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THE STATE vs. PHILLIP JNR, WINSTON [2006] TTHC 32 (7 May 2006)

THE REPUBLIC OF TRINIDAD & TOBAGO

THE HIGH COURT OF JUSTICE

HCA # 27 of 2004

BETWEEN THE STATE

-v-

WINSTON PHILLIP Jnr.

_______________________________

RULING ON VOIR DIRE

_______________________________

BEFORE THE HONOURABLE MR. JUSTICE IAN STUART BROOK (Ag.)

IN THE PORT OF SPAIN FOURTH ASSIZE

MS. NALINI SINGH & MS. SHOBA JAMUNAR on behalf of the STATE

MS. CELESTE JULES on behalf of the DEFENDANT

REPUBLIC OF TRINIDAD & TOBAGO

IN THE HIGH COURT OF JUSTICE

BETWEEN THE STATE

-v-

WINSTON PHILLIP Jnr

_____________________________________

RULING ON VOIRE DIRE

_____________________________________

Ian Stuart Brook J. (Ag.):-

1. SUMMARY OF EVIDENCE OF STATE’S CASE

At around 4:30am on the 15 ^th April 1999, a party of Police officers, including No. 10881 Bruce and A/Inspector Gay, attended at the home of Winston Phillip Jnr (“the accused”) and executed a search warrant, which proved negative. Following a brief conversation, the accused took them to an area off Cameroon Rd., Petit Valley and showed them parts of a red Toyota Hilux motor vehicle, including a chassis cab, an engine and a registration plate TAT 8631. For completeness, I should add that a red Toyota Hilux, TAT 8631, was stolen from the virtual complainant, on the 1 ^st April 1999. When the officers saw the parts, Bruce cautioned the accused, in the familiar terms of Rule II Judges' Rules, and told him of his rights and privileges. His reply to caution was to say “we tief vehicle TAT 8631 along with some other fellahs we strip that vehicle and sold the parts to Jeff” (“first oral”). This was recorded in the Station Diary. The accused took the officers to Webster’s Garage, having sold some of the parts to the proprietor thereof. A further search warrant was executed, eventually, at those premises, and the accused identified the parts he had sold which were produced, to the Police, by the proprietor, Webster, including the suspension and wheels. The party of police officers returned with the accused, Webster and the parts, to the Port of Spain Criminal Investigation Department, around 2:40pm. The delay was caused by the necessity to obtain the second warrant, to recover the parts from down an incline, and to await the arrival of a wrecker for that purpose. At the Criminal Investigation Department, Bruce contacted the investigators and the accused was placed in a cell. Later, the accused was conveyed, from there, to the Four Roads Police Station “on enquiries”, by Police Officer 14310 Grant. PC Nanan, the Complainant, saw the accused, at the Four Roads Police Station, at around 8:40pm, on the 16 ^th April 1999, where he informed him of information that he had received from other officers ^[1] , cautioned him and advised him of his rights and privileges, to which he remained silent. He was then taken to West End Police Station, arriving at 8:45pm., and placed in a cell, whereupon Nanan went about some other duties. Later that night, the accused called him, to the cell, and indicated that he now wished to speak to him in relation to the investigation. He was taken to a room in the Criminal Investigation Department Office, and they were joined by PC Brisbane. The accused was reminded of the caution and his constitutional rights ^[2] , to which he replied: “I didn’t go to tief the van. I just give the fellahs the keys and ah helped them scrap it. I line up Jeff to buy the parts” (“second oral”). This was recorded in the Station Diary. Nanan enquired of him if he would like to give, in writing, what he had said, and he replied “yes”. Efforts to have a JP present proved futile, which is, perhaps, hardly surprising, as it was approximately 11:30pm. Nanan took a written statement under caution, in the prescribed form, signed, inter alia , by the accused, and containing the cautionary preamble and certificate prescribed by Rule V (a) & (e) Judges' Rules. It was commenced at 11:45am and concluded at 12:32am of the next morning (“the statement”). The accused was charged with larceny of the vehicle on the 17 ^th April 1999. The accused’s statement was certified by a J.P., Fitzroy Fords, as to voluntariness, pursuant to Appendix B, para. 6, Judges' Rules, on the 18 ^th April 1999. The JP spent some 45 minutes with the accused and no complaints were made to him.

2. GROUNDS OF VOIR DIRE

2.1. Ms Celeste Jules, Counsel for the accused, sought to exclude the second oral and the statement, pursuant to the following written grounds, filed on the 2 ^nd May 2006:-

“1. The statements were involuntary in that they were obtained in oppressive circumstances, namely:-

i. The accused was in police custody some 48 hours before the utterance was made or the alleged cautionary statement was taken and was left to stew;

ii. The accused was questioned constantly by police officers prior to giving the alleged oral and/or cautionary statement;

iii. The accused was acutely intoxicated at the time of his arrest;

iv. The accused was beaten by Officers Bruce, Gay and other officers whose names are not known to the accused prior to the alleged oral utterance or cautionary statement aggravating an existing injury;

v. The accused was not allowed to refresh, take a bath change his clothes for the duration of his detainment;

vi. The accused was not afforded an opportunity to sleep.

In the light of all the above, the will of the accused was sapped to the extent that he spoke when he would otherwise have stayed silent.

2. Breach of the Judges’ Rules and Constitutional Rights:

i. The accused was not cautioned.

ii. The accused was not allowed to access his right to an attorney-at-law.

iii. The accused was not informed of his right to have a friend, relative or attorney-at-law present during the taking of the alleged cautionary statement.”

2.2. On the 4 ^th May 2006, at the start of the proceedings, Counsel handed up an additional ground:-

“i. that the accused was told by Police Officer Nanan that he would receive a cigarette upon giving a statement to the said officer Nanan .”

2.3. During the proceedings on that day, upon being so requested, by the State, Counsel provided further and better particulars of Ground 1 iv. These particulars were oral, and were noted in the Court Record for that day:-

“i. At St Vincent St Criminal Investigation Department , Bruce and Gay, et al (unidentified), beat the accused about the head with a torch, a Station Diary, a book, and anything else that they could find;

ii. At Four Roads Police Station, 2 unidentified officers beat him around the head with the Station Diary.

The beatings aggravated an existing injury on the neck viz., a stab to the back of the neck towards the area of the right ear.”

2.4. Notwithstanding the fact that the Court had indicated that there was no need to formalise/reduce into writing, the aforesaid further and better particulars, as they were noted in the Record, Counsel was insistent on handing up, on the morning of the 5 ^th May 2006, a document particularising the following:-

“The Prosecution has requested Particularization of ground 1 (iv) as provided by the Defence.

The particulars of the said ground are as follows:

i) That the accused was beaten about the head by officers Bruce , Gay and Grant with a station diary, torch light, book and any other article which the said officers could locate at the St. Vincent Street C.I.D. office between the hours of midnight and 6:00am or thereabout.

The said beating aggravated an existing injury suffered by the accused to the upper right hand side of his neck towards the ear area.”

2.5. The Court immediately announced its observation that Grant had now been added to the list of officers who were said to have beaten the accused and that the allegation of beating at Four Roads Police Station was, seemingly, being withdrawn, in toto . Counsel confirmed that this was correct.

2.6. On the 3 ^rd May 2006, when asked to clarify what she meant by Ground 2 i., Counsel had indicated that, as well as alleging that no Rule II caution was ever administered to the accused, she was alleging a breach of Principle (d) of Appendix A of the Judges' Rules, together with a breach of Rule III (a) & (b) ibid , as I had argued, before my brother Volney J., when at the Bar, in Banfield , Cr.A.No. S34 of 2001 (“the Banfield point”).

3. I heard evidence from several Police Officers, and a JP, as to, inter alia and collectively: the administering of cautions ^[3] and constitutional rights at relevant times as required; the welfare of the accused; that he was fed/offered meals; that meals were brought by relatives; that he was housed in typical police cells, throughout his stay in custody, which had, either, toilet/washing facilities within or without and that the various single occupancy cells, in which he was housed, were equipped, invariably, with wooden/concrete bunks and foam mattresses. None of these witnesses, (Fitzroy Forde JP, Police Officer 14087 Nelson, PC 1164 Roberts, PC 13291 Nanan, PC 14070 Lynton, Police Officer 14310 Grant, PC 13758 Brisbane, PC 3977 Rollocks, Inspector Gay, PC 14594 Anderson, Police Officer 10881 Bruce and PC 13858 Teewan Jerry), who each testified to certain of these matters and their interaction with the accused at the relevant time, saw any noticeable bruises or injuries on him, any indication that he was in pain or discomfort or intoxicated, or anything untoward about his behaviour, condition or state of dress, or received any complaint from him whatsoever. PC Nanan denied any suggestion that he might have been permitted to smoke whilst in detention.

4. I heard evidence from the accused, which may be summarised thus:-

4.1. He testified that he was very drunk when the Police came for him at around midnight on the 14 ^th April 1999, as he had been celebrating his Birthday. He stated that he had drunk half a white oak and that some neighbours, about 11:30pm, gave him ¾ bottle blue scotch. He drank the whole bottle of blue scotch - a normal sized bottle of scotch. The Police searched the accused’s home and arrested both he and his brother Nigel on finding a motorcycle outside the latter’s premises. Notwithstanding having drunk ¾ bottle blue scotch, in the half hour preceding the arrival of the officers, and a quantity of rum beforehand, he was able to kick start the motorcycle, which they could not start. Grant took the motorbike, and he rode it alongside the Landover, he was placed back in the Landover, and he and his brother were taken to Criminal Investigation Department Port of Spain. The main Criminal Investigation Department St Vincent St. When he arrived there he was questioned in connection with the motorbike, by Bruce, Gay and others. He gave them information about the motorbike. Then Bruce and Gay started to ask him about a red van, and he told them he didn’t know anything about a red van. Gay, Bruce and others started to beat him mostly to his head with a torchlight, a Station Diary and with their hands. (The latter had not been put, to the officers, by Counsel.) He was sitting facing a desk, handcuffed, and they were beating him all over his head. (He demonstrated the top, both sides and back of his head. )He was trying to breaks from the lash as he had an injury to the back of his right ear from a stab wound that was healing. He was in a confrontation with a madman who had broken a bottle and stabbed him to the back of his neck. He had a scar which the Court and State Counsel viewed – a scar , like a “C”, 1cm across, behind right ear. He continued to tell them that he didn’t know anything about no red van. He just knew about this motor bike. They told him that in the morning they were going to carry him and show him the van they talking about. They eventually did stop beating him. On morning of 15 ^th Bruce & Gay took him to see the van as they said they would. That was about 7 after 7. When he went with officers, Bruce & Gay carried him up to where the road stop. He and Gay remained in the jeep and Bruce and others went down a track. He gave the officers no assistance in finding the place where they took him to see the van. He gave them no directions. He identified no parts. Bruce and others eventually returned to the vehicle. They brought, he thought, it was a number plate and probably one or two red coloured parts. He wasn’t certain what parts it was. They brought parts to Landrover. He couldn’t remember but he thought they carried him to help them bring an engine. Part of an engine he believed. He had never seen this before. He couldn’t remember if they put the parts in the Landrover. Bruce Gay & Grant took him to Richplain Diego Martin. They carried him to a garage. Webster’s Garage. There they started to sort out parts the same colour as the pieces of part they found at Cameroon. He did not identify any of those parts to any of the officers. They took him back to the station – Criminal Investigation Department, Port of Spain, and he had 2 pies and a juice en route . This was around, he believed it was directly after they bought pies that would have been a little after 12. When he returned to St Vincent Street Criminal Investigation Department, it was then they were questioning him. He was questioned about the said vehicle – the red van. Remained at Station until in the afternoon period. He heard Bruce give evidence and heard him say that he was not intoxicated. He couldn't be certain if he told him but they could have seen that he was high. While he was at the St Vincent St Police Station he was not allowed to take a bath. He was not allowed a change of clothes. He was kept in a cell. He didn’t think he was alone in the cell. It had nothing else in the cell just the concrete ground. Heard officers talk about a Caution - he heard the words in the Court. On 15/4/99 he heard that not at all. They just told him that he was under enquires concerning the motor bike and the red van. Eventually, he left Criminal Investigation Department, taken to 4Rds Police Station and then West End Police Station. At West End Police Station, kept in a cell. In cell it had a square urinal and a concrete bunk about 12x12’ close to the entrance area as you enter the cell. It had Gazette paper on the ground. At West End Police Station he was not allowed to make a bath He did not ask to bathe, saying “When lock up in Police Station you have no privilege yuh can't even make a phone call.” No one told him that he had the right to an attorney. While in cell at West End Police Station he had a conversation with Constable Nanan. That conversation was about where he asked him if he could get a cigarette. He then told him that when he was ready to give a statement he would give him a cigarette. That was it. He called Constable Nanan, asked about the cigarette and he asked him if he was ready to give a statement. He asked him if he was going to get the cigarette and he told him yes. He took him out of the cell and carried him into a room. It had another officer there present. There he told Nanan he was ready for the cigarette and he then told him he didn’t have any cigarette but he opened a drawer and he told him all he had was hemp. He offered the hemp to him and he smoked the hemp before he gave the statement to Nanan and the other officer. State Counsel rightly, in the Court’s view, objected that none of this had been put to Nanan [or particularised in the Grounds]. He proceeded to give a statement. This was about 11pm. When he was giving the statement he was thinking they wanted to know what he knew about the said vehicle. At the time, he was feeling, well he was recovering from being stale drunk. He had some pains that he got from being beaten at Criminal Investigation Department but at that time he wouldn’t say that he was suffering much or any serious pain. Bruce & Gay beating him - events fresh in his mind; he couldn’t take on much from those officers. [Bruce, incidentally was a neighbour, was friendly with his parents and was said to have viewed the accused, whom he knew since birth, as a son.]

4.2. In cross-examination, he stated, inter alia, that he was high from the hemp spliff as he had not smoked for so long and that his signatures and initials appeared on the statement (KM/1). He confirmed that Grant had not beaten him, although he had seen and heard the amended Ground being proffered to the Court and Grant being recalled to deal with this fresh allegation which was put to him by his Counsel, and denied, that he had made no complaints regarding being drunk, beaten and in pain to: West End Police Station, Four Roads Police Station, the Police Complaints Authority, his attorney, later on, at the PI (as unrepresented initially), the JP, nor the Magistrate. He accepted that there were occasions where he had slept, whilst in custody, and that he had been offered meals. He did not know the meaning of “left to stew” (see Ground 1i). He conceded that he had not been questioned “constantly”.

4.3. In answer to questions from the Court, he stated that: it was a metal, chrome torch light with which he had been beaten to the head, but that he had received no visible injuries or cuts. The injuries would have been internal. He was not working off shore. He had got the pre-existing cut in his home town from a mad man. The relevance of the latter was that Counsel had, at one stage of the voir dire , apparently, given oral, further and better particulars of the pre-existing injury referred to in Ground 1 iv, to the State (only), to the effect that he had received the injury, whilst working “offshore” . PC Bruce living 2 houses away from the accused and knowing him since birth, when asked, by State Counsel, testified that he had never known him to work off shore, or be 2 weeks on and 2 weeks off, as offshore workers are, within his experience.

5. SUBMISSIONS

5.1. In her submissions, Defence Counsel, Ms Jules, indicated to the Court, that she no longer wished to rely on Grounds 1. i, ii, iii, v & vi. She is commended, by the Court, for taking a realistic and pragmatic approach to the evidence, and the law re: Ground 1 i , the Court having referred her, during the voir dire , to the names of the relevant authorities, which she might care to research, and for not wasting the Court’s time by arguing what was, on the evidence as a whole, virtually unarguable, with any reasonable prospect of success.

6. RULING ON GROUNDS TURNING SOLELY ON QUESTIONS OF FACT

6.1. Grounds 1 iv, 2 i, 2 ii, 2 iii, and further ground i (cigarette) are all grounds turning on questions of fact. Here, the Court is faced with an irreconcilable conflict of evidence between the police officers and the accused, turning on credibility alone. The only question is whether the Court believed one set of witnesses or the accused.

6.2. The Court is mindful of the concerns expressed by Mustill LJ in Wallace (Wallford) and Fuller (Michael) v. R . (1996) 50 WIR 387, 399 as to the dangers of a trial Judge expounding, in detail, almost at the beginning of the trial, his reasons for preferring one story to the other which would wholly unbalance the proceedings. Accordingly, the Court does not intend to do that which would involve a detailed analysis of the evidence herein.

6.3. Having heard the evidence of the Police Officers, whose names appear at para. 3 hereof, together with the evidence of the accused, the Court is satisfied, so that it is sure of, and finds, the following facts, viz.:-

6.3.1. That the accused was not beaten by Bruce, Gay or any other Police Officer, prior to the alleged second oral and his statement, at St Vincent Street CID, or elsewhere, between the hours of midnight and 6:00am., or at any other time, during his arrest/detention, in connection with this investigation;

6.3.2. That the appropriate Police Officers did caution him under Rule II of the Judges’ Rules, at all appropriate junctures of the investigation;

6.3.3. That the accused was allowed to access his right to an attorney-at-law, (should he have so desired);

6.3.4. That, notwithstanding the absence of the sentence, suggested in Whiteman (1991) 39 WIR 397, at the conclusion of the Rule V (a) preamble, in the statement, to the effect that he had been so advised – a point not taken, incidentally, by Counsel, the accused was advised of his right to a friend, relative and attorney-at-law to be present, during the taking of the statement.

6.3.5. That the accused was not told by PC Nanan that he would receive a cigarette upon giving a statement to him.

7. RULING ON THE BANFIELD POINT

7.1. Ms Jules raised and argued, very commendably, that, as was conceded by PC Bruce, he had sufficient evidence to charge the accused with an offence from when he showed them the parts, as they had evidence that an offence, maybe larceny of motor vehicle, had been committed, that they had the parts and the accused had admitted stealing a vehicle with other persons, and he admitted selling the parts to Webster.

7.2. Judges’ Rules, Appendix A, principle (d) provides:-

“That when a Police Officer who is making enquiries of any person about an offence has enough evidence to prefer a charge against that person for the offence, he should without delay cause that person to be charged or informed that he may be prosecuted for the offence.”

7.3. The State conceded that there was a breach this provision, which is a mandatory provision of the common law: Sherman & Apps (1981) 72 Cr.App.R. 266.

7.4. Over the course of the last few years, unlike the position, in the UK, in cases such as Prager , (1972) 56 Cr.A.R. 151, where it was held that the Judges' Rules were mere Administrative Directions, for the breach of which a Judge merely had a discretion to exclude evidence so obtained, the Rules have become exalted to principles of law and have become to be acknowledged as protective procedural mechanisms of due process in the Constitution, see, for example, per Volney J., in Mukesh Chandradath & Zanna Andrews , Crim. No. S67 of 2001 and Phillip Placid , Crim No. 113 of 2003 and, per, Holdip J., Suresh Sing, a/c Rudy Singh , Cr.No. 46 of 2002.

7.5. As Holdip J stated, supra :-

“The Court’s duty as guardian and interpreter of the Constitution is to give force to the Judges’ Rules by disapproving of their breaches and ensuring observance of both the letter and spirit of the protective procedural provisions of the Constitution. Otherwise both the spirit and the letter of constitutional guarantees and mechanisms for their execution would be abrogated.”, (p.4)

7.6. In Placid, supra , Volney J., stated (p. 7):-

“In all cases a flagrant breach of the injunctions of the Judges’ Rules is an affront to, and blatant disregard of the careful guidelines set out for the guidance of the police and must extract the censure of the Court. In deciding upon the sanctions necessary to meet the justice of any case, a court is to be mindful of the nature, context, and extent of the breach, and steps taken, if any, to distill the investigation of the non compliance. The approach must be both pragmatic but just and in accordance with the principle of the law both in its letter and spirit. This may only be achieved by exercising an exorcism of the wrongfully extracted benefit, no matter how fatal this may be to the prosecution, and no more.”

7.7. In Allie Mohammed v. The State , (1998) 53 WIR, 444, 454-5, P.C., a case concerning the failure to advise a person of his right to instruct a legal adviser without delay, Lord Steyn stated:

“If there is any dispute about issues of fact affecting an alleged breach of section 5(2) of the Constitution of Trinidad and Tobago, the burden of proof rests on the prosecution and the standard of proof is the usual criminal standard, viz proof beyond a reasonable doubt. An example of such an issue would be the question whether the police deliberately infringed the suspect’s rights. Once the facts have been determined, the occasion for the exercise of the judge’s discretion arises. Under the law of Trinidad and Tobago the discretion of the trial judge is neither prima facie exclusionary nor prima facie inclusionary. It is, however, also not a completely open-textured discretion. As Lord Hodson made clear in King (at page 273) the judge has to conduct a balancing exercise. On the one hand, the judge has to weigh the interest of the community in securing relevant evidence bearing on the commission of serious crime so that justice can be done. On the other hand, the judge has to weigh the interest of the individual who has been exposed to an illegal invasion of his rights.

It will be recalled that in King Lord Hodson observed that it matters not whether the right infringed is enshrined in a Constitution or is simply a common-law right (or presumably an ordinary statutory right). Their lordships are satisfied that in King , which was decided in 1968, the Board took too narrow a view on this point. It is a matter of fundamental importance that a right has been considered important enough by the people of Trinidad and Tobago, through their representatives, to be enshrined in their Constitution. The stamp of constitutionality on a citizen’s rights is not meaningless: it is clear testimony that an added value is attached to the protection of the right. The narrow view expressed in King is no longer good law. On the other hand, it is important to bear in mind the nature of a particular constitutional guarantee and the nature of a particular breach. For example, a breach of a defendant’s constitutional right to a fair trial must inevitably result in the conviction being quashed. By contrast, the constitutional provision requiring a suspect to be informed of his right to consult a lawyer, although of great importance, is a somewhat lesser right and potential breaches can vary greatly in gravity. In such a case, not every breach will result in a confession being excluded. But their lordships make clear that the fact that there has been a breach of a constitutional right is a cogent factor militating in favour of the exclusion of the confession ^[4] In this way the constitutional character of the infringed right is respected and accorded a high value. Nevertheless, the judge must perform a balancing exercise in the context of all the circumstances of the case . Except for one point their lordships do not propose to speculate on the varying circumstances which may come before the courts. The qualification is that it would generally not be right to admit a confession where the police have deliberately frustrated a suspect’s constitutional rights

7.8. If the right to be informed of a lawyer is a somewhat lesser right than the right to a fair trial, the Court is of the view that the right under Principle (d), is an even lesser right than the first.

7.9. Whilst the State concedes that, on the evidence, there is a breach of Principle (d), the Court has not overlooked the evidence of PC Bruce, which it accepts, that:-

“I did inform this accused of his right to an attorney. I did ma’am. He asked me as a matter of fact how I could assist him and I said make sure and get a lawyer. Make sure yuh get a lawyer to help yuh. That would have been at Criminal Investigation Department. Yeah.”

7.10. Whilst, it is conceded that the accused had not been informed that he “may be prosecuted for the offence”, prior to the second oral and the giving of the statement, in formal language, in those express terms, the Court is satisfied, on the above evidence of PC Bruce, that he was aware what was going to be the outcome. Why else would PC Bruce have recommended him to get a lawyer to help him, when, on his concession, he had enough evidence, at that stage, to charge him?

7.11. However, the Court will proceed on the basis that there has been a breach of Principle (d), as conceded.

7.12. The Court enquired, from Counsel on both sides, at what stage of the investigation, Principle (d) was said to have been triggered. After a degree of vacillation, defence counsel contended that this was after Bruce had checked the chassis and engine number with a copy of the Certified Copy of Ownership of the vehicle, stolen from the virtual complainant. State counsel contended that it was triggered after the parts had been found and the utterance of the first oral made, at Cameroon Hill. This would only be of significance, if I were to exercise my discretion in favour of the defence, and exclude the second oral and the statement, as, presumably, I would then, also, be required to exclude all other evidence, obtained in breach of Principle (d), under the “fruit of the poisoned tree” argument, on which, however, I was not addressed by the defence.

7.13. Defence Counsel argued that, if the Police had complied with Principle (d), then the cautions administered, prior to the second oral and the statement, should have been under Rule III (a) and not, II of the Judges Rules. This is conceded by the State.

7.14. It is worthwhile comparing, side by side, the wording of the two cautions:-

Rule II

“You are not obliged to say anything unless you wish to do so but what you say may be put into writing and given in evidence.”

Rule III

“Do you wish to say anything? You are not obliged to say anything unless you wish to do so but whatever you say will be taken down in writing and may be given in evidence.”

7.15. It is clear, to the Court, that the subtle differences in the two cautions may not be immediately apparent to many police officers. It is noteworthy that Inspector Gay, clearly purporting to recount the giving of a Rule II caution, testified that it was administered in these terms:-

“You are not obliged to say anything unless you wish to do so, whatever you say will be taken in writing and given in evidence.”

7.16. Defence Counsel argued that the consequence of the breach of Principle (d) is that the accused would not have known that he might be incriminating himself further and, as a consequence, might be found guilty of an offence and that he was “robbed thereby of the privilege of self incrimination.”

7.17. State Counsel argued that the Police had not sought to question the accused, but that he had hailed PC Nanan and sought to retract the first admission to “tiefing” and substituting it with an oral admission to providing keys and helping to scrap the vehicle. In the Court’s view, this is arguably an admission to receiving, but, also, arguably, to larceny, under Bainbridge , 43 Cr.App.R. 194, CCA.

7.18. State Counsel then argued that, having two conflicting orals, the first oral and the second, that “…in [an] exceptional case questions relating to the offence [c]ould be put …..for clearing up an ambiguity in a previous answer or statement.” (see Rule III(b)).

7.19. I disagree with State Counsel that PC Nanan’s taking of the statement can be sanctioned under the final sentence of Rule III(b), supra (clearing up ambiguity). At no stage, on the evidence, did Nanan ask the accused any question, other than if he would like to put in writing that which he had just said in the second oral.

7.20. He merely proceeded to take a written statement under caution. In my judgment, this was permissible, provided, of course, that a Rule III caution had been administered, beforehand. In my judgment, the italicised words “ when such a person is being questioned or elects to make a statement” (see Rule III(c)) clearly refer back to “where a person is charged with or informed that he may be prosecuted for an offence…” as provided in Rule III(a). Accordingly, in my judgment, it is contemplated that a person, under a Rule III caution may be requested to give a written statement , or questioned , but may only be questioned , in the circumstances provided for by Rule III(b).

7.21. In the case at hand, it is conceded that a breach of Principle (d) has occurred and that, on the State’s case, a Rule II and not, III(a) caution, as required, preceded the second oral. Of course the statement contained the all too familiar preamble, signed by the accused, pursuant to Rule V(a) Judges' Rules. In Kenrick London v. the State , Cr.A.No. 24 of 2001, de la Bastide CJ (as he then was) opined, at p. 7, “there is no significant difference between the two cautions” (referring to Rule II and III(a)). Moreover, his Lordship was of the view that “[where a statement contains a Rule V(a) preamble] there is no substance in the argument that they were given the wrong caution, since what they were told conveyed the essential message contained in both forms of caution prescribed by the Judges’ Rules.” ( ibid ).

7.22. It is clear from Kenrick London, supra , that, as conceded by both sides, I have a discretion where statements have been obtained in breach of Principle (d) and with an administration of a Rule II as opposed to, III(a) caution.

7.23. I have to balance the competing interests (see Lord Hodson, in King , cited in Allie Mohammed, supra). According to my brother Volney J., in Banfield , supra , p. 9: “It does not follow that every breach of the Judges’ Rules will necessarily result in rejection of the evidence. A Court would have to determine the extent of the infraction and the degree to which the suspect is denied the protection of the law.”

7.24. In my judgment, Banfield may be distinguished from the case at hand. In Banfield, the accused had made a written statement under caution making admissions on the basis of which he could have been charged with murder. However, under Rule II caution (as opposed to, III(a)), he was requested, by the police, to take them to the spot, in the forest, behind his home, where he had left the body. This he did, which was to precisely the same spot at which the deceased had been found by civilians/the Police. Volney J, viewed this evidence as an incrimination in “the most damning way”, ibid , p.9, and his Lordship had no hesitation in excluding it.

7.25. In the case at Bar, as I have indicated at paragraph 7.9 hereof, the accused must have known that he was going to be prosecuted for this matter, notwithstanding the breach of the formal, Principle (d) warning. A fortiori , it was the accused who summonsed PC Nanan, to retract the admission to “tiefing” the vehicle, and to provide an alternative explanation. Thereafter, the accused went on to provide his statement, in amplification of the second oral, with no questions being asked of him, by either officer present. The statement was certified as to voluntariness, ex post facto, by a J.P.

7.26. Notwithstanding the breach of Principle (d) and the administration of the Rule II as opposed to, III(a) cautions, prior to the second oral and the statement itself, I exercise my discretion in favour of the Prosecution and both shall be admitted into evidence. I am satisfied, so that I am sure, the burden resting on the State, that neither was obtained as a result of threats, violence or inducement and that both were the voluntary outpourings of the accused, for reasons best known to him.

7.27. On the totality of the prosecution evidence, I am satisfied, so that I am sure, that the Police did not deliberately frustrate the accused’s constitutional rights, but that the error arose out of mere oversight, or, more than likely, by their failing to appreciate the significance of Principle (d) and, fully, the difference between the two cautions. Had I been of the view that the Police had, or might have, acted in deliberate frustration of those rights, I would not have admitted the disputed evidence (see Allie Mohammed, supra ).

7.28. I have reminded myself of the well known words of Lord Sumner, in Ibrahim v. King, Privy Council Appeal, No. 112 of 1913 (“It has long been established…..person in authority.”)

7.29. Finally, I am satisfied, so that I am sure, that the second oral and the statement were not obtained in circumstances that were unfair to the accused.

8. GUIDANCE TO POLICE OFFICERS

8.1. It is clear to the Court, from its experience, that many police officers appear to be quite oblivious to the obligation imposed on them under Principle (d). This is an important, mandatory, common law provision, see Sherman & Apps, supra.

8.2. Steps should be taken, by those responsible, to bring this provision home to the minds of Police Officers. Where an accused is warned that he may be prosecuted for the offence, this should be noted in the officer’s pocket notebook and the Station Diary; both types of entries should be signed by the accused. In the same way that Davis JA., suggested in Whiteman, supra , that it be recorded, on any written statement under caution, that a suspect has been advised of his right to an attorney, the Court suggests that any compliance with Principle (d) should be incorporated, similarly, into the written statement under caution. There is no reason why an additional sentence cannot be added to the Rule V(a) or (c) preamble, following on from the Whiteman certificate, certifying that the accused has been informed that he may be prosecuted for the offence.

8.3. Officers should take pains to ensure that, once a Principle (d) warning has been administered to an accused, he should be cautioned under Rule III(a) and a note, to this effect, should be made in the officer’s pocket notebook and the Station Diary. Officers should become accustomed to recording, specifically, at what stages, precisely when, and whether a Rule II or, Rule III caution has been administered and become familiar with the subtle differences in wording.

8.4. By way of further guidance to Police Officers. In the Court’s experience, officers invariably question suspects, under Rule II Caution, with rough and/or contemporaneous, notes being made. Of course, the guidance of the Court of Appeal, in Frankie Boodram , Cr.A.No. 17 of 2003, should, by now, be well in the forefront of, and indelibly imprinted on, the minds of investigating officers in relation to such interviews. However, the Court has experience that, often, it is said that suspects go on to give a written statement under caution of what has been said before, and it is often only upon the formal, written document that the State relies at the PI and at trial. The Court is of the view that a Principle (d) warning should be given, after any such preliminary interview, where applicable and if triggered , and that the caution to be given, thereafter, prior to the taking of any written statement under caution , should be under Rule III(a) and not Rule II, as is now the norm, in the Court’s experience. This does not affect the present usage of the Rule V(a) or (c) preamble.

9. EMBARGO

9.1. Because of the concerns voiced by Mustill, LJ, in Wallace (Wallford) and Fuller (Michael) v. R . (see para. 6.2, supra ), I shall hand down copies of this judgement, in Court, tomorrow morning, to Counsel on both sides, and indicate, simply, in the absence of the jury, that both challenged items of evidence shall be admitted. This judgment is embargoed and shall not be made public, until the conclusion of the trial, and Counsel must not disseminate copies of it, beforehand, even within their respective Chambers.

Ian Stuart Brook J. (Ag.)

7 ^th May 2006

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^[1] Leave was granted, to the defence, to recall PC Nanan to probe this area. He conceded that he was aware of Bruce’s finding the parts and the first oral, prior to the second, and the statement.

^[2] Including opportunity to contact an attorney, prior to giving the statement and to have an attorney, relative or friend present whilst it was recorded.

^[3] I received into evidence, that part of the prior witness statement of Bruce, as Exhibit EB/1, in rebuttal of Counsel’s allegation of recent fabrication of initial caution, pursuant to Oyesiku, 56 Cr.App.R 240.

^[4] Emphasis mine.

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