The Judicial Committee of the Privy Council Decisions

Privy Council Appeal No. 18 of 1997

 

David Mitchell Appellant

v.

The Queen Respondent

 

FROM

 

THE COURT OF APPEAL OF THE BAHAMAS

 

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

JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL,

Delivered the 21st January 1998

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

 

Present at the hearing:-

Lord Goff of Chieveley

Lord Lloyd of Berwick

Lord Steyn

Lord Hope of Craighead

Mr. Justice Gault

·[Delivered by Lord Steyn]

 

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

1. The principal issue arising on this appeal is whether it is proper for a judge, who after a voir dire found and ruled that a defendant voluntarily made a confession, to inform the jury of his ruling on that issue.  It is an important question of law affecting procedure in criminal trials conducted by a judge and jury.  There is no authority directly on the point.  And there has been confusion on the point in some Caribbean countries.  While their Lordships have uppermost in their minds the need to arrive at a correct disposal of the instant appeal, they will try to assist the courts in The Bahamas and in the Caribbean generally on the central question and the procedure to be adopted.

 

2. The murders, the arrest and the trial.

3. Between Sunday, 8th May 1994, and the next day, in Treasure Cay, Abaco, somebody murdered Mr. and Mrs. Henning in their home. The murderer killed both his victims by stabbing them repeatedly.  The murderer stole a truck belonging to the deceased.  At 6.00 p.m. on Sunday, 8th May a friend had seen the Hennings alive.  On the afternoon of Monday, 9th May the same friend let herself into the house and discovered the dead bodies.  A massive police investigation started.

 

4. At 6.52 p.m. on Monday, 9th May the police found the stolen truck along a track about 1.5 miles from the Hennings Respondent house.  At 7.00 p.m. a team of police officers visited the appellant Respondents home and arrested him.  The police questioned the appellant.  He allegedly confessed to the murders.  He was charged with the murders.

 

5. The appellant was tried before Hall J. and a jury.  The trial lasted 14 days.  After a retirement of 1 hour and 20 minutes the jury unanimously convicted the appellant on both counts of murder.  The judge sentenced him to death.

 

6. The proceedings in the Court of Appeal.

7. On 2nd October 1995 the Court of Appeal dismissed an appeal by the appellant.  The reasons for that decision were given on 27th October 1995.  At the start of the hearing before the Court of Appeal Mrs. Douglas-Sands, who had been trial counsel, requested an adjournment for a few days in order to enable another counsel to represent the appellant on the appeal.  Taking the view that trial counsel was able to represent the appellant properly, the Court of Appeal was only prepared to put the case back for a few hours.

 

8. On appeal to the Privy Council counsel for the appellant submitted that the appellant had not received a fair hearing in the Court of Appeal because of the refusal of an adjournment.  Counsel submitted that the matter ought to be remitted to the Court of Appeal or the Privy Council ought to hear the matter de novo.  There are a large number of affidavits filed by both sides.  There is a sharp conflict as to the arrangements made and authorised in respect of the representation of the appellant.  Save to record that their Lordships are inclined to think that the breakdown in the arrangements may well have been due to misunderstandings, it is unnecessary to examine the factual disputes.

 

9. Given that their Lordships are content to examine on their merits all the grounds of appeal of the appellant, there is no need for a remission.

 

1. The prosecution case placed before the jury.

10. There was evidence that on Monday, 9th May in the early morning the appellant had been seen near the track where the stolen truck was found; that on Monday, 9th May he had washed his clothes in detergent; and that he tried to hide when the police came to arrest him.  But the judge directed the jury that without the confession evidence there was no case against the appellant.  That was also the view of the Court of Appeal.  Their Lordships are in respectful agreement with this approach.

 

11. The critical planks of the prosecution case were as follows: Detective Inspector Saunders and Detective Corporal Cash, accompanied by other officers, first questioned the appellant at 1.00 p.m. on Tuesday, 10th May.  At first the appellant denied involvement in the murders.  The questioning continued until 5.00 p.m.  According to the police officers the appellant then orally confessed to the murders.  He explained that he had thrown the knife in the sea and that he had driven the truck to the track road.  Throughout this period Mr. Franklyn Williams, a lawyer in the Attorney-General Respondents office, was present.  He said that his role was to act as an observer to ensure fair play.

 

12. At 5.30 p.m. on the same day the team of police officers took the appellant to the Hennings Respondent house.  He showed them how he had gained entry, and how he had committed the murders.  Then the police officers took the appellant to the truck.  He pointed out the keys hidden under a plank.  Throughout the visit to the house, and when the appellant pointed out the keys, Franklyn Williams was present.

 

13. At 7.00 p.m. that evening, in the presence of a team of officers, and Franklyn Williams, the appellant dictated a detailed confession which was written down and the appellant signed it.

 

14. At some stage the appellant told the police that it was not true that he had thrown the knife in the sea.  At 11.00 p.m. on Wednesday, 11th May a team of police officers, accompanied by Franklyn Williams, took the appellant back to the house of the Hennings.  The appellant pointed out a knife in low undergrowth some 100 feet from the house.  The knife was smeared with blood of the same blood group as the deceased.

 

15. Under cross-examination the police witnesses denied that the appellant had been beaten, subjected to electric shock or ill treated.  If anything of that kind had happened, Franklyn Williams must have been aware of it.  He said that there was persistent questioning but nothing untoward happened.  His credibility, as opposed to reliability, was not put in issue.

 

2. The defence case.

16. The appellant gave oral evidence.  He said that he had nothing whatsoever to do with the murders and that he was elsewhere at the time they were committed.  He said that the confessions had been the result of beatings, electric shock and other ill treatment which he had received at the hands of the police.  He denied that he had pointed out anything to the police at either the Hennings Respondent property or in the vicinity of the truck.  The appellant further stated that on the night of the murder he had gone to a dance at Marsh Harbour and stayed at the house of a friend called Emmanuel Nelson.  He was cross-examined as to why he had not provided any particulars of alibi at the preliminary enquiry.   He explained that he had not understood what was meant by an alibi and that he had been unrepresented.

 

17. The prosecution called Emmanuel Nelson in rebuttal of the appellant Respondents account.  He testified that the appellant had stayed with him on the Saturday night the 7th rather than Sunday the 8th.

 

3. The voir dire: What happened.

18. It is now necessary to go back to an earlier phase of the trial and to describe in some detail events relating to the voir dire.  The trial started on 1st November 1994.  The first few days were taken up with background evidence, medical evidence, and so forth, setting the scene for the critical evidence as to the alleged confessions.  On 7th November the prosecution turned to that phase of the evidence.  Counsel for the prosecution called Inspector Saunders.  In coded language counsel for the prosecution told the judge "that we may be entering a particular stage of the trial at this point" and referred the judge to the possibility of excusing the jury "as opposed to having come back tomorrow morning".  Counsel for the prosecution invited counsel for the appellant to indicate whether she objected to the evidence to be tendered.  The judge then enquired of counsel for the appellant whether she objected to the evidence.  Still in the presence of the jury the following exchanges then took place:-

 

          "THE COURT:Yes, Mrs. Sands.

                                    MS. DOUGLAS-SANDS:Yes, my Lord, as my learned friend has said, I am taking an objection to the evidence of this witness.

 

          THE COURT:What is the nature of your objection?

 

                  MS. DOUGLAS-SANDS:The nature of my objection is that I have been informed by my client that he was beaten and shocked with some electrical equipment in order to sign the statement.

 

          THE COURT:I don Respondentt need the details, I merely wanted to know whether the objection was that it was not voluntary.

 

                  MS. DOUGLAS-SANDS:It was not voluntary, my Lord.

 

          THE COURT:It was not voluntary?

 

                  MS. DOUGLAS-SANDS:Yes.

 

          THE COURT:That Respondents what I need to satisfy myself about."

 

 Admittedly, counsel for the defence was responding to a general question from the judge but she had blurted out in graphic detail what her case would be on the voir dire.  In any event, the judge then ascertained from counsel for the appellant that the appellant wanted the voir dire to be conducted in the absence of the jury.

 

 The judge proceeded to hear evidence on the voir dire from the police officers, Franklyn Williams and the appellant.  He also heard oral argument.  The judge then gave his ruling: he accepted the evidence tendered by the prosecution  and  disbelieved  the  appellant.  He concluded that the statements were voluntarily made.  All this took place over the period 7th, 8th and 9th November.  And throughout the proceedings on the voir dire the jury was absent.

 

19. Following the voir dire, and in the presence of the jury, the judge turned to a newspaper report of proceedings on the voir dire which had been published in a local paper.  He asked the reporter to explain herself.  In doing so the judge observed that he had to decide a question of voluntariness in the absence of the jury.  Having been satisfied that the report was the result of the reporter Respondents inexperience, and that there was no prejudice, the judge was content to impose no sanction.  These exchanges would have been a reminder to the jury of the fact that the judge had been engaged in determining an issue as to whether the statement had been induced by beatings, electric shock and other forms of oppression as the appellant alleged and the police disputed.

 

20. Still on the same day the judge then gave the following explanation to the jury:-

 

"... when you were sent away on Tuesday I had to determine the admissibility of certain evidence.  I have completed that exercise and the Crown is going to be permitted to lead that evidence.  What is likely to happen, I don Respondentt know how the Crown is going to conduct the rest of its case, but what is likely to happen is that the evidence which the same considerations which -- the same questions which were sought to be raised before me as a judge of the law would now be canvassed before you as the judge of the facts.  And I will at the appropriate stage have to direct you that any decisions that I would have made in terms of voluntariness are a different question from your own final determinations of questions of fact as a matter of truth.  As I said, I Respondentm alerting you to that now."

 

21. From that explanation the jury must have understood that the judge had found that the appellant had not been beaten and shocked with electric equipment.  And in the particular context that must have conveyed to the jury that, for the purposes of his task, the judge had accepted the evidence of the police officers and that he had disbelieved the appellant.

 

22. Having been informed of the judge Respondents ruling on the issue of voluntariness  of  the  statements,  the jury then proceeded to

 hear the evidence of the police witnesses, Franklyn Williams and the appellant over a period that stretched from 9th November until 22nd November.  During that evidence the veracity of the appellant Respondents allegations of beatings, electric shocks and other forms of oppression was extensively canvassed.

 

 On 24th November 1994 the judge summed up to the jury.  The summing up was detailed and careful.  The judge correctly directed the jury that the facts were entirely for them.  Turning to the confessions the judge observed to the jury:-

 

"... the prosecution ... relies on a series of admissions or confessions.  You would also recall that at an early stage in this trial there was, upon an objection taken by the defence to the voluntariness of the confession, an exercise conducted by me in your absence and the result of that exercise is that I permitted the evidence to be led.  In other words, I ruled that the statements were voluntary.  I indicated to you at that time that the same questions that I considered would come to you in a different form.  As a matter of common sense, you would accept and believe that if a person is under torture, oppression or as a result of being promised something, some sort of a reward, may say something and that what he says may not necessarily be true.  So although the Court, in exercising my own responsibility, has determined that the statement is voluntary, the same questions which were canvassed by the defence as to the accused, according to him, his mistreatment at the hands of the police, you are entitled to look at for this reason: If the evidence leaves you in doubt as to whether he was mistreated by the police in the way that he says or at all, then you would then have to ask yourself a further question as to whether if all of these things happened, how reliable is anything that he said in those circumstances?"

 

 The judge returned to the relevance of voluntariness.  He reminded the jury:-

 

"What the prosecution invites you to find is that it was voluntary, is that the circumstances in which it was made was not such that the accused would have been telling a whole raft of lies."

 

23. And he correctly summed up the position as follows:-

 

"So, in respect of each of them, you must decide whether or not the accused actually made it.  And, secondly, only if you are sure that he did make it, then whether what he said was true.  And in determining that, then you would take into consideration all of the circumstances having regard to the allegations by the defendant of him being laid on the floor and being kicked, his testicles being squeezed, his being choked and that sort of thing."

24. Those then are the passages in the summing up that bear on what the judge had earlier told the jury about his decision on voluntariness.

 

4. The voir dire: The law and procedure.

25. This case is not concerned with the precise circumstances in which a voir dire must be held in order to determine whether a confession should be admitted in evidence: see Ajodha v. The State [1982] AC 204, per Lord Bridge of Harwich, as explained in Thongjai v. The Queen [1997] 3 WLR 667, per Lord Hutton.  This is also not a case in which a defendant for tactical reasons chose not to have a voir dire, with the result of a single cross-examination of witnesses on both sides: see Ajodha, supra, at page 223D.  In the present case the appellant insisted on a voir dire, one was held and it is common ground that it was right to do so.

 

26. The right of a defendant in appropriate circumstances to require a voir dire to be held in the absence of the jury has been described as "an important rule which exists to protect accused persons" and a "very important safeguard" see MacPherson v. The Queen (1981) 147 C.L.R. 512, at page 522; Thongjai v. The Queen, supra, at page 682 per Lord Hutton.  A judge may not override this right by requiring a jury to stay if the defendant wants them to be excused: Blackstone, Criminal Practice, 1997, 7th Edition, at page 1323.  The reason why the voir dire must take place in the absence of the jury is that the jury should not be made aware of evidence which subsequently turns out to be inadmissible.  But the question now arises whether a judge, who rules that a confession was voluntarily made, may properly inform the jury of his decision.

 

27. Counsel for the appellant relied strongly on the analogy of the decision in Crosdale v. The Queen [1995] 1 W.L.R. 864. In that case the Privy Council held that a judge should invite the jury to withdraw while he heard submissions that a defendant has no case to answer and ruled on it.  This holding was principally motivated by the need to protect the interests of the defendant.  The Privy Council expressly dealt with the question whether the judge may inform the jury of his decision.  The Privy Council held (at page 873E-H):-

 

"That brings their Lordships to the third question, namely whether the jury should be present during the judgment on the application that the defendant has no case to answer or whether the jury should subsequently be informed of the judge Respondents reasons for his decision.  There is no reason why the jury should be privy to the judge Respondents reasons for his decision.  In order to avoid any risk of prejudice to the defendant the jury should not be present during the course of the judgment or be told what the judge Respondents reasons were.  If the judge rejects a submission of no case, the jury need know nothing about his decision.  No explanation is required.  If the judge rules in favour of such a submission on some charges but not on others, or rules in favour of it in respect of some defendants but not others, the jury inevitably will know about the decision.  All the jury need then to be told by the judge is that he took his decision for legal reasons.  Any further explanation will risk potential prejudice to a defendant or defendants."  (Emphasis supplied).

 

 The principle that the judge must not inform the jury of his decision to reject such a submission is therefore squarely based on the need to avoid the risk of prejudice to an accused.  Counsel for the prosecution, who appeared before their Lordships, conceded that by analogy a judge, who conducted a voir dire as to the admissibility of a confession, ought not to inform the jury of his decision.

 

 Their Lordships accept that the analogy of Crosdale is helpful.  An examination of the dynamics of a voir dire to determine the admissibility of a confession points in the same direction.  The decision on the admissibility of a confession after a voir dire is the sole responsibility of the judge.  There is no logical reason why the jury should know about the decision of the judge.  It is irrelevant to the consideration by the jury of the issues whether the confession was made and, if so, whether it is true.  There is also no practical reason why the jury need to be informed of the judge Respondents decision.  This is underlined by the fact that in modern English practice the judge Respondents decision after a voir dire is never revealed to the jury.

 

28. Moreover, if the judge reveals his decision to the jury, the risk of unfair prejudice to an accused is created.  That risk will often be greater than in the case of a no case submission.  That is so because in the typical case, of which the present is a paradigm, the decision of the judge on the voluntariness of the confession may convey to the jury that the judge believed the police witnesses and disbelieved the accused.  It is true, of course, that in a summing up a judge may for the assistance of the jury make tentative observations which could reflect adversely on the veracity of an accused.  Provided that the judge does so in a fair and balanced way that is unobjectionable.  But that situation does not bear comparison with the judge informing the jury of his decision on the voluntariness of a statement.  That will typically involve a concluded view on the credibility of the police and the accused.  The reason why it is wrong for a judge to reveal his decision to a jury is not because it would amount to a withdrawal of an issue from the jury and it does not amount to a misdirection.  The vice is that the knowledge by the jury that the judge has believed the police and disbelieved the accused creates the potentiality of prejudice.  A jury of laymen, or some of them, might be forgiven for saying: "Well the judge did not believe the accused, why should we believe him?"  At the very least it creates the risk that the jury, or some of them, may be diverted from grappling properly and independently with an accused Respondents allegations of oppression so far as it is relevant to their decision.  And such an avoidable risk of prejudice cannot be tolerated in regard to a procedure designed to protect an accused.

 

29. In these circumstances, and relying particularly on the irrelevance of the judge Respondents decision to the task of the jury taken together with the potentiality of prejudice created by informing the jury of the judge Respondents decision, their Lordships hold that the jury ought not to be informed of a judge Respondents decision on a voir dire held to determine the admissibility of a confession.  Any contrary practice in The Bahamas or elsewhere in the Caribbean ought to be discontinued.

 

30. Given the exchanges between counsel and the judge immediately  before  the  voir dire was held in the present case

 their Lordships will make a few observations in amplification of the guidance given in Ajodha, at page 223B-H, about the practice to be adopted.  It is primarily the responsibility of defence counsel to inform the prosecution and the judge in advance and in the absence of the jury of an intended objection to the admissibility of statements of an accused.  On the other hand, if the position remains unclear, counsel for the prosecution is under a duty to seek clarification of the position in the absence of the jury.  At the appropriate time counsel must ask the judge to request the jury to withdraw so that a matter can be raised on which the ruling of the judge is required.  No discussion of an intended objection must take place in front of the jury.  The judge should simply tell the jury that a matter has arisen on which his ruling is required and that they must please retire for the time being.  When the voir dire has been completed, and the judge has given his ruling, the judge should give no explanation of the outcome of the voir dire to the jury.

 

 Having dealt with the legal position on the principal ground of appeal, their Lordships are content at this stage simply to record that counsel for the prosecution conceded, as he was bound to do, that the judge Respondents explanation to the jury of the decision to which he had come was an irregularity.

 

5. The subsidiary grounds of appeal.

 Counsel for the appellant placed before their Lordships a number of subsidiary arguments.  Having carefully explored all these matters in the context of the summing up and the state of the evidence their Lordships are constrained to record that none of the grounds stood up to examination.  Their Lordships now deal with those grounds in numbered paragraphs.

 

(1)  Counsel raised two complaints about the judge Respondents treatment of the evidence of Franklyn Williams.  He pointed to discrepancies between Franklyn Williams and the police officers as to where the appellant was questioned.  Counsel submitted that the judge dealt inadequately with this matter in his summing up.  That is not right.  The judge twice reminded the jury of the discrepancies, and on one occasion expressly mentioned the more significant discrepancy.  There is no substance in this point.  Then counsel  submitted  that  in  his  ruling on the voir dire the judge said that Franklyn Williams materially supported the police witnesses.   Counsel said that he did not then mention the discrepancies.  But there was no need to do so in a ruling which rightly contained only the briefest of reasons.  This criticism is misconceived.

 

(2)  Counsel submitted that the judge failed to clarify the status of Franklyn Williams.  At the trial counsel for the appellant explored this point in cross-examination.  The jury would have had the response of Franklyn Williams well in mind.  In any event, the judge reminded the jury that Franklyn Williams said that he attended "as a Minster of Justice on the accused Respondents behalf".  That was the effect of the evidence.  This ground is rejected.

 

(3)  Counsel submitted that the judge erred when he directed the jury that motive is not an ingredient and that "the fact that the Crown is unable to prove a motive in this case doesn Respondentt mean the Crown Respondents case is weaker".  In the context of this case the judge Respondents comments were unobjectionable.

 

(4)  In oral argument counsel abandoned a complaint that the judge failed to remind the jury of the appellant Respondents evidence that he could not drive.  The judge had done so.

 

(5)  Counsel submitted that the judge failed to put to the jury the defence case as to why the appellant did not give advance notice of his alibi.  But the judge told the jury that the appellant said that "he didn Respondentt know what an alibi was", and the judge subsequently repeated this reference to the appellant Respondents evidence.

 

31. For these reasons their Lordships have concluded that there is no substance in any of the subsidiary grounds.

 

6. The irregularity and the correct disposal of the appeal.

32. It is conceded that there was an irregularity.  Counsel for the prosecution submitted that the irregularity was cured by the directions given by the judge in his summing up.  Their Lordships consider that this submission is in one sense correct and in another sense wrong.  On 9th November the judge at one stage said that in regard to the confessions he and the jury had to consider the same question.  The explanation given by the judge at that stage was capable of misleading the jury.  But in his summing up the judge clearly and correctly directed  the  jury  as  a  matter  of  law  on the issues to be

 considered by them.  To that extent the judge cured any deficiency in his earlier observations.  But the major problem is that the judge informed the jury of his decision as to the voluntariness of the confessions.  This was a serious irregularity, notably because it was calculated to convey to the jury that the judge had arrived at a concluded view that he ought to accept the evidence of the police witnesses and Franklyn Williams and reject the evidence of the appellant.  That was the basis on which the jury then heard the evidence about the confessions over a number of days.  The judge did not subsequently tell the jury to ignore his decision as to voluntariness of the confessions.  For these reasons their Lordships cannot accept the Crown Respondents preliminary submission that the irregularity was ex post facto cured.

 

 It is therefore necessary to consider the potential impact of what was undoubtedly a material irregularity on the trial.  The test to be applied in such a case has repeatedly been stated by the Privy Council to be whether, if the irregularity had not taken place, or if there had been no misdirection, the jury would inevitably have come to the same conclusion: see Anderson v. The Queen [1972] AC 100, at page 107D.  It is common ground that this is the test which their Lordships must apply.  The case against the appellant was cogent.  Teams of police officers were involved at various stages.  And the evidence of the police officers was supported by the evidence of the appellant pointing out the knife, which was undoubtedly the murder weapon, and the evidence about the appellant pointing out keys hidden near the truck.  Franklyn Williams was a witness to the oral confessions and the taking of the written confession.  Moreover, he testified to the appellant pointing out the knife and the keys.  His credibility was not questioned and could not realistically have been challenged.  Judged by their questions, and their insistence on a detailed view of the relevant places, this was a diligent and conscientious jury.  They did not believe the appellant.

 

 As against these features counsel for the appellant invited their Lordships to take into account a discrete point.  It will be recalled that Emanuel Nelson contradicted the appellant Respondents alibi by testifying that the appellant stayed with him on Saturday, 7th May and not on Sunday, 8th May.  Counsel for the appellant submitted that trial counsel ought to have tried  to  undermine  the  effect  of Emanuel Nelson Respondents evidence by introducing in evidence a deposition of Schmid Mesidor, who was not available to give oral evidence.  The point emerging from this deposition is that Mesidor said that the appellant stayed with him (Mesidor) on Saturday, 7th May.  Trial counsel has said on affidavit that she made a mistake.  Even if it is assumed that the deposition was relevant and admissible, their Lordships consider that trial counsel was too severe on herself.  The deposition contained potential damaging material in as much as Mesidor said that after 9.30 on Sunday, 8th when he went back home he did not see the appellant at the farm.  This statement appeared to be in conflict with the appellant Respondents detailed account of his whereabouts.  Their Lordships are satisfied that objectively considered counsel cannot be blamed for not introducing the deposition in evidence and, in any event, if the deposition had been introduced in evidence, it would not have been of material assistance to the appellant.

 

33. Their Lordships are satisfied that the irregularity caused no injustice: the jury would inevitably have convicted the appellant.  Their Lordships will therefore humbly advise Her Majesty that the appeal ought to be dismissed.

 

© CROWN COPYRIGHT as at the date of judgment.