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Swaby v. The Queen (Bahamas) [1997] UKPC 68 (22nd December, 1997)

Privy Council Appeal No. 40 of 1997

Stephen Charles Swaby Appellant

The Queen Respondent

FROM

THE COURT OF APPEAL OF THE

COMMONWEALTH OF THE BAHAMAS

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REASONS FOR REPORT OF THE LORDS OF THE

JUDICIAL COMMITTEE OF THE PRIVY COUNCIL,

OF THE 9th December 1997, Delivered the

22nd December 1997

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Present at the hearing:-

Lord Goff of Chieveley

Lord Lloyd of Berwick

Lord Nolan

Lord Hope of Craighead

Mr. Justice Gault

·[Delivered by Lord Hope of Craighead]

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1. This is an appeal from a decision of the Court of Appeal of the Commonwealth of The Bahamas on 29th April 1994 dismissing the appellant's appeal against his conviction for murder, attempted murder and robbery. He had been convicted of these offences in the trial court and sentenced to death on 3rd December 1993. At the conclusion of the argument before the Board their Lordships indicated that they would humbly advise Her Majesty that the appeal should be allowed and that they would deliver their reasons later. Their Lordships now set out the reasons for the decision which they have reached.

2. Eleazor Rolle was shot and killed and Frank Rolle was shot and seriously injured on 5th June 1991 outside Captain's Cabin Liquor Store, Bay Street during an armed robbery in which there were stolen from them a car and a sum of money in excess of $11,000. The appellant was arrested about ten months later on Wednesday 29th April 1992. He was interviewed under caution by Chief Inspector Allan Evans on Thursday 30th April 1992. Later that day, in the light of an oral confession which he had made during his interview, a written statement was taken from him in which he admitted that it was he who had carried out the robbery and that he had shot two men in the course of it. On Friday 1st May 1992 he was charged with these offences. On Monday 4th May 1992 he was taken before the magistrate for a preliminary inquiry in terms of section 114 of the Criminal Procedure Code. Three eye witnesses of the robbery gave evidence at this inquiry. They were Frank Rolle, Mavis Vanderpool and Tracey Sands. These three witnesses also gave evidence at the trial, in the course of which Frank Rolle and Mavis Vanderpool made dock identifications of the appellant as the man who had committed the robbery.

3. The only issue of substance at the trial was the identity of the man who had carried out the robbery and fired the two shots. There was no dispute that it was carried out by a single gunman, who shot both Frank and Eleazor Rolle in the course of it before making good his escape. The trial judge decided to exclude various statements which the appellant was said to have made when he was arrested. So the Crown case against the appellant, as it went to the jury, was based on his oral and written statements to Chief Inspector Evans and the dock identifications by Frank Rolle and Mavis Vanderpool. The trial judge told the jury that the dock identifications would not have been sufficient evidence on their own of the appellant's guilt. But he said that these identifications could be taken into account when they were considering whether the oral and written statements to Chief Inspector Evans were true. It is not disputed that the Crown case against the appellant would have failed for lack of evidence if the oral and written statements were inadmissible.

4. In opening the appeal to their Lordships' Board Mr. Blake Q.C. said that there were five reasons why the appellant had not had a fair trial and there had been a miscarriage of justice. Two of these related to the voir dire. He said that the trial judge had erred in being satisfied that the appellant's oral and written statements to Chief Inspector Evans were voluntary. He also said that there was a material irregularity in that the trial judge told the jury at the conclusion of the voir dire that

he had ruled that the statements were voluntary and were admissible. Then there were two issues relating to the dock identifications. Mr. Blake said that the trial judge had erred in allowing the Crown to adduce this evidence. He also said that there was a material irregularity in that there had been no prior disclosure to the defence of the original written statements of the identifying witnesses, and because a specific request to see them at the outset of the trial was refused by the trial judge. Finally he criticised the directions about the dock identifications and the appellant's statements which the trial judge gave in his summing up.

5. Their Lordships propose first to deal with the issues which were raised in regard to the voir dire, at the conclusion of which the trial judge, having excluded the oral statements which the appellant was said to have made when he was arrested, held that the oral and written statements to Chief Inspector Evans were made voluntarily and might be admitted in evidence. It is first necessary to set out the background as it emerged in the evidence which was given at the voir dire by the Crown and defence witnesses.

6. The appellant was arrested at about 9.00 p.m. on Thursday 29th April 1992 at the Colony Club Hotel by three police officers. They were Corporal Pennerman, Constable Raymond Rolle and Constable Sherman. Constable Raymond Rolle had died before the trial, at which Corporal Pennerman was the only one of the three officers to give evidence. He said that the appellant made an oral admission to the murder at the time of his arrest but that, as he appeared to be under the influence of drugs, he was taken to the hospital for observation. He thought that he was examined there by a doctor before being taken about half an hour later to the police station. Constable Pennerman said that no force was used on the appellant at the time of the arrest and that there was no reason to do so. He said that the appellant knew Constable Rolle, who just put questions to him and he answered them. He denied that the appellant had been beaten at the scene of the arrest and thereafter at the police station.

7. Chief Inspector Evans said that he first saw the appellant at the police station at about 11.00 p.m. on the day of his arrest. He appeared to him to be incoherent and under the influence of cocaine, so he postponed his interview until 2.00 p.m. the next day. On Thursday 30th April 1992 he interviewed him under caution in the presence of Corporal Fernander from about 2.00 p.m. In the course of this interview the appellant admitted that he had carried out the robbery in the course of which he had shot two men. He then accompanied the police officers in a police car to point out various locations which he had mentioned when giving his account of the robbery. A written statement was then taken from him under caution between 4.30 p.m. and 5.15 p.m. that day. Chief Inspector Evans and Corporal Fernander both denied that the appellant had been beaten either at the police station or in the course of his journey in the police car.

8. The defence then led evidence from four witnesses. These were Gladys Manuel, the magistrate who had conducted the preliminary inquiry on Monday 4th May 1992, the appellant himself and two doctors. These were Dr. Gorospe, who was a senior medical officer at the Princess Margaret Hospital, and Dr. Pedroche, who was employed at Fox Hill Prison as a medical practitioner. Gladys Manuel said that when the appellant was arraigned in her court he showed her what he claimed to be bruises on his skin. He told her that they had been caused by the police, so she ordered him to be seen by a doctor. She went on to say that the police also gave evidence at the inquiry, and that they had given their explanation of the same matter. In response to cross examination for the Crown she said that the explanation which the police had given to her was that the appellant was at the time being controlled by the police and that, if there were any injuries, they were due to his own behaviour as he was resisting.

9. Dr. Gorospe said that he examined the appellant in hospital on 4th May 1992. The appellant claimed that he had been beaten up while in police custody. He found no sign of injury to the head or neck, but there were multiple superficial abrasions on the skin of the appellant's abdomen. There was also a tender area on the right side of his back. The skin on the abdomen had been broken but it was drying up. This indicated that the injury had occurred at least about two or three days before, maybe more. He was satisfied that the complaint of tenderness in the back was genuine. The abrasions were consistent with kicking with shoes with a rough surface or scraping on the rough surface of a floor. Dr. Pedroche said that the appellant had been examined at the prison on 5th May 1992 by another doctor, who had recorded in his notes that the appellant had told him that he had been spanked by a police officer with a cutlass when he was re-admitted to the prison the previous day and that there were multiple old superficial scrapes in the anterior chest wall, for which he had administered pain killers. The appellant said in his evidence at the voir dire that he had been beaten by police officers in the presence of Chief Inspector Evans while he was in the police station both before and after the car journey on 30th April 1992 in the course of which he had been hit by a cutlass or other metal object. He insisted that he had made his admissions and signed the written statement because of the beatings which he had received. He said that he had not been given any medical assistance until after his appearance before the magistrate on 4th May 1992 when he had complained to her about his beatings by the police.

10. At the conclusion of the voir dire counsel for the Crown accepted that, although the evidence of the prosecution witnesses had been that at no time did they use any force against the appellant, the medical evidence had suggested otherwise. In addition to that there was the evidence of the appellant's complaint to the magistrate. But Crown counsel pointed out that, although the magistrate had decided after making further inquiries that the appellant was not speaking the truth, the evidence which she had heard from the police on this matter was not before the trial judge. She concluded her submissions with these words:-

"So, my Lord, the evidence is very clear before the Court and, my Lord, having regard to the burden that is placed on the prosecution in this instance, I would admit the prosecution has not placed on record any explanation as to how the abrasions, even though they were old, were inflicted on the accused."

11. The trial judge then ruled that the oral admissions at the time of the arrest were inadmissible because the appellant was not then in a fit state to be interviewed. As to what happened afterwards, he accepted the police evidence that no violence was used towards the accused to persuade him to make the statements which he was alleged to have made to them. He said that he did not believe the accused's evidence and, with regard to the abrasions described in the medical evidence, he said:-

"The origin of these abrasions I do not accept as being as testified by the accused and they remain unexplained. I do not, however, believe that at the time that the accused gave his oral and written statements to Policeman Evans that they were other than voluntarily given. ... Notwithstanding the abrasions found by the doctor, therefore, I feel sure that the statements alleged to have been made by the accused to Evans were voluntarily made and may be admitted in evidence."

12. Having made this ruling he then said this to the jury when they returned to the court:-

"Mr. Foreman and members of the jury, during your absence, I conducted a voir dire and I had ruled that the written and oral statement would be adduced in evidence whereas the oral statement earlier will be a statement which you would not hear anything about."

13. Mr. Blake said that the effect of what the trial judge said to the jury at the conclusion of the voir dire, and of his comments about this later in his summing up, was to tell them that he had held that the written and oral statements which would be adduced in evidence were made voluntarily. He said that this was a material irregularity, because the jury would be bound to have been influenced by what he said to them when they came to consider whether the statements were true. He referred to the observation in Crosdale v. The Queen [1995] 1 W.L.R. 864, 873B - in which it was held that any practice of hearing a submission of no case to answer in the presence of the jury should be discontinued - that all the jury needs to be told is that a legal matter has arisen on which the ruling of the judge has been sought. He said that the same practice should be applied to requests for and comments to the jury after a voir dire.

14. Their Lordships agree that a similar practice to that described in Crosdale v. The Queen is appropriate where an objection has been taken to the admissibility of evidence which is to be the subject of a ruling by the trial judge after a voir dire and that any practice to the contrary should now be discontinued. All the trial judge needs to be told, when an objection is being taken on this ground, is that a point has arisen which requires to be discussed with him in the jury's absence. This should be sufficient to alert him to the fact that a matter is to be raised about which there should be no further discussion until after the jury have withdrawn. All he need then say to the jury after the ruling has been made is that the matter which was to be discussed in their absence has been resolved. But it is one thing to say what the best practice is. It is another to say that a departure from it is a material irregularity resulting in a miscarriage of justice. So much depends on the circumstances of each case. The situation in which an objection is taken to evidence on the ground that it is inadmissible is seldom as clear cut as it is where the stage is reached where a submission of no case to answer is made at the end of the leading of the prosecution's evidence.

15. In the present case the transcript indicates that the appellant's counsel, Ms. Douglas-Sands, went out of her way when she was making her objection to the trial judge to make it clear while the jury were still present that it was being taken on the ground that her client had been beaten and brutalised by the police. The trial judge appears to have done what he could to point out to her that these details were premature at that stage and unnecessary. But counsel repeated that her objection to both the oral and the written statements was that the police had brutalised and beaten the appellant and that they were not given voluntarily. By the time the jury were asked to retire they had heard from her that objection was being taken on this ground to the evidence of both Chief Inspector Evans and Corporal Pennerman. In the result the jury in this case must have been well aware when they retired for the voir dire that the issue which the judge was being asked to decide in their absence was whether these various statements had been given voluntarily. Their Lordships do not need to speculate as to why the appellant's counsel chose to state her objection in these terms. It is sufficient for the disposal of this ground of appeal for them to say that the primary responsibility for any irregularity lay with counsel and not with the trial judge. They are satisfied that the careful remarks which the trial judge made at the conclusion of the voir dire and what he said to the jury about this in his summing up did not go beyond what, in the circumstances of this case, was appropriate.

Their Lordships now turn to the second and more substantial issue which Mr. Blake raised in regard to the voir dire. This was that the trial judge erred in being satisfied that the prosecution had proved beyond a reasonable doubt that the oral and written statements which the appellant made to Chief Inspector Evans were made by him voluntarily. The Court of Appeal rejected the appellant's argument that the prosecution had failed to discharge the burden of proof that these statements were voluntary. They based their decision on what they described as credible evidence from the committing magistrate to whom the appellant had complained of physical abuse by police officers, that in the presence of the appellant the police officers had stated that the appellant had resisted arrest and had had to be subdued. They said that this piece of evidence and the reasonable inference to be drawn from it was not sufficiently highlighted by the Crown in addressing the judge at the conclusion of the voir dire, and that credible evidence of facts from which an inference as to how the appellant's injuries could have been sustained amounted to a reasonable explanation as to how the injuries in fact were sustained. They held that, as the issue at the end of the day was one of credibility, the trial judge was entitled to come to the conclusion that, notwithstanding the abrasions, the statements had been made voluntarily.

16. The Crown did not seek to support the reasoning of the Court of Appeal before their Lordships' Board. For their part their Lordships consider, with respect, that it was incapable of being supported because the basis for the decision was plainly erroneous. This was that the trial judge was entitled at the voir dire to accept the hearsay evidence which was given by the magistrate about what had been said to her at the preliminary inquiry by the police officers. She said that the police had told her that the appellant had had to be restrained by them when he was resisting, and that this was the explanation for his injuries. But no evidence to this effect was led in the course of the voir dire, and the evidence of the police officers was directly to the contrary. Corporal Pennerman said that they did not use force on the appellant when he was arrested, and that they did not have any reason to do so as the appellant knew Constable Rolle. He denied in response to questions which were put to him both for the Crown and by defence counsel that force had been used on the appellant on any other occasion, as did Chief Inspector Evans and Corporal Fernander. Furthermore neither the Crown in submissions nor the trial judge in his ruling sought to rely in any way on Gladys Manuel's hearsay evidence. The Court of Appeal said that the evidence to which she referred was given in the appellant's presence at the inquiry which she held. But this cannot alter the fact that this evidence was hearsay at the voir dire.

17. Their Lordships are being invited in this appeal to differ from a finding by the Court of Appeal that the trial judge was entitled to come to the conclusion which he reached on an issue of fact, after assessing the credibility of the appellant and the police officers. In normal circumstances they would be very slow to disturb such a finding. But in this case the decision of the Court of Appeal was based on a line of reasoning which is unsound and cannot stand. The effect of this is that the issue is now open for reconsideration by their Lordships' Board. In these circumstances their Lordships have found it necessary to examine the matter afresh in the light of the evidence which was before the trial judge in the voir dire.

18. The following points emerge from the evidence. First, there was an irreconcilable conflict between the evidence of Dr. Gorospe and that of the police officers. Dr. Pedroche's evidence is less important, because the complaint in the records to which he spoke was made to the prison doctor on Tuesday 5th May 1992 of an assault the previous day on being re-admitted to prison after appearing before the magistrate. This was several days after the making of the statements which were the subject of the voir dire. But Dr. Gorospe described multiple abrasions to the abdomen which, when they were seen by him on 4th May 1992, had been sustained about two to three days previously, and the complaint of a tender area to the right side of the back was said by him to be genuine. Although the appellant's allegations of his treatment by the police were not supported in all respects by this medical evidence, it was at least consistent with his having been assaulted while in police custody during the time when he was being subjected by the police to questioning. Yet all the police officers who gave evidence in the voir dire were adamant that no violence had been used on him in their presence at any time. The trial judge said that he disbelieved the appellant and believed the police officers. But he did not say that he disbelieved Dr. Gorospe. He accepted that the injuries which the doctor had described were unexplained.

19. Secondly, no evidence was led about the appellant's condition when according to Constable Pennerman he was seen in hospital after his arrest. This was on 29th April 1992 before he was taken to the police office. The appellant said in his evidence that he was not taken to the hospital on the way to the police office. But on the police evidence he appeared to be under the influence of drugs at that time. The purpose of taking him to the hospital was for observation, and there would have been the opportunity then to see whether he was suffering from any injuries. The absence of any evidence about his condition at this stage from the hospital is an important factor to be taken into account, as also is the fact that it was at no point suggested to the appellant that the injuries were self inflicted or that they had been sustained before he was arrested.

20. Thirdly, on the police evidence they were in possession of the appellant's confession in his written statement by 5.15 p.m. on Thursday 30th April 1992. They could and should have charged him then with the offences and brought him with the minimum of further delay before a magistrate. But they did not charge him until about 4.00 p.m. on Friday 1st May 1992, and it was not until the following Monday 4th May 1992 that the appellant appeared before the magistrate. In view of the timing of the injuries which were seen by Dr. Gorospe that Monday and the fact that the appellant took the opportunity to complain about them when he was brought before the magistrate, some explanation was needed for this delay. But none was given in the voir dire.

21. Their Lordships have given careful consideration to all the points which were mentioned by Mrs. Bethell in her able and succinct address for the Crown. She said that, as there was evidence from the arresting officer that the appellant had been involved in drug taking, the injuries which Dr. Gorospe described were of the type which a drug taker might be expected to have when he was taken into police custody. But she accepted that this point was not put to the appellant when he gave evidence or in any submissions to the trial judge. Then she said that the timing of the injuries as spoken to by Dr. Gorospe was such that they could have been sustained by the appellant in some other way prior to his arrest. But here again no submissions to this effect were made to the trial judge, and he made no such finding. On the contrary, his finding was that the injuries were unexplained. Then Mrs. Bethell said that, if the appellant was to be believed, one would have expected Dr. Gorospe to have found many more injuries. This may be so, but the onus of proof was on the Crown and it was not necessary for the appellant to be believed on everything he said for a reasonable doubt to be raised as to whether the statements were voluntary. As for the delay in bringing the appellant before the magistrate, she said that the magistrates' court does not sit on a Saturday or a Sunday, and that the police took the earliest opportunity of bringing the appellant to the court after they had charged him at 4.00 p.m. on the Friday. She also said that the police had other matters to attend to on the Friday as he was also charged that day with committing another armed robbery. But no evidence about this was led at the voir dire, and no reason was given for not charging the appellant on the Thursday once his written confession was in the hands of the police. Lastly Mrs. Bethell pointed out that the evidence of Gladys Manuel was that the police said only that the appellant was resisting, not that he was resisting his arrest, so there was no necessary inconsistency with the evidence of the police that he did not need to be restrained when he was arrested. But the argument against the Crown is that there was no evidence from the police at the voir dire that the appellant was resisting them and had to be restrained at any time while he was in their custody. So the conflict between their evidence and that of Dr. Gorospe remains unresolved.

22. For these reasons their Lordships are of the opinion that the Crown did not discharge the burden of proof which rested on them to show that the statements on which they proposed to rely were voluntary. They are fortified in this conclusion by the fact that this point was virtually conceded by the Crown at the conclusion of the voir dire. As to the importance of the principle that confessions on which the Crown wish to rely for a conviction must be shown beyond reasonable doubt to have been voluntary, in Wong Kam-ming v. The Queen [1980] AC 247, 261 Lord Hailsham of St. Marylebone made these observations:-

"... 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 not be reprobated and was in the truest sense voluntary." Their Lordships consider that no judge properly directing himself to the whole state of the evidence in this case could have reached any other conclusion but that the Crown had failed to prove that the statements were voluntary to the high standard which is required. In the result they were inadmissible and, as the Crown case against the appellant was entirely dependant on these statements, the case against him should have been dismissed for lack of evidence.

23. As their Lordships as satisfied that the ruling that the statements could be admitted in evidence led to a miscarriage of justice, it is unnecessary for them to comment in detail on the remaining grounds of appeal. But they make these observations.

24. Both Frank Rolle and Mavis Vanderpool made dock identifications of the appellant, but they did so in different circumstances. Frank Rolle said first in his evidence that he had identified the appellant at an identification parade. He was then asked, without objection, whether he saw in court the man whom he had identified. His reply was that he was the man in the dock. Mavis Vanderpool was not asked by the Crown to make a dock identification. What she did was to volunteer the information several times both in chief and in cross examination that the man she was talking about was sitting in the dock. The appellant's counsel objected to this on the first occasion, to which the trial judge replied that she could not object to it. Thereafter the witness repeated her dock identification without further objection and without having been warned not to do so by the trial judge.

25. There are grounds for saying that there was an irregularity in the case of each of these two witnesses. Frank Rolle's evidence that he had identified the appellant at the identification parade was contradicted later by the appellant during the voir dire. He said that there had been a parade but that Frank Rolle did not identify him. More importantly Mrs. Bethell said that his evidence at the trial was inconsistent with what he said at the preliminary inquiry, which was that he attended the parade but that he did not identify anybody because he was too frightened to do so. In these circumstances it is questionable whether the Crown had a proper basis for asking him to make a dock identification, as this was done ostensibly merely to confirm an identification already made by him at the parade. There may have been some confusion in the mind of the prosecutor as to what in fact happened at the identification parade. This would not have arisen if a written record of it had been kept, separate from what may have been written in the police notebooks, and this had been adduced in evidence. Mrs. Bethell said that the practice now is that a separate written record is kept, so that it can be adduced in evidence by the Crown and made available to the defence. As for Mavis Vanderpool, the trial judge was wrong to say that there was nothing which could be objected to in her evidence. No basis had been laid in her evidence for a dock identification, and she had not been asked to make such an identification in the question which had been put to her. Mr. Blake said that he should have told this witness, in the light of the objection and the manner in which she was giving her evidence, to answer only the questions which were being put to her, which were unobjectionable. But the damage had been done by this stage, as the identification had already been made and the jury were aware of it.

26. In their Lordships view however these irregularities were dealt with sufficiently by the trial judge in his summing up. He made it clear to the jury that they could not rely on the identification evidence and that, if they were not persuaded that the confessions were true, the only course which they could take was to acquit the appellant. He said that the only importance which they could attach to them was in regard to the question whether the confessions were true. He then gave them full and careful directions about the unsatisfactory nature of the evidence. In the light of these directions the appellant cannot be said to have been seriously prejudiced by these irregularities.

27. Nor are their Lordships persuaded that there is any substance in the complaint that the statements of these two witnesses were not disclosed to the defence. The witnesses were recalled for further examination and cross examination after the statements had been made available. The opportunity was then taken to put to them various possible inconsistencies in their descriptions of the man who had carried out the armed robbery. The criticisms which were made of the summing up seem also to their Lordships to be without substance, when the passages which were criticised are read in context and in the light of the summing up as a whole.

28. As the statements were critical to the conviction, there is no room in this case for the application of the proviso. The Crown asked that, if the appeal were to be allowed, an order should be made for a new trial. But their Lordships decided not to make such an order. Almost six and a half years have elapsed since the date of the robbery. There must now be a serious doubt as to whether, having regard to all the evidence which was led on the first occasion, the appellant could now receive a fair trial in this case if he were to be prosecuted again for these offences.