Benjamin and Ganga v The State
| Jurisdiction | Trinidad & Tobago |
| Judge | R. Narine, JA,I. Archie, CJ,P. Moosai, JA |
| Judgment Date | 28 July 2017 |
| Neutral Citation | TT 2017 CA 40 |
| Date | 28 July 2017 |
| Docket Number | Cr. App Nos. 50 & 51 of 2006 |
| Court | Court of Appeal (Trinidad and Tobago) |
REPUBLIC OF TRINIDAD AND TOBAGO
IN THE COURT OF APPEAL
I. Archie, CJ
R. Narine, JA
P. Moosai, JA
Cr. App Nos. 50 & 51 of 2006
Mr K. Scotland, Mr D. Khan & Mrs A. Watkins-Monsterin for the Appellants
Ms D. Seetahal SC and Mrs K. Waterman-Latchoo for the Respondent
R v. Pendleton [2002] 1 WLR 72 — R v. Walls [2011] EWCA Crim 443 — Pitman and Hernandez v. The State (2006) 68 WIR 372 — Pratt v. Attorney General of Jamaica [1993] 43 WIR 340.
Criminal Appeal - Murder — Fresh evidence admitted — Whether the admittance of fresh evidence rendered a conviction unsafe — Appellants' mental disorders — Death penalty — Appellants' fitness to plead — Whether the degree of the appellants' mental impairment rendered the conviction unsafe — Analysis of the expert evidence — Confessions — Admissibility of confession — Delay — Appropriate sentence.
On 4 December 2006 following a jury trial before Lalla J, Deenish Benjamin (Benjamin) and Deochan Ganga (Ganga) were convicted of the murder of Sunil Ganga (Sunil), which occurred on 12 July 2003. The judge imposed the mandatory death sentence on both convicted men. Both appellants appealed against conviction some eighteen months later; on 3 July 2008 the Court of Appeal dismissed their appeals against conviction in consequence whereof both sentences were affirmed.
Thereafter, their appeals to the Privy Council against both conviction and sentence were determined on 13 March 2012, some forty-four months later. Their Lordships remitted the appeals to the Court of Appeal to determine:
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1. The safety of the convictions for murder in light of the fresh medical evidence of Dr Richard Latham (“Dr Latham”) and Dr Tim Green (“Dr Green”), a Consultant in forensic psychiatry and a Chartered Clinical Psychologist respectively, together with any rebutting evidence the Court of Appeal may decide to admit. Furthermore, without limiting the issues arising for consideration on the fresh evidence, their Lordships were of the view that the evidence of the two experts, as it currently stands, would appear to warrant consideration specific to:
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i. Fitness to plead;
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ii. The reliability of the appellants' confessions;
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iii. The availability of a defence of diminished responsibility.
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2. Whether a sentence of death, if passed upon a person who is mentally impaired, would constitute cruel and unusual punishment whether as contrary to a constitutional provision or in breach of a common law rule.
Having considered the issues and in the light of the fresh evidence before us as to the degree of mental impairment of the appellants, we are of the view that the convictions are safe. Accordingly, the appeals against the convictions are dismissed. With respect to the issue of sentencing, we are bound by the decision in Matthew v The State, 1 which held the death sentence to be both lawful and mandatory. However, since the appellants have remained in custody under sentence of death for a period in excess of five years, without the delay being attributable to any frivolous or time-wasting resort to legal proceedings such as would amount to an abuse of process, the decision in Pratt v Attorney General of Jamaica, 2 would preclude the imposition of the death penalty.
The following summary is taken mainly from the judgments of both the Court of Appeal and the Privy Council.
Benjamin and Ganga are related to the deceased Sunil, being the step-cousin and cousin respectively. Sunil lived at Penal with his wife Roseanne George (Roseanne) and child. Benjamin and Ganga lived next door.
Roseanne testified that she and her husband had returned home at about 10:30 pm on 12 July 2003. She was in the bedroom while Sunil was in a shed to the side of the house relaxing. She heard a bottle break and Sunil cry out, “Deenish boy, what you doing meh?” and then, “Roseanne, run.”
Through creases in the front door, Roseanne saw and recognized the appellants, as she had known and regularly seen them for the past seven years. Both appellants were striking Sunil. They pulled him to the back of the shed. She heard loud sounds including groaning. She observed that the galvanized structure was shaking and after that, she heard footsteps.
She said after about an hour, the groaning and footsteps ceased. She came out of the house calling out to Sunil, but received no response. She then went to the back of the shed where she found Sunil hanging from a rope which had been tied to a rafter in the shed.
It was not until about 4:30 am, some five hours later that Roseanne went to the nearby home of her father-in-law, Chandrebooj Ganga, to tell him that she saw Sunil hanging in the shed. There is a dispute between them as to what she told him. He testified that she said, “Pappy, Sunil hang himself.” Roseanne contended that she said to him that she saw Sunil hanging. There is no dispute however, that at the time she told him she saw Sunil hanging, she made no mention of the appellants' presence at the scene where Sunil died. Chandrebooj then accompanied Roseanne to her home where he found Sunil hanging from the rope.
The police were summoned and Sgt Flanders and other police officers arrived later around 7:00 am. Sgt Flanders observed stains resembling blood on Sunil's face and on the wall. He also noticed that there was a broken bottle on the floor. Sunil's feet at that time were touching the ground.
Sgt Flanders interviewed Roseanne shortly after arriving at the crime scene. At that time she did not tell him about the appellants. However, she recounted to him that on reaching home around 11:00 pm on the night of 12 July 2003, she left Sunil in the shed and went to bed, as he had told her he was “breezing out.” When she got up around 4:30 am and did not see Sunil in bed, she went outside and saw him hanging in the shed. This account differed significantly from her evidence at trial, which was outlined at paragraphs 7 and 8 above. In the latter account, she had noted bawling, groaning and footsteps, and had even gone outside after the groaning and footsteps had ceased, calling out to Sunil. Getting no response, she had gone to the back of the shed where she saw him hanging. She had not suggested in the latter account that she had gone to bed at any time between her return to the house at 10:30 pm and the discovery of Sunil's body.
On the afternoon of 13 July 2003, Sgt Flanders recorded a statement from Roseanne. In that statement, she named the two appellants and reported what they had done to Sunil. As a result, both appellants were arrested that same afternoon.
Inspector Phillip interviewed Ganga later that evening in Sgt Flanders' presence. The prosecutor claimed that Ganga was cautioned and told of his rights. Ganga then stated, “I was dey, but is Deenish who hit Sunil.” Between 8:17 pm and 9:30 pm, Ganga gave a written statement in the presence of a Justice of the Peace (“JP”). Ganga signed the statement.
In that statement, Ganga stated that he had been involved in a fight with Sunil some two weeks prior to the matter. On the night of Sunil's death, he and Benjamin had gone to Sunil's home. Sunil had thrown a bottle at Benjamin, who threw the bottle back at Sunil. The bottle struck Sunil, who collapsed on impact, telling Roseanne to run as he did. Benjamin then dragged Sunil to the back by the shed, where he placed a piece of rope around his neck and then around a rafter. Ganga helped to lift Sunil up. Benjamin then began to hit Sunil at which point he (Ganga) left.
Around 10:40 pm that night, Inspector Phillip interviewed Benjamin. After being cautioned and told of his rights, Benjamin said, “I only help hang up Sunil.” He also gave a written statement in the presence of a JP.
In that statement, Benjamin said that upon Ganga's suggestion, they both went to Sunil's house. After they had observed Roseanne go inside, Ganga “locked” Sunil's neck and he then did the same. Ganga struck Sunil on his head and placed a rope around his neck. Ganga then dragged Sunil to the back of the house and he helped hang Sunil.
On 14 July 2003 both appellants were charged for the murder of the deceased, Sunil.
At trial, the judge conducted a voir dire to determine the admissibility of the appellants' respective oral and written statements.
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1. Benjamin's attorneys provided comprehensive grounds of challenge. They were essentially:
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i. Upon being told to sign the statement of 13 July 2003 which he never dictated, he informed the police that he could neither read nor write. Thereafter, he was beaten and forced to sign the statement;
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ii. He was deprived of any meals before the taking of the statement;
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iii. He was not informed that he could have an Attorney at Law, a friend or relative present;
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iv. A JP was not present when he signed the statement.
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2. Ganga's attorney's essential grounds of challenge were as follows:
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i. He was not told that he had a right to speak to a lawyer, friend or relative;
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ii. He was also beaten and forced to sign the statement of 13 July 2003 which he never dictated;
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iii. He was burnt on his left ear with a cigarette lighter flame to get him to sign the statement;
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iv. He was told that his parents were detained at the police station and would only be released if he signed the statement;
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v. A JP was not present when he signed the statement.
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The material prosecution witnesses, including Sgt Flanders, Inspector Phillip and both JP Maharaj and JP Baptiste, testified on the voir dire. The prosecution denied the use of force or the existence of any improper circumstances when the respective statements were being obtained.
Both appellants testified on the voir dire in keeping with their respective grounds of challenge...
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