Pipersburgh & Anor v. The Queen (Belize)  UKPC 11 (21 February 2008)
Privy Council Appeal No 96 of 2006
(1) Leslie Pipersburgh
(2) Patrick Robateau Appellants
The Queen Respondent
THE COURT OF APPEAL OF
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JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL
Delivered the 21st February 2008
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Present at the hearing:-
Lord Bingham of Cornhill
Lord Scott of Foscote
Lord Rodger of Earlsferry
Lord Neuberger of Abbotsbury
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[Delivered by Lord Rodger of Earlsferry]
"First, the police held no identification parade and in consequence the identification of the appellant was a dock identification. The failure to hold an identification parade was contrary to the practice in Belize as explained by the Court of Appeal in Myvett and Santos v The Queen (unreported) (9 May 1994, Criminal Appeals Nos 3 and 4 of 1994):
'The detailed code adopted in England for the holding of identification parades to have suspects identified is intended to ensure that the identification of a suspect by a witness takes place in circumstances where the recollection of the identifying witness is tested objectively under safeguards by placing the suspect in a line made up of like looking suspects, the English procedure is in practice followed here in Belize.'
The facts that no identification parade had been held and that Adolphus identified the appellant when he was in the dock did not make his evidence on the point inadmissible. It did mean, however, that in his directions to the jury the judge should have made it plain that the normal and proper practice was to hold an identification parade. He should have gone on to warn the jury of the dangers of identification without a parade and should have explained to them the potential advantage of an inconclusive parade to a defendant such as the appellant. For these reasons, he should have explained, this kind of evidence was undesirable in principle and the jury would require to approach it with great care: R v Graham  Crim LR 212 and Williams (Noel) v The Queen  1 WLR 548."
"In a situation like this, the proper course of action, I would say to you, where you have witnesses not giving you names of the persons they are seeking to identify, the proper course was for the police, as Mr Willis said, was to held an ID parade or an identification parade. The purpose of an identification parade is to ensure that accused persons identified by witnesses in a line-up over nine – sorry. The purpose of the identification parade is to ensure that the person identified by a witness is identified from a line-up of, say, nine or twelve persons of similar height, size, complexion and, preferable, race. This serves to make the identification a fair one, and one from which the jury can more accurately say that this was in fact the person that was identified. It is unfortunate, therefore, that the identification parade was never held.
Now, these witnesses, madam forelady and members of the jury, you would recall, based their identification of the accused persons on recognition, because they said they had known the person before, they worked with them at the same place. But although that is so, madam forelady, and perhaps that's the reason why the ID parade was never held, I need to tell you that, or I need to remind you, that mistakes in recognition even of close friend and relatives are sometimes made. For there to be some certainty as to who accused persons are, it comes back to the ID parade. There ought to have been an ID parade to ensure that those persons were the persons that the witnesses say they saw. But, nevertheless, you have heard the evidence, they have say that they know them and on that evidence, if you accept it, or you believe it and you are sure of it, you can come to a conclusion that those were indeed the persons who were on the compound and who indeed fired the shots and caused the death of Kevin Alvarez and Fidel Mai."
"It is patent that the trial judge did not follow Pop to the full extent, and that much was conceded by the Director. We think that the jury would have appreciated from what he had said that there was a danger of accepting the identification evidence where a parade had not been held. It is not disputed that he did not explain the potential advantage of an inconclusive parade to the accused persons. The argument has not been advanced before us that the full Turnbull guidelines were not followed by the trial judge in this case. The importance of exercising special caution in a case depending on identification evidence was amply stressed in our opinion. But this case did not depend wholly on visual identification by a sole witness. This was not a case of a fleeting glance or identification in difficult services [sic: circumstances?], albeit at night. The lighting was generally described as bright, distances were not significant and opportunity was adequate. The witnesses were not strangers to the appellants; they were security guards at the workplace of the appellants and prior to the incident were acquainted with them over various periods although they did not know their names. The appellant Robateau did not challenge in his statement from the dock the witnesses' knowledge of him. The identification was by recognition and, as to this, the trial judge gave proper directions. We would add that there was supporting evidence connecting this appellant with the crime. This would incline us to apply the proviso as we are of opinion that no substantial miscarriage of justice would have occurred."
"It is necessary, however, to distinguish between directions which a judge gives on the approach to be adopted in relation to eye-witness identification evidence in general and directions on the dangers of dock identification evidence, in particular. The Lord Justice-Clerk referred to the Lord Justice-General's 1977 Practice Note and to a series of decisions in which the appeal court have given guidance on eyewitness identification in general. Important as these are in relation to that matter, they do not deal with the peculiar dangers of a dock identification where a witness previously failed to identify at an identification parade."
In other words, a judge does not discharge his duty, to give proper directions on the special dangers of a dock identification without a prior identification at an identification parade, by giving appropriate directions on the approach to be adopted to eyewitness identification evidence in general. Though related, the issues are different and, where they both arise, the judge must address both of them. So, in the present case, even assuming that the judge gave adequate Turnbull directions on the difficulties inherent in all identification evidence, this does not mean that, taken as a whole, his directions were adequate where the identifications were dock identifications without a previous identification parade.
"In the hearing before the Board the Advocate-depute, Mr Armstrong QC, who dealt with this aspect of the appeal, accepted that identification parades offer safeguards which are not available when the witness is asked to identify the accused in the dock at his trial. An identification parade is usually held much nearer the time of the offence when the witness's recollection is fresher. Moreover, placing the accused among a number of stand-ins of generally similar appearance provides a check on the accuracy of the witness's identification by reducing the risk that the witness is simply picking out someone who resembles the perpetrator. Similarly, the Advocate-depute did not gainsay the positive disadvantages of an identification carried out when the accused is sitting in the dock between security guards: the implication that the prosecution is asserting that he is the perpetrator is plain for all to see. When a witness is invited to identify the perpetrator in court, there must be a considerable risk that his evidence will be influenced by seeing the accused sitting in the dock in this way. So a dock identification can be criticised in two complementary respects: not only does it lack the safeguards that are offered by an identification parade, but the accused's position in the dock positively increases the risk of a wrong identification."
Allowing for any differences in practice, their Lordships consider that these observations apply equally to the position in Belize.
"Persons other than police officers charged with the duty of investigating offences or charge offenders shall so far as may be possible comply with these rules."
He argued that, in the circumstances, the ambassador could, in effect, be regarded as a person charged with the duty of investigating the offences in terms of the rule.
"At this stage, I must say that I agree with the argument of Ms Moyston that a voir dire should have been held because that would have been the best course of action to take so that the court would have sufficient material before it to determine not only the legal issues involved but the whole question of the voluntariness of the statement. It would only be in the voir dire that the judge would be able to have before him exactly what Robateau said and how he said it for the judge to consider whether, to begin with, what he said was incriminating and then to determine whether he said it in a voluntary way or not" (emphasis added).
Despite this, he then proceeded to hold that the ambassador did not fall within the scope of Rule 15 and concluded that
"In the circumstances I find the Judges' Rules, particularly Rule 15 does not extend to Ambassador Figueroa in this instant case, as he's not a person in a position, analogous, an investigator or to a person charged with the duty to investigate or to charge anyone for any crime which that person may have committed. In the circumstances I do not consider myself having the discretion to disallow anything Robateau might have told the Ambassador when he was being interviewed by the Ambassador in Mexico. Ruling according."
"What happened was that it occurred to me that this was a very soft spoken and humble and polite young man. Throughout the few minutes that I spent with him that day and the day before, he was always very polite.
The Court: He was very polite and what else?
Wtness: Soft spoken, humble, respectful and I said to him, 'Mr Robateau, you seem like such a nice person, such a nice young man. Yu polite and yu humble, respectful. I said to him, 'I don't understand how you could do such a terrible thing.'
The Court: Yes?
Witness: He said to me, 'I don't understand how I did it either.' He said, 'Things just got out of control an ih happen so fast that when it was over – it wasn't until it was over that I realised what he have done.'
The Court: Things got out of control?
Witness: And that it happened so fast that it wasn't until it was over that he realised ['relied' in the transcript] what they have done or in his case, 'What we had done.'
The Court: That I realised what I have done?
Witness: What we have done.
The Court: Yes?
A. We continued to converse – well, actually what he said to me in the conversation is that I asked him if he understood how much pain he had caused to families and he said, 'Yes,' he did understand how much pain he had cause to families. And also – am trying to remember if it was right before or after that he said when it was over that they panicked and all they could thing of was getting out of Belize."
"My purpose was to be as cautious as possible. I would not have wanted to unfairly put anyone in a position that [he] not deserve to be in and at the same time, as a member of this community, I would not have wanted to let two fugitives to slip out of fingers. I was simply trying to be cautious and protect both sides."
In reply to the judge, Mr Figueroa really repeated this part of his evidence, again concluding with the comment that, "as a member of this community, I would not have wanted anyone to slip through my fingers, in fact, if they were the fugitives."
"When fixing the date of a sentencing hearing, the trial judge should direct that social welfare and psychiatric reports be prepared in relation to the prisoner.
The burden of proof at the sentencing hearing lies on the prosecution and the standard of proof shall be proof beyond reasonable doubt."
That guidance was affirmed and applied by Alleyne JA in a subsequent appeal to the same court from Saint Vincent and the Grenadines, Charles v The Queen 6 December 2004. The Board considers that both aspects of Sir Dennis Byron's guidance should be applied by courts in Belize and should indeed be incorporated into any future guidance given by the Court of Appeal.
"17. The cases mentioned in the foregoing paragraph establish that the first principle by which a sentencing judge is to be guided in these cases is that there is a presumption in favour of an unqualified right to life. The second consideration is that the death penalty should be imposed only in the most exceptional and extreme cases of murder. At the hearing, the convicted person must raise mitigating factors by adducing evidence, unless the mitigating facts are obvious from the evidence given at the trial. The burden to rebut the presumption then shifts to the Crown. The Crown must negative the presence of mitigating circumstances beyond a reasonable doubt. The duty of the sentencing judge is to weigh the mitigating and aggravating circumstances that might be present, in order to determine whether to impose a sentence of death or some lesser sentence.
18. It is a mandatory requirement in murder cases for a judge to take into account the personal and individual circumstances of the convicted person. The judge must also take into account the nature and gravity of the offence; the character and record of the convicted person; the factors that might have influenced the conduct that caused the murder; the design and execution of the offence, and the possibility of reform and social re-adaptation of the convicted person. The death sentence should only be imposed in those exceptional cases where there is no reasonable prospect of reform and the object of punishment would not be achieved by any other means. The sentencing judge is fixed with a very onerous duty to pay due regard to all of these factors.
19. In summary, the sentencing judge is required to consider, fully, two fundamental factors. On the one hand, the judge must consider the facts and circumstances that surround the commission of the offence. On the other hand, the judge must consider the character and record of the convicted person. The judge may accord greater importance to the circumstances, which relate to the commission of the offence. However, the relative importance of these two factors may vary according to the overall circumstances of each case."
It is the need to consider the personal and individual circumstances of the convicted person and, in particular, the possibility of his reform and social re-adaptation which makes the social inquiry and psychiatric reports necessary for all such sentence hearings.