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Trinidad and Tobago Court of Appeal |
] [Hide Context]
S. Sharma, C.J.
R. Hamel-Smith, J.A.
S. John, J.A.
APPEARANCES
Ms. Dana Seetahal for the Appellant
Ms. Joan Charles for the Respondent
DATE DELIVERED: 15th July 2004
Delivered by S. John, J.A.
On
February 23, 2001 the appellant, then a minor, was convicted of the
murder of
Paula Edwards at the conclusion of his trial before
Weekes, J. and sentenced to be detained at the State’s pleasure
pursuant
to the provisions of section 79 of the Children’s Act
Chapter 46:01.
The incident which led to the deceased’s death took place on Wednesday August 12, 1998 shortly after 8:00a.m. The deceased had just left her home at Gonzales Quarry, Gonzales to attend a clinic in Port of Spain. She went to a gate at the back of her home and as she was about to close it she was shot twice in her back by the appellant. On October 15, 1998 he was arrested at his home in Laventille and charged with the murder. The prosecution relied on a cautionary statement and two oral statements which he allegedly made to the police on October 16, 1998. The deceased died as a result of shock and haemorrhage due to the gun shot injuries.
The appellant gave evidence on his own behalf and called six witnesses. He raised the issue of alibi. He further contended that he was tricked into signing the statement and denied making the oral statements attributed to him.
THE GROUNDS OF APPEAL
A miscarriage of justice occurred when the prosecution failed to disclose material information that could have been of assistance to the defence; namely that the justice of the peace Mr. Bisson Birsingh who authenticated the written statement allegedly given by the appellant had pending against him eleven criminal charges at the time he authenticated the statement and when he testified at the trial.
Leave was sought and granted before us to use an affidavit sworn by Nadia Ashraph Attorney-at-Law. According to an extract of the magistrate’s casebook which was annexed to her affidavit, eleven indictable informations were laid against Mr. Birsingh. Eight were for misbehaviour in public office and were allegedly committed during the period May-June 1998 and the other three charges were for perverting the course of public justice allegedly committed during the same period. On instructions of the Director of Public Prosecutions all the charges were discontinued on April 4, 2002. At the trial no issue was raised about the pending charges.
Attorney for the appellant submitted that the credibility of the justice of the peace could have been seriously affected or even destroyed if the jury had been aware of the charges against him. She further submitted that had that information been brought to their attention it would have been open to them in considering his evidence to determine whether in an attempt to appease the police he might have given evidence supportive of their case thereby hoping to obtain some benefit in his pending prosecution.
In support of her submission she relied on Ashook Kumar v The State (2000) 56 W.I.R. 503 PC and R v Guney [1998] EWCA Crim 719; (1998) 2 Cr. App. R 242.
In Guney the Court of Appeal laid down the principle to be applied with respect to disclosure. The Court said that whether specifically sought or not the defence was entitled to be given information in the Crown’s possession which had any relevance, or possible relevance, or realistically might lead to evidence which might undermine the prosecution’s case against the defendant or provide support for his case. That principle applied to convictions and disciplinary findings against police officers and also cases stopped by the trial judge or discontinued on the same basis, but not of every occasion on which any police officer gave evidence in any court in the country. They made it clear that the principle extended to anyone, not only police officers, against whom evidence of discreditable behaviour had resulted in findings of professional misconduct.
In Ashook Kumar the appellant had been charged for murder and gave a written statement to a police officer in the presence of Krishna John a justice of the peace and Inspector James Philbert. The justice of the peace signed the statement and certified that he had read and witnessed the statement and that he had asked the appellant if the statement was given of his own free will and he had said yes. The following day a further statement was recorded from the appellant and a similar procedure was followed.
At the trial the justice of the peace was a witness for the prosecution. He began his evidence by stating that he was a justice of the peace for County Caroni. He was no doubt then speaking in the present tense. He further said that on June 9, 1989 he was a justice of the peace. In fact at the time of the trial his warrant had been revoked by the President. However, he had five cases pending at the time. Their Lordships in the Privy Council took the view that his credibility could well have been seriously affected or even destroyed if defence counsel and the jury had been aware of the nature and seriousness of the charges against him and that as a consequence of the cloud hanging over him he had been removed from office. Their Lordships said, “He may no longer have appeared to be of the character to be expected of a Justice of the Peace, namely “a responsible member of the community” as set out in the Judges’ Rules.”
Mr. Justice Blanchard in delivering the opinion of the Board said that it appeared from the cross-examination that defence counsel had some awareness that charges had been brought against the justice of the peace but the inaccurate reference to the number of charges and the way in which the witness was able to deflect the question about them suggested that counsel’s knowledge was limited. Moreover, he said that the trial judge’s comment in his summing-up both pre-supposed “common knowledge” that jurors may not have had and also appeared to treat the matter as of little or no importance. It was also wrong in the circumstances for the judge to refer to the presumption of innocence in the way he did. The jury should, rather, have been told that the justice of the peace might or might not have committed the crimes for which he was then facing charges but that in assessing his evidence they were entitled to have regard to the fact that serious allegations had been made against him involving dishonesty.
In setting aside the verdict the Board said they found it impossible to feel sure that a properly instructed jury would necessarily have arrived at a guilty verdict on the basis of the other evidence, once that of the justice of the peace was set aside.
The situation was, however, quite different in the case of Dennis John v The State (unreported) Cr. App. No. 65 of 1992. The appellant had been convicted of murder. A petition for special leave had been granted by the Judicial Committee and the appeal remitted to the Court of Appeal to consider certain matters that had been raised in the petition.
The principal matter of complaint by the appellant was that material which came to light only after his trial, if available to the defence, might have been used to undermine the credibility of three prosecution witnesses one of whom was Krishna John the justice of the peace who had overseen the making of a statement by the appellant and two police inspectors. The allegations against Krishna John which constituted new material were nine charges against him. The allegations against the inspectors were of a different nature. They had been charged with perverting the course of justice in an unrelated matter. They had been suspended from duty. At the end of the preliminary inquiry they were discharged and subsequently reinstated and returned to active duty. In the course of the judgment de la Bastide C.J. referred to the judgment of the Court of Appeal in John Edwards (1991) 93 Cr. App. R. page 48 where Lord Lane said that it was not considered proper for allegations of impropriety to be put to police officers in cross-examination on the basis of criminal charges that have been laid against them, but not yet tried or on the basis of complaints to the Police Complaints Authority that have not been adjudicated upon. The Chief Justice went on to say, “A fortiori, it would be quite improper for suggestions of that sort to be made on the basis of allegations which have led to the bringing of a criminal charge that has been dismissed. Accordingly, he said, even if the material were available to the defence none of it could have been used to attack the credibility of either of the Police Inspectors.”
With respect to Krishna John the position was different. The new material provided strong evidence that he was involved in fraud in the performance of his duties as a justice of the peace on two occasions. At page 24 of the judgment the Chief Justice said:
“It is clear that if the appellant were to be retried Krishna John could be cross-examined as to credit on the basis of this evidence and also to show that he had been removed from office as a Justice of the Peace. It is true that the cross-examiner would be bound by his answers and evidence of the specific acts of wrong doing set out above would not be admissible if he denied them. It is also true these acts of dishonesty were not connected with the taking of statements from persons in custody. Nevertheless, we are prepared to assume that his credibility as a witness could be totally destroyed by a cross-examiner with the relevant documentation in his hands. The result of this would be that no reliance whatever could be placed on his evidence.”
We are satisfied that whilst the State was under a duty to disclose to the defence the charges that were pending against Mr. Birsingh it would have been quite improper for any suggestion of impropriety to be put to him as the charges had not yet been determined. The lack of opportunity for the defence to cross-examine him on those charges could not therefore produce any miscarriage of justice. Accordingly we reject this ground of appeal.
Before dealing with grounds 2 and 3 which can be taken together it may be convenient to address ground 4.
The learned judge erred in law when she sentenced the appellant to be detained “during the State’s pleasure” since such a sentence is unlawful as being in breach of the separation of powers doctrine underlying the constitution and is incompatible with the Constitution.
The thrust
of the submission was whether the order to be detained during Her
Majesty’s pleasure authorized by section 79 of
the Children’s
Act Chapter 46:01 conferred on the President the power to determine
the measure of punishment to be imposed
on a convicted person, was
compatible with the constitution; and if it was not whether the
language of the constitution protected
it against effective
challenge. She referred to the following authorities: DPP v
Kurt Mollison [2000] 62 W.I.R. 268, Ex Parte Venables [
1997] UKHL 25; [1998], AC 407,
Browne v R [1999] 54 WIR, 213 PC and Hinds v R [1975]
24 WIR 326
The constitutionality of sections 79 and 81 of the Children’s Act was the subject of judicial consideration by Mendonca J, as he then was, in the matter of Chuck Attin v Attorney General of Trinidad and Tobago H.C.A. 2175 of 2003 (unreported).
Section 79 of the Children Act Chap 46:01 provides as follows:
“Sentence of death shall not be pronounced on or recorded against a person convicted of an offence if it appears to the court that at the time when the offence was committed he was under the age of eighteen years; but in lieu thereof the court shall sentence him to be detained during the State’s pleasure, and, if so sentenced, he shall be liable to be detained in such place and under such conditions as the Minister may direct, and whilst so detained shall be deemed to be in legal custody.”
Section 81 of the said Act provides as follows:
“(1) A person in detention pursuant to the directions of the Minister under sections 79 and 80 may, at any time, be discharged by the Minister on licence.
A licence may be in such form and may contain such conditions as the Minister may direct.
A licence may at any time be revoked or varied by the Minister, and, where a licence has been revoked, the person to whom the licence related shall return to such place as the Minister may direct, and if he fails to do so may be apprehended without warrant and taken to that place.”
Mendonca J after a very careful analysis of the authorities including The D.P.P. v Kurt Mollinson found that sections 79 and 81 offended against the fundamental principle of the separation of powers and was not saved by section 6 of the Constitution. He further held that section 5(1) of the Constitution empowered and required the court to modify sections 79 and 81 to bring them into conformity with the Constitution. Accordingly, he substituted the words “the court’s pleasure” for the words “the State’s pleasure” and the word “court” for the word “Minister” wherever it appeared in sections 79 and 81.
We fully agree with the conclusion arrived at by Mendoca J and subject to what we have to say on the other grounds we would be prepared to make a similar order in this case.
The learned judge improperly exercised her discretion when she admitted the oral statements and the written statement allegedly given by the appellant to the police on October 16, 1998, in circumstances where the prosecution case itself revealed inconsistencies sufficient to raise oppression in the taking of statements, and the trial judge gave no indication how she resolved those inconsistencies in admitting the statements.
The learned trial judge erred in law in failing to hold a voir dire in respect of the oral admission/statement allegedly made by the appellant to the police on October 17, 1998 in circumstances where the appellant had been contending that he was ill-treated by the police before the alleged admission, and where it was agreed that he, a fifteen year old at the time, had no representative with him.
The principal issue to be determined with respect to both grounds was whether the police were under an obligation in recording the statement from the appellant to ensure that his attorney, parent, guardian or some responsible adult was present having regard to his age.
The Law
A convenient starting point is the Judges’ Rules, which were made by the judges and contain a series of rules which were drawn up with the approval of judges. They are administrative directions to the police to ensure fairness when dealing with suspects and persons charged with serious offences.
Paragraph 4 of Appendix B of the Administrative Directions governs the interrogation of children and young persons. It reads as follows:
“As far as practicable children (whether suspected of an offence or not) should only be interviewed in the presence of a parent or guardian, or, in their absence, some person who is not a police officer and is of the same sex as the child. A child or young person should not be arrested, nor even interviewed, at school if such action can possibly be avoided. Where it is found essential to conduct the interview at school, this should be done only with the consent and in the presence, of the head teacher, or his nominee.”
Standing Order 32 of the Trinidad and Tobago Police Service Standing Orders reinforces compliance with the Judges’ Rules under the rubric Recording of statements under caution. It states, “Police officers recording statements under caution including confessions, shall comply with the Judges’ Rules and the Administrative Directions on interrogation and the taking of statements.”
It is clear and has been frequently held, that the duty of a judge to exclude a statement is one that must depend on the circumstances of each case. That general principle was stated by Lord Sumner in Ibrahim v Rex [1914] A.C. 509 where he said:
“It has long been an established practice of English Criminal Law, that no statement by an accused is admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority.” The principle was followed in R v Voisin [1918] 1.K.B.
In Wong Kam-Ming v The Queen [1979] 1 A11 E.R. 939 the issue arose whether on a voir dire the prosecution was entitled to cross-examine the accused as to the truth of the confession. The Privy Council held that on the voir dire cross-examination as to the truth of the statement ought not to have been permitted. Whilst entirely endorsing the result Lord Hailsham dissented from a substantial part of the advice of the majority and in expressing his opinion he had this to say:
“I have stated elsewhere that the rule, common to the law of Hong Kong and that of England, relating to the admissibility of extra-judicial confessions is in many ways unsatisfactory, but any civilized system of criminal jurisprudence must accord to the judiciary some means of excluding confessions or admissions obtained by improper methods. This is not only because of the potential unreliability of such statements, but also, and perhaps mainly, because in a civilized society it is vital that persons in custody or charged with offences should not be subjected to ill treatment or improper pressure in order to extract confessions. It is therefore of very great importance that the courts should continue to insist that before extra-judicial statements can be admitted in evidence the prosecution must be made to prove beyond reasonable doubt that the statement was not obtained in a manner which should be reprobated and was therefore in the truest sense voluntary.”
In the case of Ian Leith v The State Cr. App. No. l05 of 1998 (unreported) the accused was sixteen years of age and was charged with rape. At his trial he pleaded guilty. He appealed contending that his counsel told him to plead guilty and he would speak to the State Prosecutor with a view to him receiving a minimal sentence. The Court of Appeal heard evidence from him and in his evidence he said that what his counsel had told him was not acceptable to him and he always wanted to fight his case. In delivering the judgment of the court Sharma, J.A., as he then was, said at page 2:
“We wish to make the point that it would be highly desirable and indeed perhaps necessary, that when young people are charged, it is vital that if statements are to be taken from them, some responsible and independent person should be present to witness the taking of the statement. The obvious reason is that young people really need to have assistance and advice.” (emphasis mine)
In R v Glyde [1979] Crim. L.R. 385 a sixteen year old boy was arrested for burglary. The officers went to his home where he lived with his mother and her other children at about 6:30a.m. and asked her to accompany him to the station. She told them that she could not then accompany them because the other children had to be seen off to school. The youth was nevertheless taken away and questioned in the car on the way to the police station and allegedly made certain admissions amounting to a full confession. At the station he was not further interrogated as the officers said they were awaiting the arrival of his mother who never showed up. No effort was made to arrange for a solicitor or social worker to be in attendance. The officers stated that they had reason to believe that the defendant would not have desired that course but it was accepted that he had at no stage explicitly been given the option. At the close of the prosecution case and without having asked for a trial within the trial defending counsel invited the learned judge to exercise his discretion by excluding the admissions on the ground of non-compliance with paragraph 4 of the Home Office Administrative Directions on Interrogation. Counsel submitted that the questioning in the car had been premature and that even if there had been some doubt as to whether the mother would come to the police station later or whether the defendant would be willing to be questioned in her presence or in the presence of a social worker or solicitor, the questioning should have been postponed until arrangements could be made for an interview in conformity with Administrative Direction 4. In the circumstances the admissions might not have been entirely voluntary.
The trial judge took the view that great care had to be exercised when interrogating young persons. He said that although the officers might have been under some strain in view of the attitude of the defendant and that of his mother, the Administrative Direction was nevertheless there to be obeyed. The officers should have refrained from questioning until either the mother, a social worker, a solicitor, or some other adult not being a police officer could be present at an interview. Accordingly, the answers were excluded.
In R v Roberts [1970] Crim. L.R. 464 the accused was fourteen years old. He was convicted of the murder of an elderly widow by stabbing her with a bread knife. He was interviewed by the police without a parent or independent person being present. The police believed that he was unlikely to tell the truth if his mother were present, and said that he expressly asked that she be not present. He subsequently made an oral statement of guilt which was reduced into writing and signed by him. At his trial he did not allege oppression by the police; he said he did not make any oral confession and though he signed the written statement it was not dictated by him. The trial judge ruled that the statements were voluntary and there was no ground for excluding them. On appeal it was submitted, inter alia, that the statements were inadmissible because the questioning of a person of the age of fourteen without a parent, guardian or independent person being present raised a presumption of oppression. The Court of Appeal dismissed the appeal holding that the absence of a parent or guardian and non-compliance with the Judges’ Rules did not make the statements inadmissible.
In the course of delivering the judgment Lord Parker, C.J. said: “When considering the Judges’ Rules the question in every case was whether the statement was voluntary in the sense that the mind of the maker had not been overborne or his free will sapped. When the maker is a child stronger evidence is required to show that the statement was voluntary if no parent was present. The administrative directions ought in general to be obeyed but in the special circumstances of the case the police were justified in proceeding as they did.” (emphasis mine).
In R v Morse & Ors. [1991] Crim. L.R. 195 the defendant who was sixteen years of age was charged along with three other persons with arson. He was taken to a police station where he was interviewed and made certain admissions. His father was present during the interview but both he and his son declined legal representation. A voir dire was held to determine the admissibility of the admissions made by the youth. In the course of the voir dire, a psychologist gave evidence that the defendant’s father had an I.Q. of between 60 and 70; was virtually illiterate and probably incapable of appreciating the gravity of the situation in which his son found himself. The defendant himself was below average intelligence. The interviewing police officer gave evidence that the father had, in fact, given no advice to the defendant. The court in excluding the evidence found that the prosecution had not discharged the burden of proving that the confession was not unreliable under the provisions of section 76(2)(b) of Police and Criminal Evidence Act 1984 (U.K.). That section provides as follows:
“If, in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained -
(a)………………
in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof.
A similar approach was taken in the case of D.P.P. v Blake [1989] 89 Cr. App. R. 179. The defendant, a girl sixteen years of age was estranged from her father and stepmother. She was arrested on an allegation of arson and taken to a police station for questioning. In accordance with the code of practice issued under section 66 of the Police Criminal Evidence Act 1984 (U.K.) the police wished her father to be present at the interview as the “appropriate adult.” The defendant made it clear that the person she wanted to be present at the interview was her social worker and not her father. However, the local social workers had a policy of not attending a police interview if a parent was available. Accordingly, the defendant gave the police her father’s address and he attended the interview, but took no part in it. She made a full confession and was subsequently charged. At her trial the justices refused to admit the confession on the ground that her estranged father was not an appropriate adult. They found that he did not come within the spirit of the code of practice. They were far from satisfied that such an estranged parent would fulfil the objectives of ensuring a fair interview of a juvenile when that juvenile had expressly and with some steadfastness, made plain that she did not wish the parent to attend.
In R v Coe [1997] QCA 82 the appellant was a young boy a few months short of his fourteenth birthday when he was charged for larceny and wilful damage. The case against him depended on certain incriminating admissions he made to the police in the presence of a justice of the peace. The court found that the justice of the peace was a ‘nervous wreck’, annoyed at being called out, not understanding the rights of the suspect and unreliable in giving an account of the events in question. The court found further that whilst the requirements of the relevant statutory provision were formally complied with the justice of the peace was a less than willing participant in the events which had taken place.
Re A [1975] 5.W.W.R. 425 was an appeal from a juvenile court judge to a judge of the Supreme Court of Alberta. The juvenile was charged with burglary and he made a confessional statement to the police when neither a parent nor a person in loco parentis was present. He had been given all the necessary cautions before the taking of the statements and he was also advised of his rights and was given full opportunity to contact a lawyer, his parents, as well as a person in authority. He refused any kind of assistance. The trial judge disallowed the written statement holding that a child could not waive his rights during interrogation, however well intentioned the police or persons in authority conducting the interrogation may be. The Crown appealed. The one issue in the appeal was, “Can the statement of a juvenile be said to be voluntary and admissible in evidence if it was taken from him by persons in authority without the presence of a parent or other person in loco parentis.”
Shannon J in agreeing with the juvenile court judge said: “juveniles are peculiarly vulnerable in the matter of police questioning. It there follows that a trial judge must scrutinize the circumstances surrounding the taking of a statement from a juvenile with exceptional care and in so doing, he should be aware of the guidelines that have been laid down in the reported cases.” In the course of delivering his judgment he referred to R v Jacques [1958], 29 C.R. 249 in which guidelines were laid down for persons in authority taking statements from children. They are:
That a relative, preferably of the same sex as the child, accompany the child to the place of interrogation.
That the child, at the place of interrogation and in the presence of the relative accompanying him, should be given the choice of deciding whether he wishes the relative to stay in the same room during the questioning.
The questioning should be carried out as soon as the child and his relative arrive at headquarters.
The child, as soon as the caution is given, should be asked whether he understands it, and if not, give him an explanation.
If it is impossible to proceed according to (3) above detain the child in a place designated by the competent authorities as a place for the detention of children.
It seems to me that there is no good reason why a similar approach should not be adopted by the judges in Trinidad and Tobago to give effect to the true spirit and intent of the Judges’ Rules. After all, the primary objective of Appendix 4 of the Judges’ Rules is to ensure fairness and to act as a safeguard for the juvenile.
The appellant was arrested by Sergeant Lashley at his home at Soogrim Trace, Laventille at about 6:30a.m. on October 15, 1998. At the time of his arrest his mother, sister and his girlfriend were present. Sergeant Lashley asked him his age and he replied that he was fifteen years old. According to Sergeant Lashley the police party headed for the Criminal Investigation Department with the appellant. However, Police Constable Stewart under cross-examination admitted that before taking the appellant to the Criminal Investigation Department they had gone all over Laventille.
On the issue of the feeding of the accused, Police Constable Carl Campbell testified that on the morning of the October 15 he fed the accused and he caused an entry to be made in the police station diary. Police Constable Gary Edwards testified that he fed the accused lunch at 12:05p.m. that day and like Police Constable Campbell he caused an entry to be made in the police station diary as well as in the feeding register. The accused testified that he was not fed at all on that day. Now very interestingly, the police station diary for October 15, 1998 was bought to court by Police Constable Edwards and in light of the hotly contested issue as to whether the appellant was fed or not we would have expected the prosecution to tender the diary to support the case that the appellant was fed. Why that was not done remains unanswered. Police Constable Flaveny said he fed the appellant at 12:10p.m. on October 16 and made an entry in the station diary and feeding diary. That, the appellant denied.
Police Sergeant Glen Sylvester testified that Mr. Godson Phillips an Attorney-at-Law came to the Criminal Investigation Department on the morning of October 16 and was allowed to speak with the appellant. He, however, could not recall if the appellant’s parents had come to the Criminal Investigation Department that morning.
On the other hand, Police Constable Edwards was quite adamant that neither parent came to the Criminal Investigation Department on the morning of October 15.
Keith Mathias, the appellant’s father testified that he went to the Criminal Investigation Department sometime after 4:10p.m. on the afternoon of October 15 and was told that his son was not there. He was directed to the Besson Street Police Station where again he was told that his son was not there. He further testified that the following afternoon he went to the Criminal Investigation Department, the Police Administration Building and the Besson Street Police Station and at each facility he was told that his son was not there. He said that as a result of the run around he was getting he sought and retained the services of Mr. Godson-Phillips, Attorney-at-Law to act on his behalf.
Wendy Adams, the appellant’s mother testified that both on the morning and afternoon of October 15, she went to the Criminal Investigation Department, the Police Administration Building and the Besson Street Police Station to inquire about the appellant but on each occasion she was told that he was not there.
On the morning of October 16 she again visited the three aforementioned police facilities and did not get an opportunity to see her son. However, around noon that day she returned to the Criminal Investigation Department and was advised that the appellant had been taken to the Police Administration Building. She went there but was told once again told that he was not there. As a consequence, she visited the law office of Mr. Cecil Pope an Attorney-at-Law and retained him to act on her behalf. According to her testimony Mr. Pope left immediately and went to the Criminal Investigation Department. She waited outside and when Mr. Pope returned he told her that the appellant had been charged for murder.
Both Attorneys testified on the voir dire. Mr. Godson-Phillips admitted having gone to the Criminal Investigation Department but asserted it was on October 15 on the instructions of the appellant’s father. Godson-Phillips further said that having been introduced to the appellant by Sergeants Dick and Fortune he told the appellant that he can corporate with the police as much as possible but he was not obliged to give a statement. He also said he told the appellant he looked forlorn and depressed and he appeared traumatized. He further testified that he returned to the Criminal Investigation Department the following morning before 9:00a.m. and was advised that the appellant had been taken to the homicide office at the Police Administration building.
Mr. Pope on the other hand said that on October 16 Keith Mathias and Wendy Adams the appellant’s parents came to his chambers and about 8:30a.m. he went to the Criminal Investigation Department where he was allowed to see the appellant. He too advised him against giving a statement. According to him the accused looked disturbed and distressed. He promised the appellant that he would return later that afternoon. In fact he did return about 3:30p.m. when he was advised that the appellant was at the homicide office. He went to the homicide office where he met Sergeants Dick and Fortune, a justice of the peace and Junior Adams the brother of the accused. Sergeant Dick told him that the appellant had given a statement. He was handed the statement, he looked at it and returned it to Sergeant Dick.
As earlier indicated in the judgment the justice of the peace Mr. Birsingh was one of the persons who witnessed the recording of the statement. The statement began at 4:20p.m. on October 16, 1998. Mr. Birsingh came to the homicide office at 4:34p.m. The statement was recorded by Sergeant Dick with Sergeant Fortune and Junior Adams, the brother of the appellant being present.
Junior Adams was twenty years of age at the time. At the homicide bureau he was not given an opportunity to speak to the appellant. Sergeant Fortune made no inquires of him to ascertain the level of his education. In fact, he never questioned him about his ability or willingness to witness the statement. He had been arrested on two occasions prior to October 16, 1998 by Sergeant Stewart and Sergeant Dick interviewed him in connection with a murder less than two months before October 16, 1998. In those circumstances, it was more likely that he would have been scared of the police.
Sergeant Dick said that while he was aware that the appellant’s mother was not at home when he went there, he was nevertheless told that she would be back later that evening. He said having told the appellant that he was investigating the murder of Paula Edwards and having cautioned him he said, “Is Pheron who gave me the gun and tell me to go and shoot she. If all yuh want I will carry all yuh and show all yuh whey.”
He then asked him if he would like to give a statement in writing and he agreed. Sergeant Dick further said that he told the appellant that he would prefer to have a justice of the peace present and he explained to him the role of the justice of the peace in relation to the statement. The appellant told him that he wanted him (Sergeant Dick) to write the statement. He telephoned the justice of the peace but before the arrival of the justice of the peace the appellant told him to begin writing the statement and he complied with that request. At the conclusion of the statement he invited the appellant to read it and the appellant told him, “I can’t read so good I want the justice of the peace to read it.” The justice of the peace read it aloud.
He received the telephone call at 4:00p.m from the police. At the time he lived at Coronation Street, San Juan and a police vehicle took him to Port of Spain. He arrived at the homicide office at 4:34p.m. He too asked no questions of the appellant’s brother not even to ascertain whether he understood why he was there or the meaning of the words, ‘additions’, ‘deletions’ and ‘corrections’ on the statement.
The appellant attended Our Lady of Laventille Roman Catholic School until age fourteen. He never had the benefit of a secondary education and according to him he could not read. In our opinion whether he was unable to read at all or unable to read well was indicative of his low level of education. All too often when written statements are about to be recorded we hear from the recording officer that the accused told him to start writing he can’t wait for the justice of the peace. That to my mind is a very unsatisfactory state of affairs. Such a superficial and perfunctory statement coming from a police officer does not satisfy the onus placed on the police.
The police officer ultimately takes responsibility for the recording of the statement. He must ensure a level of fairness. Whilst there is no legal requirement that the justice of the peace be present during the actual recording of the statement we strongly urge police officers to ensure as far as it is practicable, and most especially in cases of serious crimes that a justice of the peace or some responsible member of the community be present from the commencement of the statement. We can see no justification at all for commencing a statement where the recording officer has gone to the trouble of contacting a justice of the peace and has actually sent for him. The accused, in our view must never be allowed to dictate to the police when the statement should begin. That is the function of the recording officer. The court must always be satisfied that juveniles are not giving confessional statements simply because of environment pressure or simply to get out of police custody.
As indicated earlier the trial judge ruled the statement voluntary stating that there was neither unfairness nor any breach of the Judges’ Rules. No written reasons were given. In the case of Thongjai v The Queen [1997] 3 W.L.R. 667, the trial judge ruled two written statements inadmissible but gave no reasons for so ruling. In delivering the opinion Their Lordships in the Privy Council observed that it was desirable that a trial judge should give brief reasons for ruling that a confession is inadmissible, as his reasons may assist in clarifying issues if there should be an appeal.
In Wallace and Fuller [1996] 50 W.I.R. 387 the appellants appealed to the Privy Council against the dismissal by the Court of Appeal of Jamaica against their convictions for murder. The only evidence against them consisted of written statements under caution alleged to have been made by them after they had been in police custody for several days. A voir dire was conducted to determine the admissibility of the statements and at the end thereof they were admitted into evidence. One of the grounds of appeal advanced before the Board was that the trial judge, when announcing his decision that the statements were admissible in evidence, gave no reasons beyond saying that the statements were voluntarily given by both the accused.
At the hearing before the Board, counsel placed heavy reliance on two cases decided in the Criminal Courts of Appeal of Western Australia and New Zealand respectively, namely R v Webb [1994] 74 Crim R 436 and R v Atkinson [1984] 2 NZLR
The case of Webb concerned the admissibility of a confession by a person of Aboriginal descent, to which special conditions were applied by the Aboriginal Affairs Planning Act 1972 (Western Australia). The appellant’s confession was quashed on the ground that the judge had given no reasons for admitting his confession in evidence. In delivering the judgment of the court Malcolm C.J. said:
“In certain circumstances it may be undesirable for a judge to give detailed reasons for decision on a voir dire. This may be the case where the judge has decided that confessional evidence is admissible because the allegations which have been made by the accused to the effect that it was involuntary are incredible, or the judge has otherwise reached an unfavourable conclusion about the credibility of the accused as a witness. There is a natural reluctance to say too much in case the views expressed are communicated to the jury, even if only after the trial has been concluded. Given that a degree of circumspection may be required, I am nonetheless of the opinion that there is an obligation on a judge to give reasons for ruling on the admissibility of evidence following a voir dire. The obligation applies whether the issue raised is voluntariness or fairness at common law or is referable to the statutory criteria specified in the Aboriginal Affairs Planning Authority Act. Not to give such reasons would unfairly deprive the accused of his or her right of appeal or at least unjustly circumscribe it.” (emphasis mine)
The Board did not agree that such a general rule was desirable but agreed that there would be occasions when good practice required a reasoned ruling. For example, where the judge decided a question of law sufficient, but no more, must be displayed of his reasoning to enable a review or appeal. Again, on a mixed question of law and fact the judge should state his findings of fact so that the law can be put in context. Similarly, the exercise of a discretion will often call for an account, (however brief) of the judge’s reasoning, especially where the issue concerns the existence of a discretion as well as the way it should be exercised. In every case it will depend on the circumstances whether reasons should be given, and if so with what particularity.
In the case of Atkinson the accused was charged with sexual intercourse with a young girl. At the trial the police tendered a statement taken while he was in custody but before he was arrested. The accused claimed that the statement ought not to be admitted in evidence. After conducting a voir dire the trial judge gave a brief oral judgment stating that he intended to admit the statement. No reasons were given for that decision. The appellant was convicted. On appeal it was held that in every case it was essential for the trial judge to make it clear that he had properly applied his mind to the issues before him and had proceeded to his conclusion on the correct legal basis. Even if the issue be no more than a determination of where the truth lay, it must be made apparent that the judge had correctly directed himself on the standard of proof.
We fully accept and endorse the views expressed in the above cases and we commend them for the guidance of trial judges. We are of the opinion that there will be everything to gain and little to lose by the giving of reasons, even if only briefly.
In the instant case the court did not have the benefit of written reasons. We feel that we would have been in a better position to assess the findings of the trial judge if written reasons had been provided.
The appellant was interviewed at the homicide bureau by Sergeant Dick in the presence of Sergeant Fortune and Junior Adams the brother of the appellant.
Both Sergeants Dick and Fortune said that after the appellant had been cautioned and informed of his constitutional rights he said: “Is Theron who give me the gun and tell me to shoot she. If all yuh want I will carry all yuh and show all yuh where.” The accused was taken to the scene of the incident on October 17, 1998 around l:20p.m.and there he is alleged to have told Sergeant Fortune in the presence of Police Constable Bridgenarine Chatoo: “Sergeant Fortune, is here I sit and wait for Paula to come out of the gate and I get up and shoot she on she back and I run up the hill and give Keston the gun.”
Those statements by themselves amounted to very strong evidence against the appellant because he was confessing to having shot and killed Paula Edwards. If accepted by the jury it was sufficient to convict him of murder.
The appellant denied making the statements. After a review of the evidence the trial judge in her summing up said to the members of the jury: “Mr. Foreman and members of the jury it is for you to decide what you make of the evidence in this case. It is entirely a matter for you…….”
“…..The State’s case stands or falls with this statement and the circumstances in which it was given.” That was no doubt a direct reference to the written statement. There was no separate or specific direction given in relation to the oral statements.
In Belcon v R (1963) 5 W.I.R. 526 Wooding C.J. in reference to oral confessions said: “In our judgment, if and when objection is taken to the admissibility of any such statements, the authorities do not go beyond requiring the judge, notwithstanding his ruling that they are admissible, to direct the jury that it is for them to determine what weight and value they should give to them after hearing evidence of the circumstances in which they were made.”
He, however, went on to say that in some cases juries need to be warned to be cautious in acting upon alleged confessions, especially if they are not in writing.
In our opinion having regard to the gravity of this offence the jury ought to have been specially warned about the oral statements made by the appellant especially as there was no evidence that any of the alleged utterances was reduced into writing by any of the officers concerned.
1. We are of the opinion that the presence of Junior Adams the brother of the accused at the interview and subsequent recording of the statement was not in accordance with the true spirit and intent behind Rule 4 Appendix B of the Judges’ Rules for the following reasons:
He was a person under suspicion by the police and at least two of the officers involved in the investigation into this murder had had direct dealing with him. One had arrested him and the other had interviewed him in connection with another murder.
When the police went back to the home of the appellant on October 16 they invited Juinor Adams to come to the homicide office. They did not explain to him the role he had to play nor was he given the opportunity to confer with or advise his brother. He ought to have been told that he was there to observe the proceedings for fairness, and if necessary, to help if any problem of communication arose between the officer questioning the appellant and the appellant.
No inquiries were made about his level of intelligence and as a consequence it is unclear whether he was a person with the ability to give any type of advice to his brother.
2. Sergeant Dick was aware that the appellant’s mother would have been available later in the evening of October 16. No explanation was proffered by him why he did not await her return. Both parents had made several visits to the Criminal Investigation Department to see and speak to the appellant. That information ought to have been brought to the attention of Sergeant Dick and if he were acting as a responsible and prudent police officer he ought to have ensured that one of them was present before commencing the recording of the statement.
3. The recording of the statement began before the arrival of the justice of the peace although Sergeant Dick told the appellant he wanted the justice of the peace to be present and he had actually sent for him. In our opinion Sergeant Dick ought not to have commenced the recording of the statement before the arrival of the justice of the peace.
4. It would seem that the police did all in their power to deny the appellant’s parents access to him. That, in our view was quite unfair and such behaviour would not be condoned by the court. There must always be a modicum of police propriety in this regard.
5. The failure of the trial judge to warn the jury to exercise caution with regard to the oral confessions was in our view a grave error.
6. It is of course settled law that an arrested person has a constitutional right to retain and consult with a legal adviser of his choice without delay. That constitutional right was identified and recognized as existing under section 4 of the Constitution by the Privy Council in Thornhill v A.G. (1979) 31 W.I.R. 495. Full effect and meaning must always be given to that right. In the instant case whilst the police did allow the appellant’s attorneys an opportunity to see and speak to him we feel that it would not have been inappropriate to contact one of them when they were about to record the statement.
7. Further, I would reiterate what Davis, J.A. said in A.G. v Whiteman [1991] 39 W.I.R. at page 408 that the executive take a close look at the Police and Criminal Evidence Act 1984 enacted by the United Kingdom Parliament in 1984 with a view to enacting in this jurisdiction, codes of practice as contemplated by section 66 of that Act.
This case has caused us some concern. It is irreparably and irredeemably infected by the highly unsatisfactory manner in which the police went about obtaining the statement. Apart from the statement and the oral confession, there is no other evidence to implicate the appellant with the murder. The circumstances surrounding the statement raise a real doubt about the safety of the conviction.
On Tuesday 11th May 2004 when we allowed the appeal we indicated that we would hear arguments as to whether there should be a retrial. Accordingly, we adjourned the matter and invited Attorneys to submit skeleton arguments.
Ms. Seetahal for the appellant in support of her argument that this court ought not to allow a retrial referred to Reid v R [1978] 21 W.I.R. 254 and Nicholls v R [2000] 57 W.I.R. 154. In the case of Nicholls, the Privy Council quashed a conviction for murder as it was not satisfied that the trial judge had given the jury such assistance as they needed. Counsel for the prosecution invited the Board to remit the matter to the Court of Appeal to consider whether a retrial should be ordered. In declining to make an order for a retrial the Board referred to a statement of Lord Diplock in Reid (supra) where he said:
“It is not in the interest of justice as administered under the common law system of criminal procedure that the prosecution should be given another chance to cure evidential deficiencies in its case against the accused.”
The State’s position on this issue was outlined in a letter from the Director of Public Prosecutions in which he agreed that the case for the prosecution stands or falls on the confession statement allegedly given by the appellant to the police. The Director of Public Prosecutions further advised this court that Junior Adams the appellant’s brother had since died and since his evidence was crucial to the admissibility of the appellant’s statement the State was not inviting the court to order a retrial.
In the light of the position adopted by the Director of Public Prosecutions and having regard to the fact that the State’s case rested entirely on the written confessional statement witnessed by Junior Adams, we are of the view that there ought not to be a retrial.
S. Sharma
Chief Justice
R. Hamel-Smith
Justice of Appeal
S. John
Justice of Appeal
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