The Judicial Committee of the Privy Council Decisions

Constance, Clint Wilson and Ronald Lee v. The State (Trinidad and Tobago) [1999] UKPC 56 (16th December, 1999)

(3) Ronald Lee Appellants

v.

The State Respondent

FROM

JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL,

Delivered the 16th December 1999

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Present at the hearing:-

Lord Steyn

[Delivered by Sir Patrick Russell]

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1. The three appellants appeal with special leave against the order of the Court of Appeal of the Republic of Trinidad and Tobago which dismissed their appeals against conviction for murder and sentence of death at the Port of Spain Assizes on 24th March 1993. A fourth defendant, Simon Peter Fraser was also convicted but he died in custody before judgment was given in the Court of Appeal. A number of grounds of appeal have been argued before their Lordships but it is necessary to deal only with those which have led to the proper disposal of these appeals.

 

The case for the prosecution

2. Glynton Leung was the proprietor of a small shop named the We Tackle Shop in Bayshore. His assistant was a woman named Marcia Dwarikasingh. At about 6.05 p.m. on 25th April 1989 three men entered the store. According to the prosecution they were Clinton Wilson, who wedged open the door with his foot, together with the deceased defendant Fraser and the appellant Ronald Lee. The appellant Wilson asked to see some fish hooks. The door remained ajar. Fraser and the appellant Lee walked toward Mr. Leung. A gun was produced by Fraser whereupon Mr. Leung moved to his cash register telling the men not to hurt anyone. An alarm sounded when Mr. Leung opened the cash register. Lee produced a Chinese chopper and began to beat Mr. Leung with it. He fell to the ground. Lee picked up a glass sweet jar and threw it at Mr. Leung. The shop proprietor then pulled out a gas cylinder from under the counter. There was an explosion and some mist was emitted. As it cleared Fraser lent over the counter and shot Mr. Leung. He sustained grave, and as it transpired, fatal injuries. Death was due to shock and haemorrhage from a gun shot wound and other injuries to the head involving in particular the lower part of the jaw.

 

3. It was the case for the prosecution that the appellant Constance was the driver of a motor vehicle which conveyed the three men to the shop and, after the killing, was used as the getaway car.

 

4. The day following the murder the appellant Wilson was arrested and taken to the local police station. Later the same day Constance went to the police station and reported the disappearance of a motor car that was owned by his parents. Having failed to identify the missing vehicle in the police pound Constance went to the criminal investigation department and reported the matter. He was, however, detained and on the following day, 27th April, he was interviewed and gave a statement in writing relating to the missing vehicle. The statement also recounted Constance’s movements during 25th and 26th April, in particular asserting that the motor car had been borrowed by his brother and was not available to Constance at the time of the murder on 25th April.

 

5. Later, on 27th April Wilson was interviewed by Inspector Peters. The prosecution alleged that he made a lengthy voluntary statement in writing, giving a detailed account of the murder, naming his accomplices and identifying the roles played by each man, including himself.

 

6. Constance was interviewed again. He was told that he was now a suspect in the murder and, having been cautioned, Constance was alleged to have dictated his own statement detailing what had happened at the shop and implicating the others. His statement admitted that he had taken the others to and from the scene.

 

7. The arrest of Fraser was on 4th May 1989 when he was taken off a vessel that was due to sail that night from Trinidad to Grenada. He was found hiding in the engine room. He was interviewed and after caution allegedly said "Boss, the man went for his fish gun and I fired a shot".

 

8. The appellant Lee went to the police station accompanied by a lawyer on 16th May. He was detained and on 17th May placed on an identification parade. Marcia Dwarikasingh identified Lee as the person who had the Chinese chopper and who had inflicted wounds on the deceased as well as throwing the glass jar at him. The witness had earlier, on 29th April, failed to identify Wilson at an identification parade. She had, however, identified Fraser at a parade held on 5th May 1989.

 

The defences of the appellants at trial

9. The appellants were all young men of good character. Each gave evidence denying any involvement in the murder and setting up alibis. Before that stage was reached, however, the admissibility of the statements made in writing by the appellants Constance and Wilson was challenged and the judge held a voir dire in the absence of the jury. Both Constance and Wilson gave evidence in the voir dire. From first to last there was a head-on conflict between the testimony of the appellants and the police evidence. Constance alleged that he had been the victim of oppressive conduct on the part of the police from a very early stage when he reported the missing vehicle. The police had no right to detain him but he was held throughout the night of 26th/27th April in squalid conditions and without food or drink prior to the obtaining of the written confession during the afternoon of 27th April. All this was denied by the police. Likewise with Wilson. He alleged that by the time the statement was signed by him, a statement prepared by the police in his absence, he was ready to sign because he had been told it was normal procedure with arrested persons and that thereafter he would be released.

 

10. In both their cases the prosecution called a Justice of the Peace named Farouk Ali. He went to the police station after the statements had been signed. According to him, he read each statement to each accused and asked each if their respective statements was true. Each replied in the affirmative. The appellants denied that Farouk Ali had read their statements to them or that they had admitted to him that the statements were true. Their Lordships will return to the evidence of Farouk Ali later.

 

11. At the conclusion of each of the voir dires the judge indicated that he rejected the evidence of each appellant and accepted the evidence of the prosecution witnesses. He ruled that both statements by Constance and Wilson respectively were voluntary and admissible statements.

 

Irregularities in the trial

12. At an early stage in her evidence the following exchange took place between prosecuting counsel and Marcia Dwarikasingh:-

"Q. Now, you said three gentlemen entered the store. If you see those men again would you be able to recognize them?

 

A. Yes.

 

Q. Do you see those men here?

 

A. Yes.

 

Q. Would you indicate to the Court, please?

 

A. One, two and three.

 

Q. From which?

 

A. The yellow shirt to the white.

 

THE COURT: Nos. 2, 3 and 4 identified.

 

PROSECUTING COUNSEL: Witness indicates accused Nos. 2, 3 and 4."

 

13. The three defendants were Wilson, Lee and Fraser.

 

14. A dock identification should never have been sought by prosecuting counsel and the judge should have intervened to prevent any such dock identification taking place. It is only in the most exceptional circumstances that any form of dock identification is permissible in the trial process and no such circumstances were present in the instant case. What happened was a serious irregularity although it is only fair to observe that when he came to sum up the judge said in relation to the appellant Wilson:-

"Members of the Jury you will be on safer ground, in my view, and I tell you to ignore that dock identification and deal with this statement alone. Do you accept it is genuine, it is obtained in a manner the Prosecution suggests? Do you have any doubts about it? In either event you discard it."

 

15. The second irregularity arose out of the ruling of the judge at the conclusion of the voir dires. In the case of Constance he said:-

"I find beyond reasonable doubt the statement was made voluntarily in every sense. Neither his [detention] after he gave that statement nor the police – nor the failure of the police to charge him with any offence until May 1st 1989 can alter the admissibility or the voluntariness of the document, and I will admit it in evidence in due course. The jury will, have of course, have their final say in the matter."

 

16. In the case of Wilson the judge said:-

"I find beyond reasonable doubt that the statement was voluntarily given in every sense and will admit it into evidence in due course. Let the jury return."

 

17. There the matter should have rested, but unfortunately when the judge in the summing up came to deal with the statement of the appellant Constance he said:-

"It has been admitted into evidence as being, by the Court, a voluntary statement. You will assess the evidence – the witnesses and their evidence including Mr. Constance and determine, if you can, as I say, where the truth lies. Of course if you believe the police, you may think there is no question that I ought to act on this evidence. It’s a statement. I reject his version as to how it came into existence. It’s a matter for you entirely. If you reject it, the prosecution version, then of course you may think you should attach no weight at all to it. Because obviously if it came into existence the way he says, it can have no weight."

 

18. Later when dealing with Wilson’s statement the judge said:-

"If you think it came into existence the way the prosecution says, then and only then you will decide whether in the light of the circumstances clearly was, you heard he hadn’t eaten, you heard he hadn’t slept well, you heard how he’d been thrown in this cell, and up to the time he signed this document he hadn’t eaten, whether you think, bearing in mind he didn’t say, ‘I gave a statement but I was anxious to get out’ or anything like that, whether you believe you will attach any weight to it, or how much weight or whether you will act on it at all."

 

19. It is true that in Wilson’s case the judge did not disclose, as he had done in the case of Constance, that he had made a finding that his statement was voluntary, but the jury must have so assumed from the fact that both statements were admitted in evidence before them.

 

20. In dealing with this aspect of the appeal their Lordships cannot improve upon the observations of Lord Steyn in giving the judgment of the Board in Mitchell v. The Queen [1998] AC 695. In that case, too, the judge in his summing up reminded the jury of the defence objection to the voluntariness of confessions and said that he had ruled that the statements were voluntary. In the judgment of the Privy Council reference was made to Crosdale v. The Queen [1995] 1 W.L.R. 864. The Privy Council in Crosdale ruled that the judge must not inform the jury of his decision to reject a submission of no case to answer and in Mitchell Lord Steyn said at page 703:-

"Their Lordships accept that the analogy of Crosdale v. The Queen 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’s decision. This is underlined by the fact that in modern English practice the judge’s decision after a voir dire is never revealed to the jury.

 

Moreover, if the judge reveals his decision to the jury, the risk of unfair prejudice to a defendant is created. That risk will often be greater than in a 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 defendant. 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 a defendant. 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 defendant. 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 defendant 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 defendant, 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 a defendant’s 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 a defendant.

 

In these circumstances, and relying particularly on the irrelevance of the judge’s decision to the task of the jury taken together with the potentiality of prejudice created by informing the jury of the judge’s decision, their Lordships hold that the jury ought not to be informed of a judge’s decision on a voir dire held to determine the admissibility of a confession."

 

Misdirections in the summing up

21. About half way through his summing up that occupies some 105 pages of transcript the judge directed the jury upon the law relating to joint enterprise. He said:-

"Now, you heard three men entered and you wonder how come the fourth one is in the dock, Constance. Well, despite what some people say, the law in its good sense says that anybody who takes part in an escapade of this nature intending to lend aid to the actual perpetrators of the crime in case his aid, his assistance, is necessary as being ready and at hand to assist in their escape, taking them there and waiting nearby in a vehicle and such, is equally guilty as an aider and abetter. And that’s all we are concerned with in a crime such as this.

 

And if I might read to you the classic formulation of it. A person acting in concert with the primary offender may become a party to the crime whether or not present at the time of its commission by activities variously described as aiding, abetting, counselling, inciting or procuring. In the typical case of that class, the same or the same type of offence is actually intended by all the parties acting in concert.

 

There is, however, a wider basis for criminal liability, mainly the principle whereby a secondary party is criminally liable for acts by the primary offender of a type which he foresees but does not necessarily intend. That principle meets the case of a crime foreseen as possible, as a possible incident in the common unlawful enterprise. Criminal culpability lies in participating in the venture with that foresight.

 

In other words, if you know men are going in with lethal weapons, firearms, chinese choppers to commit a robbery and the probability is they are likely to use it and they use it, then if you are outside waiting to assist them in effecting their escape you are guilty for all that takes place inside; guilty of all that takes place inside in pursuance of the common purpose of effecting, in this case a robbery.

 

And you may well think that people should know that if they go in to effect a robbery with weapons in their hands, the chance of injury being done to others is great because in a moment of despair anything could happen."

 

22. Counsel submitted that the passage cited and in particular the paragraph beginning with the words "There is, however, a wider basis for criminal liability" sought to resurrect the so called murder/felony rule (see Moses v. The State [1997] AC 53). Whilst their Lordships recognise that that paragraph could have been more felicitously phrased the two succeeding paragraphs are not open to objection and accurately reflect the law. Their Lordships do not consider that anything said by the judge upon this aspect of the case could, in the context of the summing up taken as a whole, have so confused the jury as to vitiate the verdicts that they returned. This ground of appeal, therefore fails.

 

23. A much more compelling argument was advanced in relation to the good character of the appellants, in particular the appellants Constance and Wilson. The case against each of these appellants, once the dock identifications are discarded as they must be, depended solely upon their confession statements. As the State readily conceded, there was no other evidence implicating Constance and Wilson in the robbery and murder. Accordingly, the credibility of the police and each of these two appellants was of prime importance. Despite this, the judge wholly failed in the summing up to make any reference to the good character of each of the appellants. In the view of their Lordships this was not merely a serious omission; in the case of Constance and Wilson it was crucial, for in the conflict between the police and them as to the voluntary nature of their confessions everything depended upon their credibility. They were each entitled to have the fact of their good characters placed in the scale when considering whether the prosecution had proved that their respective statements were reliable.

 

Farouk Ali

24. In Trinidad and Tobago their Lordships were informed that for at least the last 20 years a practice has developed whereby a Justice of the Peace is called by the State to prove that any confession relied upon by the prosecution was obtained in accordance with the judge’s rules and common law principles. Such a witness has no interest of his own to serve, is entirely independent and of course of impeccable character and reputation. All this is acknowledged by the State.

 

25. Farouk Ali testified that in each of the cases with which he was concerned, namely Constance and Wilson, he had read over to the defendant the statement that he had allegedly made. According to Farouk Ali both Constance and Wilson confirmed that their respective statements were true. In each case the Justice of the Peace completed the appropriate certificate. Clearly his evidence must have had a substantial impact upon the jury in resolving the dispute between the two appellants Constance and Wilson and the police.

 

26. Farouk Ali can no longer be regarded as a witness of truth. Albeit subsequent to the trial of the appellants, Farouk Ali was charged with corruption. After a trial he was convicted and sentenced to a term of 10 years’ imprisonment. That sentence reflects the gravity of Ali’s criminal behaviour. He was convicted of corruptly receiving a very large sum of money from a woman who had been smuggling cocaine, the consideration being that Farouk Ali would prevail upon a magistrate to impose a fine instead of a custodial sentence. Ali denied the charge and gave evidence at his trial but was disbelieved by the jury. An appeal against conviction and sentence was dismissed, the Court of Appeal commenting "the evidence against the applicant was particularly strong and it is not surprising that counsel withdrew many of the grounds of appeal". The judgment in the Court of Appeal continued:-

"The applicant who was 45 years old, held a position of trust; he played a major and important role in the administration of justice. This was an elaborately planned crime which spanned a period of eight months. He had no qualms about carrying through the exercise, but rather, demanded more money … he quite blatantly used his position of authority to seek to make a profit from the misfortune of another. There was therefore no basis for the court to interfere with the sentence."

 

27. Their Lordships cannot escape the conclusion that Farouk Ali is now a totally discredited witness. His evidence involving Constance and Wilson can no longer be regarded as reliable. On the contrary it taints the conclusions of the jury to the effect that the police were to be believed and these appellants disbelieved.

 

The appeals of the individual appellants

 

Ronald Lee

28. This appellant did not make any written confession to the police and Farouk Ali played no part in his case. Nor was there any voir dire. However Lee was entitled to a direction relating to his good character. The question therefore arises whether this is a case in which Lee’s appeal should be allowed because of the absence of any character direction in the summing up and/or the dock identification and/or as submitted by counsel on behalf of Lee, the prejudicial effect of the statements made by Constance and Wilson implicating Lee.

 

29. In order to answer these questions it is necessary to revert to the facts.

 

30. Within about one hour of the murder Police Corporal Ramroop went to the shop, the scene of the killing where the witness Marcia Dwarikasingh pointed out a jar lying on the floor. It was the jar that she identified as having been thrown at the victim by the appellant Lee. Corporal Ramroop examined the jar; he found a number of fingerprints upon it but one in particular from the middle finger of the left hand Corporal Ramroop opined had been placed on the jar very recently.

 

31. The procedure adopted by Corporal Ramroop and an official police photographer, Corporal Moore, was closely investigated at trial. When the jar was recovered from the shop the appellant Lee had not been arrested and indeed it was not until 16th May 1989 that the appellant Lee attended the police station and there provided his fingerprints. Photographs of both the print on the jar and the prints provided by the appellant after his arrest were produced at court. They had been enlarged. Corporal Ramroop compared the photograph of the print found on the jar with the photograph of the print of the left middle finger taken from the appellant after his arrest. Corporal Ramroop, who had considerable experience in the science of the examination of fingerprints as well as academic qualifications, found 16 characteristics which coincided in the two photographs. He concluded that the two fingerprint impressions, the one on the jar and the one provided by the appellant Lee after his arrest, were made by the same person.

 

32. Lee, after his arrest, contended that the jar had been produced to him and that he had pushed it away with his left hand. The very obvious, and in their Lordships’ view conclusive, answer to that piece of evidence was, of course, the fact that Corporal Ramroop found the left finger impression on the jar on 25th April 1989. Thus the evidence that the appellant Lee was responsible for throwing the jar at the deceased victim was as conclusive as any fingerprint evidence can be. The jury were entitled to accept the fingerprint evidence and to draw their own conclusions from it – indeed no realistic alternative explanation was available.

 

Herman Constance

33. Each appellant is entitled to have his individual appeal considered entirely separately from the appeals of his co-defendants. In the case of Constance his trial was flawed in the respects outlined in this judgment. They need not be repeated. Their Lordships have come to the firm conclusion that in the light of the procedural irregularities, the misdirections and the very real danger that the jury were greatly influenced by the now discredited evidence of Farouk Ali the verdict in the case of Herman Constance should be regarded as unsafe.

 

Clint Wilson

34. Their Lordships have reached the same conclusion for much the same reasons in the case of Clint Wilson. In his case there is the additional irregularity regarding dock identification. The verdict in his case should also be regarded as unsafe.

 

35. Their Lordships do not entertain the same reservations about the verdict in the case of Ronald Lee. In their Lordships’ judgment the case against him was particularly strong having regard to the unanswerable fingerprint evidence. Lee’s case was not tainted by the evidence of Farouk Ali and their Lordships are satisfied that the jury were perfectly entitled to return the verdict that they did in the case of Ronald Lee.

 

Conclusions

36. Their Lordships were informed that the death sentence in all three cases had been commuted to very lengthy terms of imprisonment. In the cases of Constance and Wilson their appeals against conviction will be allowed and their sentences set aside. Ronald Lee’s conviction will be affirmed and his appeal is dismissed.

 

37. In the cases of Constance and Wilson their Lordships do not consider that an order for their retrial would be appropriate.