Barbados Supreme Court

BARBADOS



Criminal Appeal No. 47 of 2004

BETWEEN:


BEFORE: The Hon. Peter D.H. Williams, the Hon. John A. Connel land the Hon. Sherman R. Moore, Justices of Appeal.

2005: November 15 2006: July 13

Mrs.Angella Mitchell-Gittens for the Appellant

Mr. Douglas Frederick for the Respondent


JUDGMENT

PETER WILLIAMS JA



[1] The issue inthis appeal is whether the appellant was deprived of a fair trial. We have to consider whether he was denied hisfundamental right under section 18(2)(d) of the Constitutionto defend himself by a legal representative as a result of his trial proceedingwithout defence counsel and whether he was afforded a fair hearing within themeaning of section 18(1) of the Constitution.

[2] On 15 October 2004, theappellant was convicted of having unlawfullyand maliciously engaged in conduct on 3 April 2002, which placed Curtis Seale (Seale) in danger of death orserious bodily harm contrary to section 19 of the OffencesAgainst the Person Act, Cap. 141 (the Act). He was also convicted of unlawfully and maliciously wounding Seale onthe same date, contrary to section 14of the Act. KentishJ sentenced him to 13years' imprisonment on the first count and 4 years' imprisonment on the secondcount, the sentences to run concurrently.



[3] On the 3 April 2002, Sealewas shot. He was examined at the Queen Elizabeth Hospitaland found to have an entry wound in his abdomen, but no exit wound. On the following day, he was taken to surgerywhere "a through and through perforation of his transverse colon and of the duodenum"was found and a small bleeding injury to his liver. The surgeon was unable to recover thebullet. The medical evidence was that becauseof the primary injury and subsequent surgery, Seale is at risk of chronicabdominal pain.

[4] Prior to beingshot, Seale travelled with his girlfriend on a minivan from his home in BlackRock to Bridgetown. While on the minivan an argument ensued withthe appellant over the seat in which he was sitting. When the minivan arrived in Bridgetown, he escorted his girlfriend to Fairchild Street,where she took a bus to St. Philip and he took a minivan to return home. The appellant boarded the same minivan andafter Seale alighted and walked some distance, the appellant allegedly shot himand ran.

[5] When asked bythe police to account for his whereabouts on 3 April 2002, the appellant is alleged to havesaid, "I can't remember where I was orwhat I was doing". When asked ifhe was on a route taxi on that night, he is alleged to have replied, "I does work minivan but I can't rememberwhere I was". At his trial he raised thedefence of alibi and he made the following unsworn statement from the dock:

"On the 3rd April 2002, Ivisited Joyann Newton at her home in NurseLand - 2nd Avenue, Nurse Land,Tweedside Road,St. Michael. I got there around 7:15 a.m. and was there for the wholeday. She told me that she wanted me tohelp her pack some things and to clean up 'round the house because she wasmoving. As time got away, I decided tosleep over that night. That's it,Ma'am."

Theappellant's unsworn statement was supported by the sworn evidence of Joyann Newton.



[6] The amended grounds of appeal are:

"1. TheLearned Trial Judge did not properly and adequately direct the jury on thedefence of alibi.

2. The Learned Trial Judge erred in Law when she allowed thetrial to proceed in the absence of the Applicant's Attorney (Affidavit fromAttorney-at-Law Andrew O.G. Pilgrim is annexed).

3. The Learned Trial Judge did not properly and adequately dealwith the issue of identification.

4. The verdict is unsafeand unsatisfactory.

5. The sentence isexcessive."

It is only necessary for us to consider the secondground of appeal.

IV. ABSENCEOF LEGAL REPRESENTATIVE

(a) Section 18(2)(d) of the Constitution

[7] Section18(2)(d) provides:

"18. (2) Every person who is charged with a criminal offence -

…

(d) shall be permitted to defend himself before the court in person or by alegal representative of his own choice…"

It isimportant that we determine whether on the facts there was a breach of theappellant's constitutional right to defend himself by a legal representative.

(b) Mr. Pilgrim's affidavit

[8] Mr. Andrew Pilgrim, attorney-at-law, inassociation with Mr. Tennyson Vaughn represented the appellant at the preliminaryinquiry in the Magistrate's Court and Mr. Marlon Gordon held papers for Mr.Pilgrim when the medical evidence was given. However, Mr. Pilgrim also attended the Plea and Directions hearing. In support of this ground of appeal theappellant relied on an affidavit of Mr. Pilgrim sworn and filed on 7 April 2005. The facts deposed to in the affidavit are asfollows:

"1. I attended a Plea and Directions hearing inrespect of the October Assizes on the 29th day of September, 2004.

2. At the said hearing I entered an appearance on behalf ofCorey Ward.

3. I alerted bothJudges who were present of my intentions to leave the jurisdiction on the 7thday of October until the 15thday of October 2004.

4. Officers of theDirector of Public Prosecutions Departmentwere present when the matter was set fortrial.

5. The matter was setfor trial on the 3rd day of November2004.

6. On the 17thday of October I was informed that the accusedwas tried and found guilty and was sentencedto 14 (sic) years during the time Iwas abroad.

7. I was retained bythe Appellant's mother who was overseasat the time. The Appellant was not notified of my retainer.

8. I make thisAffidavit in support of my client's appeal andhis Application for Bail."

[9] It should benoted that paragraph 8 of the affidavit states that it was filed in support ofthe appeal. There is a note on theaffidavit showing that it was served on the Director of Public Prosecutions(DPP) on 19 April 2005and this fact is not disputed. We havetaken two facts into account in our determination of the issue. First, the DPP did not respond to Mr.Pilgrim's affidavit either contradicting or qualifying the matters deposedto. Secondly, the affidavit was notserved on the trial judge.

(c) PracticeDirection - Plea and Directions Hearings

[10] We now examinethe facts deposed to in Mr. Pilgrim's affidavit in the light of PracticeDirection No. 1/2003 Re: Plea and Directions Hearings (P.D.H.) issued by theChief Justice, which came into force on 15 September 2003, a year prior to the trial on 8 October 2004. The Practice Direction "seeks to provide astructured system for the intimation of pleas and the giving of directions,where necessary, with a view to ensuring that indictable cases are disposed ofwith efficiency and reasonable dispatch". One of the "overriding objectives" ofthe P.D.H. is "to provide sufficient information for a trial date to bearranged". Attorneys-at-law "who have been retained in a case" are expected toappear at the hearing. "Judges assigned forthe relevant Assizes will preside. A P.D.H.will be conducted in court in the presence of the accused." There is a prescribed questionnaire, whichmust be completed by the attorney-at-law for the accused or by the accused sevendays prior to a P.D.H. and a completed copy must forthwith be forwarded to theDPP in order to comply with paragraph 7 of the Practice Direction. Where the defence intimates that a plea ofNot Guilty will be made at the trial, paragraph 10 specifies the matters ofwhich the prosecution and the defence shall inform the court, including:

"…

(c) any alibi which should be disclosed;

(d) any point of law which it is anticipated will ariseat the trial;

(e) any question affectingthe admissibility of evidence which appears on the face ofthe depositions or papers;

(f) the estimated length of trial;

(g) the availability ofcounsel;

(h) whether there is need for any furtherdirections."

Paragraph11 empowers the judge to make such order "as appears to be necessary to securethe proper, fair and efficient trial of the case".

[11] Paragraph 12states that the questionnaire "provides a recommended structure for use byjudges in conducting a P.D.H." The relevant questions material to this case thatshould have been answered in the Plea and Directions Questionnaire are:

"1. Hascounsel for the defence been adequately retained?

2. Is counsel for the defence in possession of the depositionsrelating to this matter?

…

4. How long doescounsel anticipate that the trial will last?

...

9. Is an alibi defence to be presented?

10. Identify any questions of admissibility of evidence togetherwith any authorities it is intended to rely upon…"

ThePractice Direction provides for a record to be made of prosecution and defence counsel'savailability and of the case listing arrangements, including the name of thetrial judge, the date fixed for trial and if not fixed, the tentative date fortrial. We are satisfied that provided thePractice Direction is complied with the trial of criminal cases in the HighCourt can be efficiently managed.

(d) Respondent'sreply

[12] Mr. Frederick,who appeared for the respondent, was also counsel for the prosecution at theP.D.H. and at the trial. ConnellJA suggested to him that a response from the DPP to Mr. Pilgrim'saffidavit was conspicuous by its absence. However, Mr. Frederick confirmed orally that both Mr. Pilgrim and thetrial judge were present at the P.D.H.

[13] It is importantto quote from the verbatim transcript of the appeal what Mr. Frederick said, asfollows:

"In terms of what transpired, since I was counsel, I amproposing to deal with this matter and to say in dealing with it that [Mr.Pilgrim] appeared at the P.D.H. He didnot sign any form. He appeared and therewas no positive date set for Mr. Corey Ward…He appeared at the first day of theP.D.H. No positive date was set. In fact, when Mr. Ward's matter was raised, there is a custom nowadays at the P.D.H.that has grown up, that you would just say, 'There is an interest in aparticular matter'. Mr. Ward came the following day and wasasked if he had retained a lawyer. Hehad not retained any. When he cameup before the Court…he said he was doing his own matter, and we proceeded onthat basis. He had his depositions. He was quite ready and anxious to go on withthe case…[Mr. Pilgrim] said he entered an appearance on behalf of Ward, but hedid not enter an appearance…That is my submission because…he did not sign, herefused to sign the yellow forms…my position is that he did not enter anappearance on behalf of this man and that this man at all times said that hewas representing himself; he was quite ready to proceed on the date inquestion, because he had come up previously and he had indicated that he wasready; he had his depositions with him as well". (Emphasis added.)

In summary,the respondent's position was that though Mr. Pilgrim might have expressed aninterest in representing the appellant, he was not retained, did not completethe questionnaire, was not present at the P.D.H. on the second day when theappellant was there, was not in communication with the appellant, did not havethe depositions, and the appellant was ready and willing to proceed with histrial when it came on for hearing.

(e)Our Finding

[14] On the basis ofMr. Pilgrim's affidavit evidence and Mr. Frederick's oral statements before us,we are satisfied that:

(i) Mr. Pilgrim did notcomply with the requirements of theP.D.H. as he failed to complete the questionnaire;

(ii) Mr. Pilgrim did, however, indicate to Mr. Frederick his availability to represent the appellant; and

(iii) The decision to proceed with the trial during counsel's absencedeprived the appellant of his legal representative.

[15] We take thisopportunity to make some observations on the conduct of the P.D.H. It is unsatisfactory that any "custom" shoulddevelop where counsel intimates "an interest" in a matter. The PracticeDirection seeks to discourage the practice of counsel purporting to be retainedfor a trial when in fact they have not been so retained. Hencethe first question, "Has counsel for the defence been adequately retained?" must be answered directly,yes or no, as stipulated on the form. Further,the wording of paragraph 3 of the Practice Direction provides that only"attorneys-at-law who have been retainedin a case shall appear at the P.D.H."

[16] Guidance on theproper approach of a court to determining whether to proceed with a trial inthe absence of a defendant's legal representative was given by LordCarswell in the Privy Council judgment in Jahree v. State of Mauritius[2005] 1 WLR 1952 at 1959C as follows:

"[I]n most cases it would beincumbent upon the court, faced with an unrepresented defendant on a seriouscharge, to make proper inquiry about the reasons [for the absence of thedefendant's legal representative] and, if deciding to proceed, to ensure thatthe defendant has been able to read the case papers or is given sufficient timeto allow him to do so. It would also be prudent to ensure thatsuch steps are properly noted in some official form." (Square brackets and emphasis added.)

There isno record that the judge inquired into the reason for the appellant beingunrepresented at the trial in view of Mr. Pilgrim's presence at the P.D.H. on 29 September 2004 when heindicated the dates of his unavailability. Mr. Pilgrim intimated his intention to leave the Islandon 7 October 2004and the trial started on the following day. The court and prosecuting counsel should not have started the trial whenMr. Pilgrim was unavailable; appropriate inquiries and an adjournment may have obviated the need forthese proceedings.

[17] We therefore hold that the judge erred inallowing the trial to proceed in the absence of counsel. Although the appellant was unaware that hismother had retained Mr. Pilgrim to represent him at the trial, Mr. Pilgrim hadrepresented him at the preliminary inquiry. The appellant was deprived of his right to defend himself before thecourt by a legal representative of his choice, in breach of section18(2)(d) of the Constitution.

V. FAIR HEARING

(a) Section18(1) of the Constitution

[18] Our finding aboveis not the end of the appeal because it is necessary for the appellant to showthat the breach under section 18(2)(d) deprived his caseof a fair hearing under section18(1) of the Constitution:

"18.(1) If any person is charged with a criminaloffence, then, unless the charge is withdrawn, the case shall be afforded afair hearing within a reasonable time by an independent and impartial courtestablished by law."

The right tolegal representation is not an absolute right and a breach thereof does not initself constitute a denial of the appellant's right to a fair hearing: Brownv. Stott [2003] 1 AC 681 PC at 704D and Grant v. R. [2006] UKPC 2; [2006] 2 WLR 835 at 845A. This point was succinctly stated by LordBingham of Cornhill in Hinds v. Attorney General of Barbados [2002]1 AC 854 at 866E:

"There will be very many cases, in Barbados aselsewhere, which may be fairly heard without representation of the defendant."

The criticalquestion therefore for us to answer is whether without legal representation theappellant's case was afforded a fair hearing.

(b) Denial of justice to the appellant

[19] The essence ofMrs. Mitchell-Gittens' submissions was that the appellant in the circumstancesof this case suffered a denial of justice by not having counsel to representhim. In support of her submissions, she reliedon the common law principles of fairness and justice. She cited two cases decided over 50 years ago,MaryKingston (1948) 32 Crim.App.R. 183 and Galos Hired and Another v. R.[1944] A.C. 149. Mary Kingston wasa case in which counsel who had been briefed for the defendant, by reason of amisunderstanding, was not present at the trial. The judge declined to postpone the trial or to accede to a suggestionmade by counsel for the prosecution that another counsel available should beasked to hold for counsel who had been briefed. The appellant was tried as an unrepresented person but she was notcompetent to conduct her own defence. She did not cross-examine any of thewitnesses for the prosecution, and although her rights were clearly explainedto her by the judge, she did not go into the witness box or make a statementfrom the dock or call any evidence. The English Court of Criminal Appeal heldthat not granting an adjournment was tantamount to depriving the appellant ofher right which she had to be defended by counsel. The Court would have ordered a new trial, butit had no power at that time to do so. It held that it could not "ignore all that happened" at the trial andthat the conviction must be quashed. HumphreysJ said at 185, 189 and 190:

"No complaint is made that the trialwas not properly conducted by the Assistant-Recorder. No question of the inadmissibility ofevidence or of mistake in the summing up arises, but the complaint is that theappellant was, through no fault of her own, to use the expression used at theBar, "deprived of the services of her counsel", her family having supplied a substantialsum of money to solicitors in order that they might brief counsel, and theyhaving briefed counsel…The result of the whole matter is that, having briefedcounsel, she has in fact been tried as an unrepresented person…we must say thatthe whole matter is so unsatisfactory that we think the conviction ought not tostand".

[20] TheCourt in that case applied the Privy Council decision in Galos Hired above, a casein which counsel was unable to reach the court in British Somaliland by boat in time to conduct an appeal against the appellants'convictions for murder. It was submittedthat the hearing without counsel was a denial of justice. The Privy Council held that the appeal hadnot been effectively heard and must be restored for hearing in circumstanceswhich would enable an advocate to conduct it. Viscount Maugham in delivering the judgment at 154 and155 stated:

"The Appeal Court judge,so far as the note goes, made no inquiry with regard to the absence of[counsel] or as to the date when he might be expected to arrive, but proceededwith the case… [The Poor Persons Defence Ordinance] provides that poor personsin the position of the appellants, having been convicted at the trial, areentitled as of right, on lodging an appeal, to have an advocate assigned tothem for the preparation and also for the conduct of such appeal. In the case of Somali natives, who wouldprobably be illiterate, and, therefore, completely unable to make any criticismon the written judgment of the trial judge, even if they could read it, it isclear that the provision is of the utmost importance where the penalty is thedeath sentence… The importance of persons accused of a serious crime having theadvantage of counsel to assist them before the courts cannot be doubted by anybodywho remembers the long struggle which took place in this country and whichultimately resulted in such persons having the right to be represented bycounsel".

[21] The facts of thetwo cases referred to above are similar to those in the instant case. In each case counsel had been retained onbehalf of the parties concerned, yet the cases were tried without legalrepresentation and it was held that the convictions could not stand. It should be noted that these cases pre-datedthe European Convention on Human Rights (1953) and were decided on basic commonlaw principles.

[22] It has always beenpart of "the common law principle of fairness" (Brown above, at 718F)that the Court will grant relief against the denial of accepted principlesof justice or a miscarriage of justice or a breach of natural justice or where"the whole matter is so unsatisfactory" (Mary Kingston above, at 190)that the conviction should be quashed. Mrs. Mitchell-Gittens' submissions were based on these common lawprinciples. However, it is appropriatethat we go further and discuss the appellant's denial of legal representationin the context of his fundamental constitutional rights. These rights had their genesis in theEuropean Convention, which was extended in 1953 to colonial territories,including Barbados. The Privy Council has had the privilege forover 40 years of adjudicating on Commonwealth Caribbean Constitutions, most ofwhich derived their fundamental rights provisions from the European Convention. More recently the Privy Council has beengiven an "enhanced role" to determine "devolution issues" from Scotland, Northern Irelandand Wales: English Public Law, edited by DavidFeldman (Oxford,2004) at para. 1.64. Devolutionissues include the enforcement of rights under the European Convention. The Privy Council is therefore placed in aunique position to determine fair trial rights both under CommonwealthConstitutions and the European Convention. We have therefore drawn upon this valuable body of jurisprudence toassist us in resolving this appeal.

[23] In McLean v. Buchanan [2001] 1 WLR 2425, thePrivy Council considered article 6(3)(c) of the European Convention whichprovides that a person charged with a criminal offence has the minimum right,"to defend himself in person or through legal assistance of his own choosingor, if he has not sufficient means to pay for legal assistance, to be given itfree when the interests of justice so require". The opening words of article 6(3)(c) are "indistinguishable in effect"from the opening words of section 18(2)(d) of the Barbados Constitution:Hindsabove, at 865D. The difference isin the closing words of article 6(3)(c), as the Constitution expresslyprovides in section 18(12) that "nothing contained in subsection (2)(d)shall be construed as entitling a person to legal representation at publicexpense". With that reservation, LordClyde's commentary on article 6(3)(c) is most helpful in arriving at aproper interpretation of section 18(2)(d) at 2445E:

"[I]t is not necessary for a contravention of article 6(3)(c)that the accused should have suffered injury as a result of the contravention (S v. Switzerland (1991) 14 EHRR670). He need not show that with aneffective representative the trial would have gone differently or that theoutcome would have been different. Wherein a serious case an accused has no effective representation that fact may beenough to constitute a contravention (Articov. Italy 3 EHRR1, para. 35 ["the prejudice which arose in that case was atotal failure to act by the defence lawyer. In such a case, as the court explained in para. 35, it is not necessaryfor the accused to go so far as to show that he would have been acquitted ifthere had been no such failure" (at 2437H)]). The appearance of fairness may be a relevant consideration in thiscontext. That justice should not only bedone but should be seen to be done is a principle often referred to in relationto cases of bias or partiality, but it may also be applied to an absence of effectiverepresentation. Sir John Freeland in hisconcurring opinion in Boner v. UnitedKingdom (1994) 19 EHHRR 246 recognised that justice should not only be donebut be seen to be done. There was a legalissue to be addressed, the sentence was severe and the lack of legalrepresentation produced an appearance of injustice."

[24] It should beborne in mind that in some cases the assistance of counsel will facilitate anearly plea of guilty thereby securing a significant reduction in sentence andthat in this case the appellant was liable on conviction for endangering lifeor safety under section 19 of the Act to imprisonment for life.

[25] Infurther support of her submissions that the appellant's case was prejudiced bythe absence of legal representation, Mrs. Mitchell-Gittens submitted that therewere issues underlying the case that the accused did not understand. It will suffice to provide a fewexamples. When the case opened, thejudge quite properly in her attempt to assist an unrepresented defendant askedthe appellant whether there were any statements that the police alleged he madeto which he was objecting. He said that he made no statements, though thedepositions recorded oral statements allegedly made by him. We quote from pages 2 and 3 of the record ofproceedings the exchange that took place in the absence of the jury between thejudge, Mr. Frederick and the appellant:

"COURT: Mr. Ward, you areunrepresented in this matter andbefore we start the trial, I wishto ascertain whether there are anystatements, either oral or written,in this matter which it is alleged youhave made to the police and, if so, doyou intend to object to those statementsor what do you propose to do aboutthem?

ACCUSED: Ma'am, I ain'tunderstand you, ma'am. Can you repeat yourself?

COURT: Sorry. Did you make any oral statements to the investigatingofficers in this matter?

ACCUSED: No, Ma'am.

COURT: No? Did you make a written statement?

ACCUSED: No, Ma'am.

COURT: No. The jury may be recalled then. Isee. Thank you. You may sit.

MR. FREDERICK: There are oral statements, ma'am.

COURT: I thought I saw some.

MR.FREDERICK: There are. If he looks at page 15, he will see underWinston Bynoe's evidence, there are oral statements there.

COURT: Just ask them to hold the jury for a minuteplease.

MR. FREDERICK: Theyare really not contentious.

COURT: Oh.

MR. FREDERICK: -- notdisadvantageous to him as such."

(Emphasis added.)

[26] First, the appellant stated that he did not understand thequestion. Secondly, when the questionwas repeated, he stated that he had not made any oral statements to the investigatingofficers. Thirdly, the judge seems to have proceeded on the basis of Mr.Frederick's assurance that the statements were "really not contentious" and"not disadvantageous to him as such". However, they were contentious because the appellant denied making themand they were disadvantageous because they were in part inconsistent with hisdefence of alibi.

[27] Evidenceof the oral statements was given by the police witness without any accountbeing taken of the fact that the appellant denied making any oral statements.The appellant did not object to the witness refreshing his memory from hisnotebook nor did he at that stage challenge the statements. However, during cross-examination, it appearedthat the appellant was objecting to the statements, although they had alreadybeen given in evidence without objection. The judge then, in the absence of thejury, clarified that the appellant was objecting to at least one of thestatements. The appellant was asked thebasis of his objection, and he replied that he did not make thestatement(s). The objection wasoverruled, in our view correctly as it went to credibility, which was a matterfor the jury: Ajodha v. The State [1982] A.C. 204 at 222D. Lord Bridge of Harwich observed in thatPrivy Council case at 223G that:

"Particular difficulties may arise in the trial of an unrepresented defendant, when the judgemust, of course, be especiallyvigilant to ensure a fair trial."

[28] Another police witness gave evidence that theappellant made oral statements. Thejudge did warn the members of the jury that the appellant denied making thestatements and that it was a question of fact for them to determine. However,the appellant did not put to either police witness in cross-examination that hehad not made the statements.

[29] Afinal example of how the appellant's right to a fair trial may have beenprejudiced as a result of not having his counsel relates to the admission ofthe depositions of two witnesses. A sergeantof police who died since giving evidence in relation to the identification ofthe accused and a doctor who examined Seale and was out of the jurisdiction,had their depositions that were taken at the preliminary inquiry by themagistrate, read as evidence at the trial. The appellant was asked if he had any objection and in both cases he replied"no". He also had no objection to a"typewritten transcript" of their evidence taken by the magistrate being read,as it was difficult to decipher the handwriting of the magistrate. For the purpose of this appeal, it is notnecessary to determine whether the depositions were properly read as evidence. However, we are concerned about the manner inwhich they were admitted and with the lack of a proper warning to the jury onthe same. We have therefore set outbelow some guidance for trial judges on the applicable considerations for theproper admission of deposition evidence and the appropriate warning to be given.

(c) Respondent's reply and our finding

[30] Mr.Frederick submitted that the appellant was not prejudiced by the absence ofcounsel. His response as recorded in theverbatim transcript of the appeal was as follows:

"I am saying that therewould be no prejudice because … he did not retain a lawyer. This accused man did not retain a lawyer; hedid not indicate that he retained a lawyer… We were not even on notice that he had a lawyer." (Emphasis added.)

We disagree with that submission in view of Mr. Pilgrim'sunchallenged affidavit and for the reasons already discussed.

[31] Theright to a fair hearing requires that a party to proceedings must have areasonable opportunity of presenting their case, including their evidence,under conditions which do not realistically place the party at a substantialdisadvantage in comparison with the party's opponent. In McClean, above, Lord Hope of Craighead explainedthe principle which has been developed to underpin the right at 2438G:

"The principle that there must be anequality of arms on both sides is clearly established in the jurisprudence ofthe Strasbourg Court[the European Court of Human Rights]: see Dombo Beheer BV v. The Netherlands(1993) [1993] ECHR 49; 18 EHRR 213, 229, para. 33. Whatthis principle requires is that there must be a fair balance between theparties…In criminal cases the requirement that there be a fair balance is noless important. The essential questionis whether the alleged inequality of arms is such as to deprive the accused ofhis right to a fair trial."

[32] Theopinion of the Privy Council on the applicability of the Strasbourgjurisprudence to the interpretation of the Barbados Constitution can bediscerned indirectly from the judgment Lord Bingham delivered in Grantabove, when he stated its relevance to the Jamaican Constitution at 844E:

"[T]he Board readilyaccepts the relevance of the Strasbourg jurisprudence on article 6(3) of theEuropean Convention, [minimum rights of everyone charged with a criminaloffence], since that Convention applied to Jamaica before it became independentand the close textual affinity between article 6(3)(d) [right to examinewitnesses] and section 20(6)(d) makes it appropriate to pay heed to authority on the one whenconsidering the meaning and effect of the other. Bothparties acknowledged the persuasive authority of the Strasbourg jurisprudence, as did the Court ofAppeal, and rightly so." (Emphasisadded.)

TheConvention also applied to Barbadosbefore it became independent and there is a similar close textual affinitybetween article 6(3) of the Convention and section 18(2) of the Constitution.

[33] Weagree that the appellant was prejudiced and disadvantaged by the absence of hislegal representative in dealing with the matters discussed above, incross-examination of the witnesses and in presenting his defence. We therefore hold that the appellant's casewas not afforded a fair hearing within the meaning of section 18(1) of the Constitution.

VI. DEPOSITIONSREAD AS EVIDENCE

(a) Statutory provision

[34] Section25(1) of the Criminal Procedure Act, Cap. 127provides the conditions under which the depositions of persons who are seriouslyill, dead, insane or absent from Barbados shall be read as evidence:

"25. (1) Where upon the trial of any person charged with any indictable offence,it is proved on oath by any credible witness that any person whose depositionwas taken before any magistrate is so ill as not to be able to travel or isdead, insane or no longer in Barbados, and where it also be proved that suchdeposition was taken in the presence of the person so accused and that he orhis attorney-at-law had a full opportunity of cross-examining the witness, then if such deposition purport to besigned by the magistrate, by or before whom the same purports to have beentaken, it shall be lawful to read suchdeposition as evidence on the trial without further proof thereof, unlessit is proved that such deposition was not in fact signed by the magistratepurporting to sign the same." (Emphasisadded.)

(b) Statutory and common law power to excludeevidence

[35] Althoughit shall be lawful to read thedeposition as evidence if the statutory conditions have been met, the judge isgiven a statutory discretion to exclude evidence as provided in Division9 of the Evidence Act, Cap. 121. The rights of the accused are safeguarded in criminal proceedings by section115, as follows:

"115. In criminal proceedings, where the probativevalue of evidence adduced by the prosecutor is outweighed by the danger ofunfair prejudice to the accused, the court may refuse to admit theevidence."

[36] Ajudge also has the common law power to exclude the sworn deposition of adeceased or absent witness, in the exercise of his or her duty to ensure a fairtrial, even though the deposition is highly probative of the offencecharged: Scott v. R. [1989] 1 A.C. 1242,a Privy Council appeal from Jamaica, Lord Griffiths explained the basisfor possible exclusion of the evidence at 1258H, 1259C and E, and 1263Fas follows:

"[T]heir Lordships are satisfied thatthe discretion of a judge to ensure a fair trail includes a power to excludethe admission of a deposition. It is, however, a power that should be exercisedwith great restraint … The deposition must of course be scrutinised by thejudge to ensure that it does not contain inadmissible matters such as hearsayor matter that is prejudicial rather than probative and any such materialshould be excluded from the deposition before it is read to the jury … It isthe quality of the evidence in the deposition that is the crucial factor thatshould determine the exercise of the discretion … The judge should have heardthe arguments of counsel and have given his ruling on the admissibility of theevidence in the absence of the jury."

[37] Thesergeant gave evidence at the preliminary inquiry of the appellant'sidentification by Seale. He wascross-examined by Mr. Pilgrim and admitted that he did not conduct anidentification parade with eight men apart from the appellant, but an informalexercise with only six men. Mrs.Mitchell-Gittens submitted that it was necessary to determine whether the depositionshould be read as evidence in the light of section 100 of the Act, whichprovides the conditions that have to be met before evidence of identificationcan be adduced where no identification parade is held. Section 100 has been considered intwo reported judgments of this Court, Hunte (Wayne) v. R. (2000) 60 WIR 20 andSpringer(Wayne) v. R. (2002) 63 WIR 20. However,in view of our decision, it is unnecessary to discuss this submission except tosay that identification was the true issue in the case where alibi was thedefence. We are therefore of the opinionthat the appellant was prejudiced and substantially disadvantaged by not havingMr. Pilgrim to represent him and address the jury on this essentially legalmatter going to the heart of the defence.

[38] Similarly,the doctor's deposition taken at the preliminary inquiry stating the injuriessustained by Seale was read as evidence at the trial. The basis for the reading of the depositionwas that the doctor was "presently out of the jurisdiction". However, no evidence was led by the Crown asto where the doctor was or whether it would be practicable for him to return togive evidence within a reasonable time. No inquiry was made about the possibility of the doctor returning togive evidence. Mr. Frederick introducedthe doctor's deposition by stating, "the evidence of the doctor is really notcontentious". There was no other medicalevidence in the case; the doctor's evidence consisted of basicinformation on the injury and treatment. He was not cross-examined by the attorney-at-law who was holding papersfor Mr. Pilgrim at the preliminary inquiry. The content of the deposition was not considered prior to its beingread. The members of the jury were notwarned about the evidence or helped with possible lines of cross-examinationthat defence counsel might have put to the doctor at the trial. They did not have the advantage of defencecounsel's address on the evidence. Inthe circumstances, we are not in a position to say that the appellant did notsuffer any prejudice or disadvantage by what transpired.

[39] Thedepositions of the sergeant and the doctor were read as evidence on the basisthat the appellant did not object to the same. However, it is generally not sufficient merely to inquire of anunrepresented defendant whether he objects to the deposition being read asevidence. In The State v. Browne (1968) 25 W.I.R. 51,the Court of Appeal of Guyanaheld that a deposition of a crucial absent witness was not properly admitted inevidence and ordered a new trial. Haynes C reviewed the cases from theregion and stated at 56G:

"In the light of all these judicialpronouncements it is clear the trial judge erred in resolving the question ofadmission of this evidence (as he appeared to do) as automatic on satisfactoryproof of absence from the State. He doesnot at all appear to have weighed the pros and cons of the application or tohave searched "for any recognisable injustice". He admitted it as he said "as a matter of law" and not as a matter ofdiscretion, which it was. And this wasnot the proper judicial approach as the regional authorities indicate. And, further, His Honour omitted to tell theappellant (as he ought to have done) that he (the appellant) had a right underthe common law practice, even though the statutory conditions are satisfied, toobject to the exercise of the court's discretion to admit the deposition inevidence. It is the duty of a trialjudge to protect the interest of an accused who is not represented by counsel and to give him suchassistance as is helpful for the proper conduct of his defence…As a result of these omissions, theevidence went in unchallenged and without objection. It is unlikely this would have happened ifthe appellant had been made aware of his rights." (Emphasis added.)

Wemay add that it is also unlikely that the same thing would have happened inthis case if the appellant had been permitted to defend himself by the legalrepresentative retained for him.

[40] The judge is required to scrutinisethe content of the deposition to determine whether under statute or the commonlaw the deposition should be excluded. Theposition taken by the judge should be reflected in the record of theproceedings. Consideration should alsobe given to a defendant's fundamental right under section (18)(2)(e) of theConstitutionthat every person charged with a criminal offence

"shall be affordedfacilities to examine in person or by his legal representative the witnesses called by the prosecution before the court". (Emphasis added.)

However, in Grant above, at 835G, a Privy Councilappeal from Jamaica,it was held that the admission at the trial of an unsworn written statementunder the Evidence Act did not infringe the appellant's right under theequivalent section of the Jamaica Constitution.

(c) Form of warning

[41] Apartfrom complying with the proper procedure for the reading of the deposition, itis also generally necessary for the judge to give the jury a careful directionon the correct approach in considering the evidence. The Criminal Procedure Act, Cap. 127 doesnot require a warning to be given to the jury on depositions read as evidence,"but such a warning has long been a common law requirement": Phipsonon Evidence, Sixteenth Edition (2005) at 30-65. The EvidenceAct, Cap. 121 in section 137(1)(a) by reference to section52(2)(c) gives statutory effect to the common law by requiring the juryto be warned, unless there are good reasons for not doing so, of the need forcaution in deciding whether to accept deposition evidence. The jury should be informed of matters thatmay cause the evidence to be unreliable and of the factors that may affect theweight to be given to it. In relation tothe doctor's deposition no warning was given. In relation to the sergeant's deposition, the judge did warn the jury bypointing out the absence of the opportunity to cross-examine the deceased andwarned the jury in the following terms:

"I must warn you that you have not hadthe benefit of hearing the evidence of the late sergeant tested incross-examination before you, but he was cross-examined before the learnedtrial magistrate. In so far as the testimony appears to have inconsistencies,you must bear in mind the direction I gave you on inconsistencies."

[42] Theform of warning that should be given is set out in a number of cases. Although it may be obvious to the members ofthe jury, it is still important to tell them that they have not had the benefitof hearing the evidence tested in cross-examination, as without warning they maynot appreciate the significance of that fact. The jury should be told explicitly that a defendant is potentiallyhandicapped if the witness is not present and that the evidence should in somecircumstances carry less weight with them. In R. v. Boyce (1971) 17 W.I.R. 54, a case in which an entertainerwas convicted of raping an expatriate school teacher, the depositions of two witnesseswho had left the Island were admitted tosupport the evidence of the complainant. This Court held that the depositions had been properly admitted and DouglasCJ at 56B commended the trial judge who:

"gave the jury a carefuldirection as to the view they should take of this evidence and in dealing withthe weight which the jury should attach to the depositions the trial judge toldthem that they should exercise caution in view of the fact that they had notseen the deponents, nor had their evidence been tested by cross-examinationbefore them. This Court can find nofault with the way that the trial judge dealt with the depositions nor can wesay that any material irregularity arose therefrom".

[43] InHenriquesv. R. [1991] 1 WLR 242, a PrivyCouncil case from Jamaica,the depositions of a government pathologist and another vital witness wereadmitted at the trial. LordJauncey of Tullichettle discussed the considerations to be taken intoaccount by a trial judge before admitting a deposition into evidence and theneed for the members of the jury to be warned that they have not seen thedeponent or heard the deponent cross-examined. He delivered the following advice at 247C:

"A judge, faced with anapplication to admit the deposition of an absent witness, should weigh up allthe factors relevant to its grant and refusal before reaching a decision whichshould seek as far as possible to do justice between the parties and ensure afair trial … In his summing up the judge directed the jury that they coulddisregard the evidence of the doctor if they did not think that it soundedright. However, he did not warn the jurythat deposition evidence was not necessarily of the same weight as evidencewhich they had heard tested before themby cross-examination. Their Lordships consider that this was a regrettableomission. When a judge allows depositionevidence to be admitted he should as a matter of course warn the jury that theyhave neither had the benefit of seeingthe deponent nor of hearing his evidence tested incross-examination and that they must take this into consideration whenevaluating the reliability of his evidence." (Emphasis added.)

The Privy Council applied its judgment in Scott,above, and the guidance of Lord Griffiths therein to the formof warning that should be given to the jury, where he stated at 1259B:

"No doubt in many casesit will be appropriate for a judge to develop this warning by pointing out particular features of theevidence in the deposition which conflict with other evidence and which could have been explored incross-examination: but no rules can usefully be laid down to control thedetail to which a judge should descend in the individual case." (Emphasisadded.)

(d) Guidelines

[44] Tosummarise, when the prosecutor has complied with the statutory conditions for adeposition to be read as evidence, the judge should scrutinise the evidence inthe deposition, with the assistance if necessary of counsel, to determinewhether there are any reasons why the deposition should not be read. Once the deposition is read, the judge shouldgenerally direct the jury in clear and simple language to exercise cautionbefore accepting the evidence. Themembers of the jury should be told that they have not had the advantage ofseeing the witness and therefore the opportunity of thereby forming a view of whetherthe evidence is honest and accurate. They should also be told that they have not heard the witness tested undercross-examination and therefore not been able to assess the credibility of theevidence.

[45] Thecircumstances of the case will dictate the form of any warning; in some casesthe evidence will be merely formal and a warning will be inappropriate. In other cases a simple warning will suffice,while in others a careful and detailed warning will be necessary to explain anydiscrepancies between the deposition and the other evidence, possible lines ofcross-examination that might shed a different light on the evidence, and anyother feature of the evidence that needs to be highlighted. It would be helpful to remind the members ofthe jury that they must be sure that the evidence in the deposition is reliableand any doubt in relation to the same must be resolved in favour of thedefendant. This summary is notexhaustive of the circumstances that may arise and therefore of the form of thewarning that may be appropriate in the particular circumstances. Lord Bingham in Grant, above, referred at846Hto Scott and Henriques above, and stressed at 847C theimportance of a careful direction on the approach to hearsay evidence as "avaluable safeguard of the defendant's interests".

VII. CONCLUSION AND DISPOSAL

[46] SirDenys Williams CJ succinctly stated the obligation of the judge in acriminal trial in DPP's Reference and the Acquittal on Indictment No. 5 of October 1996 (29 September 1997)at 5as follows:

"The Constitutionrequires that a defendant be given a fair hearing and the responsibility is onthe judge to ensure that he receives such a hearing."

In the PrivyCouncil decision of Grant above, LordBingham stated, albeit in a different context to the present case, at para.26 that:

"It was, however, theresponsibility of prosecuting counsel and the trial judge to ensure that theproceedings were fair, and they failed to do so."

It is this Court's duty to secure the enforcement offundamental rights guaranteed by the Constitution and we would be abdicatingour responsibility by denying those rights unless cogent and compelling reasonsare stated for so doing.

[47] We haveconsidered the second ground of appeal in the light of an assessment of theoverall fairness of the proceedings and of the other grounds of appeal, whichin the circumstances of this case we have not found necessary or appropriate todiscuss. From an overview of the trial itis clear that the appellant's conviction should not stand. We have concluded that the appellant wasdenied the right to his legal representative, the cumulative effect of which wasthat the appellant was placed at a substantial disadvantage in presenting hisdefence and his case was not afforded a fair hearing. We cannot therefore be sure that the verdictwas safe and satisfactory. In the circumstances, the appropriate remedy is toquash the conviction and order a retrial, as was done in Lewis, above, at[31]. We have taken into account the date ofthe offence and conviction and balanced the relevant facts and circumstances ofthe case to arrive at a result in the interests of justice. Accordingly, we quash the conviction andsentence and order a retrial. The appellant is to remain in custody pending hisretrial, which should take place as soon as practicable.

[48] This is the judgment of both of us to which ConnellJA contributed the first draft, which provided the basis for discussionand our decision to allow the appeal and order a retrial.

Justice ofAppeal Justice of Appeal

MOORE, J.A. deliveredthe following dissenting judgment:

[49] Ido not agree with my learned brothers that (i) the appellant was prejudiced anddisadvantaged by the absence of his legal representative; or (ii) theappellant's case was not afforded a fair hearing within the meaning of section18(1) of the Constitution (see paragraph 33 above).

Groundsof Appeal

Ground 1

Thelearned trial judge did not properly and adequately direct the jury on thedefence of alibi.

[50] At the trial the appellant pleaded alibi and gave an unswornstatement to the effect that he had been at the home of Joy-Ann Newton fromaround 7.15 a.m. on 3 April 2002 until themorning of 4 April, 2002. Joy-Ann Newton gave evidence in support ofhis alibi defence. The learned trialjudge gave the jury the following direction:

"Mr.Foreman and your members, I will now give you directions on an alibidefence. An alibi defence is really aspecial plea of not guilty, where it is said by the accused that at the timewhen the offence is alleged to have been committed, the accused was somewhereelse, and therefore, could not have committed the offence. Sothat is the basis of the defence. Imust tell you that it is not for the accused to establish that he was somewhereelse. He is not here to prove anythingto you. The burden is on theprosecution to prove that the accused committed the offences with which he ischarged.

So, if youbelieve the alibi put forward by the accused and his witness that he wassomewhere else, well, then, your verdict will be a verdict of not guilty. If you are left in doubt as to whether hewas somewhere else or not, your verdict will likewise be a verdict of notguilty. You can only convict theaccused of the offences charged if you completely reject the defence of alibiwhich has been put forward by the accused and you are convinced and feel sureof the guilt of the accused on the evidence led by the prosecution."

[51] The learned trial judge omitted to tell the jury that an alibi maybe invented to bolster a genuine defence. I do not think that omission is fatal. It is desirable to tell the jury that an alibi is sometimesinvented to bolster a genuine defence because they may assume that because thealibi was false, they should reject the defence case entirely. The case of R. v. Lesley[1996] 1 Cr.App.R.39 holds that where the direction which shouldnormally be given is in fact not given, the omission does not automaticallyrender the conviction unsafe. The effectof the omission depends upon the facts of each case and the strength of thetotality of the evidence. On 15 June 2006 in the case ofAndrewOrlando Jordanv. R. (Criminal Appeal No.20 of 2004 unreported) the Court of Appealfollowed Lesley in circumstances where the trial judge had neglected togive the rejected alibi direction.

[52] One has to examine the evidence. The virtual complainant testified that he knew the appellant for sixmonths before the day in question and the appellant did not challenge thecomplainant in cross-examination nor deny it in his statement. The appellant also called an alibi witness anda lookalike witness who testified on his behalf.

Ground2

Thelearned trial judge erred in law when she allowed the trial to proceed in theabsence of the appellant's attorney-at-law.

[53] The majority are of the view that the appellant's right to afair trial was violated essentially because the appellant's trial proceeded inthe absence of legal representation and because a deposition of a deceasedpolice officer was admitted in evidence and read to the jury. I accept the proposition that, as a generalrule, errors of procedure are likely to produce unfairness in a trial. Procedural justice promotes fairness in thetrial process. But, in every case whereunfairness in a trial is alleged, it is necessary to examine in sufficientdetail the facts and circumstances to determine whether, objectively, somethingoccurred during the trial to prejudice a person's right to fairness of trial.

[54] In my opinion,when the facts surrounding the matters in dispute are examined in detail, I amfar from satisfied that the appellant was prejudiced or that the fairness ofhis trial had been compromised by any procedural act or omission on the part ofthe trial judge. In Deitrich v. R. [1992] HCA 57; (1992) 177 CLR 292and R.v. Wilson (1997) 163 NSR (2nd) 206 - (a decision of theCourt of Appeal of Nova Scotia cited in Cumberbatch v. R (2004) 67 WIR 48 at55), it was held that, although an accused person has a right to a fair trial,lack of professional representation does not necessarily mean that an accusedis unable to receive, or did not receive a fair trial. As Lord Bingham said in Hindsv. Attorney-General (No.2)(2000) 59 WIR 75 at 110:

"Therewill be very many cases, in Barbadosas elsewhere, which may be fairly heard without representation of thedefendant…." (My emphasis).

[55] Mr. Pilgrim deposed in his affidavit that he was retained by theappellant's mother who lives in Americato represent the appellant at his trial yet -

(i) Mr.Pilgrim appeared at the Plea and Directions Hearing(P.D.H.) on 29 September 2004and the appellant did not;

(ii) the appellant appeared at theP.D.H. on 30 September 2004and Mr. Pilgrim did not;

(iii) Mr. Pilgrim did not inform the appellant that, he,Mr. Pilgrim had been retained to defend the appellant upon his trial;

(iv) Mr.Pilgrim did not complete the P.D.H. questionnaire,and, more particularly he did not answerthe question:- "Has counsel for the defencebeen adequately retained?"

[56] In those circumstances the question arises:- "Was the appellantdeprived of his right to defend himself before the court by a legal representative of his choicein breach of section 18(2)(d) of the Constitution?" At the trial theappellant never told the court that he had chosen an attorney-at-law torepresent him and wished such representation. In fact the passage at page 2 of the record which is repeated at page 48thereof begins: "Mr. Ward, you are unrepresented …." Mr. Ward, the appellant,did not protest by saying that he was represented by counsel. Mr. Frederick who was the prosecutor and whoappeared for the respondent on the appeal informed this Court that theappellant appeared at his trial, armed with the depositions and he was anxiousto proceed to defend himself; and he did so. The record supports Mr. Frederick's statement. The appellantcross-examined the Crown's witnesses, made an unsworn statement from the dock,called two witnesses who testified on his behalf and addressed the jury.

[57] Mr. Pilgrim did not tell the appellant that he, Mr. Pilgrim, hadbeen retained as the appellant's legal representative. The appellant had no opportunity to ratifyor reject his mother's choice of a legal representative. Further the appellant was so oblivious to hismother's choice of a legal representative that he prepared himself to representhimself upon his trial unaware of the matters deposed to by Mr. Pilgrim.

[58] It is not unusual with unrepresented as well as representedaccused for oral and written statements to be admitted without objection onlyto be challenged or denied during the course of the trial by the unrepresentedaccused or, where he appears, defence counsel (see paragraph [27] above).

[59] The Mary Kingston case and the Galos Hired case canbe distinguished from the present case. MaryKingston and all concerned knew that (i) counsel had been retained todefend her; (ii) Mary Kingston remained mute throughout the trial; (iii)the trial judge refused the prosecutor's request for an adjournment and did notheed the prosecutor's suggestion that defence counsel be appointed from amongthose present in court. In the GalosHired case, statute gave the right to an appellant to be represented bycounsel at the expense of the State.

[60] In the present case the learned trial judge was at pains to ensurethat the appellant did not prejudice his case and that he understood theissues. Throughout the proceedings thelearned trial judge withdrew the jury when she thought it necessary to explainmatters to the appellant and to seek clarification from him. In that regard she cannot be faulted.

[61] An example of the learned trial judge's assistance to theappellant is seen early in the appellant's cross-examination of Sgt.Bynoe. That cross-examination also putsin perspective what transpired at pages 2 and 3 of the trial record as set outat paragraph [25] above. I let the recordspeak for itself. The following is thecross-examination of Sgt. Bynoe and the judge's interventions on the accused'sbehalf during that cross-examination:

Q. Did you at anytime receive a descriptionof the accused by

the complainant?

A. Repeatthe question, please.

Q. Didyou at anytime receive a description of the accused by the complainant?

A. Yes,ma'am.

Q. Whyis this description not stated in your evidence?

Mr.Frederick: Objection. I never asked himfor a description, so he could not say unless I asked.

TheAccused:

Q. Atanytime during the investigations did the accused admit to shooting or doingany harm to the complainant?

A. No,ma'am.

Q. Whywas the accused not asked to sign or initial any of the alleged oralstatements?

THE COURT: Are you putting - -

Mr. Foreman and members of thejury, a point of law has arisen and I am going to ask you to withdraw while Iconsider it.

(Jury withdraws under swornMarshals: 10:40 a.m)

Mr. Ward, before this case began,I enquired - I put the jury out. Do yourecall that?

THE ACCUSED: Yes.

THE COURT: And I enquired of you whether you intended toobject to any of the oral statements which were in the depositions. You remember that? Do you recall that?

THE ACCUSED: Yes, ma'am.

THE COURT: And you said you did not intend to object.

THE ACCUSED: Ma'am, you did ask meif I did have any oral statements or anything.

THE COURT: I asked you that, and I also asked youwhether you intended to object to any of the oral statements. Do you not recall that?

THE ACCUSED: I can't remember,ma'am.

THE COURT: I am reading from thetranscript - - on page 2 of the transcript.

"Mr.Foreman and your members, I must ask you to withdraw while I deal with certainmatters of the law which do not concern you. I must warn you that in themeantime you must not discuss this matter with anyone or allow anyone toapproach you to discuss it."

Thejury withdraws at 12:51 p.m.

Ithen said to you, "Mr. Ward, you are unrepresented in this matter and before westart the trial I wish to ascertain whether there are any statements, eitheroral or written in this matter, which it is alleged you have made to thepolice, and if so, do you intend to object to those statements or what do youpropose to do about them." Do

younow recall that?

TheAccused: Yes, ma'am. But I didn't understand you at that time.

THE COURT: I beg your pardon?

THE ACCUSED: At that time I didn't understand you, ma'am.

THE COURT: Well, then you said, "Ma'am, I ain'tunderstand you ma'am. Can you repeatyourself?" And I asked, "Did you makeany oral statements to the investigating officers in this matter?" And you said, No ma'am." And I asked, "Didyou make a written statement?" "No, ma'am." And the jury can be recalled then.

ThenMr. Frederick said, "There are oral statements." And the Court, I said, "I thought I sawsome." And Mr. Frederick said, "If helooks at page 15 he will see under Winston Bynoe's evidence there are oralstatements there." I then asked them tohold the jury, and then Mr. Frederick said, "They are really not contentious,not disadvantageous to him as such."

Oh,so, perhaps you did not respond. Allright.

Giventhose circumstances in which you say you did not understand, do you now wish toobject to any of the oral statements that the officer intends to give inevidence?

THE ACCUSED: Yes, ma'am.

THE COURT: Yes. What is the basis of your objection?

Whatis the basis of your objection, sir?

THE ACCUSED: Ma'am, at the timewhen he was asking me questions - - at the time when the officer was asking mequestions, I was like, denying any involvement in the case because I didn'tknow what going on. I ain't know nothingat all.

THE COURT: That does not answer the question I am askingyou. You seem to be now saying that youwish to object to the oral statements that the officer is about to give goinginto evidence. Perhaps you should justlook at the depositions and see what those oral statements are. Look at them, please. Have you looked at them?

THE ACCUSED: Yes, ma'am.. page 15.

THE COURT: Page 15.

THE COURT: Which of thosestatements you wish to object to? Well, actually you haven't answered thequestion. Do you wish to object to anyof those statements?

THE ACCUSED: Yes, ma'am.

THE COURT: Which of those statements?

THE ACCUSED: The statement stating that I can't rememberwhere I was or what I was doing.

THE COURT: Okay, Mr. Ward, is that the only statementyou wish to object to?

THE ACCUSED: Yes, ma'am.

THE COURT: What is the basis of the objection? Why areyou objecting to the statement?

THE ACCUSED: Ma'am, because Icould tell you exactly where I was.

THE COURT: No. That doesn't - - your telling me where youwere does not tell me why you are now objecting to the statement.

THE ACCUSED: Because I didn't tellhim so.

THE COURT: Good. Thank you.

Anyother basis - any other reason you are objecting to the statement.

THE ACCUSED: No, ma'am.

THE COURT: In that case, yourobjection is overruled. That is amatter for the jury to determine whether or not you made that statement.

Thejury can be recalled, please. Thank you.

(Juryreturns to courtroom 10:48 a.m.)

THE COURT: Mr. Ward, you may continue yourcross-examination.

Q. Atanytime during the investigations did the accused admit to shooting or doingany harm to the complainant?

A. No,ma'am.

Q. Didthe complainant speak to you concerning a firearm.

A. Yes,ma'am.

Q. Didhe describe this particular firearm in question?

A. No,ma'am, he didn't.

Q. Whydid you have a warrant in the name of Corey Brathwaite when you went to thehome of - -

THE COURT: In the name of?

THE ACCUSED: Corey Brathwaite.

THE COURT: Well, did he have? The first question is did he have a warrantin the name of Corey Brathwaite?

THE WITNESS: Yes, ma'am.

THE COURT: Yes, and now you can ask him yourquestion, why?

THE ACCUSED: Why did you have thewarrant in the name of Corey Brathwaite, when you went to the home of theaccused?

A. Frominvestigations carried out, the information received suggested that the surnamewas Brathwaite.

Q. Howdid you come by the name Corey Brathwaite.

A. Ijust said from investigations carried out.

THE COURT: He just said that from investigations carriedout, it suggested that the surname of the accused was Brathwaite.

THE ACCUSED: Are you aware of someone else who wasmentioned, who was quite similar to the accused?

A. No,ma'am.

THE ACCUSED: Ma'am, can I go back into the depositions?

THE COURT: Well, it depends onwhat purpose you want to - - what deposition you want to go into?

THE ACCUSED: Page 16.

THE COURT: Of his evidence? Yes, what on page 16?

THE ACCUSED: Yes, ma'am. Page 16 on line 10.

THE COURT: Yes. What about line 10 on page 16?

THE ACCUSED: Mr. Winston Bynoestated that accused was co-operative in this case. He denied any involvement in this matter.

Mr.Frederick: These are questions from cross-examination onbehalf of the accused. We do not knowthe questions that were asked. We onlyhave the answers that were there, therefore, it would be misleading for him toread them out like that.

THE COURT: Yes.

Mr.Frederick: We don't know the question - -

THE COURT: What is the problem youhave?

THE ACCUSED: Ma'am, he now saidthat he did not know that there was someone else mentioned who was quitesimilar to the accused.

THE COURT: Now, the last question you put to theSergeant was: Did he recall that someoneelse's name - - did you say that?

THE WITNESS: No, ma'am. I said fitting his description, a similar description.

THE COURT: A similar was calledand your response was, no.

THE WITNESS: I am not aware of that, ma'am.

THE COURT: You are not aware of that. Yes, and arising out of that response, Mr.Ward, you now wish to put to the Sergeant the evidence at line 10 on page16. Why do you wish to do this?

THE ACCUSED: Ma'am, I told the officer that I does work onmini van, but you also have someone that does work 'pon mini van that lookexactly like me.

THE COURT: I am asking you why you wish to put to theofficer this evidence on page 16. Theremust be some reason why you wish to do that. Yes, Mr. Ward, I am waiting.

THE ACCUSED: Ma'am - -

THE COURT: The officer gaveevidence just now about something, yes? As a result of his having said that he wasn't aware that there was someone else similarlike you, you now want to ask him another question in relation to this evidenceappearing on page 16, and I'm asking you why you wish to do that.

THE ACCUSED: Ma'am, I gine ask adifferent question.

THE COURT: I am trying to assist you, you know. You have to say why you wish to put thispiece of evidence to the officer.

THE ACCUSED: Ma'am, because when Iwas in the station I actually told himthat I don't know what he is talking about - - about the shooting and they havesomebody else that look like that also work on mini van.

THE COURT: But that is not a reason for putting thisevidence to him. Are you trying to saythat in some way he is contradicting himself?

THE ACCUSED: Ma'am, because he did - -

THE COURT: Are you trying to saythat in some way he is contradicting himself?

THE ACCUSED: Yes, ma'am, because - -

THE COURT: In what way has he contradicted himself? Do you understand what I mean by the word"contradiction", Mr. Ward? Are yousaying that he is saying something here now and he said something elsesomewhere?

THE ACCUSED: Yes, ma'am.

THE COURT: Well, what is it he issaying here and what is it he said somewhere else which is different from whathe is saying here?

THE ACCUSED: Ma'am, the questionthat I asked him.

THE COURT: Yes?

THE ACCUSED: If it was mentioned.

THE COURT: Let me try again.

Thewitness said in response to your question that he was not aware that there wassomeone who was similar like you who was mentioned in this investigation,correct? It appears that you want to say that he said something else somewhereelse?

THE ACCUSED: Yes, ma'am.

THE COURT: Well, could you say what he said somewhereelse?

THE ACCUSED: Ma'am, in the lower court when Mr. Pilgrimcross-examined the officer he said that it was mentioned that I had a lookalike who also work on mini van, but now that I ask the question - -

THE COURT: Well, put it all to him.

THE ACCUSED: But now that I askthe question - -

THE COURT: Put it all to him.

THE ACCUSED:

Q. Inthe lower court when Mr. Pilgrim cross-examined you, didn't you tell Mr.Pilgrim that it was also a look alike who also work on van?

THE WITNESS: That you saidso. Not that I am saying there isone. You said that that is so.

THE COURT: Yes.

THE ACCUSED: So why didn't youmake an attempt to find that person and put them on an ID parade?

THE COURT: This officer is sayingnot that he said there was someone else looking like you that worked on a minivan. The officer is saying, as Iunderstood it, that you said that there was someone else looking like you thatworked a mini van. That's what hisevidence is.

THE ACCUSED: Ma'am, I could recall on the last day inlower court, Mr. Nicholls - -

THE COURT: His evidence simply is,it was mentioned that the accused had a lookalike who also worked on the minivan. That's what his evidence was in thelower court.

THE ACCUSED: Contradiction.

THE COURT: Yes, But what is the contradiction betweenwhat he is - -

THE ACCUSED: But now he is saying that he is not aware ofthat.

THE COURT: No, there is a slight difference in the twoquestions. Whether he is aware of alookalike and whether he is aware that there was mention in the Magistrate'sCourt of a lookalike. They are twodifferent questions. Do you understandthat?

THE ACCUSED: Yes, ma'am, Iunderstand.

THE COURT: So you can move on now.

THE ACCUSED: Did the complainantspeak to you concerning any firearm?

THE COURT: You asked him that already and he said, yes.

THE ACCUSED: What he said?

THE COURT: Yes.

THE ACCUSED: Note that none of thepolice officers in this matter asked the accused nothing relating to a firearm.

THE COURT: Put that in the form ofa question, because I am not sure what you wish to ask him.

THE ACCUSED: None of the police officers in their evidenceare they stating that - -

THE COURT: So you need to start the question, "Did anyof the police officers do something or say something?" What do you wish to ask him?

THE ACCUSED: Did any of the police officers in this matterask the accused anything relating to a firearm?

THE COURT: Well, he can only speakfor himself so ask him whether he - -

THE ACCUSED: Mr. Bynoe, did you ask the accused anythingrelating to a firearm?

THE WITNESS: No,ma'am.

Q. Why?

A. Becausethe accused denied any knowledge of the offence.

THE ACCUSED: Ma'am, I have no further questions for him.

THE COURT: Thank you.

Anyre-ex?"

[62] Before the second police officer, ConstableBowen, was allowed to testify the judge also asked the jury to withdraw andenquired of the appellant whether he wished to object to any of the oralstatements and the appellant said only to the statement concerning hiswhereabouts.

[63] Constable Bowen was also cross-examined bythe appellant as to whether the appellant had a lookalike.

[64] When the cross-examination of the police witnesses on the onehand; and the unsworn statement of the appellant and the testimony of JoyannNewton and Tyrone Cadogan on the other hand are juxtaposed one sees (a) acleverly planned defence of alibi; and (b) a challenge to the prosecution'sevidence of identification of the appellant.

[65] Theconsistency with which the appellant said that he told the police that he knewnothing about the offence and his statement in court that he told the policethat he worked on minivans disclose that he only misunderstood the legalvocabulary in which the judge first put her question to him but he did notmisunderstand what the learned trial judge meant when she reduced it toeveryday usage and asked him whether he had made oral statements to thepolice. The length and nature of thecross-examination of the police witnesses show an appellant cognizant of the importof the oral statements. He wished toput distance between himself and those statements because they wereinconsistent with the defence of alibi which is necessarily tied up withidentification.

[66] The appellant cross-examined the witnesses, ably. He laid the foundation for his defence ofalibi and his challenge to the evidence of identification in hiscross-examination of the complainant and the police witnesses. He bolstered his defence by hiscross-examination of the prosecution's witnesses, his statement from the dockand the testimony of his witnesses, Joyann Newton and Tyrone Cadogan. He was also liberally assisted by the learned trial judge (a) in thecourse of the prosecution's case; and (b) in eliciting alibi evidence from hiswitness, Joyann Newton.

[67] In my opinion (i) theappellant had not chosen an attorney-at-law to represent him on his trial andconsequently he was not deprived of the right to represent himself by anattorney-at-law of his choice; (ii) he was not disadvantaged or inconveniencedby not having an attorney-at-law; and (iii) his trial was not unfair.

Ground3

Thelearned trial judge did not properly and adequately deal with the

issue of identification

[68] The defence being alibi, identification was the principal issue atthe trial. The complainant, Seale,testified that he knew the appellant for about six months before 3 April 2002,by seeing the appellant working on route taxis and that on the evening of 3April 2002 he (Seale) and his girlfriend and the appellant travelled on thesame route taxi and Seale and the appellant quarrelled; and Seale and theappellant travelled from Bridgetown to Grazettes later that night on the sameroute taxi where both disembarked and the appellant shot Seale.

[69] Tyrone Cadogan, on behalf of the appellant, testified that he knewthe appellant for about seven years before 3 April 2002 because they worked onroute taxis and that some people mistook him (Cadogan) for the appellant andthat he (Cadogan) had, on 3 April 2002, travelled from Black Rock to Bridgetownon the route taxi with Seale and Seale's girlfriend and that he, Cadogan, andSeale had quarrelled. Cadogan, however,denied that he travelled from Bridgetownto Grazettes that night and he denied that he shot Seale.

[70] By the time the trial came on Sgt. Benn, the police officer, whoconducted the identification exercise was dead - the victim of a motor vehicleaccident. Sgt. Benn's deposition wasread into evidence pursuant to section 25 of the Criminal Procedure Act.

[71] It is submitted by Mrs. Mitchell-Gittens that the evidence thatSeale pointed out the appellant at the informal identification exercise wasinadmissible by virtue of section 100 of the Evidence Act. Section 100 regulates the admission ofevidence of visual identification and provides as follows:

"(1) Identificationevidence adduced by the prosecutor is not admissible unless -

(a) either (i) an identification parade thatincluded the accused was held before theidentification was made, or (ii) it would not have been reasonable to have heldsuch a parade , and

(b) theidentification was made without the person who made it having beenintentionally influenced to make it.

(2) Without limiting subsection (1), the matters to be taken intoaccount in determining whether it was reasonable to hold an identificationparade as mentioned in that subsection include:

(a) the kind of offence, and thegravity of the offence, concerned;

(b) the importance of the evidence;

(c) the practicality of holding sucha parade having regard, among otherthings

(i)towhether the accused refused to co-operate in the conduct of the parade, and tothe manner and extent of, and the reason if any, for the refusal, and

(ii) inany case to whether the identification was made at or about the time of thecommission of the relevant offence; and

(d) the appropriateness of holding such a parade having regard, amongother things, to the relationship, if any, between the accused and the otherperson who made the identification.

(3) Where

(a) the accused refused to co-operate in theconduct of an identification parade unless an attorney at law acting for himwas present while it was being held; and

(b) there were, at the time when theparade was to have been conducted, reasonable grounds to believe that it wasnot reasonably practicable for such attorney-at-law to be present,

it shallbe presumed that it would not have been reasonable to have held anidentification parade at that time.

(4) indetermining whether it was reasonable to have heldan identification parade, the court shall not takeinto account the availability of pictures that couldbe used in making identifications."

[72] In this case there was no identification parade. Seale picked out the appellant from a groupof seven men, including the appellant. Sgt. Benn's deposition as read to the court revealed that he only hadsix men at that moment and did not think that he had enough time to find twoother men to make the eight normally used in an identification parade. In thosecircumstances the police line-up was not an identification parade properly socalled but, rather was what is well known in this jurisdiction as an "informalexercise". Faced with evidence of aninformal exercise in Hunte v. R.(2000) 60 WIR 20 Williams CJat page 24 said, "The assumption underlying section 100 is that the procedureby way of an identification parade is the proper method of testing a witness'sability to identify a suspect. Evidence of visual identification obtainedthrough a less stringent procedure cannot be admitted unless, in thecircumstances, it was not reasonable to use the proper procedure applicablewhen an identification parade is held". In Hunte v. R. thevirtual complainant had never seen the appellant before the day in question andthe informal identification exercise was made up of five men: we do not knowwhether the appellant was numbered among them. Also in Springer v. R (2002) 63 WIRthe witness had never seen the appellant before.

[73] In R. v. Ford [1998]NSWSC 96, Ford was chargedwith murder which had occurred in a prison exercise yard. The identification witness testified that hesaw the accused committing the crime. The accused and the witness were prisoners. BarrJ observed that it would have been inappropriate to hold anidentification parade because the two shared a contemporary relationshipbetween neighbours in a small enclosed prison community … [That] had existed for a significant time. "The offender was described as of Maoriappearance and with a distinctive plait beginning low on the back of hisotherwise closely cropped head. Theaccused matched this description (excepting that he was Phillipino, notMaori). His distinctive appearance madean identification parade impractical, and his familiarity to the witnessalso made a parade unreasonable…" (emphasis added): see, The New Evidence Law Annotations andCommentary on the Uniform Evidence Acts - Jill Anderson, Jill Hunter, NeilWilliams SC (2002)where section 114 of the Evidence Actof New South Wales, which is identical to section 100 of the Evidence Act of Barbados, isdiscussed.

[74] In the present case the virtual complainant testified that he knewthe appellant for about six months before 3 April 2002 by seeing the appellant on routetaxis. The appellant cross- examined the complainant and never challenged thatevidence. He admitted that he worked onmini-vans.

[75] When the totality of the evidence is considered, in my opinion,the fact that the informal exercise lacked 2 people to make it an identificationparade did not prejudice the appellant.

Admission of Deposition of Sgt. Benn

[76] Defence counsel also submitted that the learned trial judge erredwhen she allowed the deposition of Sgt. Benn to be read and that she failed togive the jury an adequate direction as to the consequential disadvantage to theappellant. This question arose in therecent case of R. v. Al-Khawaja [2006]1 All E.R. 543. The followingpassages are taken from the headnote to the case and certain paragraphs of thejudgment as indicated:

"Thedefendant was a consultant physician in rehabilitative medicine, whosetreatments included hypnotherapy. He wascharged with two counts of indecent assault on two female patients who had beenreferred to him for treatment. One ofthe patients died before the trial, and at a preliminary hearing the judgedecided that her statement could be admitted in evidence under the hearsayprovisions of the Criminal Justice Act 1988. The defendant was convicted, and he appealed. He argued that the admission of the statementwith no possibility of cross-examination had been a breach of his right to afair trial as guaranteed by art 6(3)(d) of the European Convention for theProtection of Human Rights and Fundamental Freedoms 1950 (as set out in Sch 1to the Human Rights Act 1998) which provided that everyone charged with acriminal offence had the right to examine or have examined witnesses againsthim.

Held - Theprovision in art 6(3)(d) of the convention for the examination of the witnessesagainst a person charged with a criminal offence was one specific aspect ofa fair trial, but if the opportunity forexamination was not provided, the question was whether the proceedings as awhole, including the way the evidence was taken, were fair. Where a witness who was the sole witness of acrime had made a statement to be used in its prosecution and had since died,there could be, as in the instant case, a strong public interest in theadmission of the statement in evidence so that the prosecution could proceed,but that public interest was not to be allowed to override the requirement thatthe defendant should have a fair trial. In the instant case the important factors were that the witness had died, that she was the onlywitness whose evidence went directly to the commission of an indecent assaultupon her, that it had been possible to attack the accuracy of her statement byexploring the inconsistencies between it and other witnesses and through expertevidence, that the relevant sections of the 1988 Act, designed to protectdefendants, had been properly considered by the judge before the statement had been admitted in evidence, and that thetribunal of fact had been able, by virtue of an appropriate direction, to takeproper account of the difficulties which the admission of the statement mighthave provided for the defendant. Accordingly, the trial had not been unfair, and the appeal wouldtherefore be dismissed."

The Court said at paragraphs [26] and[28]:

"[26] Where a witness who is the sole witness of acrime has made a statement to be used in its prosecution and has since died,there may be a strong public interest in the admission of the statement inevidence so that the prosecution may proceed. That was the case here. Thatpublic interest must not be allowed to override the requirement that thedefendant have a fair trial. Like thecourt in R v. Sellick we do notconsider that the case law of the European Court of Human Rights requires theconclusion that in such circumstances the trial will be unfair. The provision in art 6(3)(d) that a personcharged shall be able to have the witnesses against him examined is onespecific aspect of a fair trial: but if the opportunity is not provided, thequestion is 'whether the proceedings as a whole, including the wayin which evidence was taken, were fair' (see Doorson's case [1996] ECHR 14; (1996) 22 EHRR 330 at 358 (para. 67). This was not a case where the witness hadabsented himself, whether through fear or otherwise, or had required anonymity,or had exercised a right to keep silent. The reason was death, which has a finality which brings inconsiderations of its own, as has been indicated at the start of thisparagraph.

[28] We have concluded that the rights of theappellant under art 6 of the convention were not infringed by the admission ofthe statement. We consider that hisrights were sufficiently protected in the circumstances of his case. His trial was not unfair…. That conclusionmust be subject to the question whether the trial judge gave an appropriatedirection to the jury as to the statement. It is well-established that such a direction must be given."

[77] In the present case the complainant, Seale, testified that he knewthe appellant from seeing him on route taxis for about six months before the 3 April 2002 but he did notknow the appellant's name. The appellanthimself said that he worked on minivans and he never challenged thecomplainant's evidence that the complainant knew the appellant; neither did hedeny that the complainant identified him (the appellant) at the policestation. On the night of 3 April 2002 when theincident occurred, the complainant said that he and the appellant travelledfrom Black Rock to Bridgetownon a route taxi and from Bridgetownto Grazettes on a route taxi. This was no fleeting encounter: the complainant would have had ample time toobserve the appellant.

[78] In the present case (unlike Al-Khawaja)Sgt. Benn had deposed under oath at the preliminary inquiry and the virtualcomplainant was available and testified and was cross-examined by theappellant. There was a strong public interest in having the deceased Sargeant'sdeposition read and the appellant was afforded full opportunity tocross-examine the virtual complainant. The evidence of Sgt. Benn could have been directly contradicted bycross-examination of the virtual complainant. The appellant did not challenge thecomplainant's evidence that he knew and identified him. The appellant relied on the evidence ofJoy-Ann Newton in support of his alibi and his lookalike, Tyrone Cadogan, bothof whom were seen and heard by the jury.

[79] As in Al-Khawaja,so too in the present case the direction given to the jury respecting thereading of Sgt. Benn's deposition could have been more detailed. It would have been better if the judge hadstated explicitly that the appellant was potentially disadvantaged by theabsence of Sgt. Benn and that in consequence of the inability to cross-examinehim and of the jury to see him, his evidence should carry less weight with them(see paragraph [41] above). None theless, in the circumstances of this case it must have been wholly clear to thejury from the directions the judge did give, that this was the purpose of theremarks. I therefore consider that thejury were given an adequate direction as to the consequence of Sgt. Benn'sdeposition being in evidence in his absence, and that this is not a factorwhich might make the appellant's trial unfair and in breach of section 18(1) ofthe Constitution.

Ground 4

The verdict is unsafe andunsatisfactory.

[80] For the foregoing reasons I am satisfied that the verdict was safeand satisfactory.

Ground5

The sentence is excessive.

[81] The learned trial judge set out the mitigating and aggravatingfactors when considering what sentence to impose. The sentences are well within the guidelineslaid down by this Court for gun crimes.

Disposal

[82] I would dismiss this appeal and affirm the conviction andsentence.

Justice ofAppeal.