The Judicial Committee of the Privy Council Decisions

 


Roberts & Anor v. The State (Trinidad and Tobago) [2003] UKPC 1 (15 January 2003)

ADVANCE COPY

Privy Council Appeal No. 12 of 2002

(1) Bertrand Roberts and

(2) Roland Roberts Appellants

v.

The State Respondent

FROM

THE COURT OF APPEAL OF TRINIDAD AND TOBAGO

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

JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL,

Delivered the 15th January 2003

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

Present at the hearing:-

Lord Nicholls of Birkenhead

Lord Steyn

Lord Hope of Craighead

Lord Hutton

Lord Rodger of Earlsferry

[Delivered by Lord Rodger of Earlsferry]

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

1. The appellants are brothers, Bertrand Roberts and Roland Roberts, who were convicted of murder and sentenced to death at the Assizes Court in Port of Spain as long ago as 15 December 1988. They appealed against conviction but their applications for leave to appeal were not heard until 9 June 1998. On that date the Court of Appeal (Sharma, Hamel-Smith and Hosein JJA) refused leave and affirmed the convictions. In the meantime on 31 December 1993 the Minister of National Security had commuted their sentences to sentences of life imprisonment as a result of the decision of the Board in Pratt v Attorney General for Jamaica [1994] 2 AC 1. The Court of Appeal affirmed those life sentences.
2. A brief narrative of the relevant evidence, based on the judge's notes, will suffice. On 6 November 1985 the Green Star, a vessel that plied between Grenada and Trinidad, anchored at Queen's Wharf, Port of Spain. On board were a Mr George Charles and a Mr Joseph Nash, who was from Grenada. Nash was to be the principal witness for the prosecution at the appellants' trial. The narrative that follows comes from his evidence. Some time after 8.00 pm the two men left the boat together. Nash was going to visit a friend and had a bottle of whisky with him in a bag to give to her. Charles had 4 bottles of whisky in a bag. The two men made their way in the direction of Sea Lots. They walked along the pavement. According to Nash, when they were in the vicinity of the lighthouse, they were stopped by two men whom he identified as the appellants. They asked what Charles and Nash had in their bags and Nash indicated that it was whisky. The two men, who appear to have pretended to be police officers, said that they should all go up to the police station. According to Nash, Bertrand Roberts held him by the back of his trousers, while Roland Roberts held Charles. Nash said that he was able to see their faces as they walked towards Sea Lots. When they came to a track on the sea side, the two men told Charles and Nash to walk down it. All four went down. One of the men took Nash's bag and one took Charles's bag. The men told them to put their hands in the air. According to Nash, Roland Roberts took a gun from his side and then searched Nash and Charles. The men told Nash to take everything out of his pockets and to put it in the bag. Charles did the same. When one of the men searched him he found a letter in his pocket. The man then said to Charles, "Did I not tell you to take out everything from your pocket?" Charles was told to take his hat off and, after he did so, one of the men said to him that he was a Rasta. Then Bertrand Roberts said to Roland Roberts "Shoot them". Roland Roberts shot Charles. Nash began to cry and begged them to let him go. One of the men told him to run. He then ran back to the boat and told the captain what had happened. He and the captain set off for the police station to make a report but on the way they stopped a police car and spoke to the officer in it. Eventually in the presence of Nash the police found Charles lying dead on the pavement a little way from where the incident had occurred.
3. On 16 November 1985 Nash attended an identification parade at police headquarters in Port of Spain. He identified Bertrand Roberts as one of the men who had been involved in the incident. Three days later, on 19 November, he attended another identification parade at police headquarters and this time he picked out Roland Roberts.
4. Nash's evidence did not stand alone. In particular, in the case of Bertrand Roberts there was evidence, which the judge admitted after a voir dire, of a written statement that he was said to have given to the police on 15 November. According to that statement, the two appellants had heard that there was whisky on the wharf and had set off to rob the men of the whisky. During a struggle Roland Roberts had pulled out the gun which he was carrying and had shot the taller of the two men. Bertrand Roberts gave evidence in which he said that he had not dictated the statement attributed to him and had only signed it in order to be able to go to court. He also said that Nash had lied when he told the court that Bertrand Roberts had held his trousers. In the case of Roland Roberts there was evidence that the police had found him hiding under a bed and that, on being cautioned after his arrest, he had said that he and his brother had heard that there was whisky on the wharf. They had gone down the road by the lighthouse and he and another man had had a struggle. He had heard an explosion and had then left. In evidence Roland Roberts said that the police witnesses had lied about him being found under the bed and that Nash had lied about him being the man with the gun.
5. Their Lordships approach the appeal on the basis that the prosecution case against the appellants was powerful. In particular, as Mr Dingemans QC pointed out on behalf of the State, one of the striking features of the case is the fact that, within two weeks of the incident, at two separate identification parades held three days apart, Nash identified two men who are linked by the fact that they are brothers. This could well be regarded as a factor that would tend to confirm the accuracy of Nash's identification of the two men, especially in the light of the evidence that they had said that they were together that evening. Nevertheless, it cannot be conclusive. What is clear, on the other hand, is that the evidence of Nash was the foundation of the prosecution case and was treated as such at the trial. In the course of his address to the jury counsel for the prosecution said that the case hinged on the evidence of Nash. Counsel for Bertrand Roberts had said the same in his address to the jury. Prosecuting counsel argued that Nash had not made any mistake in identifying the appellants, whereas counsel for Bertrand Roberts suggested that he could have been mistaken. He drew attention to the nature of the lighting and pointed out that people can make mistakes, even about relatives and friends. Counsel for Roland Roberts suggested that there was something missing in Nash's account, something he had not told the court about. Was there a doubt? They should consider Nash's story and give the accused the benefit of the doubt.
6. Since the testimony of Nash, identifying the appellants as the men involved in the killing, played this central role in the case, it was obviously extremely important that the judge should have given the jury appropriate directions on how to approach Nash's identification evidence. On the form that such directions should take the law of Trinidad and Tobago has followed the approach in English law as enshrined in the guidelines in R v Turnbull [1977] QB 224. See Fuller v The State (1995) 52 WIR 424. So the judge in this case should have given directions on Nash's evidence that were appropriate in the light of those guidelines.
7. At this point a difficulty emerges. At some time during the many years of delay before the Court of Appeal heard the applications for leave to appeal, the shorthand notes of the judge's summing up were lost. How this came about remains a mystery: there was some suggestion that it might have happened when the court moved premises, but that is just speculation. The result is that it is now impossible to tell what directions the judge did in fact give on identification. That does not in itself mean that the appellants' convictions should be set aside. On the contrary, it is well established that the loss of the transcript of a summing-up is not, without more, a ground for setting aside a conviction. Speaking of the shorthand note of the proceedings at a trial, Channell J said in R v Elliott (1909) 2 Cr App R 171, 172:

"The absence or insufficiency of a shorthand note is not of itself a ground upon which a prisoner can succeed upon appeal, nor the existence of a proper note a condition precedent to a good trial. Where, however, there is reason to suspect that there is something wrong in connection with the hearing of a case, the absence or insufficiency of a proper shorthand note may be material."

In R v Le Caer (1972) 56 Cr App R 727, 730 - 731, Lord Widgery CJ quoted this passage and continued:

"The court would adopt those words as being entirely appropriate to the present facts and to the present case; in other words, the simple fact that there is no shorthand note is not of itself a ground for saying that the conviction is unsafe or unsatisfactory. In order that the appellant may claim that conclusion, he must be able to show something to suggest that there was an irregularity at the trial or a misdirection in the summing-up. Unless there is something to suggest that an error of that kind took place, the absence of a shorthand note simpliciter cannot cause the court to say that the verdict of the jury was unsafe or unsatisfactory."

These passages show that the lack of a transcript of the judge's summing-up is significant only if the appellants can point to something to suggest that it contained a misdirection.
8. At first sight it might look as if the appellants would have difficulty in showing this. It appears that in the immediate aftermath of the trial they submitted only formal notices of application for leave to appeal. The notices, it also appears, contained no specification of the grounds of appeal but simply indicated, in accordance with what their Lordships were told was usual practice, that counsel would supply grounds in due course. If the summing up had been available and the appeal had come on for hearing within a relatively short period, counsel handling the appeal could have been expected to submit proper grounds in the light of the recollection of counsel who had conducted the trial and in the light of the transcript of the summing up. In this case, however, by the time the application for leave to appeal came on for hearing in 1998, there was no possibility of obtaining a transcript of the summing up. Moreover, the counsel who had represented Roland Roberts had emigrated. When Mr Gilbert Peterson, who had represented Bertrand Roberts, was approached, he said that he had refreshed his memory from consulting his file. On that basis he indicated that at the time of the trial he had been of the view that there had been a misdirection on the ground of identification. There was, however, no indication of what form that misdirection might have taken. In the circumstances their Lordships are unable to rely strongly on this recollection, which was not incorporated into an affidavit. The situation is, therefore, that there is no clear indication from the papers or from the recollection of those involved in the case that there was in fact a misdirection by the judge on identification or indeed on any other matter.
9. That might seem to be the end of this point. But counsel for the appellants were able to refer their Lordships to passages from judgments of the Court of Appeal which showed that, even after the date of the appellants' trial, judges in Trinidad and Tobago were frequently failing to give identification directions that measured up to the requirements of Turnbull. In Gopee v The State (unreported) 28 June 1991, Criminal Appeal No 32 of 1989; Court of Appeal of Trinidad and Tobago, the trial had taken place in February 1989. Davis JA, giving the judgment of the Court of Appeal, referred to the Turnbull guidelines and continued:

"Starting with Robinson La Vende v The State, Criminal Appeal No 64/77, this court accepted and adopted those guidelines stating that we regarded them as invaluable and that their observance was essential to a fair trial whenever questions involving disputed identity are raised in criminal cases. In addition, this court then warned that a failure to follow any of the guidelines which are 'relevant to and acceptable in any given case may lead to a conviction being set aside'.

Since La Vende, this court has had to consider repeatedly, the question whether trial judges have properly carried out their obligations to direct a jury in accordance with the guidelines laid down in Turnbull. See in this connection David Douglas v The State Crim App No 5/88, (a case of robbery) where the court concluded that there was a failure to direct in accordance with the guidelines, and quashed the conviction. See Hafiz Mohammed v The State Crim App No 23/83, (a case of rape) where this court concluded that, in spite of certain defects in the directions there given on the question of 'identity', the evidence of identity was, nevertheless, sufficiently cogent and the conviction was upheld. There was evidence of 'identity' coming from an independent source which did in fact support the evidence of the victim in that case. Moreover, identification of the accused took place on an identification parade - see also Predhuman Tiwarie v The State Crim App No 22/88, (a shooting and firearm case) where the directions on 'identity' again fell short of the guidelines laid down in Turnbull, but the court felt able to uphold the convictions and rejected the ground of appeal based on 'identification', in the light of the evidence in that case that the accused was under the observation of a policeman for some fifteen minutes in broad daylight, and that he (the policeman) had known the accused for some seven years before the incident and was in fact his neighbour."

In Fuller v The State (1995) 52 WIR 424, 433 Ibrahim JA, giving his reasons and those of Hosein JA, noted that the Court of Appeal had "on several occasions repeated the need for great care to be taken by trial judges in directing juries on the issue of identification". He then referred to the decision in Gopee. He went on to note at p 433 that the judge at the retrial in Fuller in May 1990 had failed to instruct the jury properly on the matters that they should bear in mind when they came to assess the evidence of visual identification. He added this:

"We are concerned about the repeated failures of trial judges to instruct juries properly on the Turnbull principles when they deal with the issue of identification."

As Mr Dingemans very properly accepted, these passages demonstrate that, as much as five years after the date of the appellants' trial, judges were still failing to give the necessary directions on identification. The failures were not isolated but repeated. That being so, there is no room for assuming - as might well normally be the case - that the judge in this case gave proper directions on identification in the absence of any positive indication that he did not. Having regard, therefore, to the indication from counsel at the trial that there might have been a misdirection on identification and, more particularly, to the prevalence of such misdirections at the relevant time, their Lordships consider that, in the absence of a transcript of the summing-up, it is proper to proceed on the assumption that there might well have been such a misdirection. On behalf of the State Mr Dingemans submitted that this was indeed the proper approach for the Board to adopt. On that basis he acknowledged that the Board would have to allow the appeal unless it could apply the proviso in section 44(1) of the Supreme Court of Judicature Act. His submission was that in this case it would indeed be proper to apply it.
10. Here the Court of Appeal would, if necessary, have applied the proviso. Usually, their Lordships would attach considerable weight to that indication of view but in the circumstances of this case they do not find it persuasive. The operative part of the judgment of the Court of Appeal, delivered extempore by Sharma JA, is in these terms:

"It is clear that this was a very simple case and the live issues so to speak were, identification, the written and oral confessions, alibi and the fairness of the identification parades. There was little scope or room for an experienced judge, as indeed this judge was, to go wrong in a case like this. But in the unlikely event that he did, we would have had no hesitation in applying the proviso, for we are satisfied that the case for the prosecution was not only strong, but overwhelming. That there was, in fact, the confessional statement which the jury obviously believed and the identification in the circumstances were enough to enable the witness Nash to identify the first and second appellants a few days later at identification parades. This was clearly not a fleeting glance situation. He had spent some time in the company of these people under conditions, as we have said, that were quite capable of establishing the identity of these two people.

Therefore, it is in these circumstances we do not think that there could have been any miscarriage of justice. The issues as we have said were very short, fell within a narrow compass and would have given the jury absolutely no difficulty in arriving at their verdict.

In this case the issues were very simple, and a reasonable jury, properly directed, could come to no other conclusion."

Their Lordships have also had the advantage of studying a transcript of the proceedings in the Court of Appeal. From the transcript and from this passage in the judgment it can be seen that the Court of Appeal really proceeded throughout on the assumption that this was such a simple case that an experienced judge was unlikely to have gone wrong. For the reasons that their Lordships have just explained, that assumption is much too fragile. Rather, the appeal has to proceed on the assumption that the judge did not give the necessary Turnbull directions in respect of the identification evidence of the central witness in the case. In these circumstances their Lordships must exercise their own judgment as to the advisability of applying the proviso.
11. The Court of Appeal rightly considered that, on paper, the case against the appellants was a strong one. But the whole point of the Turnbull directions is to draw the jurors' attention to the potential dangers of identification evidence even when it is given by a witness who appears to be reliable. It cannot therefore be assumed that, if properly directed, the jury would necessarily have accepted Nash's evidence even if, on paper at least, it appeared satisfactory. Like the Board, the Court of Appeal had available to them the judge's notes of the evidence, including the evidence of Nash. It is no criticism whatever of those notes to say that they were, inevitably, in a truncated form in which at times the note of the answer can be seen to reflect what must have been the terms of the question. As has been observed time and again, even with the advantage of a full transcript of evidence an appeal court is not in anything like the same position as those who saw and heard a witness to assess the credibility and reliability of the witness's evidence. Greater still must be the difficulty for an appellate court, such as the Board in this case, that has access only to the judge's notes.
12. The Board has previously indicated the approach that should be adopted by an appeal court when a judge has failed to give a jury proper directions on identification evidence. In Freemantle v The Queen [1994] 1 WLR 1437, 1440 their Lordships quoted various passages from earlier decisions where the Board had stressed the care that should be exercised in applying the proviso in these circumstances. It is unnecessary to repeat them. Before that, in Beckford v The Queen (1993) 97 Cr App R 409, 415-416 their Lordships had referred to "the very important Australian case", Domican v The Queen (1992) 173 CLR 555, and had quoted part of a passage from the judgment of Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ in the High Court of Australia. The passage (173 CLR at pp 565-566) can with advantage be set out more fully in this case where it is of particular assistance:

"A trial judge is not absolved from his or her duty to give general and specific warnings concerning the danger of convicting on identification evidence because there is other evidence, which, if accepted, is sufficient to convict the accused. See R v Bartels (1986) 44 SASR [260] at pp 270-271; cf R v Goode [1970] SASR 69, at p 77. The judge must direct the jury on the assumption that they may decide to convict solely on the basis of the identification evidence. If a trial judge has failed to give an adequate warning concerning identification, a new trial will ordinarily be ordered even when other evidence makes a very strong case against the accused. See R v Gaunt [1964] NSWR 864, at p 867. Of course, the other evidence in the case may be so compelling that a court of criminal appeal will conclude that the jury must have convicted on that evidence independently of the identification evidence. In such a case, the inadequacy of or lack of a warning concerning the identification evidence, although amounting to legal error, will not constitute a miscarriage of justice. But unless the Court of Criminal Appeal concludes that the jury must inevitably have convicted the accused independently of the identification evidence, the inadequacy of or lack of a warning concerning that evidence constitutes a miscarriage of justice even though the other evidence made a strong case against the accused."

In the present case the other evidence against the appellants fell far short of being so compelling that the jury would inevitably have convicted on it independently of Nash's identification evidence. Similarly, although their Lordships are content to proceed on the basis that Nash's evidence was of a good quality, they have no basis for saying that it was of exceptionally good quality. They are therefore unable to accept Mr Dingemans' submission that the Board should treat the evidence in this case as comparable with the evidence in Freemantle v The Queen where the Board did find it possible to apply the proviso even though the proper directions on identification had not been given. It is enough to point out that in Freemantle's case there were two eye witnesses, one of whom had known the appellant for about 15 years and the other of whom had known him for at least 8 years. Here, by contrast, Nash came from Grenada and had never seen the men in question before the evening of the murder. The circumstances of this case do not permit their Lordships to apply the proviso.
13. The appeals must accordingly be allowed and the appellants' convictions set aside. That being so, it is unnecessary for the Board to consider the other arguments advanced on behalf of the appellants or either of them. Mr Dingemans did not suggest that in the event of the convictions being quashed the Board should remit to the Court of Appeal to consider whether there should be a retrial. He was right not to do so. Given that the murder took place more than 17 years ago, it would not now indeed be possible in this case for the appellants to receive a fair trial. They have, moreover, been in prison since their arrest in 1985. In these circumstances the Board will simply allow the appeals and quash the convictions.