BARBADOS.            

 

[Unreported]

 

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL

 

 

Criminal Appeal No. 18 of 1998

 

BETWEEN: 

 

IAN McCLAREN GILL

 

(Appellant)

 

AND

 

THE QUEEN

 

(Respondent)

         

Before:  The Hon. Sir David Simmons K.A., B.C.H., Chief Justice, the Hon. Colin Williams, Justice of Appeal, and the Hon. Elliott Belgrave, C.H.B., Justice of Appeal (ag.)

 

2002: October 25 and 30

2003: January 30

 

Mr. Andrew Pilgrim in association with Mr. Marlon Gordon and Mr. K. Boyce for the Appellant.

Mr. D. Saddler for the Respondent.

 

JUDGMENT

 

SIMMONS CJ:  On March 13, 1998, the appellant was convicted of the rape of a woman (the virtual complainant) and sentenced to 10 years’ imprisonment.  The offence was allegedly committed between June 26 and 27, 1996.  He appeals against his conviction. [1]

The Evidence of the Virtual Complainant

 [2]       The prosecution case was primarily built upon the evidence of the virtual complainant and the police witnesses. The virtual complainant testified that on the evening of June 26, 1996, she caught the 11.00 p.m. bus from Speightstown to Rock Hall, St. Thomas.  She was returning from visiting her boyfriend in Speightstown.  She lived at Blowers, St. James, not very far from the St. Thomas parish church and she was carrying a parcel.

[3]        She got off the bus near the Lawrence Johnson roundabout by the parish church.  She intended walking home as no one was meeting her.  While walking North towards Blowers, a minibus passed her also going North but, because she was walking on the opposite side of the road, she missed the minibus.

[4]        The road towards Blowers was dark and a car soon came along travelling in a northerly direction.  She “flagged it down” and it stopped.  She opened the left front door and said “goodnight” to the driver who did not reply.  However, she told him that she lived just past Portvale Sugar Factory and the driver said “OK.”  She sat in the front passenger seat.  Her further evidence is that she neither knew the driver of the car nor its registration number.  After they drove away, she soon saw her house and she pointed it out to the driver.[2]  The driver started to slow down but, as she held the door to open it, he sped off.

[5]        He drove her past her home to the junction of Morgan and Orange Hill where he eventually stopped in a nearby cart road.  He then put the seat in a lying position, came over her, asked her whether she was a virgin, took off her skirt and panties and eventually penetrated her.  To none of this did she consent.  She was crying and shouting but the driver told her to keep quiet.  She said that the man had intercourse with her for about 10 minutes and while he was on top of her she tried to look in his face “to identify the person.”  Since they were face to face, she managed to get a look at him.

[6]        When asked to reverse positions, she refused at first but then pretended to be about to change positions.  During this manoeuvre, she reached for her parcel and threw it through the window of the car.  The driver held one of her hands when she tried to stand up in the car and she told him that she wished to “pass water now.”  He let go of her hand and, pretending that she was going on top of him, she made her escape.

 [7]       This is how she did it.  She dived through the window of the car, head first, and fell into some adjacent young canes.  She ran about halfway into the field. [3]

 [8]       She heard the car drive away and, after it left the scene, she went in search of her parcel and found it.  The virtual complainant was observant.  She made a mental note that one of the doors of the car had no paneling on the passenger’s side.  She left the scene and made her way to Highway 2A.  Soon she saw the light of a vehicle heading South and she went to the middle of the road and “flagged it down.”  The vehicle stopped.  It was a police car.  She told the officers that she had just been raped and they took her to Holetown Police Station.

[9]        The virtual complainant’s evidence of identification was that she was as close as 10 inches to her assailant; there was light in the area where the rape took place because of the reflection from the lights of Portvale Sugar Factory.  She estimated that she saw her attacker’s face for about 20 minutes.  He wore no mask.  She gave the police a description of the man. 

P.C. Holman Smith supported the evidence of the virtual complainant to the effect that at 11.40 p.m. on June 26, 1996, he was in the police car on Highway 2A and observed her running into the middle of the road and hailing the car to stop.  He said she told the officers: “Help me, I just get raped.” [4]

 

Other civilian evidence

[10]      That night, there were two other civilians near to the parish church.  They gave evidence of facts surrounding the incident. Benjamin Benskin was a 17 year old schoolboy.  He travelled in the 11.00 p.m. bus from Bridgetown to Rock Hall.  He recognised the virtual complainant as a fellow passenger.  They both got off the bus by the parish church.  He went right towards Rock Hall Village whereas she went left towards Blowers.  He saw the minibus about which she testified heading towards Blowers.  Importantly, Benskin also observed a car going in the same direction as the virtual complainant and he saw it stop.  He said, “I took a glance back and noticed that (the virtual complainant) had gone.”  He saw the car move off and go north towards Blowers.  He was not cross-examined.

[11]      The other civilian in the area on the night of June 26, 1996, was Sylvan Headley.  About 11.15 p.m. he saw Benskin and a female pass him.  He did not know the name of the female but he knew her mother and where she lived.  He saw the bus.  He was standing near the Barbados Light and Power Plant opposite to the parish church and he saw a car come slowly by the parish church and go towards the north.  He observed that the right front door of the car looked as though it was painted red and he saw this from the reflection of the [5] lights at the Power Plant.  Headley told the court that the female was walking; the car stopped before it got to her and she walked to the car to its right hand side at first and then she went round to the passenger’s side.  About half an hour later, Headley said that the car passed again, this time going towards Rock Hall Village.  When shown photographs of the car, Headley confirmed that it was indeed the car which he had seen on the night of June 26, 1996.

The Police Evidence

12]       The police evidence in support of the prosecution case centered around Inspector Leonard Broome, Sgt. 579 Jordan, , S/Sgt. Elphene Moore  (then Cumberbatch) and Sgt.Levere Alleyne.

[13]      Inspector Broome was at the Esso Auto Mart in St. James on July 13, 1996.  While there he saw a white Lada motor car, registration number MU 323.  The door on the driver’s side was painted red.  He identified himself to the driver (the appellant) and asked him if he was the owner.  The driver told him that he was not the owner; he only drove the car sometimes.  Inspector Broome said he told the driver that the car fitted the description of one in which the virtual complainant had said that she had been raped on June 26, 1996.  Inspector Broome said he then invited the driver to accompany him [6] to Holetown Police Station where further investigations would be carried out and the driver agreed.

[14]      Shortly after Sgt. Jordan and two constables (Dawson and Catlin) came to the Auto Mart.  Inspector Broome spoke to Jordan and to the appellant and Sgt. Jordan and the two constables took the appellant to Holetown Police Station.

[15]      Sgt. Jordan said that he saw the appellant in the car, MU 323, at the Auto Mart on July 13, 1996 and told him that he was wanted for questioning in connection with a criminal matter.  He asked him to accompany him to the Holetown Police Station and the appellant went voluntarily.   P.C. Catlin drove the car MU 323 back to the station.

[16]      On arrival at the station, Sgt. Jordan spoke with S/Sgt. Elphene Moore, gave her the keys to the Lada and spoke to her about the appellant.  S/Sgt Moore took a written statement from the appellant which she said was taken in accordance with the Judges’ Rules.  Before taking the statement the appellant was told of his right to an attorney-at-law but S/Sgt. Moore said that he said, “Ma’am, I don’t want no lawyer now; I going to get one when I go to Court.”  We shall return to S/Sgt Moore’s evidence in more detail upon our consideration of the grounds of appeal. [7]

[17]      The written statement of the appellant was taken at 10.05 p.m. on July 13, 1996 and completed at 10.20 p.m.  It was a total confession to the rape.  It was as follows:

                          “Statement of Ian McClaren Gill, residing at Welchman Hall, St. Thomas and at  Newcastle St. John.  Age 31 years.  Occupation: Mechanic. Taken at: Holetown police station: Date 13^th July, 1996. Time started: 10.05 hrs. Time concluded: 10.20 hrs. By Woman Sergeant 776 Cumberbatch.

 

                          I, Ian Gill, wish to make a statement.  I want someone to write down what I say.  I have been told I need not say anything unless I wish to do so and whatever I say will be given in evidence.

 

                          SIGNED: I. GILL

 

                          “I can’t recall de exact time but I think it did last month.  One night I did in St. Thomas.  I stop by St. Thomas Parish Church; de bus come up.  After de bus pass I move.  Just before I get to de bridge I see a girl pon the left side.  She thumb me down; I stop de car, she get in and say that she want a drop.  She tell me to put she off down the road.  I drive pass de houses in de area.  She ask me if I gine cah she way.  I tell she no.  She tell me put she out.  I tell she that I aint going to hurt she.  I drive de car down by Lancaster Bridge and turned left.  I stop de car and reverse into a cart road pon de left not far in.  I tell she tek off she clothes.  She would not do it so I tek off she skirt – it did a jeans skirt.  She start to fret up.  I tell she if she scream that I gon shoot she.  She ask me if she let me do it if I would still hurt she.  I start to have sex wid she.  She did twisting bout; she try to get up; I push she down.  I was doing it in de passenger seat.  I push down the seat.  She start talking to me real good. We did dey a while.  My penis keep coming out a lot cause she keep shifting bout.  She tell me let she get on top.  I shift to let she get on top.  While we did shifting she say that she want to pass water.  As we shift she jump through de window pon de  [8] driver’s side and ran up de road.  I start de car and drive down the same road.

                         

                          SIGNED:  Ian Gill.

 

                          I have read the above statement and have been told I can correct, alter or add anything I wish.  The statement is true; I have made it of my own free will.

 

                          SIGNED: I. Gill; Elphene Cumberbatch, Station Sergeant 776; Desmond Catlin Constable 959”.

 

Both S/Sgt. Moore and P.C. Catlin said that the appellant made an oral statement, “Ma’am I allowed my desires to override my commonsense.”

Evidence of the identification parade

 [18]     A ground of appeal contests the integrity of the identification parade.  We therefore think it appropriate to set out the main features of the evidence concerning the parade.

Sgt. Levere Alleyne was at Holetown Police Station on the evening of July 13, 1996.  His evidence was that he saw the appellant there, told him he was suspected of raping the virtual complainant and that he intended to hold an identification parade to give the virtual complainant an opportunity to see if she could identify her assailant.  Sgt. Alleyne says that he explained the nature of an identification parade to the appellant who agreed to it.  Sgt. Alleyne says that at 6.35 p.m. on July 13, 1996 he put the appellant in a line up with 8  [9] other men of similar build, height, colour and appearance and the appellant chose to stand at position No. 2 from the right hand side.

[19]      At 6.45 p.m. the virtual complainant entered the room where the men were lined up, looked at them and went back outside.  She seemed scared and hysterical.  She went back into the room but, before going back into the room, Sgt. Alleyne said that he spoke to her.  He gave the following account:

“I reminded her of the report she had made to the police.  I also told her that the person that raped her may or may not be in the said room but, if she sees the person, she could identify him by touching him or pointing him out.  She appeared more composed now.  She identified the accused in the parade and said ‘that one there,’ pointing to the accused man.  I have that at page 43 of my notebook.”

 

At page 69 of the record Sgt. Alleyne says that he asked the appellant if he had heard what the virtual complainant had said and he said “I hear she.”

[20]      Sgt Alleyne then said that he asked the appellant if he was satisfied with the parade and he said “yes”.  Under a very short cross-examination, Sgt. Alleyne said that he was sure about the virtual complainant’s “running in and out.  [She] approached the men after she came to the room and pointed to the accused.”  His evidence was not further challenged. [10]

[21]      The virtual complainant herself said that she did tell Sgt. Alleyne that that was “the man there.”  She identified the car at Holetown police station in the presence of the appellant, and she said that everything in the car was the same – the missing panel on the left front door.  And she said, in answer to Mr. Pilgrim, that she was able to tell the police that one door of the car was painted in a different colour from the others.  She said it was maroon “which you see when cars are getting bodywork done.”

The Defence Case

[22]      The case for the defence at the trial was founded upon two allegations.  First, on the voir dire, and in his sworn evidence before the jury, the appellant alleged that when Sgt. Jordan, P.C. Catlin and P.C. Dawson came to the Auto Mart, they just jumped out of the police vehicle, grabbed him and pushed him into the vehicle.  They did not identify themselves.  At the station he said he was subjected to the most severe brutality by the police.  He alleged that they handcuffed him, badgered him with questions, kicked him off a chair, cuffed him in his stomach, slapped him about his ears, kicked him on the floor, put a white plastic bag over his head and beat him generally.  He said that the police dragged him all over the floor. Worse yet. The appellant said that Sgt. Moore held his penis in her [11] hands, said “let me see the dickey that giving so much trouble,” and then proceeded to prick it with something “like a pin or needle.  She kept sticking me on the head of my penis.”  

[23]      He said he was given a warm bath and put in a cell.  Then he was brought out and beaten again.  Some time in the morning of July 13, 1996, he was made to write his name “on a white foolscap paper at various points by Sgt. Cumberbatch who held these papers over a desk.  He then said he signed his name at the bottom.  His evidence at p. 116 is interesting:                 

“The paper was put over them but I could only see the bottom and I signed my name on it while being beaten.  Every time I paused I was given a cuff or a slap”. 

 

[24]      The appellant claimed to have been denied access to his family and his lawyer.  When he did eventually see a lawyer, Mr. Pilgrim, he had already signed the statement.  He said that he was not allowed to see a doctor while in police custody over the weekend.  He only saw a doctor on the following Monday. 

[25]      Secondly, the appellant alleged an alibi.  He said that on the night of the rape, he had been home in Welchman Hall nursing a condition of “arc eyes.”  He was so afflicted that he could not go to work that night and he did not leave home that night.  He denied giving the [12] written statement to the police. He asked the jury to believe that all the officers who gave evidence “are downright liars.”

[26]      So his case was that his constitutional rights had been breached, the written statement was involuntary and, in any event, he had an alibi. 

[27]      The appellant called witnesses.  Dr. Clarke recalled seeing him on Monday of July 15, 1996, about 2 hours after he was released from custody.  He found a circumferential swelling on both wrists consistent with the wrists being held by handcuffs.  There were no significant findings on the penis, no evidence of swelling in the epigastrium although the appellant complained of pain in that area.  He found no evidence of police boots having been used on the appellant.  However, he found ketones and blood in the appellant’s urine.  He attributed the ketones to a lack of food for in excess of 3 hours and the presence of blood could have been for various reasons.  Dr. Clarke did not find any generalized soft tissue injury to the body.

 [28]     The appellant also called his brother, his father and his wife.  They supported the allegations that he had been unable to see a lawyer.  None of them saw any brutality.  The wife supported the appellant’s alibi.  She said he was with her for the whole of the night of June 26, 1996.[13]

The Grounds of Appeal

            There are 6 grounds of appeal.

Ground 1

[29]      On this ground it was contended that the trial judge erred in law in admitting the evidence of the confession contained in the written statement because it was not established beyond reasonable doubt that the confession was voluntary.

[30]      During the evidence in chief of S/Sgt. Elphene Moore, Counsel for the appellant, Mr. Pilgrim, objected in the presence of the jury to the statement “on the basis that the statement was recorded in oppressive circumstances” and he requested that inquiries into those circumstances he held in the absence of the jury.  Strict compliance with the procedure recommended in Ajodha v The State [1982] AC 204 was not followed.  Thus, Counsel did not notify prosecuting Counsel early that an objection to the admissibility of the statement was to be raised before he actually raised it.  He suddenly objected and explained its nature in the presence and hearing of the jury.  This was contrary to the advice of Lord Bridge in Ajodha at p. 223.  However, after the defence objected to the admissibility of the written statement, Waterman J. conducted a voir dire during which the appellant gave in graphic detail the full evidence of the alleged [14] police brutality which we have summarized at paragraph [22] hereof.  But the medical evidence of Dr. Clarke was not led on the voir dire so that the court was denied, at that stage, the benefit of that evidence in its consideration of the issue.  All of the police witnesses denied the alleged brutality.

[31]      The issue which confronted Waterman J was one of fact.  It was not denied that the police had handcuffed the appellant.  That fact more than likely accounted for the swelling on the wrists and this was readily conceded by S/Sgt Moore.  The appellant’s evidence, if it was to be believed, suggested that he was beaten within an inch of his life and he suffered severe trauma to his penis.

[32]      The trial judge saw and heard the witnesses.  Were all the terrible actions attributed to the police deliberately exaggerated untruths?  It was a judgment which he had to make. As regards the written statement itself, the way the evidence came across to us was that the appellant had been forced to sign “a white foolscap paper at various points” and every time he paused he was beaten before signing.  In fact he said that he signed it while being beaten. – (see paragraph [23]).  We have ourselves examined the written statement.  It was recorded on an official statement form of the Royal Barbados Police Force and was signed quite legibly in 4 places.  The signatures do [15] not appear to have been scrawls consistent with being signed as a result of or during physical force.  The signatures are consistent and uniform.

[33]      During the argument Mr. Pilgrim also submitted that, after Dr. Clarke had been called by the defence and the judge heard his evidence he should, at that stage, have withdrawn the statement from the jury’s consideration.  No such argument was raised at the trial.  No fresh application was made by Counsel for the judge to reconsider his ruling on the voir dire after Dr. Clarke had given his evidence. 

[34]      Dr. Clarke was examined and cross-examined at length and, again, it was for the trial judge to assess the medical evidence in the light of the accused man’s allegations.  The only tangible and visible evidence of injury was the swelling on the wrists where the appellant had been wearing the handcuffs.  The appellant had complained of ringing in his ears, pain in the epigastrium, pricks on his penis and beatings about the body.  Yet there was no evidence of bruising, or swelling.  According to the doctor, none of the bony structures was injured.  The trial judge may well have concluded that it was not plausible that the appellant was brutalised in the way [16] that he had alleged.  He may have been sceptical of the evidence of extreme brutality.

[35]      R v Watson [1989] 1 WLR 991 is an authority dealing with a situation where further evidence emerges in a trial which Counsel for a defendant regards as inconsistent with that given in a trial within a trial.  In that case Counsel, being of the view that the new evidence of a police officer was inconsistent with his evidence in the voir dire and may have strengthened the defence case that written statements were involuntary, specificially requested the trial judge to reconsider his ruling given at the end of the voir dire and to rule that the disputed statements were now inadmissible.  The trial judge refused.  The Court of Appeal held that he was wrong.

            Cumming-Bruce LJ said at p.994:

            “It is the duty of the judge to exclude from the jury’s consideration evidence which is inadmissible.  In the case of a written statement, made or signed by the accused, the judge must be satisfied that the prosecution have proved that the contested statement was voluntary, before allowing the jury to act upon it.  Experience has shown that where the question of the voluntary character of the statement has been investigated and decided at a trial within a trial, it is only in very rare and unusual cases that further evidence later emerges which may cause the judge to reconsider the question whether he is still satisfied that the statement was voluntary and admissible.  But where there is such further evidence, the judge has power to consider the relevance of the admissibility of evidence upon which he had already ruled.”[17]

 

[36]      Of course a trial judge always has an overriding duty to exclude evidence which may be unfair or prejudicial to an accused.  That is part of his continuing responsibility to ensure that an accused is given a fair trial.  A judge retains control over the evidence to be submitted to the jury throughout the trial.  In a situation such as is contended for in this appeal, if, having admitted the confession as voluntary on the basis of the evidence given on the voir dire, the judge concludes, in the light of subsequent evidence that the confession was not voluntary, he may direct the jury to disregard it or, where there is no other sufficient evidence against the accused, he may direct an acquittal.

[37]      But, in this appeal, the crucial and distinguishing point is that no application was made for a review of the ruling after the trial within a trial in the light of further evidence as was the case in Watson.  Secondly, even allowing for the fact that the trial judge may have been minded to reconsider the ruling after hearing the medical evidence, it has not been satisfactorily made out to us that the medical evidence was of such a nature and quality as to have been consistent with the nature and degree of the appellant’s allegations of extreme brutality.  The trial judge may well have concluded that the medical evidence did not support the appellant’s allegations.  It [18] was again a judgment for him to exercise. He may well have concluded that the evidence did not support the allegations.   It was all a question of fact as to whether the appellant was subjected to brutality of the quality and quantity alleged.  In each case it is a question of degree and the trial judge has to determine, paying due regard to all of the circumstances, whether the confessional statement has been obtained under conditions which render it unjust to allow an accused’s own words to be used in evidence against him.  In the circumstances we are not satisfied that the appellant has demonstrated that the trial judge’s discretionary powers were wrongly exercised.

            This ground of appeal fails.

Ground 2

[38]      The second attack on the admissibility of the confession is in ground 2.  Here it is submitted that the trial judge was in error in admitting the written confessional statement because, it is submitted, “the evidence revealed that the appellant’s attorney-at-law was excluded from consultation with his client “without delay.” [19]

 

[39]      This ground thus alleges that the appellant’s constitutional rights had been contravened.  The relevant provision of the Constitution is section 13(2).  It provides:

“(2) Any person who is arrested or detained shall be informed as soon as reasonably practicable, in a language that he understands, of the reason for his arrest or detention or shall be permitted, at his own expense, to retain and instruct without delay a legal adviser of his own choice, being a person entitled to practise in Barbados as an attorney-at-law, and to hold private communication with him….”

 

[40]      This subsection applies whether a person is detained or arrested.  The Constitution gives a right to a person in such circumstances (a) to be informed as soon as reasonably practicable in a language that he understands of the reason for detention or arrest, (b) to be allowed to retain and instruct a legal adviser without delay and (c) to be allowed to hold private communication with the said legal adviser.

[41]      Difficulties in the application of the subsection will arise because a court has to determine in a given case whether the right to be informed of the reason for arrest or detention was fulfilled “as soon as reasonably practicable” and whether the right to retain and instruct an attorney-at-law was afforded “without delay.”  These are matters of fact and in every case the particular facts will be of [20] crucial importance in determining whether the rights were contravened.

[42]      We start, however, with a review of the case law to determine the applicable legal principles.  Mr. Pilgrim submits correctly that a person detained or arrested must be informed of his right to be allowed to retain and instruct an attorney-at-law at an early stage and “certainly before any in-custody interrogation takes place.”  That submission is supported by the leading Privy Council authority Attorney General v. Whiteman (1991) 39 W.I.R. 397.

[43]      Lord Keith who delivered the opinion of the Board said at p.412:

“The language of the Constitution falls to be construed not in a narrow and legalistic way, but broadly and purposively, so as to give effect to its spirit and this is particularly true of those provisions which are concerned with the protection of human rights.  In this case the right conferred by section 5(2)(c)(ii) (of the Constitution of Trinidad and Tobago) upon a person who has been arrested or detained, namely the right to communicate with a legal adviser, is capable in some situations of being of little value if the person is not informed of the right.  Many persons might be quite ignorant that they had this constitution right or, if they knew, might in the circumstances of their arrest be too confused to bring it to mind.”

 

[44]      The Privy Council endorsed the opinion of Davis JA in the Court of Appeal of Trinidad and Tobago where the learned Justice of Appeal, while not laying down a general rule as to the point of time when a  [21] person in custody ought to be informed of his right to consult an attorney-at-law, nevertheless recommended that such a person should be informed “as early as possible, and in any event before any in-custody interrogation takes place.”

[45]      The Court of Appeal of Barbados has followed the advice of the Privy Council in Whiteman.  Sir Denys Williams CJ accepted and restated the principle of Whiteman in Mark Chow v. R. (Criminal Appeal No.78 of 1994 decided on June 30, 1998), Athelston Chase v. R. (Barbados Constitutional Cases p.327) and Edilberto Coronell and Jimmy Nagles v. R. (Criminal Appeal Nos. 6 & 7 of 1995 decided on July 21, 2000).

[46]      It is our opinion that in Barbados the legal principles are well settled on the basis of the cases cited above.  The time at which a person detained or arrested is to be informed of his right to consult with a legal adviser of his own choice is at a stage before the commencement of in-custody interrogations.  This right must be communicated to the arrested or detained person ‘without delay’, that is to say, in circumstances which are not longer than they ought to have been, having regard to an assessment of all the circumstances of the particular case. [22]

What is the Evidence?

[47]      We now have to examine the evidence of the alleged delay in informing the appellant of his right to a legal adviser.  The appellant was taken into custody as a result of the observation of Inspector Broome at the Esso Auto Mart.  Sgt. Jordan and his team took away the appellant.  This was about 12.45 a.m. in the early hours of July 13, 1996.  According to S/Sgt. Elphene Moore, she saw the appellant at the station shortly thereafter, i.e. at about 1.00 a.m.  She left the station to go home and returned later that morning.  She was away from the station for approximately 9 hours.  When she resumed work at the station, she made preparations to interview the appellant.  P.C. Catlin was with her.

[48]      The interview which resulted in the written statement began at 9.55 a.m. according to P.C. Catlin.  In-custody interrogation therefore began about this time.  S/Sgt. Moore testified that she explained to the appellant that she wished to interview him about a case of rape and that he could have his attorney-at-law present.  According to her he said that he did not wish an attorney-at-law at that time.  S/Sgt. Moore then proceeded to record the statement from the appellant. As we have indicated earlier, the statement was completed at 10.20 a.m.  The time when the appellant was allegedly told of his right to a [23] lawyer was not recorded in the station diary because, according to S/Sgt. Moore, it was not available at that time.

[49]      After completing the statement the appellant asked Sgt. Cumberbatch if he was under arrest.  She says she told him yes and informed him again of his right to a lawyer.

[50]      Sgt. Peter Bryant referred to entries in the station diary which showed that Mr. Pilgrim, Attorney-at-law, arrived at the station at 10.30 a.m. and was allowed to speak with the appellant at 11.10 a.m.  Both events took place after the written statement was signed.

            S/Sgt. Jordan’s evidence was that he himself arrived at the station at 10.45 a.m. and spoke to Mr. Pilgrim who said that he wished to see the appellant.  S/Sgt. Jordan said he gave Mr. Pilgrim an undertaking to bring the appellant to him later and he went to the bathroom and returned.  He swore that “within 10 minutes of my arrival at the station, I brought the accused (appellant) for him (Mr. Pilgrim).”  Sgt. Jordan gave the opinion that “40 minutes was a reasonable period for an attorney to wait for his client depending on the circumstances.”

[51]      In so far as the evidence was that the appellant was told of his right to a lawyer before the interview took place (i.e. before in-custody interrogations began) and he declined to exercise that right, it is our [24] view that there was no breach of section 13(2).  In so far as he was allowed to communicate with his attorney-at-law within 40 minutes of the latter’s arrival at the station, we do not think that this was a delay of the quality which would be sufficient to sustain a finding that section 13(2) was contravened as it relates to his rights as an arrested person.

[52]      In the case of Athelstan Chase, there was a deliberate and unexplained delay of 55 minutes before he was even told of his right to an attorney-at-law.  On the facts, Chase is clearly distinguishable from this case.

            We can find no evidence of a deliberate and unexplained denial of the appellant’s constitutional rights and it seems to us that Counsel was able to see his client within an acceptably short period of time.

 [53]     In response to Mr. Pilgrim’s specific submissions it is our judgment that there was no breach of section 13(2) of the Constitution.  This ground of appeal fails.

Ground 3

[54]      Mr. Marlon Gordon on behalf of the appellant submitted that there was evidence that the identification parade had been improperly conducted and the trial judge ought to have excluded the relevant evidence.  The submission is founded upon the evidence of [25] Sgt. Levere Alleyne that, after the virtual complainant first entered the room where the men were lined up, she ran out and spoke to him.  She thereafter returned and pointed out the appellant.

[55]      It is Mr. Gordon’s point that the fact of a conversation between the Sergeant conducting the parade and the virtual complainant prior to the actual act of identification when the virtual complainant had had a previous view of the men was a circumstance likely to be prejudicial to the appellant and the identification parade was thereby tainted by the likelihood of unfairness or prejudice.

[56]      There is force in this submission although the incident itself was not pursued in cross-examination or in any way raised with the trial judge to alert him to its likely prejudicial effect – so far as we can see from a perusal of the record.  We do not have to labour the point that an identification parade must be conducted in a scrupulously fair manner and must be seen to be fair.  It is such an important and sensitive matter that goes to the very heart of the freedom of the individual as to compel us to the view that where there is the slightest evidence of impropriety in the conduct of an identification parade or where there is evidence of any incident which could possibly taint the fairness of such a parade, a trial judge should refuse to admit the total evidence of the parade. [26]

[57]      It was a most unfortunate circumstance.  Sgt. Alleyne, however, had volunteered the evidence of the incident in his examination in chief. – see paragraph [19] (supra).       

[58]      This ground has given us the greatest difficulty.  Sgt. Alleyne voluntarily gave the evidence of his conversation with the virtual complainant.  We think that the ready candour of his evidence is to be commended.  If he were a dishonest police officer, he could easily have omitted to give any evidence of this incident.   He was cross-examined only to inquire whether he was sure “about this running in and out”.  It was never suggested to him in cross-examination that he may have prompted the virtual complainant.  Indeed the propriety of the conduct of the parade was not challenged.

[59]      In R v George Creamer (1984) 79 Cr. App. R. 284, the appellant was standing at position No. 5 from the left hand side of a line up.  The identifying lady failed to identify him.  Shortly after the parade had occurred and outside the room, the officer who had been present at the parade saw the lady.  She immediately told him that she had in fact seen the man concerned in the offence.  In her evidence the lady said that she has seen the man “about fifth” from the left hand [27] side but she did not identify him on the parade because she was scared.

[60]      The Court of Appeal held that if a witness could satisfy the court that she had identified the accused but had good reason for not making the identification in his presence, then evidence about what happened after the parade could be admitted.   In the result the Court of Appeal accepted that the witness had genuinely recognised the appellant at the parade and had refrained from showing it because of no improper motive.  The court refused to hold the identification invalid finding no miscarriage of justice and dismissed the appeal.

[61]      At the trial the virtual complainant gave evidence that she told Sgt. Alleyne “that that was the man there,” when she saw the appellant in a line up at Holetown police station.  Her identification of the appellant was not challenged under cross-examination.  Indeed, it was only at the end of the appellant’s evidence in chief that the defence led any evidence about the events at the parade and none of these was put to the prosecution witnesses.

[62]      In R v Gall (1990) 90 Cr. App. R. 64, the Court of Appeal of England held that a prisoner could well feel considerable suspicion if an investigating officer came into the parade room, had a look at [28] the parade, and had an opportunity of talking to a witness who was then introduced to the parade.  This had been in breach of the paragraph 2.2 of the existing Code of Practice in England relating to identification parades. The Court of Appeal held that the evidence of the identification parade should have been excluded.

[63]      Although there is no Code of Practice in Barbados (unlike England) we are uneasy about the integrity of the parade.  We accept that Sgt. Alleyne spoke the truth.  Nevertheless justice must not only be done but must manifestly appear to have been done.  We therefore agree with Mr. Gordon’s submission that the evidence should have been excluded.  The conversation between Sgt. Alleyne and the virtual complainant should never have taken place.

Ground 4

[64]      We can deal with this ground shortly. The Crown quite properly accepted the appellant’s submission on this ground that the trial judge erred in law in revealing to the jury the result of the voir dire.  Prior to Mitchell v R (1997) 52 W.I.R. such a practice was accepted.  However, the Judicial Committee of the Privy Council has rendered advice in Mitchell that the judge’s decision on a voir dire should not be revealed to the jury since it might cause unfair prejudice to the defendant by conveying the impression that the judge had reached a [29] concluded view on the credibility of the witnesses and the defendant.  This Court has itself applied the principle of Mitchell in numerous local cases since 1998 and we see little point in referring to a long list of cases where the principle has been applied.   – See for example, Sylvester Mason v. R. (1999) 57 W.I.R. 49, Sylvan Clarice v. R. (1999) 58 W.I.R. 73; Coronell and Nagles v R. (Criminal Appeal Nos 6 and 7 of 1995 decided July 21, 2000) and Wayne Springer v. R. (Criminal Appeal No.30 of 2001 decided July 31, 2002).  It is enough to say that the trial judge was in error on the basis of the decision in Mitchell.  This ground of appeal therefore succeeds.

Ground 5

[65]      On this ground it is pleaded that the trial judge failed properly to direct the jury as to how they should approach the medical evidence.  This ground was not strenuously argued.  The way that the trial judge approached the medical evidence was to review it thoroughly (covering 3 pages of the record) and to put it fairly to the jury.  At the end of it he said to the jury “That is the doctor’s evidence.  You must consider it carefully.”  Looking at the summation as a whole we are bound to say that it was full and careful putting all of the evidence and the law before the jury with liberal assistance being [30] given to them on the evaluation of issues of fact.  This ground of appeal fails.

Ground 6

[66]      The final ground of appeal is that the trial judge failed to give the jury a warning as provided for in Section 136 of the Evidence Act, Chapter 121.  Mr. Pilgrim submitted that in regard to the oral statements allegedly made by the appellant, recorded by the police but not signed or otherwise acknowledged in writing by the appellant, the appropriate warning under s. 136 was not given to the jury.

            There were three oral statements made by the appellant.  First, when S/Sgt. Moore told him that he was suspected of rape of the virtual complainant, he is alleged to have said, “Ma’am I let my desires override my commonsense.”  Later, when shown the rear of the car the appellant is alleged to have said, “That seat never take out.”  Finally, some time after midday on July 13, 1996, he is alleged to have directed the police to a cart road and to have said, “That is the road.”

[67]      The relevant parts of section 136 provide:

            “136(1) This section applies in relation to the following kinds of evidence:

 

                                 (d)  in criminal proceedings

                                    (ii)     oral evidence of official questioning of a defendant, where the questioning is recorded in writing that has not been signed or otherwise acknowledged in writing by the defendant;

 

1.       Where there is a jury the Judge shall, unless there are  good reasons for not doing so,

 

1.                     warn the jury that the evidence may be unreliable;

 

2.                     inform the jury of matters that may cause it to be unreliable; and

 

3.                     warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.

 

(3)        It is not necessary that a particular form of words be used in giving the warning or information.

 

(4)        This section does not affect any other power of the Judge to give a warning to, or to inform the jury.

 

[68]      When the Evidence Act, Cap. 121, came into force on September 2, 1994, it sought to introduce into Barbados the recommendations of the Australian Law Reform Commission’s Report and modelled itself upon the draft Bill of that Commission.  The Evidence Act of Barbados predated the Australian Evidence Act 1995 (Cth and [32] NSW) and, in some parts, it has failed accurately to reflect the precise content of the Australian precedent.  Thus, it is noteworthy that the corresponding section of the Australian Act (section 165) is critically different from section 136 of the Barbados statute in one material particular.  Section 165 of the Australian Act of 1995 provides:

                        “(1) This section applies to evidence of a kind that may be unreliable including the following kinds of evidence:

 

               (b)  oral evidence of official questioning of a defendant, that is questioning recorded in writing that has not been signed, or otherwise acknowledged in writing, by the defendant.

 

1.                  If there is a jury and a party so requests, the judge is to:

        (a) warn the jury that the evidence may be unreliable;   and

 

         (b) inform the jury of matters that may cause it to be unreliable, and

 

4.          warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.

 

2.                  The judge need not comply with subsection (2) if there are not good reasons for doing so.”

 

[69]      In several appeals coming to the Court of Appeal in 2002, the failure of trial judges to give a section 136(2) warning has been a ground of appeal.  The Court of Appeal offered an opinion on the [33] consequence of failure to give such a warning on April 23, 2002 in the case of Jerome Bovell v R. (Criminal Appeal No.23 of 2000 decided April 23, 2002).

[70]      At para [47] of Bovell, the Court said:

                         “[47]  Moreover, although the language of subsection (2) is mandatory, provision is made for exceptions to the general rule.  If a Judge has “good reasons”, it is not obligatory upon him to follow the subsection to the letter.  The latitude implicit in the subsection itself suggests to us that the effect of a failure to give a warning has to be evaluated in each case, having regard to the totality of the evidence.  It will not be automatic in every case that a failure to comply with subsection (2) will cause a conviction to be quashed.”

 

            The Court of Appeal went on to hold that without the evidence of the oral statements which were not signed or otherwise acknowledged, there was ample other evidence which could have sustained the conviction of Bovell.

[71]      No Counsel appearing before the Court of Appeal has ever referred to the Australian Evidence Act or cited any authority indicating how section 136 and its equivalent is being interpreted in that jurisdiction.  However, in the months intervening since Bovell, we have sought to research this matter on our own and we think it appropriate to amend our earlier opinion slightly upon a re-consideration of this matter. [34]

[72]      The problem of oral confessions made by an accused person to the police has long given great difficulty. As we pointed out in Bovell (para [39]) the practice of giving oral evidence of a defendant’s response purportedly recorded in an official notebook is known as “verballing” in the vocabulary of policing.  “Verbals” are vulnerable to fabrication and may truly be unreliable in the absence of any non-police support of a defendant’s account of the nature and conduct of police questioning.  It is clearly the policy of section 136(1)(d)(ii) to provide safeguards against the police inaccurately recording or inventing words and making them attributable to a defendant.  The Court interpreted the section as “designed to minimise opportunities for “verballing” and to promote fairness in the trial of defendants in criminal cases.”

[73]      We have found a line of authorities in Australia which assists in the interpretation of the operation of the section.  We now review those authorities.

Driscoll v R and Stephens v R

[74]      Prior to the Evidence Act of 1995, the High Court of Australia in Driscoll v R. [1977] HCA 43; (1977) 137 CLR 517 and Stephens v R [1985] HCA 30; (1985) 156 CLR 664 indicated that as a matter of discretion, such unsigned and unacknowledged statements should not be admitted in evidence as [35] exhibits unless there was independent evidence of the defendant’s alleged oral adoption of them.

[75]      Gibbs J in Driscoll highlighted the essence of the problem in these words at page 539:

                        “A jury called upon to decide whether an oral confession has been made in response to police questioning often faces a difficult task.  It is very common for an accused person to deny that he made an oral confession which police witnesses swear he made.  The accused has an obvious motive to claim police testimony of this kind is false.  On the other hand it would be unreal to imagine that every police officer in every case is too scrupulous to succumb to the temptation to attempt to secure the conviction of a person whom he believes to be guilty by saying that he has confessed to the crime with which he is charged when in fact he has not done so.  In some cases the evidence that an oral confession was made will be the only, or the vital, evidence against the accused.”

 

McKinney and Judge v R

[76]      The High Court of Australia dealt with the problem in 1991 in McKinney and Judge v R [1991] HCA 6; (1991) 171 CLR 468.  The Court was split 4:3.  The majority were in favour of a rule of practice of general application “whenever police evidence of a confessional statement allegedly made by an accused while in police custody is disputed and its making is not reliably corroborated.”

[77]      Mason CJ, one of the majority, was of opinion that a jury “be instructed as indicated by Deane J in Carr (1988) 165 CLR 335 that they should give careful consideration as to the dangers [36] involved in convicting an accused person in circumstances where the only (or substantially the only) basis for finding that guilt has been established beyond reasonable doubt is a confessional statement allegedly made whilst in police custody, the making of which is not reliably corroborated.”

[78]      The minority view in McKinney and Judge was supported by Brennan J, Dawson J and Toohey J.  Brennan J. had been a signatory to the 1975 Australian Law Reform Commission’s Interim Report on Criminal Investigation which addressed the problem of ensuring the reliability of confessional evidence.  That Report had recommended 4 safeguards viz: recording by mechanical means, corroboration by a third person, reduction of oral confessions to writing and checking by a third person.

[79]      Brennan J refused to accept the majority view that the absence of a warning necessitates the setting aside of the conviction on the basis that the trial judge failed to observe a general or prima facie rule of practice requiring the giving of such a warning. Dealing with the competing authorities of Carr v R [1988] HCA 47; (1988) 165 C.L.R. 314 and Duke v R. (1989) 63 A.L.J.R. 139, His Honour said at page 480:

                        “In Carr, a majority of this Court was of the opinion that a warning should have been given, but in Duke a majority differently constituted was of the opinion that no particular [37] warning was needed.  For my part, I saw Duke as a straightforward case of word against word calling for the usual direction relating to the necessity for the jury to be satisfied beyond reasonable doubt that the confession had been made and was true.”

 

            Later at p.481 he said that “In Carr it was held that a warning should have been given.  What was denied was the propriety of a universal rule that, in every case where uncorroborated police evidence of confession was tendered and challenged, a warning is mandatory.” (our emphasis)

 

[80]      Brennan J rejected the argument that there should be a general or prima facie rule of practice requiring trial judges to give a warning and he expounded his 3 reasons for rejection at pages 481-487.  In particular, His Honour saw “no underlying rationale for a universal practice requiring a warning in every case in which a police officer tenders uncorroborated confessional evidence which is challenged by the accused” – p. 482.  Indeed he saw the matter as one of basic principles.  At p. 482 he said:

                        “In every case where the prosecution case depends solely on a confessional statement that is uncorroborated and is challenged, a judge must direct the jury that they cannot convict unless they are satisfied beyond reasonable doubt that the confession was made and that it was true.”

 

[81]      And, speaking with a high degree of understanding of the burdens on a trial judge, Brennan J was of the firm view that:

            “To impose on a trial judge the burden of giving a warning in every case as to the danger of convicting when there is no corroboration is both unnecessary and more importantly, not [38] even-handed …… To require a warning to be given in all such cases is to place police evidence in a special category of unreliability along with the evidence of accomplices, (young children) and the victims of sexual offences.” – p. 484

 

[82]      The Australian Evidence Act 1995 substantially re-enacted the majority view in McKinney and Judge except that it makes the requirement for a warning mandatory only upon request.  This is where it differs from the Barbados Evidence Act.

R v Beattie

[83]      Since the enactment in Australia of the Act of 1995, the operation of section 165 thereof (see section 136 Barbados Act) has been the subject of interpretation in R v Beattie (1996) 40 NSWR 155.  There, the evidence in question was evidence of alleged admissions by the appellant in the course of police questioning.  The only persons present, apart from the appellant, were police officers.  The appellant denied that he had made the admissions and had declined to sign what purported to be a record of the questioning in a policeman’s notebook.  The defence sought a direction pursuant to section 165(2).  The trial judge gave a direction but refused, on further application, to give another and more expansive direction.  The New South Wales Court of Criminal Appeal held that, in the circumstances, the judge was obliged to give directions unless there were [39] good reasons for not doing so and, moreover, he ought to have stated his reasons for not complying with the subsection.

[84]      James J. at p. 160 accepted that it may be that it is not essential in all cases in which a judge is of the opinion that there are good reasons for not complying with the subsection the judge should expressly state what he considers those reasons to be.  However, in most cases, he should give his reasons for non-compliance.  Subsection (2) was characterized as “discretionary” but in the circumstances of the case the Court of Criminal Appeal allowed the appeal on the ground that the trial judge had erred in not giving the further directions in accordance with section 165(2).

Construing section 136

[85]      It seems clear to us that section 136 of the Evidence Act seeks to enact the majority view in McKinney and Judge and to make it a rule of practice in all cases to which paragraph (d)(ii) of subsection (1) applies that trial judges should give a warning in terms of subsection (2).  A literal interpretation of the section produces that result.  Such an interpretation would not lead to a manifest absurdity but it would certainly produce additional burdens for trial judges.

[86]      It is equally clear to us that, in the drafting of the section, the crucial words “where a party so requests” were omitted (no doubt by [40] inadvertence). They were, more than likely, included in the Australian Evidence Act to take account of the minority view in McKinney and Judge that the rule of practice should not be of universal application.  Hence the rule only comes into play usually at the instance of the defendant.  In the practicalities of criminal trials, we see much realism and common sense in the approach of the minority in McKinney and Judge.

[87]      We find the reasoning of the minority in that case more persuasive than that of the majority for all the reasons expressed in the judgments.  We share the opinion of Brennan J that there is no cogent underlying rationale for a universal rule of practice since such a rule would, in effect, elevate police evidence to a special category of unreliable evidence.  This would hardly be “even-handed.”  Such a universal rule of practice relating to the manner in which a trial judge should sum up would imply that, regardless of the circumstances, evidence of a defendant’s oral statements to a police officer must be regarded as being particularly suspect and as being particularly liable to fabrication.  Such a conclusion would hardly conduce to the fairness of a trial.

[88]      Decisions of the High Court of Australia do not bind this Court.  They are merely persuasive and, although we pay them the greatest [41] respect, we are free to choose whatever common law precedents will produce fairness and justice in consonance with our circumstances.

[89]      In so far as we are satisfied that there is an omission of key words in section 136, it is not our function, in this case, to fill the gap.  That must properly be the province of Parliament.  The existing language of the section does not produce a manifest absurdity.  But the purport and intent of the section may be gleaned from its very words which are sufficiently elastic as to cause us to amend our earlier characterisation of it as “mandatory.”

[90]      Because the section allows a trial judge not to comply with the requirement of giving a warning where there are good reasons for not doing so, we are now prepared to review and amend the earlier interpretation as stated in Bovell.  Indeed, logically and with the benefit of further thought and research, a provision cannot really be mandatory if a court has a discretion not to enforce it.  The word “shall” does not always impose an absolute and imperative duty to do the act prescribed.  The word “shall” cannot be construed without reference to its context.  For an illuminating discussion of the proper approach to the construction of the word “shall” when there has been non-compliance with a procedural requirement laid down by a [42] statute - see the judgment of Lord Woolf MR in R v Secretary of State for the Home Department, ex parte Jeyeanthan [1999] EWCA Civ 3010; [2000] 1 W.L.R. 354 and the cases and learning referred to in that case.

[91]      In section 37 of the Interpretation Act, Cap.2, it is enacted that the word “shall” is to be construed as imperative.  But that provision is qualified by sections 3 and 4 of the very Act.  Thus in section 3 it is provided that:

                        “3(1)  Every provision of this Act shall extend and apply to every enactment whether passed or made before or after 16^th June, 1966; unless a contrary intention appears in this Act or in the enactment.” (our emphasis).

 

            Then, in section 4,

                        “4.     Nothing in this Act shall be construed as excluding the application to an enactment of a rule of construction applicable thereto and not inconsistent with this Act”

 

[92]      We therefore hold that the requirement for a warning to be given under section 136 is not mandatory but discretionary. We are fortified in our view by the learning in Cross on Evidence, Sixth Australian Edition 2000, where the learned author states at paragraph [1454] that section 165 of the 1995 Act is not mandatory.[43]

            In the vast majority of criminal cases, issues touching and concerning the reliability of evidence are matters for a jury in its analysis and evaluation of the evidence in the case.  That duty will best be discharged in cases of disputed confessional statements by the trial judge giving full directions on the burden and standard of proof and giving proper directions on the treatment of the evidence of the disputed statements and assisting the jury in their evaluation of the statements.

The section 136 omission in this appeal

[93]      We have deliberately reviewed the evidence in this case in considerable detail (see paragraphs [2] to [27]) and it will be obvious that there was a substantial body of evidence other than the oral statements of the appellant upon which the jury could have found the appellant guilty as charged.  No complaint was made of the directions of the trial judge on the important matters of the burden and standard of proof, oral statements and discrepancies.  Indeed, in our view, such directions were impeccable.

[94]      In the circumstances of this case, it is our judgment that the failure of the trial judge to give a section 136(2) warning is not fatal to the conviction.

The cumulative effect of errors

[95]      We have found that the trial judge ought not to have informed the jury of the result of the voir dire, ought to have excluded evidence of the identification parade and did not give a section 136(2) [44] warning.  Are these three errors sufficient to cause us to quash the conviction?  We think not.  In Mitchell (supra) the Privy Council did not hold that the trial judge’s error of informing the jury about his decision on the voir dire was enough, by itself, to cause the conviction to be quashed. 

[96]      In Adams and Lawrence v. R. (Privy Council Appeal No.14 of 2001 delivered on March 18, 2002), the Privy Council returned to the matter of disclosing the result of a voir dire.  Lord Rodger of Earlsferry delivering the advice of the Board, reviewed the essential aspects of Lord Steyn’s opinion in Mitchell and pointed out at paragraph 14 that where there is a material irregularity of this nature, a court has to consider the potential impact of the irregularity on the trial; and then ask itself the question, if the irregularity had not taken place, or if there had been no misdirection, would the jury have inevitably come to the same conclusion?

[97]      In this appeal the prosecution case did not depend exclusively upon the accused’s written and oral statements.  As we have indicated at paragraph [93] the facts and salient features of other evidence in this case show that there was ample other evidence upon which the jury could have convicted the appellant.  There was the evidence of the virtual complainant; the evidence of Benskin and Headley of facts [45] surrounding the incident and, particularly pertinent, the evidence of the physical condition of the car and its colour or colours.

[98]      In the circumstances of this case we do not believe that the irregularity of revealing the decision on the voir dire to the jury caused injustice to the appellant.  We are satisfied that the jury would have inevitably convicted the appellant even if the trial Judge had not told them that he had admitted the statement.

[99]      In respect of the infelicity of procedure at the identification parade, we note that in Creamer (supra) the appeal was not allowed.  On the other hand, in Gall (supra), the appeal was upheld, no doubt because of a breach of the specific provision of the Code.  We take cognisance of the manner in which Counsel for the appellant approached this matter at the trial.  No issue was made of the integrity of the parade nor was there any suggestion that the appellant was prejudiced by the conversation between Sgt. Alleyne and the virtual complainant.  No one seemed to be aware that what transpired could possibly have been prejudicial to the appellant.  We doubt whether that evidence had any impact whatever upon the jury’s verdict. [46]

[100]    Applying the test in Anderson v. R. [1972] AC 100, we hold that if the evidence had been excluded, the jury, properly directed, would inevitably have come to the same conclusion.

[101]    We have considered the section 136(2) point at paragraphs [66] to [94] supra.

            Conclusion

[102]    This Court has no lurking doubt about the safety of the conviction in this case and we are also satisfied that the appellant had a fair trial.  Points raised in this appeal have been decided in favour of the appellant but, in our considered judgment, no substantial miscarriage of justice has actually occurred and, applying the proviso, we dismiss the appeal.  The conviction and sentence are affirmed and the sentence will run from April 24, 1998.[47]

 

Chief Justice

Justice of Appeal                                              Justice of Appeal (ag)