The Judicial Committee of the Privy Council Decisions

Privy Council Appeal No. 23 of 1994

 

(1) Walford Wallace and (2) Michael Fuller  Appellants

v.

The Queen  Respondent

 

FROM

 

THE COURT OF APPEAL OF JAMAICA

 

---------------

JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL,

Delivered the 3rd December 1996

------------------

 

Present at the hearing:-

Lord Mustill

Lord Griffiths

Lord Clyde

Sir Brian Neill

Sir Ralph Gibson

  ·[Delivered by Lord Mustill]

 

-------------------------

 

1. At a trial in the Home Circuit Court before Mr. Justice Walker and a jury these two appellants were convicted on 21st February 1989 of the murder of Fitz-Albert Hall and Lennox Francis and were sentenced to death.  Three other men had been charged with the murder, but two of them were discharged at the preliminary enquiry in the Gun Court and the third was acquitted on the judge's direction when the prosecution offered no evidence.  Nothing is known of those circumstances.  Appeals by the appellants against conviction were dismissed by the Court of Appeal of Jamaica on 24th February 1992.  The appellants now pursue further appeals with special leave of this Board.

 

2. The case for the prosecution at the trial was as follows.  The bodies of the two deceased men were found in a house at Housing Drive, Kintyre, owned by Fitz-Albert Hall's mother.  According to Hall's girlfriend this had been rented out by Hall to the appellant Fuller and another.  The two bodies were lying in a bedroom with their hands bound with cord, and with another cord  around  their necks tying them to each other. A post-mortem disclosed that Hall had been shot four times in the head.  Francis had been shot twice.  Fragments of spent bullets and cartridges for automatic weapons were found on the floor.

 

3. There was no extrinsic evidence to connect the appellants with the crime.  No eye-witnesses were called at the trial. Nobody placed the appellants in the vicinity at the relevant time.  If any attempt was made to identify the types of bullets and cartridges found at the scene with those which the appellants subsequently mentioned in their challenged statements to the police, no trace of such attempts emerged in the proceedings.  Indeed the only direct evidence, apart from that of the appellants themselves, was that of Fitz-Albert Hall's grandfather who stated that early in the morning three men had come to his house asking for Hall.  They seemed to be wearing army clothing.  One of them was holding a long gun.  The grandfather did not purport to identify either of the appellants. There were no clues in the shape of fragments of clothing, fingerprints etc.  This was not a case of detection by the police.  The only evidence against the appellants consisted of documents alleged to have been statements under caution said to have been made by them after they had been in police custody for several days.  For convenience these documents will be called "the statements", without prejudice to the allegation that they were not in fact made by the appellants.

 

4. The statements were to the following effect.  The appellant Fuller is said to have given an account of how a .45 automatic gun belonging to the appellant Wallace (known as "Macca") was hidden near the house where Fuller had been living.  Later, it could not be found and Hall (who was known as "Portland") was suspected of having stolen it.  A group of young men assembled, including the two appellants.  One of the men talked of wanting to kill Hall. Three of them, known as Sammy, Juicy and Prince were armed, and wore army uniforms.  Sammy was armed with a rifle and Prince had a weapon known as a 14. Sammy went away and returned saying that he had searched the house of Hall's grandfather and had failed to find Hall.  The group then went to the house at Housing Drive where they expected to find Hall.  The statement continued:-

"The whole a we go up deh and we knock up the house.  Through them have on uniform them go in front.  After the door open Sammy go in.  Portland [i.e. the deceased Hall] think a policemen so him say, `Do officer, a me and me youth in ya'.  Me and Prince stay outside fih watch.  Sammy tell Portland say a fih him gun him tek way and him want it.  Sammy call me inside the house and seh me must call Prince with the 14.  When Prince go inside Sammy come outside with the rifle.  Me heard them like a beat Portland and  the  next youth inside a the house.  Sammy tell me fih

go inside a the house and tell Prince fih give Macca the 14 and him fih kill the boy them and come quick.  Me go and tell Prince the message.  Sammy tell me say him find the gun under the sheet.  When me and Sammy deh outside me hear about four or five shot inside the house. After the gunshot everybody come out of the house and me see Joel come out with the 45 matic weh Portland did tief. We leave and go back a Angola. When we reach back a Angola Joel a talk how him bus' up the shot in the boy and a long time him want fih kill him. Me start fret fih stay with the man them.  In the early morning we leave and go up a youth name `Teetman' yard and we eat some food and me go back a Angola and then me wait till Saturday and then me go a 2 Trinidad road at Waterhouse and stay with my girlfriend, Hyacinth.  Macca still a control the matic but it circulate with the other man them."

 

5. The statement under caution of the appellant Wallace, dated 2nd July 1987, began in a similar vein to that of Fuller, except that the person complaining of theft was said by Wallace to be Fuller himself.  The six men went over to Hall's house.  Then:-

"Sammy knock on the door and say `Police'. Portland said, It is not police, I know it is you Tallman. `Tallman' is Joel.  Joel said, `Open up! Police and soldier'.  The man who was inside with Portland open the door and said: `A police and soldier, Prince'.  Juicy and Sammy Dread were dressed in soldier uniform.  The three of them, that is Sammy, Juicy and Prince, go inside the house.  Me, Fuller and Joel stay outside and watch.  Same time Portland recognised Sammy and said `A nuh soldier; a yuh Sammy'. Sammy said `Yes, a me Sammy'. `Where is the gun you take away from them.  A fih me gun'.  `A nuh me tek it up.  Is a youth from down the bottom'.  Fuller rushed inside and Joel followed.  Fuller and Joel start to tie Portland and the other man with cord which them get from inside the house.  The cord is electric iron cord looking like sash cord.  Sammy said `Put him down in the corner and mek him talk'.  Fuller started to search and him take up the gun from under the sheet on the bed.  Fuller said `Hou yuh seh the youth have it?  Yuh fih dead fih it'.  Same time Sammy walk out and leave Prince, Fuller and me inside and said me must kill him.  Me look on Portland and said `Me not killing him'.  Same time I walk outside leaving Joel at the door and Prince and Fuller with two guns inside.  Joel go inside back.  Them start to fire.  When Prince, Fuller and Joel come out them say the two of them dead. Sammy say `come let us go back down'. Them  take  out them clothes and other belongings out of

6. Portland house. Fuller and Joel used live there. We went back to Angola to Sammy yard. We sit in and then start to reason. Fuller said `is long time we want to catch Gullymouth and me catch him at the right time'.  Fuller said him kill Portland and Prince kill Gullymouth [i.e the other victim Lennox Francis].  Fuller give back Sammy two handgun fih hide and he go and hide them, same place up in hills behind his yard.  Everybody split up ..."

On this evidence the appellants stood trial for murder, on the ground that although they did not themselves kill the two deceased they were part of a common enterprise which involved the infliction of at least serious bodily injury.  It is a striking, if not uncommon, fact that the persons principally responsible have never been brought to justice.

 

7. The appellants' defence was simple.  They had nothing to do with the murder.  Their explanation of the statements was less simple.  They had not signed anything: the writings on the documents were not theirs. If they did sign anything, it was not the statements.  If they did sign the statements the documents did not reflect anything said to the persons tendering them in evidence.  In any event, whatever they did was the result of oppression in police custody amounting to torture.  It was true that they had signed the statements but they had never said the things which the statements purported to record.  They signed because they had been brutalised.  The statements were not voluntary and should not be admitted in evidence.  In their absence there was no case to answer.

I.  The evidence on the voir dire.

At an early stage of the trial this attack on the statements was examined on a voir dire in the absence of the jury.  It extended over four days. The prosecution adduced evidence from Senior Superintendent Hibbert; Deputy Superintendent Brown; and Mr. Daniel Douglas, a Justice of the Peace.

 

8. They gave an account of the statement by Fuller as follows.  On 10th June 1987 Inspector Brown received information which caused him to go to Elleston Road Police Station.  On arrival he was told by Detective Sergeant Benjamin that Fuller wanted to give a statement concerning the death of Hall at Kintyre.  He cautioned Fuller and asked him if he wanted to give a statement.  Fuller said Yes, and Brown therefore asked a Justice of the Police to attend and in due course Mr. Douglas J.P. came to the station.  On his arrival, Brown told Fuller that Mr. Douglas was a Justice of the Peace and told Mr. Douglas that Fuller wanted to make a statement.  The Justice asked Fuller if that was so, and Fuller replied that it was.  Brown got out a blank piece of paper and wrote  the words  of the  caution upon it.  He gave the document

to Fuller and asked him to sign it, which he did. He then recorded a statement at Hall's dictation and gave it to Fuller to read.  Fuller looked at it and said it was all right, and then signed his name. The signatures were witnessed by the Justice and by another officer.

 

9. On behalf of Fuller the following case was put to Superintendent Brown:-

1.When Brown first saw Fuller he had a cut behind his ear.

2.Whilst Douglas J.P. was being sent for, a policeman struck Fuller several times on the leg.  Fuller cried out.  Brown was present.  An inspector came in and said "Oonoo take time with him".

3.An officer called Serjeant Benjamin brought in a piece of paper for Fuller to sign.  He refused, so Benjamin plugged electric wires into the wall and attached them to Fuller's penis, causing a burn.  This happened in the presence of Brown, Hibbert, Benjamin and a policeman named Chambers.

4.Fuller had not dictated a statement in the presence of Douglas J.P.

 

10. These allegations were all denied. Mr. Douglas, the Justice, then gave evidence that when he arrived at Elleston Road station he found Fuller in a room with Brown and Sgt. Miller.  Fuller said that he wanted to make a statement concerning the murder at Kintyre.  Brown wrote the words of the caution on a clean sheet of paper, gave it to Fuller, who looked at it, and signed it.  Douglas signed to witness the signature.  Brown then wrote the statement at Fuller's dictation.  At the conclusion Brown gave the statement to Fuller who looked at it and signed it.  Douglas signed again as witness.  Miller also witnessed the signatures.  In cross-examination it was suggested to Douglas that he had never seen Fuller dictating a statement, and that Fuller was handcuffed whilst he was in the room. It was not put to Douglas that any violence had been done to Fuller in his presence or that Fuller had complained of previous violence.

 

11. When Fuller himself came to give evidence his account was different.

1.When first arrested he was beaten up by a policeman called Henry and also by Benjamin.

2.Some days later, in the station at Elleston Road, he was struck on the leg by Chambers with a stick like a pick-axe handle.  Other policemen were hitting him with fists.  Benjamin and Henry were present.  An inspector came in and told them to stop, which they did.

3.When the inspector left Benjamin squeezed Fuller's private parts into a desk drawer.  Then another policeman plugged a wire into the wall, handed Fuller a pen and some papers (which Fuller called a "death warrant").  Fuller refused, so the policeman put the wires on his penis and burnt it.  This led him to sign the paper.

4. A few minutes later Douglas J.P. came in. As he approached the desk a policeman picked up a book and knocked Fuller unconscious.  At the same time he was hit with the butt of a gun.  At this time he had already signed the paper.  Douglas could have seen him being hit.

5.Fuller did not see Superintendent Brown during the entire episode.  Indeed, he did not know Brown until he saw Brown giving evidence at the Gun Court.

6.The statement put in evidence, bearing what purported to be six signatures by Fuller, had not been signed by him.  The paper which he did sign after the beating and burning looked different: it had writing on it already.

 

12. In addition to testifying on his own behalf Fuller called a doctor who had examined him some five months after the events described.  Fuller told him that he had been given an electric shock on his penis whilst in police custody.  Fuller had an infected ulcer.  It was consistent with his complaint but could have arisen from another cause.

 

13. When counsel for Fuller made her submission on the voir dire she maintained that there were discrepancies between the accounts of Brown and Douglas.  Secondly, an attack was made on the impartiality of Douglas, whose garage business was patronised by the police.  Third, it was objected that Sergeant Miller, who was present at the interview before Douglas and signed as a witness did not give evidence, so that the document was not properly proved.  Furthermore, the officers who were accused of beating Fuller did not come to give evidence, so that his account of torture was uncontroverted and should therefore be accepted.

 

14. Turning to the appellant Wallace, Superintendent Hibbert spoke of receiving a message from him via Sgt. Benjamin as a result of which he went to interview him in the presence of Superintendent Brown.  He began by asking if Wallace would like to write down his statement but Wallace asked him to do so.  Hibbert then wrote the words of the caution on a blank sheet of paper, read them out to Wallace, explained them and handed the paper to Wallace who read the caution and signed it.  Wallace then dictated a statement which Hibbert wrote down and read over to Wallace; he gave it to Wallace who read it through himself and signed it.  Brown witnessed the signature and Hibbert added his certificate.

 

15. Much of the cross-examination for Wallace concerned what were said to be alterations in the record of an interview taking place some days previously, and not relied on by the prosecution.  Apart from this, it was put to Hibbert, very briefly, that he had invented Wallace's statement.  It was also put, without elaboration, that an officer called Hezekiah Chambers was present at the interview and that (to Hibbert's knowledge) Wallace could not read.

 

16. The evidence in chief of Wallace on the voir dire described how, after his arrest, he was handcuffed to a chair in a room at Elleston Road station and beaten all over by officers called Hezekiah, Chambers and Benjamin.  Later, he was taken to Central Police Station where six policemen were asking questions; three of them identified themselves as Hewitt, Hibbert and Brown.  Hewitt took up a big book to beat him, but Hibbert told him not to do so.  At some time during these events Hibbert gave him a piece of paper to sign, which he did around three times, although he had told Hibbert he could not read the paper. After that he was taken to Admiral Town Police Station where after some days Benjamin, Hezekiah and Chambers started to beat him again.  Hibbert and Brown then came in and ordered the beating to stop.  Hibbert told Wallace to sign a piece of paper, which he did.  He was told by Hibbert that it was a charge sheet. This was apparently the document tendered as the statement under caution.  In cross-examination he explained that he had signed the paper because "I know if you are in custody and a policeman say you must do something you have to go ahead".

 

17. In her closing address counsel for Wallace challenged the statement on the ground that Wallace had not read it, and indeed could not read, that he did not understand the caution and was of insufficient intelligence to know what was going on. The essence of the case for Wallace was put as follows:-

"The defence didn't put to Mr. Hibbert that he went into the station and saw Benjamin beating the accused. For the defence to go and put that to the Superintendent this would be, what the Court would really term going through the motions.  Although we are saying we were beat we are saying we never gave a statement to the police at all."

 

II.  Complaints about the voir dire.

Four grounds of appeal were advanced in relation to the voir dire.  Before considering them, their Lordships draw attention, once again, to the fact that a hearing before this Board is not a second appeal, at which the appellant has an opportunity to repeat  the process  already  performed by the appellate court in

the country of origin, in the hope of achieving a more favourable result.  It has been repeatedly emphasised, and their Lordships emphasise again, that the power of review is exercised on a much narrower basis. It is unnecessary to do more than quote the familiar passage from the opinion of the Board, delivered by Lord Sumner in Ibrahim v. The King [1914] AC 599, at pages 614-615:-

"Their Lordships' practice has been repeatedly defined.  Leave to appeal is not granted `except where some clear departure from the requirements of justice' exists: Riel v. Reg. (1885) 10 App. Cas. 675; nor unless `by a disregard of the forms of legal process, or by some violation of the principles of natural justice or otherwise, substantial and grave injustice has been done': Dillet's case (1887) 12 App. Cas. 459.  It is true that these are cases of applications for special leave to appeal, but the Board has repeatedly treated applications for leave to appeal and the hearing of criminal appeals as being upon the same footing: Riel's case (supra); Ex parte Deeming [1892] AC 422.  The Board cannot give leave to appeal where the grounds suggested could not sustain the appeal itself; and, conversely, it cannot allow an appeal on grounds that would not have sufficed for the grant of permission to bring it.  Misdirection, as such, even irregularity as such, will not suffice: Ex parte Macrea [1893] AC 346.  There must be something which, in the particular case, deprives the accused of the substance of fair trial and the protection of the law, or which, in general, tends to divert the due and orderly administration of the law into a new course, which may be drawn into an evil precedent in future: Reg. v. Bertrand [1867] L.R. 1 P.C. 520."

 

18. The first ground advanced on behalf of the appellants was not raised in the Court of Appeal of Jamaica, or foreshadowed by their printed case.  Nevertheless, their Lordships allowed it to be pursued, because it was of a kind which (if well-founded) fell clearly within the principles of review just described.  It relies on the fact that the trial judge, when announcing his decision that the statements were admissible in evidence, gave no reasons beyond saying that he found that the statements were given voluntarily by both the accused.  The appellants contend for a rule of general application that a judge should always express his reasons for any procedural ruling given during a trial.  Their Lordships are wholly unpersuaded that a rule so broadly framed is now the law, or that it should be laid down for the future.  It is convenient to begin with the four authorities cited in argument. The first was the unreported decision of the English Court of Appeal (Criminal Division) in R. v. Gentles, 30th April 1993 (No. 92/3162/W2).  The relevant passage from the judgment of the court, delivered by Wright J. reads as follows:-

 

"First of all, we have to observe that when the court is dealing with any submission of this kind, where the judicial ruling which is being sought requires a finding, whether of fact or of law, it is incumbent on the trial judge to make clear, albeit in brief terms, what his finding is upon the matters in dispute, so as to enable everyone, including, in appropriate cases, this court, to understand the factual and judicial basis upon which the ruling is made.  A simple: `I am against you' in this context is not acceptable in such terms.  A judgment, albeit in short and simple terms, was clearly called for in the present case.  If it is necessary to do so, a brief adjournment for the trial judge to collect his or her thoughts and set out the basis for his or her ruling is to be taken."

 

19. It will be noted that this statement is qualified by references to "any submission of this kind" and "in the present case".  So qualified, and set in the context of the facts, it can readily be sustained.  Evidence had been tendered on a voir dire of a conversation taking place at the defendant's home between himself and a police officer.  For the defendant it was objected that the conversation was an "interview" within paragraph C11.A of the Criminal Code of Practice, and therefore should have been held at a police station.  It seems that a submission under section 78 of the Police and Criminal Evidence Act, 1984 was also involved.  The trial judge overruled the objection.  Although pressed by counsel on both sides to explain whether this was because she did not regard the conversation as an interview, or whether the circumstances were such that it need not have been held at a police station, or whether she was exercising whatever discretion might exist, she declined to go further.  The Court of Appeal was therefore left to explore the matter completely afresh. The present case is quite different.

 

20. The same must be said of the appellants' next authority, R. v. Brian Smith 16th February 1995 (No. 94/4571/W5), another unreported decision of the English Court of Appeal.  An important part of the evidence against the applicant in a drug related offence was to be given by an undercover police officer.  Before the jury were sworn the applicant's counsel applied ex parte for an order that the prosecution should disclose the relationship between the officer and two other men who featured in the story, and in particular should state whether they too were policemen.  This information was said to be needed as a basis for a possible defence of entrapment.  This application was refused by the trial judge.  When the trial began there was a new application on the voir dire to exclude the evidence of the officer, pursuant to the discretion conferred by section 78.  This application   was  also  refused,   without  reasons  being given.

21. Exception was taken to this feature on appeal, and the court was referred to the passage from R. v. Gentles quoted above.  The court observed:-

"We, of course, loyally accept the nature of that guidance, but it is clear that the Court of Appeal, in the case of Gentles, did not have a case such as the present in mind, where the judge had to consider the impact upon his decision of material he had been provided with in an ex parte hearing, and had to be very careful not to disclose matters, in order to elucidate his ruling, which might cause the very damage which the ex parte hearing had been intended to avoid.

 

22. We do not think that the case of Gentles, while being of general application, can really be said to apply with full rigour in this case."

 

23. This decision supports the present appellants only to the limited extent that the statement in Gentles was treated by the Court in Brian Smith as being of general application, whilst for the reasons given their Lordships believe that it was limited to the facts of that particular case.  (Their Lordships note that in Brian Smith, which was an application for leave to appeal, the court did not have the assistance of counsel for the prosecution).  Apart from this, however, the decision illustrates very well that there are circumstances where it would be misguided for the court to give reasons, and that there cannot be a rule of general application such as the appellants propound.

 

24. The two remaining authorities were decided in the Criminal Courts of Appeal of Western Australia and New Zealand, respectively.  The first was Webb (1994) 74 A.Crim.R. 436.  This concerned the admissibility of a confession by a person of Aboriginal descent, to which special conditions were applied by the Aboriginal Affairs Planning Authority Act 1972 (WA).  The appellant's conviction was quashed on the ground that the judge had given no reasons for admitting his confession in evidence. It would be possible to explain this decision by reference to the special provisions of the Act, but it is plain that the court had wider principles in mind.  It is sufficient to quote the following passages from the judgments of Malcolm C.J. and Ipp J. (at pages 439 and 445):-

"I accept that in certain circumstances it may be undesirable for a judge to give detailed reasons for decision on a voir dire.  This may be the case where the judge has decided that confessional evidence is admissible because the allegations which have been made by the accused to the effect that it was involuntary are incredible, or the judge has otherwise reached an unfavourable conclusion about the credibility of

the accused as a witness.  There is a natural reluctance to say too much in case the views expressed are communicated to the jury, even if only after the trial has been concluded.  Given that a degree of circumspection may be required, I am nonetheless of the opinion that there is an obligation on a judge to give reasons for ruling on the admissibility of evidence following a voir dire.  The obligation applies whether the issue raised is voluntariness or fairness at common law or is referable to the statutory criteria specified in the Aboriginal Affairs Planning Authority Act. Not to give such reasons would unfairly deprive the accused of his or her right of appeal or at least unjustly circumscribe it.

 

  The relevant Australian authorities have been collected by Ipp J.  I agree with his Honour that, in the circumstances of this case, the failure of the learned Commissioner to give any reasons for his decision to admit the confessional material was an error of law. ..."

 

"  Cases can arise where the admissibility of confessional material involves issues of voluntariness alone.  It can occur that those issues depend for their resolution merely upon credibility disputes.  In cases of that kind the basis of the presiding judge's decision to admit the confessional material may be apparent solely from the issues raised during the voir dire.  Where, however, there are a multiplicity of issues that arise in regard to the admissibility of confessional material, the mere fact that the judge holds that the material is admissible does not necessarily indicate that he or she has applied the proper tests in so holding, or that all relevant factors have been taken into account.  In such circumstances, without the court giving reasons, it is not possible to ascertain whether the decision was made according to law. ..."

 

25. The remaining authority was R. v. Atkinson [1984] 2 N.Z.L.R. 381.  Delivering the judgment of the court, Hardie Boys J. said (at page 383):-

"In R. v. Awatere [1982] 1 N.Z.L.R. 644, this Court considered whether there is a general obligation for a Judge to give reasons for his decision.  It was held that there is not but it was pointed out that it must always be good judicial practice to give reasons and failure to follow that practice might, depending on the circumstances, jeopardise the decision on appeal.  For example, the potential appellant might have been seen to be unduly prejudiced by the omission, or the appellate Court may have to infer that there  are  in fact  no  adequate reasons  to  support the

 

decision.  Thus whether or not reasons should be given and if so how fully expressed they should be will depend on the nature of the individual case.

 

  Mr. Larsen submitted that it is apparent from the Judge's decision, coming as it did at the conclusion of a lengthy hearing and after reference had been made to relevant authorities, that he must have rejected the appellant's version of events where it was in conflict with that of the police officer; for he conceded that if the Judge had been in any doubt about any of the appellant's allegations then he must have excluded the statement.  The Judge's remarks may well be read in that way, and there may indeed be cases in this area of admissibility of statements, as in others, that are sufficiently plain and straightforward for the mere rejection of one account and the acceptance of another to be a sufficient discharge of the judicial duty.  In other cases there may be no necessity to give more than quite brief reasons.  In every case however it is essential for the Judge to make it clear that he has properly applied his mind to the issues before him and has proceeded to his conclusion on the correct legal basis.  Even if the issue be no more than a determination of where the truth lies, it must be made apparent that he has correctly directed himself on the all important point of the standard of proof: as to which see R. v. McCuin [1982] 1 N.Z.L.R. 13."

 

26. Their Lordships doubt whether these and other passages support the proposed general rule to its full extent, but if so they must respectfully disagree.  Undoubtedly there will be occasions when good practice requires a reasoned ruling.  For example, where the judge decides a question of law sufficient, but no more, must be displayed of his reasoning to enable a review on appeal.  Again, on a mixed question of law and fact the judge should state his findings of fact so that the law can be put in context. Similarly, the exercise of a discretion will often call for an account (however brief) of the judge's reasoning, especially where the issue concerns the existence of the discretion as well as the way in which it should be exercised.  These are no more than examples.  In every case it will depend on the circumstances whether reasons should be given, and if so with what particularity.  Frequently, there will be everything to gain and little to lose by the giving of reasons, even if only briefly.  But other situations are different, as the present case well shows.

 

27. Here, the trial judge was faced with an irreconcilable conflict of evidence between the police officers and the defendant, turning on credibility alone.  No principles of law were in issue, and there was  no  discretion to  be  exercised.  The only question was whether

the judge believed one set of witnesses or the other.  His ruling leaves the answer in no doubt.  Simply to announce that he accepted the account given by the officers and the Justice, and found the appellants' story unworthy of credit would not have advanced an appeal.  Furthermore, although in cases where reasons are given it is prudent for the judge to say no more than strictly necessary, it is hard to see how a mere summary would have been appropriate in the present case; for there was always the risk that if anything was omitted in the interests of brevity the defendants would argue on appeal that the judge had overlooked it.  In practice, he could scarcely stop short of a fully reasoned analysis.  Their Lordships can see nothing to recommend such a course, and good reason not to follow it.  In a case hinging on confessions the tasks of the judge and of the jury, although technically distinct, are in reality very much the same.  The decision of the jury is announced in a non-speaking verdict at the end of the trial. For the judge to expound in detail almost at the beginning of the trial his reasons for preferring one story to the other would wholly unbalance the proceedings.  His reasons, which would be given in the presence of the public, the advocates and the defendants would inevitably leave their mark not only on the future conduct of the trial but also on its atmosphere.  Furthermore, although a jury may well have a general inkling of what happens on a voir dire the risk that a lapse in security would allow the jury to learn why the judge considered the defendants' evidence unworthy even to raise a serious doubt as to the voluntary nature of the evidence was too serious to justify whatever gain, if any, there might be at the appellate level.  In truth, nobody in the present case who had heard the evidence, the cross-examination and the submissions of counsel could have doubted why the judge decided as he did.  It is not surprising that none of the counsel asked the judge to explain his ruling.

 

28. In rejecting the first ground of appeal their Lordships are neither stating a general rule as to the giving of reasons for interlocutory decisions, nor recognising categories of situation in which reasons should always or should never be given.  In every instance, it is for the judge to decide whether the interests of justice call for the giving of reasons, and if so with what degree of particularity.

 

29. The second ground of appeal depends on the fact that Hezekiah, Chambers and Benjamin were not called to give evidence either on the voir dire or before the jury.  At first sight, this feature gave their Lordships real concern, and would if well-founded have fallen within the legitimate grounds of intervention referred to above.  It seemed anomalous, at the least, that the three  policemen  were given  no  opportunity to answer the serious

charges against them, and that the appellants could not confront them with their allegations of torture.  Should not the prosecution have produced the three officers for cross-examination; should not the defence have called for them to be tendered; as a last resort should not the judge have called them of his own motion?  Closer study, however, reveals a different picture.  What happened was as follows:-

 

(1)In a case where the prosecution rested entirely on the statements, and where the appellants were pleading not guilty, it was obvious to the prosecution that the statements would be subjected to attack.  But it could not have been foreseen in the early stages what shape the attack would take.  At the preliminary inquiry in the Gun Court, Hibbert and the Justice were not cross-examined at all, and although Brown was asked (a) whether he knew an officer called Hezekiah, (b) whether an officer called Chambers was involved in the case and was at Elleston Road, and (c) whether he knew that Fuller was undergoing medical treatment, there was nothing to suggest that allegations of torture would be made against the two named officers and Benjamim.  If it was going to be suggested that the statements were inaccurate, or had been fabricated, or were taken under immediate duress then the two superintendents and the Justice would be the right persons to respond. This remained the position when counsel for the appellants told the prosecution informally that there would be challenges to the statements, and later when the challenges were formally mounted by a request for a voir dire.  There was no reason at this stage for the prosecution to have called the three other officers to give evidence, or tendered them for cross-examination. Indeed, it was not until the appellants themselves gave evidence towards the end of the voir dire that the full nature of the allegations being made against these officers became apparent. At this stage, the prosecution could have applied to call the officers in rebuttal, but chose not to do so.

 

(2)As regards the appellants, their counsel could have invited the prosecution to tender the officers for cross-examination, or in the event of refusal could have suggested that the judge might call them himself.  This was not done.

 

(3)It is clear from the submissions made to the judge at the close of the evidence that the absence of the three officers was not due to an oversight, but to tactical decisions by counsel on the opposing sides.  Counsel for the prosecution was content to go ahead without the three officers on the assumption (correct as it transpired) that the judge would find the evidence of the appellants so contradictory as to be unworthy of credit. Counsel for the appellants sought to persuade the judge that without the three officers the evidence of abuse was unchallenged.

 

30. Putting these factors together, their Lordships conclude that the decision on whether to encroach on the adversarial process by calling witnesses whom the parties chose not to call was well within the scope of the trial judge's discretion, to be exercised in the light of the view which he formed of the evidence actually called. It is impossible to say that the course which he took was so clearly wrong as to require this Board to intervene; and indeed their Lordships consider on reflection that it was right.

 

III.  Editing and separate trials.

As an alternative to their principal submissions about the admission of the statements and the conduct of the voir dire, the appellants make three complaints about the statements themselves. The first is that they should have been edited, if necessary by the substitution of letters for names, so as to ensure that the statement of one appellant did not implicate the other appellant in the events before, during and after the murders.  This submission was considered in detail by the Court of Appeal, and rejected.  Their Lordships agree, and since they cannot improve on the reasons given by the Court of Appeal there is nothing which they wish to add.

 

31. So also with the second complaint, that the prosecution elicited from the police officers that Wallace was known as "Macca", thus identifying him positively as the person referred to by Fuller as a direct participant in the murder. Their Lordships agree with the Court of Appeal that this evidence should not have been led, and that the error was compounded when the judge identified Macca as Wallace in his summing-up. Nevertheless, they also agree with the Court of Appeal that the judge's repeated warnings against using the statements of one appellant as evidence against the other were sufficient to undo any harm which might have been done.  They see no need to add any reasons of their own, beyond remarking that not only did Wallace's counsel make no objection when the identification of "Macca" as Wallace was first volunteered, but she herself began her cross-examination of Superintendent Brown in the presence of the jury by asking him whether he knew Wallace before under the name of Macca.  This surely puts out of court any suggestion that the identification could have seriously prejudiced the fairness of the trial.

 

32. The third ground of complaint is more substantial.  If the two statements were to go in unedited there was a risk, not only that each of them would be regarded as evidence against the other appellant, but also that they would be conflated in the minds of the jury so as to depict with features drawn from both a murderous enterprise in which both men were fully involved.  The only  way  to avoid this risk (so it is maintained) was to have

the two men tried separately, when each would be confronted with his own statement alone.

 

33. There is an obvious problem for the appellants here.  The risk, if it was real enough now to call for the intervention of the Board, was plain from the start.  The natural time to raise the possibility of separate trials was when the appellants were arraigned.  Alternatively it could have been made as soon as the trial judge had ruled on the voir dire.  But the question was never raised, then or at any other time.  Nevertheless their Lordships have carefully considered whether the need for separate trials was so clear that the judge should have taken the initiative; and whether by not doing so he deprived the appellants of a fair trial.  They conclude that he did not. A criminal trial is adversarial.  It is for the advocates to decide what evidence is adduced, what cross-examination is made, what objections are taken, what points of law are raised.  The judge's task is essentially to hold the scales.  True, there may be moments when the judge simply has no choice but to take the initiative, but these must be few, for otherwise if the judge enters the arena the shape of the trial is distorted.  Still less, as it seems to their Lordships, should an appellate court be ready to impose retrospectively on a trial a shape which nobody present thought that it should have. Whether the possibility of separate trials was in the mind of the judge we cannot know.  Perhaps the atmosphere at the trial was such that the possibility did not cross the minds of anyone present.  Perhaps the judge did have it in mind and waited to hear what counsel for the defendants had to say; and when they said nothing, saw no reason to pursue it. Perhaps again the judge had foreseen the problem, thought it through and decided consistently with his view on editing that a firm direction to the jury would suffice.  It is pointless to speculate.  All that this Board can do is to imagine what the judge would have done if the point had been raised.  Most likely, as it seems to their Lordships, he would have refused the application. And if he had done so, would it be possible to say that his decision was so plainly wrong that the verdicts should now be set aside?  Surely not. The judge trusted his summing up (which in the event was beyond criticism) and his jury.  There is no saying that he was wrong.

 

IV.  Joint enterprise.

Since it was not part of the case for the prosecution that either appellant actually killed the two victims the jury required, and naturally received, a direction on the criteria of responsibility for the outcome of a joint criminal enterprise.  Three objections are taken to the direction as given.

 

34. First, it is said on behalf of Wallace that, since (unlike Fuller) he  had  not admitted to knowledge that the other members of the

party were armed, it was necessary for the jury to realise that, before considering the defence that Wallace had withdrawn from the enterprise, they must be satisfied that he was party to it in the first place; and that the judge failed to make this clear.  In a purely literal sense this submission is correct; the judge did not expressly tell the jury to look for initial participation in the enterprise.  But the jury cannot have been under a misapprehension.  When summarising the issues the judge had stated that the prosecution were required to prove that the appellant intended to kill or cause really serious bodily injury.  Then, when he came to deal in detail with common design, he had told the jury that the appellant would be guilty if he had the intention to kill or to cause really serious bodily injury even if the actual killing was done by persons with whom he was acting in concert.  Finally, when the central issue of withdrawal was discussed, the jury was directed to consider whether the appellant was "still in agreement with somebody else doing the shooting", and whether he was "still part of a common intention with the rest of them".  As a matter of common sense the jury must have recognised from this direction that they could not convict Wallace unless satisfied that he had initially been part of a joint venture from which the question of withdrawal might arise.  No injustice can have followed from the judge's omission to state the obvious. Even though Wallace, unlike Fuller, did not say that other persons were armed when he set out, the statement read as a whole does not give any impression of a harmless visit never intended to involve a possibility of serious violence.  Making all allowances for Wallace's evident lack of natural gifts, for the incoherent language, for the difficulty of giving a fully coherent story in the circumstances of a police interview, there are only two possibilities: on the one hand that the murder was a natural development of what had always been foreseen; or on the other a last minute change of heart by Wallace. That was the real point in the case against Wallace, and the judge was right to focus attention upon it.

The second objection, not taken in the Court of Appeal, relates to the appellant Fuller.  It is said that the jury should have been directed to consider the killing of Lennox Francis separately from that of Hall, as regards the element of intent.  There is no merit in this point.  Fuller admitted going with armed men to retrieve the .45 gun, against a background of conversations about killing the thief.  The enterprise must have extended to doing violence, at the least, to anyone else who might get in the way.  When Hall answered the door he said "... a me and me youth in ya". The idea that Fuller could have taken part as a messenger in the joint killing of Hall in the presence of Francis, without acquiescing in the doing of violence to Francis is fanciful.  The omission to mention it to the jury cannot have done any harm.

35. Finally, it is said that the judge erred in furnishing an objective, rather than a properly subjective, test for the intent needed to constitute participation in a joint enterprise.  Like the second objection, this was not raised in the Court of Appeal, and is equally without merit. Seized out of context, the passage in the summing up relied upon (which it is unnecessary to quote) might seem to apply a test directed only to the reasonable man, but taken as a whole, as it would have been by the jury, there can be no doubt that the objective criterion was mentioned only as a means of verifying the jury's opinion of what the appellants personally believed and expected.

 

IV.  Reference to "Dallas".

A further ground of appeal is advanced on behalf of Wallace.  Although evidently not raised in the Court of Appeal, it has more substance than some of those previously considered.  It arises from evidence given twice, to the effect that, after Wallace had been brought to see Superintendent Hibbert, at his own request Wallace said: "Last night I was in the cell and me start to pray and a spirit tell me to tell you everything about the Dallas murder and the Kintyre murder".  The reference to Dallas was to another killing, and it must be assumed in the appellant's favour that the jury would be well aware of this.

 

36. This evidence should not have been given.  It was another example, of which there were too many at this trial, of a failure by the prosecuting authority to think ahead.  If more trouble had been taken in advance to excise from evidence to be given, or to warn witnesses against volunteering, potentially prejudicial materials, the soundness of the verdicts could have been judged in the light of relevant materials, and nothing else.  At the same time counsel for the appellants were already on notice that the evidence would be given unless steps were taken to delete it, since the reference to the Dallas murder was part of Superintendent Hibbert's deposition in the Gun Court.  When the time came, no objection was made.   Was it, once again, the task of the judge to intervene on his own initiative to stop the trial when it was put in evidence that according to Wallace "... a spirit tell me to tell you everything about the Dallas murder and the Kintyre murder"?  If this had plainly signalled a wish to confess to a murder not the subject of the trial its admission in evidence would have been a serious error which the judge would have been bound to forestall -or at least to put right, if he had not appreciated in advance that the evidence would be given.  But there is nothing in the course of events to suggest that any participant in the trial understood Wallace's words in this way.  So long after the event should their Lordships impose a different view?  They believe not.  It is not the task of an appellate court, and still less of this Board, to conjure  up  through the  medium  of  a transcript a trial whose

atmosphere cannot now be re-created.  It may be tempting to re-fight the issues as they might have been fought at the time. This must be resisted.  The only question is whether this Board finds ground to intervene on the principles stated at the outset. On careful reflection it does not.

 

VI.  Conclusion.

37. Some aspects of this appeal have given cause for concern, and their Lordships have dealt at greater length than usual with what is essentially a matter of evidence and discretion.  That there were mistakes is undeniable, but the jury had the benefit of a thorough, accurate and fair summing-up; and their Lordships have had the benefit of a thoughtful judgment on appeal to which particular tribute is due.  Despite the able arguments of Mr. Fitzgerald Q.C. their Lordships are now quite satisfied that no ground has been shown for the intervention of this Board. Accordingly they will humbly advise her Majesty that both appeals should be dismissed.

 

© CROWN COPYRIGHT as at the date of judgment.