Krishna v The State (Trinidad and Tobago)

On the evening of 26 May 1984 Mycee Jagmohan was shot dead at her home in La Fortune, Woodland during the course of an attempted burglary. On 12 January 1988 the appellant was convicted of her murder at a trial conducted in the High Court of Justice by Douglin J and a jury. He was sentenced to death, but his sentence was later commuted to one of life imprisonment. A co-accused Fazal Hosein ("Hosein") was acquitted, and a third man Krishandeth Bissoon ("Bissoon") who had accompanied them to the victim's house was the principal witness for the prosecution. On 5 October 1995 the Court of Appeal of Trinidad and Tobago (Sharma, Gopeesingh and Hosein JJA) dismissed the appellant's application for leave to appeal against conviction. He now appeals to the Board by special leave as a poor person granted on 23 June 2010.

Four issues arise for decision on this appeal:

(1) Whether the way in which the judge told the jury about the reasons why he had admitted an alleged confession statement following a voire dire amounted to a material irregularity;

(2) Whether the judge failed to direct the jury properly as to the status of Bissoon as an accomplice;

(3) Whether the failure by the judge to direct the jury as to the effect of the appellant's good character was a material irregularity;

(4) Whether in all the circumstances it would be appropriate to apply the proviso contained in section 44(1) of the Supreme Court of Judicature Act on the basis that the jury would have inevitably convicted the appellant even if the irregularities had not occurred.

It was common ground that the outcome of the appeal largely centred on the cogency or otherwise of the first two grounds.

It has not been possible to obtain a copy of the judgment of the Court of Appeal, if indeed they ever delivered a reasoned judgment. The Record contains a transcript of the proceedings in that court on 4 and 5 October 1995, at the end of which Sharma JA said that the application for leave was refused and the conviction and sentence affirmed and that "we will give our reasons a little later, but shortly." It is clear from the transcript, however, that it was not in issue before that court that the trial judge should have given an "accomplice direction" but that the court was willing to apply the proviso when upholding the conviction. Different counsel were instructed to appear for the appellant on that appeal, and it has not now been possible to contact counsel who appeared for him at the trial. Indeed, it seems likely that he is now dead. As to the other issues, the Court of Appeal does not appear to have been impressed with the first, and the "good character" issue was not raised before that court at all.

The first issue: the judge's references to his ruling on the voire dire

The first ground of appeal arose in this way. At the…

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