Privy Council Appeal No. 62 of 2002
(1) Alexander Benedetto Appellant
The Queen Respondent
Privy Council Appeal No. 88 of 2002
(2) William Labrador Appellant
The Queen Respondent
THE EASTERN CARIBBEAN COURT OF APPEAL
(BRITISH VIRGIN ISLANDS)
JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL,
Delivered the 7th April 2003
Present at the hearing:-
Lord Bingham of Cornhill
Lord Hope of Craighead
Lord Rodger of Earlsferry
[Delivered by Lord Hope of Craighead]
(1) The facts (paras 5-11)
(2) The criminal proceedings in BVI (paras 12-24)
(3) The grounds of appeal before the Board (paras 25-26)
(4) The cell confessions (paras 27-35)
(5) The need for a warning in Labrador's case (paras 36-38)
(6) Further comments on Plante's evidence (paras 39-45)
(7) The case against Benedetto (paras 46-49)
(8) The need for a lies direction (paras 50-52)
(9) The conduct of the prosecutor at the trial (paras 53-57)
(10) Fresh evidence in the Court of Appeal (paras 58-68)
(11) Whether the fresh evidence should have been rejected (paras 69-72)
(12) The conduct of the appeal before the Board (paras (73-76)
(13) Conclusion (para 77)
The criminal proceedings in BVI
"About two days or two days anyway before Good Friday, we were both Roman Catholic and Mr Labrador had kind of left the religion and was trying to get back in, and I had a lot of Catholic bibles and prayer books, I was doing some Lenten praying in the evening, and Mr Labrador asked me did I think God would forgive him if he had anything to do with killing someone. And I told him that I was uncomfortable with that and he ought to talk to Father Peters who was the priest here in Road Town with St. William's Church. At that point, I asked him directly, did he have anything to do with killing Lois McMillen and he answered me yes. And I asked him why. And he said that it was over money and that she was no good. And I asked him how, how did that happen. And he said that they were driving from West End, and they were arguing, the argument got heated and that she tried to pull into the police station and he prevented that and that one thing led to another; it got out of control and that he dragged her into the water and put his foot on the back of her neck and drowned her. He then went on to say that the jeep, her jeep, was taken to the ferry landing and that he took a trail from there up to Mr Spicer's house and I believe [it] took about 45 minutes."
He also claimed that Labrador had a long knife with him in the cell and that it had been found by the prison officials (transcript, vol V, 18 April 2001, pp 41-42).
The grounds of appeal before the Board
The cell confessions
"it is the duty of the judge to sift narrowly, by previous examination, the circumstances in which it has been obtained, and of the jury to remember that even when presented in the most exceptional form, it is always of a suspicious character; that it often proceeds from a hoped or obtained exemption from prosecution, in consideration of the evidence so tendered, and generally flows from the most worthless of the community, who have superadded to the crimes for which they were themselves placed in confinement, the betrayal of their fellow-prisoners, who had incautiously confided to them the secrets of their lives."
Human nature being what it is, the risks mentioned in that passage are still present in every legal system under which cell confessions are held to be admissible in evidence. As the cases of Bevan and Griffith v The Queen (1993) 82 CCC (3d) 310 and Pollitt v The Queen (1992) 174 CLR 558 show, this problem has recently been addressed in Canada and in Australia. That is the background to the examination of the problem which the Board undertook in R v Pringle.
"The indications that the evidence may be tainted by an improper motive must be found in the evidence. But this is not an exacting test, and the surrounding circumstances may provide all that is needed to justify the inference that he may have been serving his own interest in giving that evidence. Where such indications are present, the judge should draw the jury's attention to these indications and their possible significance. He should then advise them to be cautious before accepting the prisoner's evidence."
The need for a warning in Labrador's case
Further comments on Plante's evidence
(1) He claimed not to remember the evidence which he gave against his fellow prisoner in Hawaii, and then suggested that it was so trivial that it took only about five minutes (transcript, volume V, 18 April 2001, p 98-99). A transcript of his evidence, which was produced at the trial, extends to 32 pages of evidence and legal argument. It indicates that his evidence, which was similar in some respects to that which he gave against Labrador, took at least thirty minutes.
(2) He lied about his past convictions. For example, he denied any convictions while in BVI (transcript, volume IV, 17 April 2001, pp 79-80). In fact he had been convicted of overstaying his landing rights in BVI for which he received a sentence of three months imprisonment on 12 October 1999. He stated that the only convictions which he had were in Texas (ibid, p 80). But he had also been convicted in Florida in 1964 for issuing worthless cheques. He denied that he had been convicted for passing a bad cheque in 1993 (ibid, p 158). In fact he was convicted of three such offences in 1993, and his parole was revoked in the same year for further offences of dishonesty. He admitted only one parole violation leading to his reincarceration. His record shows that his parole was revoked twice, in 1987 and again in 1993.
(3) He claimed several times that he had been given permission by his parole officer to leave Texas in 1999 to visit BVI (eg transcript, volume IV, 17 April 2001, pp 164, 169). He rejected the suggestion that he had a motive to lie in order to ingratiate himself with the authorities in BVI. He said that he had nothing to fear if he were to return to Texas (transcript, volume V, 18 April 2001, pp 27-31). This was not true. When he was returned to Texas in December 2001 his parole was revoked for, among other reasons, leaving the State without permission.
The case against Benedetto
The need for a lies direction
"I will deal first with the evidence for the defence and having got that out of the way, I will then deal with the evidence of Jeffrey Plante and show you where out of the mouth of Labrador has come the support to what Jeffrey Plante has told you." (Transcript, Volume VIII, 8 May 2001, pp 47-48)
He ended his speech by relying once again on alleged lies by Labrador in support of his assertion that the Crown had proved that he was guilty.
The conduct of the prosecutor at the trial
"It cannot be over-emphasised that the purpose of a criminal prosecution is not to obtain a conviction; it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented; it should be done firmly and pressed to its legitimate strength, but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings."
This is not to say that a standard of perfection is expected. In practice this is, no doubt, unattainable. But the defendant has an absolute right to a fair trial, as the Board explained in Randall v The Queen  1WLR 2237 at p 2251B-D. If the departure from good practice is so gross, or so persistent or so prejudicial as to be irremediable, an appellate court will have no choice but to hold that the trial was unfair and quash the conviction.
(1) He devoted much of his speech to an attack on the credibility of Labrador and his witness, Tisha Neville. There was more than a hint of xenophobia in the methods which he used to develop this attack, as he sought to align himself with the local jury against these American witnesses: eg "We who have been brought up in the British tradition of justice" will not tolerate any disrespect by anyone "no matter who it may be or where they come from" to the laws and morals of "our country" (p 45); referring to Tisha Neville: "This woman is playing with our grey matter. She figure that they can come from their big country and fool people here" (p 91); referring to Labrador's statement, in answer to a question from the jury, that he was not angry when he discovered that Plante had given the police a statement: "If that is the American way, we in the West Indies know it is different" (p 96); asserting that it was the jury's job to decide whether Plante was speaking the truth, "Not any American witness who has her own agenda" (p 102).
(2) He began his attack on Labrador's credibility by referring to an incident during the trial when the judge had occasion to rebuke Labrador's sister for gesturing to him while he was giving evidence (pp 45-46). She denied that she was gesturing, but the judge insisted that she was. Having reminded the jury of this exchange, aligning himself once again with the jury against the Americans by using the words "we" and "our", he said: "We have respect for our judges and no one is going to come and tell our judge he is a liar. And later on I am going to show that lying is a natural tendency of the Labradors." This remark, which was the subject of a rebuke by the trial judge, was improper. Labrador's sister was not a witness and the exchange between her and the judge was not part of the evidence.
(3) He developed his attack on Labrador by suggesting that he was disloyal to his friends (p 55) and unfeeling and cold-blooded towards them (p 60), asserting that he was "taking care of numero uno" (p 70) and observing, with reference to the fact that he agreed to be treated separately from the other accused: "with a friend like that who needs enemies?" (p 68). None of these remarks was directed to his credibility. They were designed simply to prejudice the jury against him.
(4) He attacked the evidence which Tisha Neville gave about Plante's parole status and the motive which he had for lying, by suggesting that she had been fed with information by the defence and was part of "the Labrador defence team" (p 87). He suggested that the transcript of the trial in Hawaii, to which Tisha Neville referred to show similarities between the evidence which he gave against his fellow prisoner at that trial and the evidence which he had given against Labrador, was a concoction (pp 81-91), that it had been "manufactured" (p 86) and that she had "come here" to the West Indies "to pull wool over our eyes." He described her as "a woman who cannot tell the truth about anything; a woman who uses all these subterfuges" (p 92) who "had her own agenda" to say that she did not believe Plante (p 102). His sweeping denunciation of her had no foundation in fact. He had no evidence that the transcript was false. It has been subsequently been shown to have been genuine (see para 59 below).
Fresh evidence in the Court of Appeal
"Without prejudice to the generality of the preceding section of this Ordinance (supplementary powers), where evidence is tendered to the Court of Appeal under that section, the Court of Appeal shall, unless they are satisfied that the evidence if received would not afford any ground for allowing the appeal, exercise its power under that section of receiving it if –
(a) it appears to them that the evidence is likely to be credible and would have been admissible at the trial on an issue which is the subject of the appeal; and
(b) they are satisfied that it was not adduced at the trial, but that there is a reasonable explanation for the failure so to adduce it."
As is evident, this section imposes a mandatory duty on the Court of Appeal to receive fresh evidence if, in respect of that evidence, it finds both of the conditions in (a) and (b) to be satisfied. This provision is in terms identical to those of section 23(2) of the (English) Criminal Appeal Act 1968 as originally enacted, which itself reproduced section 5 of the Criminal Appeal Act 1966. Until then there had not been a mandatory duty to receive fresh evidence on appeal in any circumstances, although a discretionary power to receive fresh evidence had existed since enactment of section 9 of the Criminal Appeal Act 1907.
"For the purposes of an appeal in any criminal cause or matter, the Court of Appeal may, if they think it necessary or expedient in the interest of justice –
(a) exercise any or all of the powers conferred by section 32 on the Court of Appeal …".
For present purposes the relevant power conferred by section 32 is found in paragraph (c) of that section:
"if they think fit receive the evidence, if tendered, of any witness (including the appellant) who is a competent but not a compellable witness, …".
Whether the fresh evidence should have been rejected
"100. During the hearing of this appeal, Counsel for Labrador asked this Court to look at statements of numerous witnesses who gave no evidence at the trial, in order to arrive at a just decision in this matter. These statements were all unsworn and untested. As I understood Mr Fitzgerald, he did not intend calling these witnesses, he was not reopening the case, and he was not asking for a retrial. His sole purpose was for us to use the statements, as they were, against the case for the Crown.
101. I have never before encountered this procedure as suggested by Mr Fitzgerald. I know that the Privy Council, within recent times, have been encouraging a procedure for the production of statements at the hearing of appeals before that body. However, if I am not mistaken, when they do so, they would purport to act under the fresh evidence rule and they would then refer the matter to the inferior tribunal to have the witnesses testify and the evidence tested. I do not subscribe to the view that a Court of Appeal could arrive at a just decision, and quash a conviction, relying on unsworn and untested statements, as submitted by Mr Fitzgerald. To accede to such a submission would be to create a procedure of horrendous magnitude.
102. On this question of doing justice, I may have been persuaded by this argument of learned Queen's Counsel, if what he sought to do was e.g. to produce a legally authenticated official document, say, Plante's record of previous convictions, had Plante not admitted his dishonest and criminal "degrees". It could then have been successfully argued that the admission in evidence of such a document, which was legally permissible without more, would have assisted in determining the overall justice of the case. But I do not see how that end could have been achieved by asking us to look e.g. at two conflicting unsworn and untested statements of the Hawaii prosecuting authorities, as to why Plante was not called as a witness at the new trial of the accused there. That is a virtually impossible task and, as earlier mentioned, a bad precedent. Justice is a two way street.
103. Also, Plante testified that Labrador had a knife in the prison cell and as a result he was afraid of Labrador. Mr Fitzgerald asked us to look again at an unsworn and untested statement from the Prison Authorities, which stated that they found no knife in the cell. In my view, merely looking at that statement would not assist. It was not evidence in the case. In any event, the statement is not unequivocal. The fact that no knife was found did not necessarily mean that none was there.
104. Mr Fitzgerald advised the Court that he was not seeking to adduce fresh evidence as contemplated by the fresh evidence rule. He said this despite what he said in his skeleton arguments that he was inviting the Court to admit the evidence pursuant to S.32 of the West Indies Associated States Supreme Court Virgin Islands Act Cap 80.
105. The provisions of this Act do not admit of the procedure suggested by Mr Fitzgerald. I do not propose to use the statements in my determination of this matter. In any event, their proposed probative value related only to Plante's credibility which was within province of the jury and quite unsuited for this Court. In my opinion, even if it were legally permissible for us to use them, my conclusion would have been, that so much having already been evidenced by way of challenge to Plante's credibility, that I am certain that the jury hearing this additional evidence, would, having regard to the other circumstances of the case, have had the same opinion of Plante's credibility as they had at verdict stage.
106. I would therefore refuse the application. Diligence of counsel for Labrador at his trial could have had that evidence displayed before the jury. No reasonable explanation has been proffered to this Court why the evidence was not given at the trial. [See Williams Cardinal v R. (1998) 53 WIR 162].
(1) It is not a conclusive objection to the reception of a statement that it is unsworn and untested. It may be obviously correct and there may be no need to test it. There are also reported cases in which police officers, on whose credibility a conviction depended, are subsequently shown to have been guilty of such gross misconduct in other cases as to undermine the safety of any conviction based on their evidence: R v (Maxine) Edwards  2 Cr App R 345; R v Campbell (14 October 1999, unreported, CACD, No 99/0642/W5). In such a case it may be enough for the court to be told of the later misconduct, without any need to enquire into the officers' conduct in the particular case.
(2) Where the evidence of witnesses was not obviously correct and was challenged by the prosecution, the court would be rightly reluctant to receive the evidence unless the witnesses were called. But it was not necessary for Mr Fitzgerald to reopen the case save to the extent inherent in any appeal. Nor was it incumbent on him to seek a retrial: he was entitled to seek to adduce the fresh evidence and to ask that the conviction be quashed in the light of it; only on the quashing of a conviction would the question of retrial arise (R v Pendleton  UKHL 66,  1 WLR 72, 83H-84A, paragraph 20).
(3) Having read the transcript of the appeal hearing, the Board cannot accept that "Mr Fitzgerald advised the Court that he was not seeking to adduce fresh evidence as contemplated by the fresh evidence rule" (para 104). It appears that this is exactly what Mr Fitzgerald was seeking to do.
(4) While there might well be other grounds for resisting reception of witness statements relating to Plante's credibility, it was not a good ground for rejecting them that "their proposed probative value related only to Plante's credibility which was within [the] province of the jury and quite unsuited for this Court" (para 105). The credibility of Plante was the central issue in the trial, and it is true that the jury had ample grounds for questioning it. But it would be a very extreme proposition that because the jury accepted Plante's evidence despite ample reason to doubt it they would necessarily have accepted it no matter what additional grounds there were to doubt it.
(5) If an application to adduce fresh evidence is to be rejected on the ground that the evidence could and should have been adduced at trial, it is usually necessary to relate that conclusion to the particular evidence in question and to the stage at which the defence should reasonably have appreciated the need to adduce it.
(1) Melissa Noble's verification of the Hawaii trial transcript. There was in truth no reason to question the authenticity of this transcript when it was produced at trial. Despite this, Mr Guerra found it possible to suggest to the jury that the transcript had been "manufactured" (transcript, volume VIII, 8 May 2001, page 86), that Miss Neville who had received the transcript was "part of the Labrador defence team" (ibid., page 87) and that she was "part of a plot to undermine Plante's evidence" (ibid., page 88). In his summing-up to the jury, the judge left open the question whether the transcript was genuine (pages 89, 90). The notarised statement by Miss Noble verifying the transcript left no room for reasonable doubt as to its authenticity. This had become an issue of some significance, less because of the length of Plante's evidence at that trial (although clearly this was longer than he suggested) than because of the attempt made to use doubts about the authenticity of the transcript as a ground for impugning the otherwise damning evidence of Miss Neville. Unless some good reason were given for not receiving Miss Noble's statement in evidence, and none was offered to the Board, this statement should have been received and its significance weighed in the overall consideration of the case.
(2) The newspaper articles. There was no question about the authenticity of the articles relied on, which showed that drowning had been publicised as the cause of death of the deceased from as early as 6 February 2000. If Plante had read any of these newspaper articles, they would have provided good ground for challenging any submission that Plante had not known drowning was the cause of death until Labrador had told him. If, as the judge suggested to the jury (summing-up, page 85), the pathologist had not himself concluded that drowning was the cause of death at the time of Labrador's alleged confession, this was an apparently compelling point in Plante's favour. It was not, however, a point on which any reliance was placed in the prosecutor's opening speech, and the defence were not thereby alerted to the need to explore other sources from which Plante could have acquired knowledge of the cause of death. As it was, some questions were asked of Plante in cross-examination about his reading of the newspapers: he said he had kept up with the press "somewhat" but did not think the cause of death was in the papers and had not read it there anyway (transcript, volume V, 18 April 2001, page 126), and later that he had had familiarity with what was published about the case, although "not everything, certainly" (ibid, page 156). Had the defence appreciated that significance would be attached to Plante's knowledge of drowning as the cause of death as evidence of his credibility, it would seem overwhelmingly probable that the newspaper articles which it was sought to adduce in evidence in the Court of Appeal would have been put before the jury and that Plante would have been cross-examined upon them. In these circumstances it would have been hard to escape the conclusion that the interests of justice would be best served by receiving this evidence on appeal.
The conduct of the appeal before the Board
"Testimony of RELEASEE: RELEASEE was a witness in a murder trial in the British Virgin Islands. He was under a court order to remain in the Virgin Islands and when the court order expired, the Crown Counsel Terrance WILLIAMS came up with these charges so that RELEASEE would remain there to testify in the murder trial. RELEASEE was never brought before a Judge and he never pled guilty to the charges. RELEASEE was held for 60 days but he was never sentenced."
This evidence was in direct conflict with the known facts. It supports the defence contention that Plante was a man willing to lie whenever he thought it advantageous to do so. There is no reason to question the authenticity of this material, which was referred to at the hearing of the petition for special leave. In a case where the motivation and credibility of Plante are the crucial issues, it would have been appropriate to receive and take account of this material had it been necessary to do so in order to decide these appeals. As it is, it reinforces the Board's view (see para 45) that it would not be in the interests of justice that in Labrador's case there should be a new trial.
(1) that notice of any application to adduce fresh evidence be given to the other party or parties and to the Board;
(2) that an affidavit in support of such application be sworn and served, giving the grounds of the application and the reasons for seeking to adduce fresh evidence before the Board;
(3) that copies of the evidence in question be exhibited to any such affidavit; and
(4) that such application, affidavit and exhibits be lodged with that party's Case.
While it is open to the Registrar to allow additional time, and the Board may itself permit evidence to be adduced despite non-compliance with this timetable, it should be clearly understood that departure from the timetable will be permitted only exceptionally and only where this course is necessary or expedient in the interests of justice.