The Judicial Committee of the Privy Council Decisions

Timothy, Dexter Reid and Sheldon Lewis v. The State (Trinidad and Tobago) [1999] UKPC 19 (22nd April, 1999)

(3) Sheldon Lewis Appellants

v.

The State Respondent

FROM

THE COURT OF APPEAL OF

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COMMITTEE OF THE PRIVY COUNCIL,

Delivered the 22nd April 1999

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Present at the hearing:-

Lord Slynn of Hadley

[Delivered by Lord Slynn of Hadley]

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1. On 22nd May 1995 the three appellants and Lennox McKain were convicted of the murder on 22nd September 1992 in Bon Accord, Tobago of Keith Alfred and all were sentenced to death. The evidence clearly established that Alfred was killed at home late at night by a single bullet which entered his forehead and left through the back of his head. It was subsequently found in a wooden partition at Alfred’s house. McKain died in prison before, on 12th March 1997, the Court of Appeal of Trinidad and Tobago dismissed the appeals against conviction of the present appellants.

2. The prosecution case was that two of the accused went to a street in Bon Accord where a number of men were standing around and some of the latter were made to lie face down in the street. Two others arrived in a Sentra car carrying cutlasses. The first two men made Colin Chapman, who was one of the men in the street, take them to the house of the deceased after a cryptic conversation - "who is the pusher man?", "Lakhan" "where Lakhan lived?" "down the road". Chapman identified the first two as Timothy (who had a short gun) and Reid (who had a long gun, a shot gun). It was the prosecution case that it was the short gun or a .45 revolver from which the bullet found was shown to have been fired which was used to kill Alfred. The Sentra car was said to have been rented by one Emmanuel Dillon at the request of Timothy, Lewis and McKain. Ancil Farrell, another of the men in the street, identified McKain as having come in the car. Gabby Williams who was also there identified McKain as having cut Williams’ hand with a cutlass and Lewis as having stolen Williams’ green sneaker shoes. It was in the Sentra car that the four men got away after the shooting. The prosecution sought to rely on written confessions by Timothy and Reid and on the evidence of Police Sergeant David that Timothy and Reid had shown him where the guns were, as a result of which he took possession of them.

3. All the accused gave evidence on oath. The defence case was that none of the men was there. They denied all the allegations and contended that they had been set up by the police.

 

4. On 23rd September 1992 Sergeant David, a police officer, said that he went to the house of McKain who he alleged said that he had been at Bon Accord the previous night but that it was Timothy who shot Alfred and that Lewis was also there. McKain gave the police officer the keys of the car and Lewis said that the shoes he was wearing he had taken from a man in Bon Accord on the previous night. Both were arrested as were Timothy and Reid and all were taken to Scarborough Police Station.

 

5. On behalf of Timothy and Reid Mr. Dingemans took a number of points. In particular he argued that the identifications in this case were unsatisfactory and unreliable. Farrell was not asked to identify any of the four on an identification parade and it was only in the dock that he identified Timothy whom he had known for two years and McKain whom he had known for nine years. Emmanuel Dillon did not attend an identification parade but identified Timothy, McKain and Lewis in the dock. Gabby Williams did attend an identification parade where he identified only Lewis and McKain neither of whom he had known before the incident but not Timothy or Reid. Chapman also attended an identification parade and he identified Reid and Timothy but the identification of Timothy was said to be unreliable since, unlike any of the other men on the parade, Timothy was bleeding from the head at the time of the parade and was dressed in a different way from the others - he wore a heavy jacket but was barefooted. It was said that he therefore stood out from the others and that it was not a fair parade. There was a serious dispute as to this wound. The wound had been seen by a magistrate Mr. Baird, by Sergeant David the police officer who took a statement from Timothy, by Inspector Waldron, another police officer, and an officer at the prison but was denied by Police Inspector Jolefield who was in charge of the parade and by Chapman who identified Timothy. Moreover Chapman had given evidence that one of the two men with guns wore a mask and no one was masked at the identification parade.

 

6. Then it was said that the evidence of Sergeant David was inconsistent internally and inconsistent with evidence of the others. There was in addition a discrepancy between the report of the bullets which he said he had handed in and those which were referred to in the forensic report. The judge on the voir dire formed an unfavourable view of the reliability of the evidence of Sergeant David (which the jury did not know about) and he should have made, but did not make, this clear to the jury. This was particularly important since there was a clear risk that the green sneakers said to have been taken from Williams by Lewis and handed over by Lewis to the police had had the letter I cut out of the name "Fila" so as to make it appear that they were Williams’ sneakers. This must have been done either by Sergeant David alone or by Sergeant David in conspiracy with Williams.

 

7. It was also submitted that the jury were not adequately instructed that the McKain statement implicating Timothy was not evidence against Timothy. Morover the jury were made aware of inadmissible evidence of confessions and were left in the belief that the judge had heard evidence which the jury had not heard and which further implicated the accused man.

 

8. On behalf of Lewis Mr. Andrew Nicol Q.C. adopted many of these criticisms and further criticised the failure of the trial judge to disregard the evidence of Sergeant David and Emmanuel Dillon. He also criticised the failure of the judge to rule as inadmissible the statements of Sergeant David as to Lewis’ comments about getting the sneakers from a man in Bon Accord the previous night which was damaging to Lewis in that it undermined his alibi. Moreover Gabby Williams’ evidence was clearly unreliable since he must have been frightened and was made to lie on the ground so that he could not see properly.

 

9. There is more force in some of these points than in others. Thus there is no doubt that it would have been better to have required Farrell and Dillon to attend an identification parade. The trial judge could have been more explicit about some aspects of the credibility of Sergeant David if, as appears, his view of Sergeant David was unfavourable. On the other hand the judge gave a strong direction in accordance with Reg. v. Turnbull [1977] 1 Q.B. 224 and he made it plain beyond doubt that if the jury thought that the identification parade had not been properly conducted (because Timothy alone had a head wound) so that it was in reality a farce they should ignore the identification evidence. Moreover on most matters the learned judge gave a summing up which was detailed, clear and accurate.

 

10. It is, however, not necessary to rule on all these matters singly or in combination since Mr. Dingemans has taken another point which in their Lordships’ view is determinative of this appeal.

 

11. Timothy, Reid and McKain all made written statements. There was criticism of the way the statements were taken. In respect of all three statements, however, it was objected that the statements were not voluntary but had been obtained after violence and oppression.

 

12. After objection by Timothy the judge ordered that a voir dire should be held. Timothy gave evidence that when he was arrested at 5.30 a.m. five or six policemen came to his house on 23rd September. He was taken to a river, a cord or rope was tied round his neck and he was pulled up and down in the river. He was taken to the police station where he was beaten including beatings with an iron bar. It was then that he was hit on the head which explained his head wound. It was as a result of this violence and his fear of further beating that he signed the statement prepared by Sergeant David who was not himself involved in the beating.

 

13. At the end of the voir dire in regard to Timothy’s evidence the judge reminded himself of Ibrahim v. Rex [1914] AC 599 at page 609:-

"It has long been established as a positive rule of English criminal law, that no statement by an accused is admissible in evidence against him unless it is shewn by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear or prejudice or hope of advantage exercised or held out by a person in authority."

 

14. The judge found that the statement was made before the magistrate arrived. He added:-

"According to David, there were other police officers around at the time the statement was being dictated, yet, he failed to have any police officer present throughout the taking of the statement. I find this very unacceptable especially when one has regard to the nature of the matter under consideration.

 

"I am not satisfied that the State has discharged the onus placed upon [it] in law, and, accordingly, I rule the statement inadmissible."

 

15. Reid gave evidence that when arrested at 5.30 a.m. on 23rd September he was hit by a police officer known as "Old Boat". He was beaten at the Scarborough Police Station. Another man arrested (Paul Phillips) who was not charged was also forced to beat Reid.

 

16. There was also strong criticism (based in part on the evidence of the magistrate Mr. Baird who was present at the taking of the statement), that this had not been a continuous statement by Reid as it purported to be but had been the result of answers to questions put by Sergeant David, the answers being written down by him and recorded as a continuous narrative.

 

17. The judge accepted that the taking of this statement was a breach of the judge’s rules and that Sergeant David did question Reid after he had been charged. The judge added:-

"… I am very concerned about the allegations of the accused that he was assaulted. Mr. David cannot assist us on that. In fact, no witness called by the State could assist us in that respect. I believe on this evidence that the accused was assaulted by the police upon his arrest and later that day at the Scarborough Police Station. Very serious allegations had been made during the course of the voir dire against the police officer referred to as ‘Old Boat’. I feel it was incumbent upon the State to at least produce this Officer for cross-examination or as some of the more recent authorities would say, some adequate explanation ought to have been proffered for his absence. Taking all the circumstances into consideration I do not feel it is safe to allow this statement into evidence. Accordingly, I reject the statement."

 

18. McKain said that he too had been beaten both when arrested and at the police station and Paul Phillips in evidence confirmed what McKain said. The men were made to beat each other and McKain was given a statement to sign which was based on questions from Sergeant David and on his replies. He himself could not read or write. Neither McKain nor Phillips on this part of the case were cross-examined. The judge said that the evidence of beating of McKain had not been challenged. He said about this evidence "the view is accepted" to which prosecution counsel replied "yes, my lord". The judge rejected the statement as inadmissible.

 

19. Lewis also gave evidence of having been beaten on arrest and later at the police station but in his case there being no written statement there was no voir dire.

 

20. It is thus clear that the learned trial judge took a serious view of the violence to the men by police officers and he accepted the defence submission that the written statements be excluded. There was no submission that any evidence of oral statements or conduct amounting to an admission following the beating should be excluded. This it is said is because the view prevailed in Trinidad and Tobago at the time that objection could not be taken to a confession if the defendant denied making it. On this basis the failure of the judge to consider whether evidence of certain admissions orally and by conduct subsequent to the attacks on the men ought also to be excluded was in accordance with the practice in Trinidad and Tobago.

 

21. In Lam Chi-ming v. The Queen [1991] 2 A.C. 212, both, oral and written statements made by the accused were excluded as inadmissible because the judge ruled that the prosecution had not proved that they were voluntary. The judge, however, admitted a video recording showing that the first defendant had directed the police to the water front where each defendant had made gestures indicating the throwing of the knife into the water. The police subsequently found the murder weapon there. In a judgment delivered by Lord Griffiths the Board reviewed many authorities which they accepted had not always been consistent one with another. However accepting that "a statement can be made as much by demonstration or gesture as by words" they said:-

"… the question raised by this appeal is whether that part of a confession which is shown to be reliable by the discovery of the evidence to which it relates may be given in evidence despite the fact that the admission may have been obtained by police brutality which renders inadmissible all other parts of the confession."

 

22. The Board ruled:-

"… that the more recent English cases established that the rejection of an improperly obtained confession is not dependant only upon possible unreliability but also upon the principle that a man cannot be compelled to incriminate himself and upon the importance that attaches in a civilised society to proper behaviour by the police towards those in their custody."

 

23. At page 222 Lord Griffiths said:-

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

 

He added:-

"Without this evidence there was nothing to link the defendants to the murder weapon and the prosecution do not seek to uphold the convictions in the absence of such evidence."

 

24. In Ajodha v. The State [1982] AC 204 the question was said by the Board in a judgment delivered by Lord Bridge of Harwich to be:-

"… when the prosecution proposes to tender in evidence a written statement of confession signed by the accused and the accused denies that he is the author of the statement but admits that the signature or signatures on the document are his and claims that they were obtained from him by threat or inducement, does this raise a question of law for decision by the judge as to the admissibility of the statement?" (page 214)

 

25. Lord Bridge indicated typical situations likely to be encountered in practice where a question arose as to the respective functions of judge and jury in relation to incriminating statements tendered in evidence by the prosecution. Thus in a situation where the accused "denies authorship of the written statement but claims that he signed it involuntarily … the judge must rule on admissibility, and, if he admits the statement, leave all issues of fact to the circumstances of the making and signing of the statement for the jury to consider and evaluate".

 

26. The Board indicated the practice to be followed at page 223:-

"(1) In the normal situation which arises at the vast majority of trials where the admissibility of a confession statement is to be challenged, defending counsel will notify prosecuting counsel that an objection to admissibility is to be raised, prosecuting counsel will not mention the statement in his opening to the jury, and at the appropriate time the judge will conduct a trial on the voir dire to decide on the admissibility of the statement; this will normally be in the absence of the jury, but only at the request or with the consent of the defence: Reg v. Anderson (1929) 21 Cr.App.R. 178. (2) Though the case for the defence raises an issue as to the voluntariness of a statement in accordance with the principles indicated earlier in this judgment, defending counsel may for tactical reasons prefer that the evidence bearing on that issue be heard before the jury, with a single cross-examination of the witnesses on both sides, even though this means that the jury hear the impugned statement whether admissible or not. If the defence adopts this tactic, it will be open to defending counsel to submit at the close of the evidence that, if the judge doubts the voluntariness of the statement, he should direct the jury to disregard it, or, if the statement is essential to sustain the prosecution case, direct an acquittal. Even in the absence of such a submission, if the judge himself forms the view that the voluntariness of the statement is in doubt, he should take the like action proprio motu. (3) It may sometimes happen that the accused himself will raise for the first time when giving evidence an issue as to the voluntariness of a statement already put in evidence by the prosecution. Here it will be a matter in the discretion of the trial judge whether to require relevant prosecution witnesses to be recalled for further cross-examination. If he does so, the issue of voluntariness should be dealt with in the same manner as indicated in paragraph (2) above."

 

27. The position was further clarified in Thongjai v. The Queen [1998] AC 54. In a speech delivered by Lord Hutton the Board considered the practice to be followed where the prosecution alleged that the defendant had made an oral admission, and the defendant said (a) that he had not made the admission but (b) that he had been ill-treated by the police before or at the time of the alleged admission".

 

28. Lord Hutton said at page 61:-

"Whilst the statements considered by the Board in the Ajodha case were written statements, their Lordships are clearly of opinion that the principle stated by Lord Bridge applies also to oral admissions. Therefore where the prosecution alleges that the defendant made an oral admission, and the case is raised on behalf of the defendant that he did not make the oral admission and that he was ill-treated by the police before or at the time of the alleged admission, two issues are raised which are not mutually exclusive. The first issue, which is for the judge to decide, is whether, on the assumption that the alleged admission was made, it is inadmissible as being involuntary. The second issue, which is for the jury to decide if the judge rules that the alleged admission is admissible in evidence, is whether the admission was in fact made."

 

29. Lord Hutton considered that the cases as set out by Lord Bridge were given by way of example and that his speech was not to be read restrictively as limited to written statements or that "an issue of voluntariness for the judge to decide can only arise if the evidence of the prosecution suggests that the admission may be involuntary".

 

30. Reading together the statements of principle in these three cases it is clear that in the present case the issue of whether the alleged conduct of Timothy and Reid in taking Sergeant David to the galvanise in the garden and showing him the guns was voluntary should have been decided by the judge on the voir dire. The conduct which is relied on followed on from such violence as the judge accepted was sufficient to make it necessary to exclude the written confession. The issue as to whether the prosecution had established that their conduct in taking Sergeant David to the galvanise and showing him the guns was done voluntarily fell to be decided just as much as the issue whether the written statements were voluntary.

 

31. Their Lordships accept from Mr. Dingemans that this matter was almost certainly not raised by counsel or by the judge of his own motion because of the prevailing view and practice in Trinidad and Tobago to which reference has been made. If it had been raised it seems no less certain on the basis of these three authorities that in the light of his firm and clear ruling as to the written statement that the judge would have excluded the evidence. This evidence of the taking of the police sergeant to the guns should have been excluded. That evidence of the link between the defendants and the finding of the guns was a very important part of the police case and without it the prosecution might well not have succeeded particularly since on his search of the premises Inspector Waldron had found nothing. In accordance with the view expressed by Lord Bridge there was no necessary inconsistency between the defendants denying that they had taken Sergeant David to the galvanise and their saying that they had been beaten so as to render their conduct involuntary. Moreover the prosecution cannot rely on the fact that the guns were found as a result of the police being taken to the site and the guns being pointed out to them any more than the prosecution could rely on the knife having been found as a result of the appellant’s directions in Lam Chi-ming once the finding of the guns is seen to be the result of an involuntary confession whether by writing, orally or by conduct.

32. On the view which their Lordships have formed it would not be possible to apply the proviso. Accordingly in the particular and exceptional circumstances of this case their Lordships have no alternative but the quash the conviction of Timothy and Reid on this basis.

33. The position of Lewis is different. He was not involved in the visit to the galvanise. The evidence against him is different and his alleged statement as to having been in Bon Accord and having taken the shoes he was wearing from a man who was there was made (if it was made, which he denies) before he claims that he was beaten at the police station like the others. Moreover it is clearly not the law that if three men join in a criminal enterprise and the evidence is not sufficient against two of them the third must be acquitted.

34. It is, however, in this case to be borne in mind that there is no suggestion that it was he who went to the deceased’s house and shot Alfred. He was involved as part of a joint enterprise of the four men. It seems to their Lordships that if the jury had rejected the case against Timothy and Lewis (as they are very likely to have done if the inadmissible evidence had been excluded), or if the judge had withdrawn the case from the jury in respect of Timothy and Reid the case against Lewis would have fallen. It would quite plainly not be safe to let the conviction of Lewis stand once the conviction of Timothy and Reid has to be set aside.

35. Their Lordships accordingly allow all three appeals and quash the convictions.