LAW REPORT : Counsel badly advised client

Sankar v State of Trinidad and Tobago. Privy Council (Lord Browne-Wilkinson, Lord Bridge of Harwich, Lord Slynn of Hadley, Lord Woolf and Lord Nicholls of Birkenhead). 16 December 1994.

A defendant's conviction could be quashed by reason of his counsel's conduct of the trial where it resulted in the defendant declining to give evidence or make a statement from the dock, in a case where his prospects of acquittal depended on refuting theevidence of prosecution witnesses, without first being advised or told of the options available to him.

The Privy Council allowed an appeal by the defendant, Lawrence Pat Sankar, against the dismissal by the Court of Appeal of Trinidad and Tobago, on 12 October 1990, of his appeal against a conviction for murder.

Edward Fitzgerald and Phillippa Kaufmann (Simons Muirhead & Burton) for the defendant; Peter Knox (Charles Russell) for the state.

LORD WOOLF said it was alleged that the behaviour of his advocate, Israel B Khan, at his trial deprived the defendant of the opportunity to give evidence in a case where this was essential if he was to have any chance of avoiding conviction.

The prosecution was based on the evidence of three eye-witnesses, who claimed to have seen the defendant stabbing the deceased with a knife. Their account was only consistent with the defendant having made an unprovoked attack. The defendant did not giveevidence. In his closing address, his advocate made it clear he was doing no more than putting the prosecution to proof.

The decision not to give evidence was of the greatest importance since, if the defendant was going to have any prospect of avoiding conviction, it depended on his giving evidence which conflicted with that of the three eye-witnesses.

In fresh affidavit evidence admitted by their Lordships, the defendant said Mr Khan had initially told him he would be giving evidence, but during the trial Mr Khan had come over to the dock and told him he was not sending him into the witness box because of the way the trial had gone. The defendant wanted to give evidence that he and the deceased had been in a struggle when the deceased was wounded with the knife he had drawn. But he thought it would look bad to argue with his lawyer in front of the jury so he told the court he had been advised by his lawyer to stay silent.

Mr Khan in his affidavit said he had conducted the case, in accordance with his instructions, along the lines of self-defence, provocation and accident; that he had indicated to the defendant the pros and cons of giving evidence from the witness stand ormaking an unsworn statement from the dock, and that the defendant had opted to make an unsworn statement. During the trial, however, the defendant had told him something which took him by surprise. As a result of it, he felt duty bound to advise him to remain silent.

The defendant was, even on Mr Khan's account, placed in a position as a result of which he did not give evidence or make a statement from the dock, without having received advice or being given any explanation as to the alternative courses open to him.

Their Lordships did not know what the defendant told Mr Khan, but whatever he was told, he was under a duty to investigate the matter fully with the defendant and explain the options open to him. He should, if necessary, have sought an adjournment for this purpose. He did not fulfil the duties he owed his client by giving whispered advice during the trial.

The state accepted there had been a miscarriage of justice.

The defendant was in reality deprived of the chance to make an informed decision on whether or not to give evidence or at least make a statement from the dock. It was not explained to him how important his evidence would be to the outcome of the trial, and that, without it, there was in practice no defence.

Paul Magrath, Barrister.