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THE STATE vs. MARQUIS [2006] TTHC 40 (31 May 2006)

IN THE REPUBLIC OF TRINIDAD & TOBAGO

HIGH COURT OF JUSTICE

HCA # 127/04

BETWEEN THE STATE

-v-

JOEL MARQUIS

____________________________

RULING ON VOIR DIRE

____________________________

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

IN THE PORT OF SPAIN 3rd ASSIZE

MRS. PAMELA ELDER S.C.

&

MR. RICHARD MASON FOR THE DEFENDANT

MR. A. PRINCE & MS. D. BASSAW

FOR THE STATE

IN THE REPUBLIC OF TRINIDAD & TOBAGO

HIGH COURT OF JUSTICE

HCA # 127/04

BETWEEN THE STATE

-v-

JOEL MARQUIS

____________________________

RULING ON VOIR DIRE

____________________________

Brook J. (Ag.):

1. INTRODUCTION

1.1. Joel Marquis ("the accused") is before the court charged that he, on the 2nd day of August 2002 murdered Cassius Wayne Allum. The State's case against him rests entirely on two alleged, oral admissions made to several Police Officers, and nothing more. Once the accused had been put in charge of the jury, Mrs Pamela Elder SC, who appeared for him, indicated that the defence position was that "the orals" were not made, but that the accused was subjected to oppression at the time of, or before, they were alleged to have been made and that she sought a voir dire , under the principle in Thongjai v. R ., PC Appeal No. 20 of 1997, which was acceded to by the Court.

2. THE ARREST AND INJURIES SUSTAINED THEREON

2.1. On the 10 August 2003, as a result of a wireless message, at about 3:45 p.m., PC Chulhan proceeded to the Quarry Street area, East Dry River, Port-of-Spain, in the company of other officers, from the Besson Street Police Station Charge Room. Upon arrival, he proceeded to Prescott Alley and saw the accused, together with another man, standing close to a Honda Civic motor vehicle which was parked up, without wheels. The men looked in their direction and ran away and, as he became suspicious of their actions, PC Chulhan gave chase. They ran through an empty lot with bushes, vines, trees and brambles and went down a drain with moss, with a wall on one side. The accused fell against the wall a few times, ran through a yard, before forcing his way through a galvanised fence and then falling down a steep hill, about 15 to 20 feet, which had stones and bushes. His companion was said to have jumped over the rusty, galvanised fence. PC Chulhan held the accused and a short struggle ensued. He was subsequently subdued, and PC Chulhan told him that he was under arrest and that he was a suspect in a report of murder which was being investigated by Cpl Edwards of the Belmont Police Station. PC Chulhan then cautioned the accused, in the usual terms, and informed him of his rights to a telephone call, an attorney at law, or for a friend or relative to be present. The officer noticed that, when he arrested the accused, there were some bruises to both his upper arms. In cross examination he indicated that they were the only injuries that he saw, at the time of arrest, and demonstrated that they were located at the top of each arm, at the front, extending 6-8 inches down from the top of the shoulders. The accused was said to have remained silent to the caution and made no request in respect of his legal rights and privileges. PC Chulhan confirmed that neither he, nor anyone else, beat the accused, at the time of his arrest. He was taken to the Besson Street Police Station and he saw, whilst the accused was being searched, bruises to his lower neck and back, in the region of the area of the neck/top of shoulders.

2.2. In cross-examination, PC Chulhan confirmed that the injuries to both upper arms were visible and that he could not remember if the accused wore a sleeved top, nor could he recall if the top was torn in any way. He stated that the accused was not placed in any cell, at Besson Street; that the injuries to the lower neck were seen, whilst the accused was being searched, and that he neither made a note of them in the Station Diary, nor gave instructions that a record should be made of those injuries which he had seen; nor did he make any form of corrective entry, to the Station Diary, when he checked it and recognised that it did not accurately record what he had instructed Cpl Sookdeo to write. PC Chulhan did not consider that the accused needed to be taken to the hospital, but became aware that he had been taken there, by Sookdeo, later that night. The officer confirmed that, when the accused's shirt was taken off, at his request, to search him, he did not see any swelling or wheal marks on his left neck, nor did he notice multiple wheals on his back. Somewhat surprisingly, notwithstanding the fact that the accused was said to have run through an area of vines, bushes and brambles, PC Chulhan made no observation with regard to the accused's upper garment. PC Chulhan denied the defence suggestion that he was arrested, whilst sitting on a large stone, in Quarry Street, that he was pushed to the ground face down, and that an officer by the name of Barnabas Grant kept asking him for the gun and beat him, on the ground, with his own leather belt, on his back and on the left side of his neck.

2.3. PC Chulhan, whilst maintaining that he had told Sookdeo, the officer who wrote up the Station Diary, that the accused had gone through an area of vines, bushes and brambles, that he had fallen down a hill and that he had run through a drain with moss, accepted that none of this was recorded in the relevant Station Diary.

2.4. Cpl Sookdeo left the Besson Street Police Station, at about 7:10 p.m., that evening and conveyed the accused to the Port of Spain General Hospital, where he was examined by Dr Ijaola. The Medical Certificate, issued by this doctor, recorded that he was found to be suffering from soft tissue injuries to the left jaw and upper back which were probably inflicted by blunt trauma. The State admitted the contents of the relevant Casualty Card, pursuant to s. 37 A Criminal Procedure Act (as amended) ("the Act"), which recorded, inter alia , "swollen ++ [left] neck (wheal marks) - multiple wheals on back - analgesic prescribed".

2.5. The accused was seen, at the hospital, again, on the 13th of August 2003, by Dr Koduri, see post . Dr Koduri had given evidence at the previous, aborted trial, before Rampersad J. (Ag.), during July 2005, when the voir dire was unsuccessful and the statements were admitted into evidence. On that occasion, as Dr Ijaola was unavailable, he was relied upon, both by the prosecution and the defence, for assistance in explaining the standard medical abbreviations and terminology to be found on the Casualty Card, dated the 10 August 2003, completed by his colleague. By the time of this retrial, Dr Koduri was unavailable and out of the jurisdiction and both sides admitted an edited version of the relevant portion of the trial Judge's Notebook, pursuant to the Act, to stand as his evidence, before me. Dr Koduri stated that there were no known allergies, that the "++" symbol indicated that the swelling on the left side of the accused's neck could be described as significant; that there was a diagnosis of "soft tissue injury"; that Divon (prescribed for moderate pain) 75 mg had been immediately administered, intramuscularly; and that analgesic was prescribed. In relation to the wheals, Dr Koduri stated that a wheal normally meant that the patient had an allergic reaction that caused some eruptions to the skin, that any contact with something one may be allergic to could cause it, e.g., an insect bite or contact with stinging nettles; that it could also be used to describe a soft tissue injury, e.g., something resulting from a lash with a stick or similar object/a swelling of the skin caused by a blow; that he was not sure in what context Dr Ijaola used that term, on the Casualty Card, and, in his opinion: it meant something transient, nothing serious, that wheals could be described as soft tissue injuries and that it did not follow that the patient could not suffer from wheals as a result of an allergic reaction to an allergy unknown to him.

2.6. Under cross-examination, whilst conceding that he may have left information out of his entry in the Station Diary, through inadvertence, because of the volume of information that was being passed on to him, by the various officers who were out on the exercise, Cpl Sookdeo confirmed that he had did consider the accused falling down a steep hill to be important and something which he would not have failed to record, if PC Chulhan had told him of it.

3. THE FIRST ORAL STATEMENT

3.1. At approximately 8:35 AM on the 12th of August 2003, Cpl Veronique, Cpl Edwards and acting Cpl Jodha proceeded to the St Clair Police Station where they met the accused and took him to an enclosed area, at the CID office, where they identified themselves to him and informed him that they were investigating the [murder in question]. He was cautioned in accordance with the Judges' Rules and, according to each, replied, in essentially the same terms, "it was a mistake the man grabbed at the gun it was cocked it went off it was a mistake it was the car we were going to take." This oral utterance is the first oral statement the State relied upon to support its case. Whereupon, Cpl Edwards informed him of his Constitutional Rights and Privileges (right to attorney, relative or friend) and the accused requested that his mother be present, before he said anything further, and he was said to have indicated a willingness to put what he had said in writing. Whilst each officer expressed the foregoing in a slightly different manner, this was the thrust of their evidence. Cpl Edwards then told the accused that arrangements would be made to have his mother and a Justice of the Peace present, during the recording of the statement, the interview came to a close and the accused was placed back into the cells. Acting Cpl Jodha telephoned the mother and made arrangements to meet her at the CID Headquarters, Port of Spain.

4. RECORDING OF FIRST ORAL STATEMENT

i) Cpl Veronique 4.1. Cpl Veronique's evidence in chief, whilst not specific, was indicative of the fact that Cpl Edwards made entries in the Station Diary, after the accused had made the first oral statement and had been returned to the cell. However, in cross-examination, he confirmed that acting Cpl Jodha made no notes at the time, but, moreover, and more importantly, Cpl Edwards made a contemporaneous record of the first oral statement, at the time the accused was speaking.

ii) Cpl Edwards 4.2. Cpl Edwards' evidence in chief was equally as unspecific as Cpl Veronique's, inasmuch as he stated, simply, that he made a note of what the accused said "initially in a notebook that I had in my possession, also in the Station Diary and a Pocket Notebook." It emerged, in cross-examination, that the entry in the Pocket Notebook was not made on the 12th. It is abundantly clear, in my judgment, from the evidence of Cpl Edwards, together with the note he is said to have made, in a notebook, of the first oral statement, that he did not make it contemporaneously as the accused spoke. Cpl Veronique gave evidence that the interview came to a close, after the accused gave the officers a phone number.

4.3. The first four lines of Edwards’ note particularised the date, the mother's name, telephone number and employer, together with the telephone number of the father. The next three lines record the words of the first oral statement. The next paragraph, timed at 8:30 a.m., records the arrival of the interviewing officers, at St Clair Police Station, and the next, timed at 8:50 a.m., summarises the officers introducing themselves to the accused, their telling him of the report they were investigating, their informing him that he was a suspect and cautioning him, records the words of the first oral statement (again), notes his being informed of: his constitutional rights, his request for his mother to be present and his willingness to give a statement in writing and the intention of the officers to have the mother and a Justice of the Peace present, during the recording of that statement. The next paragraph records, at 9:50 a.m., "out with prisoner" and then there appears a paragraph by way of addendum to what the accused was alleged to have said between 8:35 a.m. and 8:45 a.m. (accused sleeping in car, Allum talking out of timing like he knew he was going and dead). In cross-examination, Cpl Edwards stated that he wrote down the first confession: shortly after he said it; it would be soon after so that he would remember exactly what he said; it would be a very short time after.

iii) acting Cpl Jodha 4.4. In examination in chief, acting Cpl Jodha's evidence was to the effect that Cpl Edwards made his notes, after the accused had been returned to the cells, at St Clair Police Station. However, shortly thereafter, in cross-examination, he indicated that Cpl Edwards wrote the first oral statement down, as the accused spoke. Quite extraordinarily, although with a commendable degree of candour, acting Cpl Jodha testified that he made no record of the first oral statement, save for in his statement dated the 6 November 2003, and at the time of its compilation, he could not remember what the accused had said, but, clearly, inserted details of the first oral statement, into his witness statement, after obtaining the same from the Station Diary. Mrs Elder opined that that "smacks of collusion".

5. THE PARENTS' VISIT TO THE ACCUSED

5.1. The parents were said to have spoken to the accused, between 11:18 a.m. and 11:35 a.m. on the 12th. The Court was concerned to hear that each of the three officers, Edwards, Jodha and Veronique, had assumed the right to be present, in the room, at this meeting, between the parents and their young son, who, incidentally, was only 20 years of age, at the material time, and of previous good character. According to Cpl Veronique, the parents advised their son not to say anything further, or not to tell the police anything again concerning [the matter under investigation]. Acting Cpl Jodha simply recounted how the accused told Cpl Edwards that he was not giving any statement again, whereas Cpl Edwards' account was to the effect that, after the conversation with the parents, the accused said that he was no longer prepared to give a statement at that time. The Court noted, with interest, from the note of the first oral statement, said to have been made by Cpl Edwards, with which it was provided, at the behest of Mrs Elder, with the concurrence of the State, that it was recorded, there: "11:22 a.m. [the mother] advised [the accused] not to speak to the police until he speaks to a lawyer."

6. THE SECOND ORAL STATEMENT

6.1. Notwithstanding the parents' visit, their advice to him, thereat, and his stance, thereafter, Cpl Edwards (the Complainant and an officer common to both oral statements) interviewed the accused, again, the next day, the 13th of August 2003, at approximately 7 p.m. He was said to have been reminded that he was a suspect in the murder, cautioned and informed of his legal rights and privileges, to which he replied: "officer I go tell yuh what happened, but I ain't sign no statement until my mother and lawyer come." He was said to have continued by saying: "Meh and Kamau jump in the car from South. I was sleeping in the car most of the time till the top, ah wake up and Kamau tell meh handle it ah come out and ah walk around the car, ah point the gun and ah cock it same time the man flick the gun and it went off. Kamau came out of the car and run and ah ran behind him. I just wanted to frighten him and take the car" (“the second oral statement”).

6.2. The making of the second oral statement was corroborated by Sgt Boxhill, who was said to have been present with Cpl Edwards. It is clear, from the evidence of both officers that they had taken a statement from Kamau [Ferai] and, doubtless in the customary fashion, wished to confront the other suspect, the accused, with its contents. For completeness, one should note that Kamau Ferai was called as a witness, at the Preliminary Inquiry, but he turned hostile and was not relied upon at trial. The timings are of some significance, as will be appreciated later. For present purposes, one can note that, according to Cpl Edwards, Ferai's statement was completed, around 5:20 p.m., that evening, but, according to Sgt Boxhill, it was around 6:30 p.m. that he accompanied Cpl Edwards, to the Central Police Station holding bay, to return him to the cells. In any event, as previously indicated, these two officers were said to have interviewed the accused, again, that evening, at approximately 7 p.m.

6.3. In cross-examination, Cpl Edwards had no hesitation, whatsoever, in accepting that the accused had informed him that his lawyer was on his way and that he had no reason to doubt that that was so. In answer to a question, from the Court, he was candid enough to agree that he had held an interview, with a suspect, knowing that a lawyer was on the way. Mrs Elder took him to the entry in his notes, referred to above, which documented the advice that the accused's mother had given him, namely, not to speak to the police, until he had spoken to a lawyer. At this, Cpl Edwards became somewhat indignant and answered, quite forcibly, in the following terms:

"Right of accused to wait on lawyer or speak to accused in his absence. Right of accused to wait till lawyer comes or to speak to myself or Police Officers, in absence, the same way he has the right to refuse a lawyer being present in the interview. So if he indicates to me if his lawyer is on his way, he as an adult, being aware of his rights, chooses to speak to me, in his absence, I am not obligated to refuse to continue an interview with him."

6.4. In cross-examination, Sgt Boxhill conceded that it was only after the second oral statement had been made, that the accused was asked if he wanted to eat and shower. He asked the latter, as he got a stench and odour from the accused, during the interview.

7. INJURIES NOTED POST SECOND ORAL STATEMENT

7.1. Sgt Boxhill and Cpl Edwards gave evidence that, following on from the giving of the second oral statement, the accused had requested a meal of a small cheese pizza and an orange juice. Sgt Boxhill procured the same from a well-known pizza emporium, and the accused fell ill, about 10 minutes after consuming the same, and was taken to hospital, shortly after vomiting.

7.2. At the hospital, he was examined by Dr Koduri who found him to be suffering from the following injuries, as recorded on the Medical Report: 1) a bruise on the back of his neck (x-rays-no bony injury) 2) a bruise over the back of chest. In his opinion, these injuries were probably inflicted with "a moderate degree of force".

7.3. As has been indicated above, Dr Koduri's evidence, from the previously aborted trial, was admitted, on this voir dire , pursuant to the Act. Amplifying the Medical Report, the Dr indicated that the patient was diagnosed with acute gastritis. Referring to the two bruises, he indicated that one could tell the number of days since when the injury was sustained, from the colour, but could not remember how old the bruises would have been. The wheal marks as noted by Dr Ijaola, on the 10th August, were not seen by Dr Koduri, on the 13th, neither did he see any belt marks on the accused. However, admitted, pursuant to the Act, was a police photograph, taken on the 14 August 2003, of the left profile of the accused, which did seem to show wheal marks on the left side of the neck.

8. VOIR DIRE GROUNDS

8.1. Mr Mason, Mrs Elder's instructing attorney, particularised his grounds of the voir dire in his letter to the Director of Public Prosecutions, dated the 13th of March 2006. During the course of the voir dire they were amended, pursuant to his letter dated the 12 April 2006, in the following terms (and I quote):

“1. OPPRESSION - in the form of

(a) Beating by (unknown officers save and except one "Barney") at the time of arrest on the 10th day of August, 2003.

(b) Refusal by police officers including P.C. Veronique and P.C. Edwards to take the accused for prompt medical attention

(c) Refusal to accede to the request of the accused to be allowed a telephone call

(d) Refusal to allow the accused to see his mother during the period 10th August to approximately 10:50 am on the 12th August, 2003.

(e) Beating by officers Veronique and Edwards at Homicide Office on the 13th day of August, 2003.

(f) Questioning of the accused on the 12th August 2003 at St . Clair police station, in the police vehicle en route to

Homicide and at the Homicide Bureau while his will was weakened due to the pain he suffered from his injuries and the failure of the officers to obtain the painkillers prescribed for him by the Doctor on the l0th August 2003

(g) Questioning of the accused on the 13th August 2003 at Homicide Bureau at a time when his will was weakened due to him suffering from acute gastritis

(h) The Questioning of the accused on the 12th and the 13th August 2003 by the police officers before promptly taking him for medical treatment and despite his request for such treatment.

(i) Failure to allow the accused to shower from the time of his arrest on the 10th August until approximately 8:20pm on the 13th August

(j) Failure of the police to fill the prescription given by the doctor who examined the accused on the 10th August 2003 at the Port of Spain General Hospital and to provide the accused with the medication prescribed.

(k) The incarceration of the accused from the 10th to the 13th August 2003

(1) The Incarceration of the accused between the 10th and 12th August 2003 in a cell with a small wooden bunk while he was suffering from pain due to his injuries.

2. UNFAIRNESS - in the form of

(a) The failure of Sgt. Edwards to inform the accused of his Constitutional rights and privileges, more importantly his right to legal counsel, when on the 12th August 2003 he informed the accused that he was a suspect in the murder of Cassius Allum or after the accused was cautioned

(b) The failure of the police either to read to the accused or to invite the accused to read their contemporaneous notes made of the his ( sic ) alleged oral statements of the l2th and 13th August 2003

(c) The failure of Cpl. Edwards to have the accused sign and/or initial the contemporaneous notes of the 12th and 13th August 2003

(d) The failure of Cpl. Edwards to have the contemporaneous notes of the alleged oral statements of the l2th and 13th August 2003 authenticated

(e) Failure to have the contemporaneous note of the orals of the 12th and 13th countersigned by the officers present

(f) The failure of Cpl Edwards to without delay charge the accused or to inform him that he may be prosecuted for the offence of murder after the utterance of the alleged oral statement of the 12th August 2003

(g) The interview of the accused on the 13th at Homicide after he had incriminated himself by the oral of the 12th without first informing him that in light of the oral of the 12th he may be prosecuted for the offence of murder.

(h) The interview of the accused by police officers on the 13th in the absence of his lawyer and in ( sic ) while the police officers had the knowledge that his lawyer was on the way.”

9. CONCESSION BY THE STATE THAT THE SECOND ORAL STATEMENT WAS OBTAINED UNFAIRLY AND IN BREACH OF THE JUDGES' RULES AND THE ELECTION NOT TO RELY ON THE SAME

9.1. The State elected not to proceed with the second oral statement, at the conclusion of submissions on the voir dire, but, as many of the factors arising from the circumstances leading up to, and surrounding, the obtaining of this oral statement, have a bearing on the Court's ruling in relation to the first, disputed oral statement, it is necessary to analyse Mrs Elder's grounds in relation to this statement, notwithstanding the State’s concession.

9.2. Mrs Elder sought to exclude the second oral statement, based upon, inter alia , the following arguments, (as distilled and summarised by me), alleging oppression, breaches of the Judges' Rules and unfairness:

A. That this interview was conducted, after the Police became aware that the mother had advised her son to say nothing more until he had the benefit of legal advice and, moreover, that Cpl Edwards admitted that he was aware that the accused's attorney, Mr Wayne Sturge was on route.

B. That the State has not proven, to the requisite standard, that all the accused's injuries were occasioned whilst attempting to flee from officers in hot pursuit.

C. The accused had been detained in excess of 72 hours at the time of this interview, without charge.

D. Breach of Appendix A, Judges' Rules, principle (d) & failure to caution the accused in terms of Rule III Judges' Rules, in default of application of principle (d).

E. That where there have been significant changes in the common-law (as opposed to changes effected by statute) or in standards of fairness, that by analogy with the approach, on appeal, a trial court should apply legal rules and procedural criteria which were not and could not reasonably have been applied, at the time, to the investigation concerning the accused.

F. The Police failed to inform the accused's attorney at law, Mr Wayne Sturge, of the fact that his client had given an oral confession, a few hours beforehand and failed to read the contemporaneous notes, thereof, to the accused, in the presence of his attorney at law, on the said date, and/or to invite the accused to sign them in the presence of his attorney.

G. The Police failed to have the contemporaneous notes of the second (and indeed the first) oral statement, countersigned by the officers present, in breach of Appendix B, Paragraph 2, Judges’ Rules.

H. Failure to enquire about the accused's comfort and refreshment (meals and showering), prior to the making of the second oral statement (Appendix B, paragraph 3, Judges' Rules).

I. Disregarding the accused's welfare when, having been treated, at the hospital, on the 10 August 2003, he subsequently refused a meal and indicated that he would vomit if he ate.

A. That this interview was conducted, after the Police became aware that the mother had advised her son to say nothing more until he had the benefit of legal advice and, moreover, that Cpl Edwards admitted that he was aware that the accused's attorney, Mr Wayne Sturge was on route.

i) It is clear from my analysis of the evidence, above, that the Police were abundantly aware of the advice that the mother had given to her son who, after all, was a mere 20 years of age, at the material time, and a young man of previous good character. Cpl Edwards was fully aware that Mr Sturge was en route to the Police Station, when he, together with Sgt Boxhill, sought to interview the accused, once again. The Court was most unimpressed with the explanation offered by Cpl Edwards, quite indignantly, that it was the right of the accused to speak to the Police, in the absence of his attorney, if he so chose (see 6.3, above). Whether the Police were seeking to task the accused with whatever Kamau Ferai had said, to them, or whether they were seeking admissions which further incriminated him, is irrelevant. The Police were aware that, after the advice that he received, from his mother, the accused had indicated that he would not give a statement at that time and wished to have legal advice. The Court takes the view that this is yet another example of the Police seeking to take advantage of persons under suspicion, who, in the absence of legal advice, are, doubtless, unaware of the implications of the felony murder rule and/or the law of joint enterprise and who may wish to seek to "exculpate" themselves. One cannot imagine that a person, in custody, such as the accused, would be aware that, by making what he, doubtless, regarded as an exculpatory statement, he was implicating himself in the crime of murder; he required legal advice, which he was awaiting.

ii) Whilst the Police and Criminal Evidence Act 1984 and the Codes, thereunder, have not been implemented in the Caribbean, save for Grenada, in my judgment, it is appropriate to consider the protection afforded to an accused person, under that regime, together with academic comment thereon.

iii) Under the Code, the prohibition that it lays down against questioning a suspect who has requested, but not yet received, advice from a solicitor, is subject to exceptions, gathered disjunctively under four heads. The fourth exception permits an interview to proceed where a person, who has requested legal advice, changes his mind. The 1985 and 1991 versions, of the fourth exception, both lacked any explicit element requiring a senior officer to vet the change of heart. The 1995 revision implemented proposals for improvement, indorsed by the Royal Commission on Criminal Justice. Accordingly, where a suspect who has requested a solicitor but then decides to waive implementation of the request:

"... the interview may be started or continued without further delay provided that the person has given his agreement in writing or on tape to be interviewed without receiving legal advice and that an officer of the rank of Inspector or above, having inquired into the person's reasons for his change of mind, has given authority for the interview to proceed. Confirmation of the person's agreement, his change of mind, his reasons where given and the name of the authorising officer shall be recorded in the taped or written interview record at the beginning or recommencement of the interview." (C 6.6(d))

iv) According to the authors of "Wolchover & Heaton Armstrong on Confession Evidence" (1996), [2-339] it can be argued that implicit in the new requirement to investigate and record the reasons for the change of mind is an obligation on the authorising officer to forbid an interview to proceed if the reason is frivolous, ill considered or based on a lack of appreciation, by the suspect, of the seriousness of his predicament. If this were not implied in the provision, it is said that there would be little point in giving officers of Inspector's rank and above, a power of veto over interviews, after a change of mind. This is because the veto is clearly based on the presumption that only senior officers are likely to possess sufficient objectivity to see that suspects do not lightly surrender a fundamental safeguard. The learned authors continue by saying that, since most changes of mind probably occur because of the suspect's intolerance of further delay in the arrival of a solicitor, authorising officers should be expressly precluded, by the code, from allowing an interview, after a change of mind, where the arrival of an expected solicitor is reasonably imminent.

v) If the Police were correct that the accused had agreed to be interviewed, in the absence of Mr Sturge, what else was this other than a change of mind? Surely, in the predicament in which the accused found himself, this was "ill considered" or "based on a lack of appreciation of the seriousness of his predicament". Is this not a classic case of the investigating officer not possessing the objectivity to see that the suspect did not "lightly surrender a fundamental safeguard"? Having seen, and heard, Cpl Edwards giving evidence on this voir dire , it is clear, to the Court, that he had no such concern, but, moreover, fervently hoped that the accused would surrender this fundamental safeguard and sought to take advantage of the same, when he did. To describe the accused's alleged willingness to be interviewed, in these circumstances, where Mr Sturge was en route, as an exercise of "his rights" is, in the Court's view, farcical. In the view of the Court, this was a classic example of the interviewing officer(s) taking advantage of a relatively young accused who, plainly, was not aware of the true predicament in which he found himself.

vi) In the judgment of the Court, the conduct of Cpl Edwards, and Sgt Boxhill, in seeking to interview the accused, in these circumstances, far from being commendable, investigative practice and police work, is reprehensible in the extreme and deserving the condemnation of the Court. Mr Prince, on behalf of the State, doubtless sensing the sentiments of the Court, in argument, is to be commended for his realistic approach to the case, by conceding that it was unfair to interview the accused, in these circumstances, and, moreover, in breach of Appendix A, Judges' Rules, Principle (d) and electing not to rely on the evidence of the second oral statement. If this stance had not been taken by the State, the Court would have had no hesitation in excluding the second oral statement, on the grounds of unfairness, at common law, in the exercise of its discretion, simply based upon commencing to interview the accused, knowing full well that his attorney was en route.

vii) In Whiteman v. AG (1991) <<39 WIR 397>>, 407, Davis JA indicated that it seemed to him:

"That the interests of justice may best be served if police officers were to note or require an accused person to note on any statement taken from him, the fact that that person had been informed of his right to retain a legal adviser and to hold communication with him at any stage of the investigation, emphasising the fact that this is so even while the accused is in custody. In addition, the accused should be invited to sign such notation."

viii) In practice, it is sometimes seen, although not frequently enough, that the interviewing officer will add a sentence, in compliance with the above, at the conclusion of the preamble to the statement, pursuant to Rule V (a) of the Judges' Rules.

ix) In my judgment, following on from this, it would be good practice for the general thrust of Code C 6.6(d) to be followed, in our jurisdiction, wherever a suspect agrees to be interviewed, in the absence of an attorney at law, having previously requested one, in so far as his signed, written agreement thereto might be indorsed in the body of the interview itself, if in writing, and the Station Diary, if not, together with the authority of a senior officer, of the rank of Inspector, or above, similarly recorded, who should consider whether the waiver, by the suspect, was frivolous, ill considered or based on a lack of appreciation by the suspect of the seriousness of his predicament. If so found, then this officer's veto should, in my judgment, be similarly indorsed, in the Station Diary and no further interview should take place, thereafter.

x) By way of general observation, whilst the Court is aware that the Standing Orders make no provision for a document such as a "Custody Record" to be opened in respect of each suspect/prisoner, but merely that relevant entries are written up in the Station Diary, the Court has experience of the former. Entries in a Station Diary, in respect of a suspect, are intermingled, invariably, with those concerning others, and movements into/out of, and events at, the Station, generally. Moreover, the entries are not required, by the Standing Orders, to be legibly marked with the name and regimental number of the officer making the entry. It is usually the case that one of the Police Officers, giving evidence at a trial, can recognise the handwriting of a colleague and, thereby, give an indication as to authorship of any particular entry. However, in my experience, this is an unsatisfactory state of affairs. It is to be hoped, that, one day, the "Custody Record" system may be implemented, in our jurisdiction, in a manner similar to that in the United Kingdom. Such a document, in multiple part/copy format, self-carbonising or carbon copied, containing details of everything that happens to a suspect/prisoner, from arrival at the Police Station, to when he is first taken to Court, clearly marked up, by the officer(s) concerned, with name and regimental number legibly noted, is of value, at trial, but more so on any voir dire , to all parties concerned: the Court, State and Defence Counsel and the Complainant who may, at short notice, have to marshal witnesses, to Court, to testify on a voir dire , who may not have deposed at the Preliminary Inquiry and whose names, therefore, may not be apparent, immediately. Moreover, the State would be saved the labourious task of writing up, in manuscript, certified copies of Station Diary entries, for use at trial, would be saved the trouble of locating and producing, at Court, Station Diaries and, provided the Custody Record was a multipart document, as suggested, with a sufficient number of copies for provision to interested parties, there would be little risk of the information going totally astray, as sometimes happens with Station Diaries.

B. That the State has not proven, to the requisite standard, that all the accused's injuries were occasioned whilst attempting to flee from officers in hot pursuit.

i) The Court is not so satisfied. See post ( first oral statement) for an analysis of the evidence.

C. The accused had been detained in excess of 72 hours at the time of this interview, without charge.

i) Whilst the Constitution does not specify how long one may be detained, by the Police, without charge, it appears to be generally accepted, in our jurisdiction, that, as a starting point, persons may be so detained, for a period of 48 hours, see: In the Matter of the Application of Ulric Bobb , HCA No. 967 of 78, Martin Layne v. Commissioner of Police , Stollmeyer J., Trinidad Guardian , 21st September 2000 (unreported) and the State v. Joseph Banfield , Crim. No. S34 of 2001, pps 2-4.

ii) On the evidence, PC Chulhan left the Besson Street Police Station, bound for the East Dry River area of Port-of-Spain, around 3:45 p.m. The entry in the Besson Street Police Station Diary, recording what occurred, during the arrest, was timed at 5 p.m. and, therefore, for present purposes, the Court will calculate the accused's detention, in police custody, from 5 p.m. on the 10 August 2003. The second oral statement was said, by Cpl Edwards, to have been given at around 7 p.m. on the 13 August 2003. Accordingly, the Court calculates that, at that time, the accused had been in police detention for 74 hours. Whilst this period of detention is, prima facie , excessive, the Court is able to understand that there may be situations where detention, for such a period, may be warranted, provided the investigation is proceeding expeditiously. In this case, according to the Police, the accused had given the first, alleged oral statement (see 3.1, above) which was, of course, sufficient to charge the accused with murder, based upon the felony murder rule. However, the Court is able to understand that the officers were perfectly justified in seeking to obtain this admission, in writing, in the form of a written statement under caution, provided, of course, that the accused was so agreeable and the Judges’ Rules complied with. The first oral statement was said to have been given, on the morning of the 12th August, shortly after 8:30 a.m. and within approximately two hours, thereof, the Police were aware that the accused was no longer prepared to give a written statement, at that time. The accused had then been in police detention for approximately 41 1/2 hours, and, therefore, the 48 hour watershed was rapidly approaching. In the absence of any evidence, before me, that this investigation was proceeding expeditiously and, in fact, in the absence of any evidence, whatsoever, as to how, if at all, the investigation was proceeding in any meaningful manner, I am left with little alternative other than to hold that the continued detention of the accused, from his indication that he would no longer give a written statement under caution, was presumptively unfair and oppressive.

iii) The accused was placed on a number of identification parades on the 13 August 2003. It is axiomatic that he was not picked out by anyone at any such parade, as I note the absence of any such evidence, from the committal bundle. The State did not lead any evidence, before me, as to the reason for the delay in charging the accused, only on the 14th. The Court would have understood, if it were the case that there were difficulties in making the arrangements for the identification parades, and that it had proved impossible to hold the same, prior to the 13th, but there was no evidence, before me, to this effect, notwithstanding the fact that Mrs Elder had raised the continued detention, of the accused, in her grounds alleging oppression. It is clear that the officers were waiting for a directive from the office of the Director of Public Prosecutions, prior to charging the accused. This was obtained, and the charge preferred, on the 14th. The State provided no explanation, whatsoever, for the continued detention of the accused after 10:30 a.m. on the 12th August, as to how, if at all, the investigation was proceeding on the 11th, or whether or not the identification parades could have been held earlier than the 13th.

D. Breach of Appendix A Judges' Rules, principle (d) & failure to caution the accused in terms of Rule III Judges' Rules, in default of application of principle (d).

i) He who uses violent measures in the commission of a felony involving personal violence does so at his own risk, and is guilty of murder if those violent measures result, even inadvertently, in the death of the victim. For this purpose the use of a loaded firearm, in order to frighten the person victimised into submission, is a violent measure: Jarmain [1946] K. B. 74, 80. Accordingly, the first oral statement was an admission to the crime of murder. Of course, an oral admission is sufficient to convict a prisoner, even of the crime of murder: François v. the State , (1988) 40 WIR 376. In the view of the Court, it is highly unlikely that a prisoner such as the accused, a young man of 20 years of age and of good character, would be aware of these principles of law. The first oral statement was made, allegedly, in the presence of, certainly, one dedicated Homicide Bureau of Investigation Officer and the second, in the presence of at least one such Officer. Whilst, on the evidence, Cpl Edwards and Sgt Boxhill had not received instructions, from the DPP, to charge the accused, prior to the second oral statement, in the opinion of the Court, it is inconceivable that they were unaware of the felony murder rule, in particular, Sgt Boxhill, the dedicated Homicide Bureau of Investigation Officer. Appendix A, principle (d) of the Judges' Rules is an important, protective, procedural principle against self-incrimination. In the view of the Court, in circumstances such as these, it was incumbent upon these officers, prior to the interview of the 13th of August 2003 at 7 p.m., to make it abundantly plain, to the accused, that he "may be prosecuted for the offence" [of murder], or, if not, charge him with that offence, pursuant to principle (d).

ii) Where principle (d) is triggered, then, any further interrogation should only take place, following the administering of a Rule III, as opposed to a Rule II Caution. However, Rule III (b) provides that "it is only in exceptional cases that questions relating to the offence should be put to the accused person, after he has been charged or informed that he may be prosecuted ." The Rule provides that "such questions may be put where they are necessary for the purpose of preventing or minimising harm or loss to some other person or to the public or for clearing up an ambiguity in a previous answer or statement. Any questions put and answers given, relating to the offence, must be contemporaneously recorded in full and the record signed by that person or, if he refuses, by the interrogating officer." By their failure to implement principle (d), Corporal Edwards and Sgt Boxhill totally circumvented the provisions of Rule III and the protection which it affords to a suspect. It will be recalled that he was interviewed [1] , informally, the notes made were never shown or read back to him, he was never invited to sign them, nor were they brought to the attention of his attorney at law, Mr Wayne Sturge, who attended, at the Police Station, later that evening. In my judgment, to allow this evidence to have gone before the jury, in face of this breach of the Judges' Rules, "would be to make a mockery of [them]", per Volney J., in the State v. Joseph Banfield , Crim. No. S34 of 2001, when deciding, inter alia, precisely the same point. If Mr Prince had not made his concession and indicated that he would not rely upon the second oral statement, the Court would have excluded it, also, on this ground alone.

E. That where there have been significant changes in the common-law (as opposed to changes effected by statute) or in standards of fairness, that by analogy with the approach, on appeal, a trial court should apply legal rules and procedural criteria which were not and could not reasonably have been applied, at the time, to the investigation concerning the accused.

i) In giving judgment in Frankie Boodram v. the State, Cr.A.No. 17 of 2003, on the 17 February 2004, the Court of Appeal gave the following suggestions/guidance:

"We would suggest that where the State's case depends substantially or exclusively on oral admissions, that it would be advisable for the police officers investigating to make contemporaneous notes of them which should be read to the accused and then ask him to sign them. It would be a matter of record and evidence whether he does so or not. If the note is disputed, copies could be made available to the jury.

On some occasions it may not be practical to take the notes contemporaneously because of the way in which the interrogation is conducted. In such case, the police officer should write up his pocket diary as early as possible and again ask the accused to sign it after either allowing him to read it if he can and if he cannot, it be read to him. If there are senior officials about, they should initial the notes taken..... should the police not follow these guidelines they may very well find that, the jury may be directed to draw a strong inference that the oral admissions were not true or, at least, questionable, and the trial judge would be entitled to give a robust direction on the failure of the police to comply.

These proposed guidelines are by no means novel. Support for them is found both in the Judges Rules and the Police Standing Orders."

ii) Mrs Elder drew the Court's attention, helpfully, to the case of Abid Hussain v. Regina , [2005] EWCA Crim 31, in particular, paragraphs 24.-28:-

"24. The Law

These grounds of appeal rely heavily on the legal principle that where, between conviction and appeal, there have been significant changes in the common law or in standards of fairness, the Court is required to apply modern legal rules and procedural criteria even though they were not and, could not reasonably, have been applied at the time. This legal principle is set out in paragraph 5 of the judgment of this court in Bentley (31st July 1998) [2001] 1 CAR 307 where Lord Bingham CJ added:

"This could cause difficulty in some cases but not, we conclude, in this."

The reasons why no difficulty arose in Bentley was that there were errors in the summing-up in relation to the burden of proof, the standard of proof and the directions on joint enterprise which rendered the summing-up defective in the light of both the law and procedure at the time of trial.

25. Lord Bingham CJ returned to this point in the case of Ashley King [2000] 2 CAR 391 where the applicant had confessed to a killing during an interrogation in breach of the rules in force at the time. He had not been cautioned nor had he been charged when he first admitted to the substance of the charge; he had been detained against his will although he was not under arrest and was not advised of his right to receive legal advice until after two interviews in which he had made extensive admissions. All this was at a time, unlike the present case, when the Police and Criminal Evidence Act 1984 was in force. The court was invited to consider the correct approach if a suspect were investigated and detained at a time when the statutory framework governing investigation, interrogation and detention was different from that in force at the time of any appeal. Lord Bingham CJ gave the following guidance:-

"We remind ourselves that our task is to consider whether this conviction is unsafe. If we do so consider it, section 2(1)(a) of the Criminal Appeal Act 1968 obliges us to allow the appeal. We should not (other things being equal) consider a conviction unsafe simply because of a failure to comply with a statute governing police detention, interrogation and investigation, which was not in force at the time. In looking at the safety of the conviction it is relevant to consider whether and to what extent a suspect may have been denied rights which he should have enjoyed under the rules in force at the time and whether and to what extent he may have lacked protections which it was later thought right that he should enjoy . But this Court is concerned, and concerned only, with the safety of the conviction. That is a question to be determined in the light of all the material before it, which will include the record of all the evidence in the case and not just an isolated part. If, in a case where the only evidence against a defendant was his oral confession which he had later retracted, it appeared that such confession was obtained in breach of the rules prevailing at the time and in circumstances which denied the defendant important safeguards later thought necessary to avoid the risk of a miscarriage of justice , there would be at least prima facie grounds for doubting the safety of the conviction - a very different thing from concluding that a defendant was necessarily innocent."

26. This guidance is far from saying that a contravention of a safeguard which has only become applicable since the time of conviction will be enough to render a conviction unsafe and is, to that extent, a recognition that the principle set out in Bentley cannot be taken too far . The essential question is whether the conviction is safe and it would be surprising if the mere fact that (for example) a "good character" or "lies" direction had not been given in the terms which are conventional to-day would be enough to enable a court to doubt the safety of a conviction.

27. This was also, we think, the approach adopted in Hanratty [2002] 2 CAR 419 at page 450 where under the heading "The Effect of the Passage of Time" Lord Woolf CJ said:-

"98. . . . . . . For understandable reasons, it is now accepted in judging the question of fairness of a trial, and fairness is what rules of procedure are designed to achieve, we apply current standards irrespective of when the trial took place. But this does not mean that because contemporary rules have not been complied with a trial which took place in the past must be judged on the false assumption it was tried yesterday. Such an approach could achieve injustice because the non-compliance with rules does not necessarily mean that a defendant has been treated unfairly. In order to achieve justice, non-compliance with rules which were not current at the time of the trial may need to be treated differently from rules which were in force at the time of trial. If certain of the current requirements of, for example, a summing-up are not complied with at a trial which takes place today this can almost automatically result in a conviction being set aside but this approach should not be adopted in relation to trials which took place before the rule was established. The fact that what has happened did not comply with a rule which was in force at the time of trial makes the non-compliance more serious than it would be if there was no rule in force. Proper standards will not be maintained unless this Court can be expected, when appropriate, to enforce the rules by taking a serious view of a breach of the rules at the time they are in force. It is not appropriate to apply this approach to a 40-year-old case."

28. It will, therefore, often be important in disposing of appeals made by way of references from the CCRC in comparatively old cases for this court to decide whether the facts complained of constitute a breach of rules in force at the time of trial or only of rules and standards that have subsequently become required by law or thought to be desirable. If, moreover, a breach of the rules existing at the time is established, such breach will usually have been brought to the court's attention. If it has been, the court's reaction to such breach and its directions, if any, to the jury will be important matters to which regard should be given. It may be that at the time of trial the breach will have been regarded as less important than it would to-day. In the light of the authorities cited it is the current approach to such breaches that should govern the matter."

iii) The starting point for Mrs Elder's argument was the principle to be found in paragraph 5 of Bentley , supra (see paragraph 24 of Hussain , supra ) namely, that, where there have been significant changes in the common law, or in standards of fairness, the Court of Appeal is required to apply modern legal rules and procedural criteria even though they were not, and could not reasonably have been, applied at the time. In other words, the Court of Appeal, in the event that the accused was convicted on the basis of the first and/or second oral statements, when considering the safety of the conviction, would be required to apply modern legal rules and procedural criteria, even though, the investigation predating the judgment in Boodram , there was no requirement for the police to have complied with the, then, nonexistent guidelines/suggestions.

iv) The only case of which the Court is aware concerning the signing of notes made by Police Officers (prior to PACE and, locally, Frankie Boodram ) is the case of Raymond Clifford Todd (1982) 72 Cr.App. R. 299, 300, where it was stated: " per curiam : The practice of police officers taking notes and seeking signatures and obtaining signatures without oppression from the suspect is a practice which the Court would prefer to encourage rather than discourage." That was a case which concerned the interrogation of an accused, pursuant to the Judges' Rules, in the form of contemporaneously recorded Questions and Answers, signed by the accused and admitted, into evidence, as an exhibit.

v) In Boodram , the Court of Appeal did not go so far as to suggest that evidence obtained, in breach of those guidelines ought to be excluded, but merely indicated that the jury might be directed to draw a strong inference that the oral admissions were not true or, at least, questionable, and that the judge would be entitled to give a robust direction on the failure of the police to comply.

vi) The Court is of the opinion that it cannot be maintained that evidence obtained in breach of the procedure, set out in Boodram , supra , but prior to the handing down of that judgment, must, as a matter of course, be excluded on the basis that it was obtained unfairly [2] . In the Court's experience, whilst not suggesting that there was a breach of an existing procedure, defence counsel often takes the point, before the jury, in cases that predate Boodram , that it was always open to the Police to invite the accused to sign any note recording an oral confession allegedly given, doubtless, by analogy with the case of Todd, supra

vii) The Court notes the observation of Lord Justice Longmore, in Hussain , at paragraph 26, thereof, supra "this guidance.... cannot be taken too far."

viii) The Court is of the view that this point is best resolved, along the lines of the manner indicated by Lord Bingham CJ, in Ashley King , cited in Hussain , paragraph 25, thereof, supra . In my judgment, when considering whether an oral confession was obtained in circumstances rendering it unfair, in circumstances where the only evidence against the defendant is his oral confession which he had later retracted, if it appears that such confession was obtained in breach of the rules prevailing at the time and in circumstances which denied the defendant important safeguards later thought necessary to avoid the risk of a miscarriage of justice , there would be at least prima facie grounds for exclusion of the confession on grounds of unfairness, at the discretion of the trial judge.

ix) However, as the Court has already indicated, the second oral statement would have been excluded, in any event, on the basis of two other grounds advanced by Mrs Elder, if Mr Prince had not made his concession, and so, therefore, this ground takes the matter no further, other than to compound unfairness, already found.

F. The Police failed to inform the accused's attorney at law, Mr Wayne Sturge, of the fact that his client had given an oral confession, a few hours beforehand, and failed to read the contemporaneous notes, thereof, to the accused, in the presence of his attorney at law, on the said date, and/or to invite the accused to sign them in the presence of his attorney.

i) Whilst it was conceded, that this had not been done, no unfairness was caused to the accused, thereby. The Police simply deprived themselves of the potential opportunity to have the notes signed, upon being read out, in the presence of the attorney. In the Court's view, it is incumbent upon any attorney at law attending, upon his client, at a Police Station, to enquire of the relevant officer(s) as to the state of the evidence against his client. After all, blanket advice to remain silent is not appropriate, at all times, for example, where the defence, if a charge seems imminent, is to be one of alibi, self defence or provocation, for example; it may be prudent for the attorney to advise his client to put this forward, at the earliest possible moment. The Court is unaware of any protective, procedural mechanism mandating that for which Mrs Elder claims, and it is noteworthy that she did not cite one.

G. The Police failed to have the contemporaneous notes of the second (and indeed the first) oral statement, countersigned by the officers present, in breach of Appendix B, Paragraph 2, Judges Rules.

i) Paragraph 2, Appendix B, Judges' Rules, under the rubric "record of interrogation", purports to restate, in the opinion of the Court, the provisions of Rule II and III (c) to the effect that (a) when, after being cautioned in accordance with Rule II, the person is being questioned (or elects to make a statement) or, (b) when, after being cautioned, in accordance with Rule III (a) and is questioned (or elects to make statement), a record should be kept of the time and place at which any such questioning (or statement) began and ended and of the persons present. After restating those provisions, the paragraph provides that, in addition, records should be kept of (a) the time or times at which cautions were taken, and (b) of the time when a charge was made and/or the person was arrested, and (c) the time or times at which, during the questioning (or making of a statement) there were intervals or refreshment was taken and the nature of the refreshment.

ii) The paragraph ends by providing that "if two or more police officers are present when the questions are being put (or the statement made), the records made should be countersigned by the other officers present. Mrs Elder submitted an interpretation, thereof, so as to require the other police officers present to countersign the notes made, by the amanuensis, simply as a mere aide memoire, as in this case. The Judges’ Rules provide, specifically, that questions put and answers given relating to the offence, following a Rule III (a) Caution, in circumstances permitted by paragraph (b), must be contemporaneously recorded in full and the records signed by that person or, if he refuses, by the interrogating officer. There is no requirement, in the Judges’ Rules, that questions, following a Rule II Caution, must be contemporaneously recorded, but the manner of recording is, now, provided for by the judgment of the Court of Appeal, in Frankie Boodram , supra . The Court notes that one of the differences in wording of the Rule II, as opposed to Rule III (a) Caution is that the former informs the suspect that what he says "may" be put into writing, whereas the latter provides that it "will". The Court interprets the final paragraph of paragraph 2, Appendix B, Judges’ Rules, in terms that it is simply the records referred to, and summarised in, the first paragraph hereof, which should be countersigned by the other officers present. Of course, contemporaneously/subsequently recorded notes of questioning will, invariably, contain some of the relevant material which will have the effect of triggering the countersigning provisions of the Rule, with regard thereto (as in the instant case).

iii) Of course, in addition to the requirement imposed by Frankie Boodram , supra, as a matter of prudence, officers present when a contemporaneous note of questioning is made, by a colleague, should, as a matter of practice, at the conclusion of the questioning, always read the notes recorded and affix their signature, together with the time and dated thereof, thereon, to signify that the notes accurately record the questioning. If done, then, any such officer would be permitted to refresh his/her memory, therefrom, in the witness box, if necessary, in the absence of any record made by him/her: R. v. Sekhon , (1987) 85 Cr.App.R. 19.

iv) Digressing for a moment, the manner in which a written statement, made after caution, is to be taken is, of course, provided for in Rule V. There is no express provision, therein, for the ubiquitous countersignature of all officers present which doubtless appears in conformity with Paragraph 2, Appendix B, (see "or the statement made"), the written statement recording certain of the aforementioned, required details, pursuant to Paragraph 2 (a) & (b) and, no doubt, because of the effect of the part of the judgment in Sekhon , referred to above, which means that even, if the amanuensis were unavailable, at trial, for whatever reason, the statement would be able to be produced, as an exhibit, by any countersigning officer.

v) Cpl Edwards' written notes of the Interview at 7:05 p.m. do contain certain of the prescribed information, including the time and place and the names of the persons present. They are signed by Edwards and not by Boxhill who was, additionally present; accordingly, there is a technical breach of Paragraph 2. However, this, standing alone, would not have been sufficient for me to have exercised my discretion in favour of the defence, had I been called upon to do so.

H. Failure to enquire about the accused's comfort and refreshment (meals and showering), prior to the making of the second oral statement (Appendix B, paragraph 3, Judges' Rules).

i) This Paragraph of the Rules provides that:

"Reasonable arrangements should be made for the comfort and refreshment of persons in attendance for questioning or from whom statements are being taken..... [inapplicable]."

ii) It was clear, on the evidence of Sergeant Boxhill, that the Police had paid scant regard to the accused's comfort, in so far as this officer asked him if he wanted a shower, after the interview, ("the second oral statement") as, during it, "I got a stench and odour from him". As soon as he was asked, if he would like to shower, the accused indicated that he would. There was no other evidence, before me, to indicate that any such offer had been made, to him, prior to that time.

iii) Similarly, after this interview, Sergeant Boxhill inquired, of the accused, if he would like something to eat as he had spent a couple of hours in his presence and thought that he would have been hungry, after the standard feeding time of 5:30 p.m. in the afternoon. The officer conceded that he had not inquired if the accused had eaten at the standard feeding time, that as soon as he was asked if he wanted something to eat he said 'yes', and that he requested, and ultimately consumed, a small cheese pizza and an orange juice, albeit that he vomited, about 10 minutes afterwards.

I. Disregarding the accused's welfare when, having been treated, at the hospital, on the 10 August 2003, he subsequently refused a meal and indicated that he would vomit if he ate.

i) The accused had been treated at the Port-of-Spain General Hospital, for the first-time, on the 10 August 2003. Around mid-day, on the 12 August 2003, shortly after the parents had left their son, Cpl Veronique offered him a meal, to which the accused replied by saying that if he ate he would vomit, and he just requested a drink, which was subsequently provided. The officer's evidence was to the effect that, at no time, that day, did the accused ask him to be able to see a doctor. The officer only found out, on returning, with the accused, to the Homicide Bureau of Investigations, from St Clair, after speaking to Cpl Edwards, that he had been treated, at the hospital, on the 10th of August. However, under cross-examination, he conceded, that when the accused stated that he would vomit, if he ate, he did not ask him about his health, as he didn't find it unusual. The Court agrees with the submission of defence counsel that the accused's remark should have put the Police on notice that all was not well, particularly, bearing in mind that it was known that he had been to the hospital, two days previously. Acting in the spirit of the Rules, would seem to require certain enquiries being made, when matters such as this are brought to the attention of officers. It was implicit, in Cpl Veronique's evidence, that persons, in custody, under investigation for serious offences, such as murder, might, very well, for quite understandable reasons, be off their food, or, a bit queasy to the stomach but, in the Court's view, officers should be astute to realise, and be alive to the fact that, there may be more than that, going on, beneath the surface, in particular, with an accused, such as this, who had had a previous trip to the hospital.

10. EXCLUSION OF THE FIRST ORAL STATEMENT

10.1. Notwithstanding the State's concession, in light of the above arguments, that it would not rely upon the second oral statement, Mr Prince, or behalf of the State, was keen to proceed to trial in circumstances where the only evidence, against the accused, was the first oral statement (see, 3.1, above). Mr Prince took the view that his case was now stronger, doubtless considering that Mrs Elder would not have been in a position to cross examine the officers as to the circumstances in which the accused was detained, the metamorphosis of his injuries, and his interaction with various officers, after he gave the first oral statement, due, arguably, to a lack of relevance.

10.2. Mrs Elder sought to exclude this statement, on the following grounds (my distillation and summary thereof):

A. The integrity of the taking of the first oral statement was tainted by the circumstances in which the Police took the second, there being one common officer.

B. The medical certificates dated the 10th and 13 August 2003, and more so the latter, are consistent with the accused having suffered injuries, as a result of being assaulted, whilst in the custody of the police.

C. The credibility of Cpl Edwards, Cpl Veronique and acting Cpl Jodha.

D. The failure of Cpl Edwards to inform the accused of his constitutional rights and privileges, before or even after, administering the Rule II caution on the 12th of August 2003, at the St Clair Police Station.

E. Interviewing the accused, in the absence of friend, lawyer, independent person, or family member, on the 12 August 2003, at St Clair Police Station.

F. The Police failed to have the contemporaneous notes of the first oral statement, countersigned by the officers present, in breach of Appendix B, Paragraph 2, Judges’ Rules.

G. Unfairness, at common law, in failing to read the contemporaneous note of this oral statement, to the accused, or inviting him to read the same.

H. Wantonly disregarding the welfare of the accused, by not filling the prescription prescribed for the accused on the 10 August 2003, nor bringing the same to the attention of the parents so that they might do the same.

I. Oppression- failure to provide painkillers prescribed on 10th of August 2003.

J. Failure to offer bathing or showering facilities, until after the second oral statement had been given.

A. The integrity of the taking of the first oral statement was tainted by the circumstances in which the Police took the second, there being one common officer.

i) Cpl Edwards, the Complainant in the matter, was a common witness to the taking of the first and second oral statements. The Court has already indicated that it has found his conduct, in seeking to interview the accused, on the 13 August 2003, in the circumstances prevailing at that time, to be reprehensible in the extreme and deserving the condemnation of the Court. The Court finds itself unable to divorce what occurred, after the first interview on the 12th, culminating in the taking of the second oral statement on the 13th, from the very interviewing of the accused, on the 12 August 2003, and to be able to repose the requisite degree of confidence in the evidence of this officer. In a nutshell, the Court finds that the first interview is retrospectively tainted by what went afterwards.

B. The medical certificates dated the 10th and 13 August 2003, and more so the latter, are consistent with the accused having suffered injuries, as a result of being assaulted, whilst in the custody of the police.

i) The evidence in relation to the injuries on the accused, together with the findings of the doctors, on the 10th and 13 August 2003, has already been summarised, under the heading "The Arrest and Injuries Sustained Thereon", supra . The Court was concerned to note that PC Chulhan made no observation with regard to the accused's upper garment, bearing in mind the area through which he was said to have run. Moreover, the Court has considerable difficulty in accepting that the injuries seen, on the 10 th , are consistent with the circumstances of the chase and the ultimate arrest. On arrest, PC Chulhan had only observed the bruises to both of the accused's upper arms and it was not until the accused was searched, later, at Besson Street Police Station, that he saw the bruises to his lower neck and back, in the region of the area of the neck/top of the shoulders. However, by the time the accused was taken to the hospital, that evening, his injuries were said, by a medical practitioner, as set out on the Medical Certificate, to be in the nature of soft tissue injuries to the left jaw and upper back which were probably inflicted by blunt trauma. Of course, the Casualty Card, admitted into evidence, recorded, additionally, a swollen left neck (wheal marks), with multiple wheals on the back. By the time the accused went to the hospital, again, the next day, the injuries, recorded on the Medical Report were: 1) a bruise on the back of his neck (x-rays-no bony injury) 2) a bruise over the back of the chest. Probably inflicted with "a moderate degree of force". Under cross-examination, PC Chulhan testified that: "when I took off his shirt, at my request, to search him, I did not see any swelling on his left neck, nor any wheal marks on the left neck. I did not notice multiple wheals on his back.”

ii) Whilst the Court can accept that the injuries to the upper back are consistent with what PC Chulhan testified he saw, when the accused was being searched, there was no evidence, before the Court, as to how the accused sustained the soft tissue injuries to the left jaw, nor the swollen left neck (wheal marks) and the wheal marks to the back. Similarly, the bruise on the back of the neck, found by the doctor, on the 13th, may, very well, have been the injury seen by Chulhan. However, the Court asks itself the question, how did the accused received a bruise over the back of his chest? As John J. (as he then was) said, in the State v. Flores and Garcia , HCA # Cr.S. 134 of 1998: "where an accused person sustains injuries whilst in police custody there is a duty on the police to provide some explanation for those injuries." (Page 6). The only explanation placed before the Court, as to how the accused received these injuries is during the chase and upon his arrest. The Court is not satisfied that these injuries are consistent with what is said to have happened, to this accused, whilst being chased and arrested and, more importantly, the Court is concerned as to how these injuries seem to have metamorphosed, whilst in custody. In the view of the Court, that is only consistent with violence being inflicted upon him, in Police custody, post arrest.

iii) As John J. (as he then was) did, I too, draw upon the words of Lord Griffiths in Lam Chi-ming v. the Queen [1991] 2 AC 212:

"Their Lordships are of the view that the more recent English cases established that the rejection of an improperly obtained confession is not dependent only upon possible unreliability but also upon the principle that a man cannot be compelled to incriminate himself and upon the importance that attaches in a civilised society to proper behaviour by the police towards those in their custody. All three of these factors have combined to produce the rule of law applicable in Hong Kong as well as in England that a confession is not admissible in evidence unless the prosecution establish that it was voluntary."

and at page, 222:-

"But it is surely just as reprehensible to use improper means to force a man to give information that will reveal he has knowledge that will ensure his conviction as it is to force him to make a full confession. In either case a man is being forced into a course of action that will result in his conviction: he is being forced to incriminate himself. The privilege against self-incrimination is deep rooted in English law and it would make a grave inroad upon it if the police were to believe that if they improperly extracted admissions from an accused which were subsequently shown to be true they could use those admissions against the accused for the purpose of obtaining a conviction. It is better by far to allow a few guilty men to escape conviction than to compromise the standards of a free society."

iv) In Wong Kam-ming v R [1979] 1 All ER 939, Lord Hailsham of St Marylebone said ([1979] 1 All ER 939 at 946, [1980] AC 247 at 251):

'… any civilised 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 civilised 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.'

v) Whilst I did not hear evidence from the accused, the Court had little difficulty in accepting the evidence of the Police officers that the accused did make the first oral statement. However, the Court is not satisfied beyond reasonable doubt that it was not obtained in a manner which should be reprobated and was therefore in the truest sense voluntary. This alone is, of course, sufficient to determine the admissibility of the impugned statement; however, for completeness, I intend to deal with the remainder of Mrs Elder's grounds, as briefly as possible, as some of those impacted upon the credibility of the police officers, generally, and, therefore, were relevant to their evidence that the accused was not beaten, whilst in police custody.

C. The credibility of Cpl Edwards, Cpl Veronique and acting Cpl Jodha

i) Cpl Edwards testified that he was interviewing the accused, together with Sgt Boxhill, at around 7 p.m. the 13 August 2003, at the Homicide Bureau of Investigations. The first oral statement was said to have been uttered, in the presence of Cpl Edwards, Cpl Veronique, together with acting Cpl Jodha. The State admitted, pursuant to the Act, as true , entry number 27 of the Central Police Station Station Diary, for the 13 August 2003, at 7:12 p.m. to the effect: "SDO out with prisoner - No. 12721 Ag/Cpl VERONIQUE left Station with prisoner MARQUIS for Homicide." Under cross examination, Veronique denied seeing the accused at Homicide on the 13th, accepted that he had seen this entry, at the last trial, and denied taking the accused from Central Police Station to Homicide Bureau of Investigations, that he had not taken the accused, from the Central Police Station to the Homicide Bureau of Investigations, that evening, and that he did not make any inquiries regarding this entry, as he "didn't want to interfere with procedure". Whilst the latter is commendable, all of this does have an impact upon the credibility of this officer, who was, after all, involved, with the accused, at the time of, and testified to, the impugned first oral statement.

ii) Cpl Veronique testified, under cross examination, that he had been told, by Cpl Edwards, sometime later, that the accused had sustained his injuries "in a car chase". Quite extraordinarily, Edwards, himself, confirmed, in cross-examination, that he had, indeed, told Veronique this.

iii) Cpl Edwards testified that, as is to be expected, he knew the importance of recording any injuries a suspect had, before he was interviewed. Whilst he had written, what the accused told him, in the St Clair Station Diary, he did not record that he had observed injuries on the accused. The explanation forthcoming seemed to be that he had only seen the marks, whilst leaving the Station, taking the accused to a vehicle which was taking them to the Homicide Bureau of Investigations and that, when the entry was made, he had not seen the marks. However, he conceded that, notwithstanding the fact that he had a pocket diary and even a notebook, and, notwithstanding the provisions of the Standing Orders, he did not write, in either, that he had seen the marks to the back of the accused's neck. When the party reached the Homicide Bureau of Investigations, Cpl Edwards did not record, in that Station Diary, that he was bringing in a prisoner with marks to the back of his neck, notwithstanding the fact that he knew that he was detaining him, there, to interview him.

iv) The Court viewed, with a degree of circumspection, Cpl Edwards' explanation as to why, having ascertained from Cpl Sookdeo, at the Besson Street Police Station, later that morning, that the accused's injuries were noted in the Station Diary, there, that there was no necessity to make any further note of the injuries which he had seen, in the Station Diary at the Homicide Bureau of Investigations. At one stage, he testified that: "I was concerned as I wanted to speak to officers before I noted what was of concern." However, having received an explanation from Sookdeo, as to what was noted at Besson Street, Edwards decided not to make a note in his Station Diary. Mrs Elder's suggestion was that Edwards wanted to ascertain from other officers, what had been written in their Diaries, before committing himself and making an entry in his, and this, really, did seem to be what was happening, although, of course, at the end of the day, it is to be noted that Edwards did not make any entry, in his Station Diary, at all.

v) Cpl Edwards had testified that, between 8:35 and 8:45 a.m., when the accused was said to have been making the first oral statement, he had said, inter alia : "he slept most of the time from San Fernando in the back of the car and that Allum was talking out of timing ( sic ) like he know he was going and dead." This portion of the utterance was not recorded in Edwards' pocket diary, nor the Station Diary. Under cross examination, Edwards conceded that he did not write this, as it was being said, as it was said, at the end of the interview, as he was giving instructions to Jodha and acting Cpl Veronique and it remained on [his] mind, and he wrote it, there, as it might have proved to be extremely important, later on. Under cross examination, Cpl Veronique had no recollection of the accused saying this, conceded that on the voir dire of the previously aborted trial, he had testified that the accused never said that, and his final word on the topic was that he did not hear him say this.

vi) Acting Cpl Jodha conceded that he made no note, himself, of the first oral statement, allegedly made by the accused, on the 12th of August 2003, until he made his witness statement on the 6 November 2003. He conceded that, at that time, he could not remember what the accused said and, therefore, essentially, adopted what had been written, in the Station Diary, by someone else, and Mrs Elder could be understood for having described that as smacking of collusion. His witness statement, concluded in the following words "sometime later I gave this statement to Cpl Edwards." Immediately following on from that, appeared his signature and the date, the 6 November 2003. Beneath that was the certificate, by Cpl Edwards, to having received, the same, for him, at 2 p.m. on the 10th of November 2003. He was cross-examined, by Mrs Elder, as to how, in the main body of his statement, he was describing the occurrence of an event, yet to take place. The Court shares Mrs Elder's description of his rambling, unconvincing, explanation: "this can only charitably be described as incomprehensible."

vii) The above are some of the principal attacks, made by Mrs Elder, on the credibility of these officers. The Court was most unimpressed by their evidence, in particular that of Cpl Edwards and acting Cpl. Jodha and, as such, and bearing in mind the nature and metamorphosis of the injuries, was unable to be sure that the first oral statement was not obtained as a result of violence/oppression.

D. The failure of Cpl Edwards to inform the accused of his constitutional rights and privileges before, or even after, administering the Rule II caution on the 12th of August 2003, at the St Clair Police Station.

i) According to the evidence of the officers, Cpl Edwards informed the accused of the report he was investigating, on the 12 August 2003, cautioned him and, in reply thereto, the accused made the first oral statement. Cpl Edwards testified that he, then , informed him of his legal rights and privileges and the accused requested that his mother be present, before he said anything further. He did indicate, at that stage, that he would give a written account. However, after seeing his parents, he stated that he was no longer prepared to give a statement, at that time.

ii) Mrs Elder relied upon the provisions of s.5 (2)(c) of the Constitution, viz.:

" Parliament may not....... deprive a person who has been arrested or detained of the right to retain and instruct without delay a legal adviser of his own choice and to hold communication with him."

iii) The Court had raised , arguendo , that the first oral statement was surely a spontaneous utterance, by the accused, in response to caution, blurted out, before the officer had the opportunity to apprise the accused of his constitutional rights. Mrs Elder argued, in reliance upon the authorities of R. v. Dallas (1966) 10 WIR, 288 and the State v. Cyril Dennan , (1979) 26 WIR, 384, that the first oral statement was not a spontaneous utterance. With all due respect to Mrs Elder's arguments, these authorities do not support her proposition, one iota, in the Court’s view. In Dennan , the accused made an incriminatory, oral utterance, to a police officer, after caution, during investigations. At trial, the defence offered no objection to the admissibility of that statement, after the policeman testified that it was not procured by threats, inducements, promise of force and that it was free and voluntary. It was held , inter alia , that there was sufficient prima facie evidence on which the trial judge could have founded the conclusion that the oral statement was made freely and voluntarily and could properly have exercised his discretion to admit it. In relation to the second oral utterance, the accused was taken back to his home, from the Police Station, where the officer showed him two jute bags, containing the body of the deceased, whereupon the appellant immediately made an incriminatory, oral utterance. It was argued, on appeal, in respect of both utterances, that the trial judge erred in admitting the statements, without first satisfying himself that they were voluntarily made. The Court of Appeal of Guyana held that the testimony of the police officer was sufficient prima facie evidence on which the trial judge could have founded the conclusion that the first oral statement was made freely and voluntarily. In respect of the second oral utterance, the Court found that there was no similar evidential foundation for the reception of that utterance, as a voluntary statement. However, the Court held that it was admissible, as it was uttered spontaneously, when the officer opened the bags, thereby disclosing the deceased's dead body. The Court held that it would be plainly wrong, in those circumstances, to hold that the confession was inspired by any of the motivations to which Lord Sumner referred in Ibrahim v. R, [1914] AC 599 and opined that, indeed, the principles enunciated, in that case, would appear to have no relevance to such a situation. Massiah JA referred to Lord Hailsham, in Ping Lin :

“In Ping Lin ([1975] 3 All ER 175, [1975] 3 WLR 419, 62 CrAppRep 14) Lord Hailsham, in discussing what I would call 'the spontaneous confession', observed [1975] 3 All ER 175 at 184-185:

'A confession which is simply blurted out by a criminal caught in flagrante delicto is not the sort of thing at all to which Lord Sumner's principle applies. It is emphatically not "fear of prejudice or hope of reward excited or held out by anyone in authority." If it were, the classical confession: "It's a fair cop" uttered by the burglar caught in the act would be excluded. There is no need in such a case to introduce complications to Lord Sumner's principle based on the absence of subjective intention or impropriety on the part of the arms of the law. Lord Sumner's principle, properly applied in a common sense way, is quite enough to deal with situations of this kind.'"

iv) Accordingly, with all due respect to Mrs Elder, the cases cited, have no real relevance, whatsoever, to the point under consideration. In the view of the Court, they simply decide that the prosecution need not lead prima facie evidence, even if only by way of the ubiquitous, well-known verbal formula, almost incantationally, in proof of that an alleged oral utterance was not procured by threats, inducements, promise or force, if it is something in the nature of a spontaneous outburst. Mrs Elder seemed to be arguing that, because the Court acted on the relevant prima facie evidence, in respect of the first oral utterance, this demonstrates that it was not spontaneous, as if it was, such reliance would have been otiose. In the view of the Court, this argument is fallacious. The Court could have applied the reasoning, underlying the admissibility of the second oral utterance, to the first, but, for reasons best known to itself, did not do so, but, instead, sought to rely on the parole evidence of the officer: that he had not threatened him, offered any inducements, made any promise, nor assaulted or used any violence upon him. It was free and voluntary. In the view of the Court, it is, perhaps, somewhat disingenuous to argue that a statement such as that is not spontaneous. By any stretch of the imagination, both oral utterances, in Dennan were, in the view of this Court, spontaneous and the judgment does not support any other interpretation.

v) Other than it shall be " without delay", s.5 (2)(c) of the Constitution, does not specify at which precise moment in time, the right must be administered.

vi) In A G. v. Whiteman , (1991) <<39 WIR, 397>>, 413, Lord Keith, in delivering the opinion of the Judicial Committee said:

"Their Lordships accordingly consider that persons who have been arrested or detained have a constitutional right to be informed of their right to communicate with a legal adviser both upon a proper construction of section 5(2)( h ) of the Constitution of 1976 and on the basis of a settled practice existing when that Constitution was introduced. Davis JA said towards the end of his judgment of the Court of Appeal:

'I am not prepared to lay down any general rule as to the precise point in time when a person in custody ought to be informed of this right, [but it should be] as early as possible, and in any event before any "in-custody interrogation" takes place.'

Their Lordships would endorse that. It is possible to envisage circumstances where it would not be practicable to inform the person of his right immediately upon his arrest. They would add that it is incumbent upon police officers to see that the arrested person is informed of his right in such a way that he understands it. He may be illiterate, deaf, or unfamiliar with the language. It is plain that the mere exhibition of notices in the police station is insufficient in itself to convey the necessary information."

vii) The point that Mrs Elder sought to make, aside from the spontaneity argument, was that there was nothing, in the evidence, from which it could be inferred that Cpl Edwards did not have time to stop the accused and inform him of his constitutional rights and it was submitted that, the very length of the utterance and the nature of the first part, namely: "it was ah mistake" clearly indicated that Sgt Edwards had ample opportunity to stop him and inform him of his constitutional rights. It was submitted, further, that, additionally, since Edwards knew, prior to the interview of the accused on the 12th, that he was a suspect, and had been in police custody, since the 10th, it was imperative that he informed him of his constitutional rights, which could have been done, before the Rule II caution. It was argued that the evidence that the accused refused to say anything further, after he was informed of his constitutional rights, showed that he was prejudiced by not being told, in a timely manner, of his constitutional rights. Relying upon the principle derived from Ali Mohammed v. the State, (1998) 53 WIR 444, 455, viz., the fact that there has been a breach of an individual's constitutional right to consult and instruct a legal adviser is a cogent factor militating in favour of the exclusion of a confession, the failure of Cpl Edwards to inform the accused of his constitutional rights, either immediately after informing him that he was a suspect in the murder he was investigating or, after he administered the Rule II caution, should motivate the Court, according to Mrs Elder, to exclude the evidence obtained in breach. However, her written, skeleton argument overlooked what Lord Steyn went on to say, at page 455: "nevertheless, the judge must perform a balancing exercise in the context of all the circumstances of the case..... 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." (Emphasis mine).

viii) Cpl Edwards was not cross-examined, by Mrs Elder, as to the practicality of administering the constitutional rights, post caution and immediately prior to the accused making, what the Court finds as a fact, to be, a spontaneous oral utterance. It is noteworthy that PC Chulhan testified that after the accused had been subdued, on arrest, in the vicinity of Prescott Alley, he cautioned him and informed him of his legal rights: that he was entitled to a phone call, a legal attorney, a relative or friend to be present. Whilst the Court notes that it was put to PC Chulhan that he was not the officer who arrested the accused, (not that he was not present), his evidence that he informed him of his legal rights was not challenged, in cross-examination.

ix) The Court had little difficulty, in accepting the evidence of PC Chulhan, and it is sure that it was this officer who arrested the accused and initially cautioned him and administered the relevant constitutional rights, initially.

x) In the absence of detailed evidence, either in chief, or cross-examination, as to precisely what happened when, allegedly, Edwards cautioned the accused, who made the oral utterance and who was then informed of his rights and privileges, it would amount to speculation, to take the evidence in chief, other than at face value, viz: caution, followed by spontaneous utterance, followed by administration of constitutional rights. In any event, the Court is satisfied that what occurred was not a deliberate frustration of the accused's constitutional rights by allowing him to speak and consciously and deliberately delaying reminding him of his constitutional rights, until he had spoken and incriminated himself. Accordingly, in all the circumstances, carrying out the balancing exercise, the Court would not have excluded the first oral statement, on this ground alone.

xi) By way of guidance to Police Officers, whilst the Court appreciates that there may very well be cases where it would not be practicable to inform the person of his constitutional rights, immediately upon his arrest, those must be few and far between. The Court suggests that the right under s.5(2)(c) of the Constitution be administered, immediately following on from the administering of the Rule II Caution. Provided there is no pause between administering each right, one would have thought that accused persons would not, generally speaking, be desirous of incriminating themselves, by way of oral utterances, at least until the officer has finished speaking. Whilst there may very well be persons who are desirous of doing so, the Court suggests that they be interrupted, if they do start to speak, prematurely, so that their full rights under the Judges' Rules and the Constitution may be administered to them. Mrs Elder put it, attractively, this way: "what's the point of telling [a suspect] of his constitutional rights after you have sat and listened to him incriminating himself."

E. Interviewing the accused, in the absence of friend, lawyer, independent person, or family member, on the 12 August 2003, at St Clair Police Station.

i) The accused, at the material time, being 20 years of age, there was no requirement, in law, or pursuant to administrative directions, that he might only be interviewed in the presence of friend, lawyer, independent person or family member. Until he spoke, again, the next day, the accused chose to decline to say anything further and changed his mind about giving a written statement, after having requested and seen his mother, later that morning, pursuant, no doubt, to his being informed of his legal rights and privileges, after he had made the first highly incriminating, oral statement. This point seems, essentially, to be wrapped up in the previous, namely, that it would appear to be highly likely, that, if he had been cautioned and informed of his constitutional rights, in the same breath, then, bearing in mind what transpired after he was, in fact so informed, he would not have chosen to have spoken, at all.

F. The Police failed to have the contemporaneous notes of the first oral statement, countersigned by the officers present, in breach of Appendix B, Paragraph 2, Judges’ Rules.

i) This point has been fully discussed in relation to the second oral statement, see para 9.2 G, supra

ii) Cpl Edwards' written notes of the Interview between 8:35 a.m. and 8:45 a.m. do contain certain of the prescribed information, including the time and place and the names of the persons present. The photocopy with which the Court was provided, for use in the voir dire, is signed by no one and, accordingly, there is a technical breach of Paragraph 2. However, this, standing alone, would not have been sufficient for me to have exercised my discretion in favour of the defence, had I been called upon to do so; it is simply one of the cumulative factors which the Court has taken into consideration, when considering voluntariness, breaches of the Judges' Rules, and unfairness, at common-law.

G. Unfairness, at common law, in failing to read the contemporaneous note of this oral statement, to the accused, or inviting him to read the same.

i) Cpl Edwards conceded, in cross-examination, that it would have been fair to have read back, to the accused, the record of that which he is alleged to have uttered. As above, this is one of the cumulative factors which the Court has taken into consideration.

H. Wantonly disregarding the welfare of the accused, by not filling the prescription prescribed for the accused on the 10 August 2003, nor bringing the same to the attention of the parents so that they might do the same.

i) On the evidence, the accused was prescribed a prescription on the 10th and again on the 13 August 2003. In relation to the first, Cpl Sookdeo, one of the escorting officers, accepted that it was probable that the accused was prescribed medication, but could not remember if that was the case; however, he did not ask the doctor if he needed medication, prior to leaving hospital. His evidence left the Court with the impression that he had assumed that his senior colleague, Sgt Hudson, who was not called on the voir dire , would have attended to necessary matters, including notifying the parents that their son had been taken to the hospital (which appears not have been done).

ii) For completeness, whilst it cannot affect the first oral statement, Cpl Edwards conceded that the doctor had given him a prescription on the 13th, but he neither filled it, nor called his parents so that they might. Neither did he record, in the Station Diary, nor his pocket notebook that he had received such a prescription. He simply handed it to the officer in charge, at the Central Police Station, upon his return, and passed the responsibility on to that Officer.

iii) There was no evidence, before me, that either prescription had been filled and administered to the accused, whilst in police custody.

iv) Mrs Elder’s submission, that this was a wanton disregard for the welfare of the accused seems to have force. Subject, of course, to existing rules, regulations and the Standing Orders, where the Police have seen fit to seek medical attention, for a person in detention, common sense would dictate that any prescription so rising, should be filled and administered, to the prisoner, as soon as reasonably practicable, in the Court’s view.

I. Oppression- failure to provide painkillers prescribed on 10th of August 2003

i) On the evidence, the accused was prescribed "analgesics", by the doctor, at the hospital, on the 10th of August 2003. Mrs Elder has characterised the failure to provide the same, to the accused, and to interview him, in those circumstances, as a species of oppression. I heard no evidence, from the accused, as to how he felt, when he was spoken to, on the 12th of August 2003, and this is one of the many, cumulative factors, that the Court has borne in mind.

J. Failure to offer bathing or showering facilities, until after the second oral statement had been given

i) This has been dealt with, in relation to the second oral statement, see para. 9.2 H, supra, and, once again, is one of the cumulative factors that the Court has borne in mind, in coming to its conclusion on admissibility.

11. REJECTED DEFENCE SUBMISSIONS

11.1. In addition to the above, Mrs Elder presented further novel and quite interesting submissions. Notwithstanding the Court finding them to be without merit, they do warrant some discussion as why that was held to be the case.

11.2. Mrs Elder submitted that the guidelines/suggestions of the Court of Appeal, in Frankie Boodram v. the State , amounted to nothing new, but merely declared existing law/procedure.

11.3. Mrs Elder referred the Court to the Standing Orders of the Trinidad and Tobago Police Service, issued on the 1st of July 2001. SO 32 1 (1) provides that "a 'statement' refers to the information whether oral or written made by a person concerning a matter under investigation." SO 32 4 provides that statements, recorded by police officers, are of three types: (a) witness statement, (b) dying declaration and (c) Statement under Caution (Judges' Rules). Whilst the numbering of the paragraphs, of this Standing Order, which follow on from that classification, is confusing, it seeks to set out (i) WITNESS STATEMENT (1) (types of witness statements) (2) GUIDELINES FOR RECORDING STATEMENTS (3) WITNESS STATEMENTS-MENTALLY SUBNORMAL, CHILD, PERSON SPEAKING A FOREIGN LANGUAGE (how the same should be recorded) (ii) DYING DECLARATION (definition and admissibility thereof etc) and (iii) STATEMENT UNDER CAUTION (JUDGES' RULES) (definition and procedure for recording same).

11.4. Mrs Elder sought to persuade the Court that the provisions of SO 32 4(i)(2) (a)-(e) GUIDELINES FOR RECORDING STATEMENTS, were applicable to a police officer making a contemporaneous/subsequent note of an oral utterance made by a suspect and that, accordingly, Police Officers, when recording oral statements, shall [comply with paragraph] “(b) [, in so far as], after recording the statement, the witness should be invited to read it over himself or it shall be read carefully to the witness, (c) ensure that all additions, corrections and alterations to the statement are initialled by the witness and (d) advise the witness to sign and date the statement at the bottom of each completed page and at the end of the statement……”

11.5. As such, so the argument proceeded, the guidelines/suggestions in Frankie Boodram were quite unnecessary as there was an existing provision, to like effect, in the Standing Orders. The Court was quickly able to demonstrate the fallacy of this argument, to Mrs Elder, by pointing out that subparagraphs (a)-(e) of paragraph (2), under the rubric GUIDELINES FOR RECORDING STATEMENTS, was under the principle heading (i) WITNESS STATEMENT, that the subparagraphs referred, throughout, to "the witness" and not the “accused/suspect” and, moreover, that subparagraph (e) required the Police Officer recording the statement, to certify, mutatis mutandis , after the signature and date of the witness, "I hereby certify that I took the statement from JOHN BROWN at Picton Road, Laventille, on Wednesday 9th of July, 1993. He read it over/I read it over to him, he said it was correct and signed it/made his mark/or refused to sign it," which is, of course, the ubiquitous certificate to be found on police witness statements. Mrs Elder rightly, in the Court's view, eventually, conceded that subparagraphs (a)-(e) of SO 32 4 (i) (2) were only applicable to the taking of witness statements , with statements under caution being dealt with under SO 32 4 (iii) (1) & (2), and withdrew her submission.

11.6. Mrs Elder had also argued by way of a substratum to the above argument, by referring the Court to SO 16 6 (b) which provides that [the officer shall] record [in his Pocket Diary] any details of all reports made to him including the name(s) and address(es) of person(s), observations, details of any investigations made and statements (where necessary). SO 16 7 (i) provides that "persons making reports should be required to sign the Pocket Diary entries after they have been read over to them”. The argument proceeded that contemporaneously/subsequently recorded notes of a suspect's oral utterances are reports within the meaning of SO 16 6 (b) and, as such, SO 16 7 (i) applies thereto, thus rendering the guidance/suggestions of Frankie Boodram , superfluous. It was argued that, if a person making a report should be required to sign the same, in a Pocket Diary entry, then this should be given a broad meaning, so as to cover the recording of an oral utterance by a suspect, interpreted in the true spirit of the protective mechanisms, as exist, in respect of a suspect's right to be afforded protection against self-incrimination.

11.7. The Court pointed out, to Mrs Elder, that the Court of Appeal, in Frankie Boodram, supra, referred, specifically, to paragraphs 5, 6, 9, 10, & 11 of SO 16 and that it was inconceivable, in the Court's view, that there would have been no reference to paragraph 7, whatsoever, which was conspicuous by its absence, if her argument was well founded, in particular, bearing in mind the composition of the Court, which included the Honourable Chief Justice and, the battery of prominent attorneys who presented the appeal. In addition, the Court pointed out, to Mrs Elder, that there was scarcely the need for the Court of Appeal to look, merely, for support for its proposed guidelines, under Rule III (a) Judges' Rules and the provisions of SO 16, referred to, above (omitting paragraph 7). If her argument, under paragraph 7 had validity, then, surely, one would have expected such distinguished members of the Court of Appeal to have been aware of it and said so; Mrs Elder's retort was simply to the effect that she did not know if the point was argued before the Court. I have no hesitation in rejecting Mrs Elder’s arguments, on this point, outright 11.8. The Court is of the view that SO 16 6 (a) would require a Police Officer to note in his Pocket Diary, details of any oral utterance made, to him, by a suspect, in the course of recording "all activities connected with the performance of his duties", and, post Frankie Boodram, he would be well advised to follow the guidelines/suggestions made therein, otherwise be at jeopardy of the trial judge directing the jury along the lines of those suggested, at page 17 of the judgment.

11.9. Mrs Elder argued that, with due deference to the Court of Appeal, in its judgment in Frankie Boodram , it reminded Police Officers, alternatively, of the wrong procedure , because Rule V of the Judges' Rules should have been the guidance offered. Mrs Elder suggested, quite forcibly, that Rule V is applicable when a Police Officer makes a note, contemporaneously/subsequently of an interview, by questioning, between himself and a suspect who is being questioned in the manner contemplated by Rule II or III. Of course, as has already been touched upon, Rule III (c) refers to "when such a person is being questioned , or elects to make a statement .........". Rule V provides how "all written statements made after caution shall be taken". Paragraph (a), thereof, provides that where a person says that he wants to make a statement he shall be told that it is intended to make a written record of it, and the same may be written by him or the officer. The paragraph provides the all-too-familiar preamble, in circumstances where he elects that the Police Officer write it for him. Paragraph (c) provides the preamble in circumstances where the suspect is going to write it himself. Paragraph (d) provides that the exact words spoken shall be taken down, without questions, other than as may be needed to make a statement coherent, intelligible and relevant to the material matters. Paragraph (e) makes provision for the procedure in respect of corrections, alterations and additions and for the accused's certificate where he has read it. Paragraph (f) sets out the concluding procedure in circumstances where the suspect, having read it, refuses to write the above certificate or, if he cannot or refuses to read it.

11.10. In the view of the Court, Rule V of the Judges' Rules has no application, whatsoever, to the situation where a Police Officer merely questions a suspect, pursuant to a Rule II or III(a) caution. The procedure, in relation to the latter, is specifically set out in the concluding paragraph of Rule III (b). Rule V is simply concerned with the situation when a suspect elects to make a written Statement under Caution, in the form and manner with which the Court, and the Bar, is all-too-familiar, in accordance with the procedure set out within the Rule, itself, and, generally, on the forms provided for the purpose (see, in that regard, Appendix B, paragraph 1).

11.11. Once again, the Court is fortified in its view, in so far as it is of the opinion that it is inconceivable that the Court of Appeal would have suggested the guidelines/suggestions it did, in Frankie Boodram , if the very answer to the problem at hand was to be found within Rule V of the Judges' Rules. The Court asks itself, rhetorically, again, why would the Court have sought support for its suggestions/guidelines, in, inter alia, Rule III (b), if the situation was already covered by the specific provision of Rule V.

11.12. In reliance of the ruling of my brother, Volney J. in the State v. Philip Placid, Crim. No. 113 of 2003, Mrs Elder sought to argue that paragraph 6, Appendix B, Judges' Rules, is applicable to the situation where a Police Officer makes a contemporaneous/subsequent note of an interview, by questioning, between himself and a suspect, for use as an aide memoire (as opposed to it becoming an exhibit, under Frankie Boodram/Todd, supra, principles) . In Placid , the accused, after stating that he would like to tell the police what happened because he could not tell lies, proceeded to give an incriminating account of his involvement which was recorded, verbatim , by an officer. According to both officers, the note was read over to him, who acknowledged its accuracy. He was not asked to sign it, but was asked if he would give a written statement of what he had just said. To this he replied: "I will not give that in a written statement because that could be used against me in court". The senior officer initialled the note, which was identified in court. The learned judge stated, in his judgment: "no attempt was thereafter made to have it authenticated in manner stipulated in the Judges' Rules as representing by way of admission the voluntary giving of the prisoner" (page 9). Whilst conceding that I am not bound by this, Mrs Elder urged upon me, quite rightly, which I accept as a general proposition, that I should not lightly go contrary to a pronouncement of the learned Senior Puisne Judge. However, on this occasion, I feel impelled to do so, with all due respect to my learned, senior brother.

11.13. Whilst the definition of statement in the Standing Orders, includes an oral statement, the like expression in the Judges' Rules is, in my judgment, limited to the context in which it appears in the Rules, namely, a written, statement under caution, obtained in accordance with Rule V. Accordingly, I hold that paragraph 6, Appendix B, has no application, to the case at bar, where officers merely made notes, of questioning, contemporaneously or shortly thereafter, to be used, subsequently, as aide memoires, under Sekhon principles; in other words, in my judgment, there is no requirement to summons a Justice of the Peace, or other responsible member of the community, to certify such notes, as to voluntariness, contemporaneously or ex post facto .

11.14. I leave open the question as to whether paragraph 6, ibid , applies to a note made, and signed by a suspect, in conformity with Frankie Boodram, supra, thereby becoming an exhibit, to a suitable occasion when it falls for determination in the future.

12. RULING

12.1. The Court is not satisfied, so that it is sure, that the first oral statement was not obtained as a result of violence, or oppression, and that it was the truly voluntary outpouring of the accused, or that it was not obtained in unfair circumstances, notwithstanding that the Court has little doubt that the accused, did, in fact, make it. That is nihil ad rem. The Court has reminded itself of the words of Lord Griffiths, supra , as to the importance that attaches in a civilised society to proper behaviour by the police towards those in their custody. Accordingly, it will not be admitted into evidence. The State having conceded the inadmissibility of the second oral statement, it is left without any evidence, against the accused, whatsoever, the case turning entirely on the two oral statements.

12.2. The Court ruled that the first oral statement would not be admitted, on the 13 th April, and the accused was found not guilty, on my direction, when Mr Prince offered no evidence, on the indictment, formally, on the 22 nd April 2006. The Court indicated that it would hand down a detailed, reasoned ruling, and it now does that.

The Court commends Mr Prince for his realistic approach to the second oral statement, in light of the evidence, on the voir dire and Mrs Elder's powerful arguments. He is further commended for his willingness, acting as a true Minister of Justice, to utilise the provisions of section 37 A of the Criminal Procedure Act, thereby enabling the defence to adduce beneficial evidence, in the accused's favour, which, in the absence of relevant admissions, would, in all likelihood, have been unavailable to him.

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Ian Stuart Brook J. (Ag.)

31 st May 2006

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[1] As opposed to facilitating an election to give a written statement – see, too, the State v. Winston Phillip, Jnr, HCA, No. 27 of 2004, para. 7-20.

[2] This view is shared by Holdip J., see State v. Richard Samuel , HCA, T12/04, p.4.

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