justice Weekes I did not get an opportunity to speak to Mr Sawh until the trial was into the 3rd day by which time the alleged oral confession was admitted into evidence.
"23 I had expected that Mr Sawh would have visited me at Marabella Police Station where I was kept over the weekend of the 14th and 15th February 1998 when I would have had a full opportunity to relate to him how I had been raped by Inspector Douglas prior to signing the statement of the 2nd February 1998.
"24 By the time I next got an opportunity to speak to Mr Sawh the alleged confession had been admitted into evidence and when I tried to tell him what had taken place at the first trial and that he should get the Notes of Evidence he told me that he "did not need to go through the foolishness which other lawyers do". When Mr Sawh told me that I was totally confused and felt helpless. From that time I lost confidence in him and told him that I did not wish him to continue to represent me.
"25 Notwithstanding my communication to Mr Sawh he continued to represent me against my wishes. I was afraid to bring this to the attention of the trial Judge."
Mr Sawh swore an affidavit on 9th November 1998 in which he said that he took instructions from the defendant in or outside her cell on at least 9 occasions, one interview lasting two hours. He said that the defendant never instructed him that Inspector Douglas had raped her before she signed the statement of 2nd February 1989. He accepted that he only became aware of the first trial on the afternoon of 17th February 1998, i.e. after the end of the prosecution case. His affidavit is silent as to his reaction to this information. And he does not say that he did anything in response.
VI. The course of the retrial
- On the retrial the prosecution case was deployed in very much the same way as at the first trial. The difference was that Mr Sawh presented the defence case with markedly less vigour than Mr Mohammed had done at the first trial. By and large this accounts for the fact that the first trial lasted 3½ times longer than the second. On the retrial the prosecution tendered the statement signed by the appellant on 1st February 1989. Unlike Mr Mohammed at the first trial, Mr Sawh raised no objection to the admissibility of this statement. Although not an outright confession it was damaging, particularly in its recital of the deceased's ill health from shortly after 12th January 1989 and the admission of the death of the dog and cat after they ate the remainder of the rice. It was the more damaging because Mr Sawh argued that the deceased had been poisoned on the 19th January. One does not know what enquiries Mr Sawh made as to the circumstances in which the first statement was taken. However, if Mr Sawh had studied the record of the first trial, he would have been able to take instructions on the grounds of objection then raised, e.g. that the defendant was not allowed to read the statement before signing it. In the result the statement was admitted without objection.
- The prosecution then tendered in evidence the second statement signed by the defendant on 2nd February 1989. The admissibility of that statement was challenged by Mr Sawh. But he was unaware of the multiple and diverse grounds upon which the statement had been successfully challenged at the first trial. In any event Weekes J held a voir dire in relation to its admissibility. Superintendent Philbert and Sergeant Tom testified that the defendant voluntarily made the statement. Inspector Douglas was not called. Mr Ali Hosein again testified that the defendant had identified the bottle as one from which she had poured poison on her husband's food.
- On the voir dire the defendant denied that she had made any oral confession prior to signing the second written statement; she denied that she had pointed to a bottle; denied that she had spoken to Mr Ali Hosein at all; said that she had not voluntarily signed the statement of 2nd February 1989. However, on this occasion the defendant did not say that she had been raped by Inspector Douglas. On the other hand, she did state:
"The night before, all night, and during the day and my foot, all my feet was swollen. It started to cramp and I spoke to Ms Tom and I told her I was not feeling well and during the course of that night, something transpired between Inspector Douglas and myself. He was with me all along that night up to two o'clock the morning. And I couldn't do anything else but I signed the document."
Mr Sawh did not ask the defendant what had transpired between her and Inspector Douglas or why he had stayed with her until 2 o'clock. Mr Sawh also failed to appreciate that the defendant had tried to complain about the alleged rape at the CID office and at the Police station. Moreover, on this occasion, her evidence and challenge was generally much weaker since it did not contain the same circumstantial details as before.
- Weekes J ruled that the statement was admissible. It was then led in evidence before the jury.
- Superintendent Philbert gave evidence that he went to the defendant's home on 1st February 1989 with a search warrant and that Simon Boodram pointed out something to him which enabled him to recover a bottle. The medical and forensic evidence at the retrial established that the bottle contained Paraquat and that the deceased died of Paraquat poisoning. Uncontroverted and explained the real evidence strongly pointed to the defendant's guilt. At the first trial Simon Boodram's evidence under cross examination (if true) suggested that the police evidence was fabricated.
- By the time of the retrial Simon Boodram was no longer alive. He had died in 1995 before a retrial was ordered. The whole of his evidence could have been placed before to the jury. But Mr Sawh was unaware of this possible way of attacking the police evidence. Not only was Simon Boodram's evidence not placed before the jury, but Mr Sawh did not cross examine Superintendent Philbert on the basis of Simon Boodram's account as it emerged under cross examination at the first trial.
- Devika Persad, the defendant's sister, gave evidence that on 14th January 1989 the defendant told her that she suspected that someone was poisoning her husband and that he had twice come home from work saying that 'the food was tasting bad'. She said that on the same day the defendant confessed that she had killed her husband. The defendant denied telling Devika Persad that she suspected that someone was trying to poison her husband or that she had told Devika Persad that she had killed her husband. The defendant, Sheldon Boodram, and Nancham Chandoo testified that there was a history of ill-feeling between the defendant and Devika Persad.
- Philoman Soobiah, the deceased's manager at work and also his close friend, gave evidence that on the morning of the 20th January 1989, before the defendant's husband had died, the defendant visited him and asked him what her husband's employment entitlements were. She also wanted to know whether he knew what life insurance cover her husband had. Mr Soobiah said that the defendant told him that the doctor caring for the defendant's husband had told her that he was poisoned. He added that the defendant stated that her husband had been poisoned by Paraquat. The defendant was not asked about Mr Soobiah's evidence either in examination in chief or in cross examination. However, it was put to Mr Soobiah in cross-examination that his account was untrue and that the defendant had not visited him on the 20th January 1989. If Mr Swah had seen the record of the first trial he would have noticed that on that occasion she had admitted a meeting but disputed the details of the conversation.
- On Friday 20th February 1998 the appellant was convicted of murder at the retrial and sentenced to death.
VII. The Court of Appeal's decision after the retrial
- On 5 March 1999 the Court of Appeal (de la Bastide CJ, Sharma JA and Hamel-Smith JA), dismissed the defendant's appeal. Three grounds canvassed before the Court of Appeal can be disposed of summarily, namely that the reintroduction of the second statement in the retrial was an abuse of the process; that the judge wrongly admitted hearsay evidence; and that the summing up on intention was defective. Their Lordships are in respectful agreement with the Court of Appeal on these points. But it is necessary to refer to the Court of Appeal judgment on a fourth ground, viz that due to incompetence counsel had failed to take proper and timely instructions, and had thus failed to realise that he was acting in a retrial. Sharma JA stated that it is quite clear "that the written instructions which counsel did take from her fell far short of what was required in a case of this kind". He continued:
"We have no doubt at all that if the appellant's previous counsel had not fallen short in his duty to the appellant he would have before the re-trial commenced, been aware that there had been a previous trial and been armed with a copy of the transcript of evidence given at that first trial. The lapse of time alone between the offence and the second trial ought to have at least alerted him to the possibility that this was not the first trial. In any event, he could hardly have failed to discover this fact if he had taken proper and timely instructions from the appellant. But on his own admission, when the trial began counsel had no knowledge of the previous trial, and only became aware of it in the course of the re-trial. It is clear that this was after the appellant's confessional statement had been admitted and towards the end of the trial. He also appears to have remained throughout unaware of any allegation of rape made by the appellant or of the allegation of subornation made by Simon against the police in the course of his evidence at the first trial. We are satisfied that counsel's ignorance of these matters was the result of a failure on his part to bring to his client's defence the degree of competence and diligence which she was entitled to expect."
Sharma JA then turned to the impact of counsel's failures which he said were the critical and only issue. About the allegation of rape he observed:
"In our view the only inference that can reasonably be drawn is that either the rape did not occur or if it did, it was not linked in any significant way with her signing the second statement later that day." [Emphasis supplied]
Their Lordships point out that the Court of Appeal were not prepared to say that a rape could not have occurred. The Court of Appeal may have had in mind that the judge in the first trial was satisfied (according to his note) that "the statement was involuntarily made". The Court of Appeal was only prepared to rule out a causal connection between the rape (if it took place) and the second statement. Secondly, the Court of Appeal said about the evidence of Simon Boodram that it "might have done more harm than good". In these circumstances, Sharma JA concluded that "counsel's failure to discover that there was an earlier trial and to inform himself of what evidence had been given at it by obtaining a copy of the transcript of the evidence, however regrettable, did not result in a miscarriage of justice".
VIII. Bethel v The State
- Since the judgment of the Court of Appeal in the present case it has qualified its decision in Boodram. In Bethel v The State (Cr. App No. 31 of 1996) a differently constituted Court of Appeal (de la Bastide CJ, Sharma JA and Jones JA) referred to the earlier judgment. On this occasion the judgment was given by the Chief Justice. He observed that "when the conduct of a case forms the ground of appeal, we ought to focus on the impact which the faulty conduct of the case has had on the trial and the verdict rather than attempt to rate counsel's conduct of the case according to some scale of ineptitude". But, speaking in the context of the earlier decision of the Court of Appeal in Boodram, the Chief Justice mentioned a qualification. He said:
"There is, however, one important proviso which we would attach to this approach. It is conceivable that counsel's misconduct may have become so extreme as to result in a denial of due process to his client. In such a case, the question of the impact of counsel's conduct on the result of the case is no longer of any relevance, for whenever a person is convicted without having enjoyed the benefit of due process, there is a miscarriage of justice regardless of his guilt or innocence. In such circumstances the conviction must be quashed. It is not difficult to give hypothetical examples of how such a situation might occur. An obvious example would be if the accused had the misfortune to be represented by counsel whose judgment was proved to have been impaired by senility, drugs or some mental disease. Another example closer to the facts of this case is if counsel conducted the defence without having taken his client's instructions. This is simply another application of the basic principle that if there is a fundamental flaw in the conduct of a trial, the conviction which results from it cannot be allowed in any circumstances to stand."
On the appeal to the Privy Council counsel for the State did not challenge the correctness of this qualification. It will, however, be necessary to return to it.
IX. Order for retrial was wrong in principle
- Counsel for the appellant began his impressive argument by submitting that the order for a retrial was wrong in principle. He pointed out that the order was made 8 years and 2 months after the defendant was charged with the offence. And the retrial began about 9 years after she was first charged. Undoubtedly, this was a very long delay. But the defendant did not appeal against the order. In these circumstances, and taking into account that a lawful retrial did take place, it is not now possible to review the exercise of the discretion by the Court of Appeal when it directed the retrial. On the other hand, their Lordships cannot leave this aspect without expressing unease about the circumstances in which the order was made. The Court of Appeal heard argument on the merits of the appeal. Mr Mohammed, the counsel at the first trial, appeared for the defendant. It seems that no submissions were made on the issue whether a retrial would be appropriate if the appeal was successful. On 30th April 1997 the Court of Appeal delivered judgment. Counsel who had not appeared at the trial appeared on a "holding" brief for the defendant. The Court of Appeal delivered a reasoned judgment quashing the conviction. Hamel-Smith JA then observed: "Given the circumstances of this case, we feel that there should be a retrial at the next Assizes". Counsel for the defendant did not seek to reopen the issue of a retrial. No doubt she was in insufficiently instructed to do so. In the result the Court of Appeal, who in its reasons treated Simon Boodram as an important witness, was unaware that he had died in 1995. This was not a propitious start to the retrial proceedings. Moreover, at the time of the first appeal there was in existence no record of the first trial albeit that the evidence was in note form. There was also available a transcript of the summing up. The Court of Appeal in making the order would have acted on the assumption that the record would be available to counsel at the retrial. Although Mr Mohammed would have had the record for the purposes of the appeal, it was never passed on to Mr Sawh. The explanation may be that Mr Mohammed, and subsequently Mr Ramlal, assumed that counsel appearing at the retrial would either be given a copy of the record or, if not, ask for one.
X. The failure to appeal against the order for a retrial
- Counsel for the defendant submitted, somewhat diffidently, that the defendant's legal advisers, who appeared on the first appeal, were incompetent in not pursuing an appeal against the order for a retrial. It may be the case that they did not investigate the feasibility of such an appeal. Nevertheless their Lordships are not persuaded that this ground of appeal is made out.
XI. The fairness of the proceedings
- The duty rests on the court system to ensure that on a retrial counsel for the defence is provided with the transcript of the first trial, or relevant part of it. That was the approach adopted by the Privy Council in Flowers v The Queen  1WLR 2396, 2415F-G, and their Lordships reaffirm it. But, as a minister of justice, there is a residual duty on the prosecutor to ensure that the transcript, or relevant part of it, is delivered to the defence for the purposes of a retrial. The Privy Council stated this duty in Reid v The Queen[ 1990] AC 363, 390H-391A; compare also Charles v The State  1 WLR 384, 390H-391C. In the case under consideration the transcript was never provided to Mr Sawh.
- Moreover, their Lordships are in agreement with the Court of Appeal that if Mr Sawh had not fallen short in his professional duties he would have been bound to discover that he was engaged on a retrial. And, again in agreement with the Court of Appeal, if Mr Sawh had carried out his duties properly he would have become aware of the allegation of rape and of the allegation of subornation made by Simon Boodram against the police at the first trial.
- On the other hand, their Lordships do not consider that the Court of Appeal was entitled to conclude that counsel's undoubted incompetence or dereliction of duties had no conceivable adverse effect on the trial. The Court of Appeal concentrated on two features, viz Mr Sawh's ignorance of the rape allegation and of Simon Boodram's evidence. Their Lordships will start by examining the reasoning of the Court of Appeal on these two points. First, the rape allegation seems at first glance implausible. On the other hand, it would be a strong thing to say that it could not possibly have been true. After all, the judge at the first trial was satisfied that the second statement was not made voluntarily. It is impossible to say that the judge was not influenced by the rape allegation. Indeed the Court of Appeal does not suggest it. The Court of Appeal simply said that the rape allegation was either untrue or if it was true "it was not linked in any significant way with her signing the second statement later that day".
- Now, if there had been a rape, or an indecent act, it must have taken place after the making of the first statement. And their Lordships respectfully suggest that if it did occur it would not be possible to be satisfied beyond reasonable doubt that it would have had no effect on the voluntariness and reliability of the second statement made on the same day. It would have been a matter for the judge (on the voir dire) or jury to consider. At the retrial the defendant said in evidence "during the course of that night, something transpired between Inspector Douglas and myself". It seems likely or at least possible that she wanted to mention the alleged rape. But Mr Sawh did not ask her to explain her veiled assertion. And their Lordships note that at the first trial Superintendent Philbert repeatedly mentioned Inspector Douglas' involvement in the investigation. At the retrial he appears to have written Inspector Douglas out of the script. But if the rape allegation had been made Inspector Douglas would have had to be called. In these circumstances it is not possible to conclude with certainly that Mr Sawh's failure to obtain instructions on the rape allegation caused no prejudice.
- That brings their Lordships to Simon Boodram's evidence. The Court of Appeal expressed grave doubts about the credibility of Simon Boodram. But that would, of course, have been a matter for the jury. The Court of Appeal also observed that it "is of some significance that the jury which saw and heard Simon give his evidence, found the appellant guilty of murder, even without the benefit of her confessional statement". At the end of the judgment this point is again emphasised. This is, however, not fair to the defendant because the Court of Appeal at the first appeal held that the judge had materially misdirected the jury on the effect of Simon Boodram's evidence, adding that the members of the court "were quite concerned that the appellant may not have received a fair trial". The reasoning of the second Court of Appeal on this aspect was flawed. In any event, where the Court of Appeal observed that placing the transcript of Simon Boodram's evidence before the jury might "have done more harm than good" it was in the realm of pure conjecture. After all, as the first Court of Appeal found, his retraction of his first account was important to the defence. Without Simon Boodram's explanation in cross-examination the real evidence of the poison in the bottle found by the police at the defendant's home stood uncontradicted. Moreover, if there was a reasonable possibility that Simon Boodram's evidence was true, it would have reflected adversely on the entire police investigation. It is not possible to conclude that the failure of Mr Sawh to become aware of Simon Boodram's evidence in cross-examination did not adversely affect the retrial.
- So far their Lordships have considered the potential effect of Mr Sawh's failures solely in the light of the rape allegation and Simon Boodram's evidence. But, if Mr Sawh had obtained the transcript and studied it, the effect on the retrial might have been wider. Mr Sawh would have been able to use the transcript to refresh the defendant's memory on the sequence of events. And it is noteworthy that the defendant's complaints about the events surrounding the taking of the two statements were far more detailed at the first trial than at the retrial. It might have enabled Mr Sawh to challenge the admissibility of the first statement as was done at the first trial. And Mr Sawh might not have argued the case on the basis that the deceased was poisoned on 19th January. Moreover, he would have been entitled to put to the police officers that the judge, after hearing their evidence, ruled that the second statement had been made involuntarily. And Mr Sawh might have approached Mr Soobiah's evidence differently by not denying the meeting but rather the detail of the conversation. On such matters one simply cannot be confident that if Mr Sawh had conducted adequate interviews with the defendant the course of the trial might not have been different.
- It is true that there was also the evidence of the defendant's sister and of Soobiah but this evidence was disputed. And the prosecution case was generally strong. It was nevertheless a case that had to be considered by a jury after a full and fair exploration of the issues and proper directions by the judge. Their Lordships have throughout kept two considerations firmly in mind. First, an appellate tribunal must approach complaints about counsel's incompetence, and its effect, with a healthy scepticism. On the other hand, where it has been demonstrated that counsel's failures were of a fundamental nature the court must proceed with great care before it concludes that, on the hypothesis that the failures did not occur, the verdict of the jury would inevitably have been the same. In all the circumstances of the present case, their Lordships are not satisfied that one can with certainty say that Mr Sawh's failures caused no material prejudice to the defence. It is not possible to say that after a full and proper deployment of the defendant's case a reasonable jury would inevitably have convicted. For this reason alone their Lordships would hold that the conviction must be quashed.
XII. The decision in Bethel
- In any event, their Lordships are of the view that de la Bastide CJ, when he revisited Boodram (the instant case), correctly stated the applicable principles. Where counsel's conduct is called in question the general principle requires the court to focus on the impact of the faulty conduct: R v. Clinton  1 WLR 1181; Sankar v State of Trinidad and Tobago  1 WLR 194. On the other hand, as the Chief Justice observed there may be cases where "counsel's misconduct has become so extreme as to result in a denial of due process to his client". The Chief Justice gave examples including the case where counsel conducted the defence without having taken his client's instructions. Substantively, the Chief Justice explained:
"In such a case, the question of the impact of counsel's conduct on the result of the case is no longer of any relevance, for whenever a person is convicted, without having enjoyed the benefit of due process, there is a miscarriage of justice regardless of his guilt or innocence. In such circumstances the conviction must be quashed. It is not difficult to give hypothetical examples of how such a situation might occur."
Such cases are bound to be rare. But when exceptionally they do occur the conclusion must be that there has not been a fair trial or the appearance of a fair trial. Their Lordships would respectfully endorse the formulation of the Chief Justice.
- In the present case Mr Sawh's multiple failures, and in particular his extraordinary failure when he became aware on 17th February 1998 that he was engaged on a retrial to enquire into what happened at the first trial, reveal either gross incompetence or a cynical dereliction of the most elementary professional duties. Their Lordships do not overlook that the appellant has twice been found guilty by the unanimous verdicts of juries after they had enjoyed the advantage of seeing and hearing her give evidence. Nevertheless it is the worst case of the failure of counsel to carry out his duties in a criminal case that their Lordships have come across. The breaches are of such a fundamental nature that the conclusion must be that the defendant was deprived of due process. Even without embarking on any investigation of the impact of the breaches, the conclusion must be that in this exceptional case the defendant did not have a fair trial. For this reason also the conviction must be quashed.
XIII. Other grounds of appeal
- Except for one point it is unnecessary to mention the other grounds of appeal which were placed before the Privy Council. There was, however, an interesting argument about the correctness of the decision of the Privy Council in Director of Public Prosecutions v Tokai  3 WLR 149 where it was held that the provisions of the Constitution of Trinidad and Tobago do not confer on individuals the right to a trial within a reasonable time. In Tokai the Privy Council made its decision without reference to Trinidad's international obligations to secure to its citizens the right to a trial within a reasonable time: see Articles 9(3) and 14(3)(c) of the International Covenant on Civil and Political Rights and Articles 7(5) and 8(1) of the American Convention of Human Rights. The Privy Council did not consider whether by necessary implication there is a right to a trial within a reasonable time under the Constitution. It is unnecessary to decide this point and, in any event, undesirable to do so in a case where the Privy Council has not had the benefit of the views of the Court of Appeal on this important point. The point will be decided when it is necessary to do so.
- The appeal is allowed and the conviction and sentence quashed. Given that the time which has elapsed since the defendant's first arrest is now more than 13 years, during which she had suffered imprisonment, a retrial would be inappropriate.
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