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JUDGMENT
BACKGROUND
[1] The appellant was charged with theft of a motor-car on the 2n or 3rd
December, 2001. After a trial before a judge and jury he was on the 7th
February, 2005, found guilty of the offence charged and was subsequently
sentenced to six years' imprisonment. He was tried together with another man
by the name of Quimby who was charged with dishonestly receiving the
motor-car knowing it to have been stolen. Quimby was also convicted and was
sentenced to seven years' imprisonment. Neither accused was represented at
the trial.
[2] The appellant appealed to the Court of Appeal against both conviction
and sentence and on the 28th February, 2008, the Court of Appeal (Simmons CJ,
Peter Williams and Connelly JJA.) dismissed his appeal and affirmed both his
conviction and sentence. Quimby had earlier lost his appeal against
conviction but had his sentence reduced by the Court of Appeal to four years.
[3] The appellant was granted special leave to appeal to this Court against
the dismissal by the Court of Appeal of his appeal against conviction and on
the 17th November, 2008, we heard and dismissed his substantive appeal. We
promised then to give our reasons in writing and we now proceed to do so.
THE EVIDENCE
[4] The case against the appellant was founded on self-incriminatory
statements allegedly made by him both orally and in writing. Evidence of
these statements was provided by a police officer, Sergeant Frederick
Catwell, who participated in the investigation. For the purpose of giving
evidence of the oral admission made by the appellant, Sergeant Catwell was
allowed to refer to his official police notebook in which he said he had
recorded the exchange between them. With the help of his notes, Catwell
testified that the appellant said: "Truthfully speaking, I is who take up
this car but I had all intentions of carrying it back. I got frighten and I
give it to a mechanic fella name B".
[5] Sergeant Catwell also testified to the giving of a written statement by
the appellant in which the appellant effectively confessed to the theft of
the motor-car, explaining how he had picked a door-lock with a metal hanger,
bridged wires to start the car, drove it off and gave it to a 'mechanic
fella' whom he knew as "B". There was another police officer, PC Boyce, who
was present when the oral admission was allegedly made and also when the
written statement was taken from the appellant, but P.C. Boyce was not
called as a witness.
[6] The appellant conducted his own defence at the trial with such help as
the presiding judge, Greenidge J., was able to provide. The appellant denied
making the oral admission and claimed that he was forced to sign a prepared
statement put before him as a result of physical abuse inflicted by Sergeant
Catwell. Accordingly, a voir dire was held to determine the admissibility of
the written statement, in which Sergeant Catwell testified and the appellant
made an unsworn statement. At the conclusion of the voir dire the judge rose
and after some 18 minutes returned to announce his ruling, which was that
the written statement was admissible.
GROUNDS OF APPEAL
[7] The appeal to this Court was based on the claim that the admission of
both the oral and the written statements into evidence was wrongful. With
regard to the oral statement, the challenge to its admission (as argued
before us) had two limbs. The first was that the effect of the judge
granting Sergeant Catwell leave to refresh his memory from his notebook, was
tantamount to admitting into evidence the contents of a document which was
rendered inadmissible by section 73(1) of the Evidence Act ('the Act') for
lack of authentication by the appellant. The second limb was that the judge
never considered, as he was required to by section 145 of the Act, whether
it was fair to the appellant to grant leave to the Sergeant to refresh his
memory from his notebook and that had he done so, he would or ought to have
come to the conclusion that the grant of such leave would in all the
circumstances of the case result in unfairness to the appellant.
[8] With regard to the written statement, it was argued further that having
regard to (a) the importance of the written confession to the case for the
prosecution and (b) the failure of the prosecution to call P.C. Boyce, the 'back-up'
policeman, as a witness, the judge ought to have held that the prosecution
had not proved the voluntariness of the statement to the requisite standard,
and that having regard, in addition, to (c) the failure of the prosecution
to provide the defence with a statement from PC Boyce or to produce him in
court and (d) the fact that the appellant was unrepresented, it was unfair
and therefore contrary to section 77(1) of the Act, to admit the written
statement into evidence.
THE ORAL ADMISSION: THE ISSUE
[9] Dealing first with the objections to the evidence of the oral admission,
these focus on the leave that was given to Sergeant Catwell to refresh his
memory from his official notebook. When Sergeant Catwell reached this point
in his evidence in chief, the trial judge quite properly asked the appellant
whether he had any objection to Catwell giving the evidence which he was
about to give, of the oral statements attributed to the appellant. The
appellant replied that he was objecting because he did not make those
statements. In the light of that response, there was no need for a voir dire
with respect to the oral statements, but the judge should have gone on to
ask the appellant whether he had any objection to his granting the Sergeant
leave to refresh his memory from his notebook, even though the appellant
being unrepresented would hardly have been in a position to respond
meaningfully to that inquiry. At any rate the question was not asked. In
fact the judge may not have directed his mind to the sections of the
Evidence Act which bear on the grant of leave to a witness to refresh his
memory from a document. At least, there is nothing to indicate that he did.
We must in these circumstances consider whether there is any ground on which
a judge properly directed, could reasonably have refused leave for Sergeant
Catwell to refresh his memory from the contents of his notebook.
SECTION 30 (1) AND (2)
[10] The rules which govern the grant of leave to a witness to refresh his
memory from a document, were originally established as part of the common
law, but in Barbados they have now been incorporated to some extent and with
some alterations, in the Act. At common law a witness was entitled subject
to the fulfilment of certain pre-conditions, to refresh his memory from a
note or record made by him. That entitlement has been converted to a
discretion given to the court to grant leave to the witness to refresh his
memory, this discretion to be exercised after taking into account a short
but non- exhaustive list of specified matters. This conversion has been
effected by section 30 of the Act which provides in part as follows:
"(1) A witness may not, in the course of giving evidence, use a document to
try to refresh his memory about a fact without leave of the court.
(2) The matters that the court should take into account in determining
whether to give leave include:
(a) whether the witness will be able to recall the fact adequately without
using the document; and
(b) whether so much of the document as the witness proposes to use is, or is
a copy of, a document that -
(i) was written or made by the witness at a time when the events recorded in
it were fresh in his memory, or
(ii) was, at such a time, found by the witness to be accurate."
[11] The Sergeant's evidence was that he recorded the statements made to him
by the appellant in his police notebook "at the time", so the note he
referred to had the quality of 'freshness' which was crucial at common law
and remains relevant under section 30 (2) (b). But as section 30 (2) itself
makes clear, the matters to be taken into account in deciding whether to
grant leave are not limited to those mentioned in that sub-section.
'REFRESHING' MEMORY
[12] The point was made in the course of argument that Sergeant Catwell's
own evidence suggests that he had no independent recollection of what was
said to him by the appellant, so that what he gave in evidence was what was
written in his notebook rather than what his notes helped him to remember.
[13] What Sergeant Catwell said in evidence was: "I do not recall those
statements from my memory and I am seeking the court's permission to refer
to my official notebook". It is true that his interview with the appellant
took place nearly three years before the trial but Sergeant Catwell had in
the meantime given evidence of the appellant's oral admission at the
preliminary enquiry. Even if the Sergeant had not taken the precaution of
re-reading his deposition before going into the witness-box at the trial, it
seems unlikely that his mind would have been a complete blank with regard to
what was said to him by the appellant by way of an admission. Moreover, we
do not think that the Sergeant's evidence can reasonably be construed to
mean that he could not remember the oral admission even when assisted by his
notebook. The trial judge obviously did not construe the Sergeant's evidence
in that way, as in explaining to the jury the rationale for allowing a
police officer to refer to his notes when giving evidence of what a suspect
said to him, he spoke of the impossibility of the officer remembering 'exactly'
or 'word for word' what was said.
[14] But even if Catwell's evidence did mean that, this would not help the
appellant's case as the absence of an independent recollection does not at
common law (which in this respect has not been altered by the Act) debar a
witness from obtaining leave to refresh his memory. The position is stated
in Halsbury's Laws of England[FN1] (paraphrasing Lord Tenterden CJ in
Maugham v. Hubbard[FN2]) in this way:
"It is not necessary that the witness should have any independent
recollection of the facts to which he testifies and of which he seeks to
refresh his memory, apart from the document to which he refers".
Accordingly, this point was not well taken.
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[FN1] Volume 11 (1) (2006 Reissue) para.1438
[FN2] (1828) 108 ER 948,949
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LACK OF AUTHENTICATION: SECTION 73
[15] It was also argued that because the record made of the oral admission
in the notebook was inadmissible under section 73 (1) of the Evidence Act,
not having been authenticated or acknowledged by the appellant, leave ought
not to have been granted to Sergeant Catwell to refresh his memory from the
notebook. Section 73 (1) provides as follows:
"Where an oral admission was made by a defendant to an investigating
official in response to a question put or a representation made by the
official, a document prepared by or on behalf of the official is not
admissible in criminal proceedings to prove the contents of the question,
representation or response unless the defendant has, by signing, initialling
or otherwise marking the document, acknowledged that the document is a true
record of the question, representation or response."
[16] We would mention en passant that we were a little puzzled by the
suggestion made by the Court of Appeal (at para. [38] of the judgment) that
section 73 relates to the admissibility of documentary evidence such as "a
transcript of a tape recording of an accused's statement" since section 73
(2) expressly provides that a sound recording or a transcript of a sound
recording is not to be treated as a "document" for the purposes of
sub-section (1).
[17] In our view the submission that the effect of section 73 (1) is to
preclude leave being given to refresh memory from an unauthenticated note of
an oral admission, is clearly untenable. The use of a document by a witness
to refresh his memory is totally different from putting the document in
evidence, and the two are governed by different rules. The prohibition of
one does not imply a prohibition of the other.
[18] The only sanction imposed by section 73 (1) for failure of a police
officer to get a suspect who has made an oral admission to authenticate the
note which the policeman has made of it, is to render the document
containing the note inadmissible. Further, the absence (or presence) of
authentication is not included by section 30 (2) as one of the matters to be
taken into account in determining whether leave should be given to a witness
to refresh his memory.
[19] The matter is put beyond doubt by section 137 of the Evidence Act. That
section requires a judge sitting with a jury to give the jury certain
instructions whenever certain kinds of evidence are given. Included in those
kinds of evidence in section 137 (1) (ii) is the following:
"(d) in criminal proceedings
(ii) oral evidence of official questioning of a defendant, where the
questioning is recorded in writing that has not been signed or otherwise
acknowledged in writing by the defendant."
One of the instructions which the judge is required to give to the jury in
such a case is a warning that the evidence may be unreliable. Here we have a
provision in the Act which contemplates that there may be oral evidence
given of oral admissions of which an unauthenticated record has been made.
The only way in which a judge and jury are likely to become aware of the
existence of such a record, is as a result of it being used by a witness to
refresh his memory, the record itself being inadmissible under section 73
(1).
[20] The policy of the Act appears to be to place on the trial judge the
responsibility of ensuring by his directions to them that the jury are alive
to the weaknesses of evidence of 'verbals' given by a police witness after
reference to his unauthenticated notes.
UNFAIRNESS: SECTION 145
[21] Another point made for the appellant was that the judge in granting
leave to Sergeant Catwell to refresh his memory from his notebook failed to
appreciate that he had a discretion to exercise and that in exercising that
discretion he had to take into account the matters specified in section 145
(2) of the Act.
[22] Section 145 provides as follows:
"145 (1) Where, by virtue of a provision of this Act, a court may give any
leave, permission or direction, the leave, permission or direction may be
given on such terms as the court thinks fit.
(2) In determining whether to give the leave, permission or direction, the
matters that the court shall take into account include:
(a) the extent to which to do so would be likely to add unduly to, or to
shorten, the length of the hearing;
(b) the extent to which to do so would be unfair to a party or to a witness;
(c) the importance of the evidence in relation to which the leave or
permission is sought;
(d) the nature of the proceeding; and
(e) the powers, if any, of the court to adjourn the hearing or to make some
other order or to give a direction in relation to the evidence."
[23] The specific complaint was that the judge failed to take into account
the extent to which the grant of leave to Sergeant Catwell to refresh his
memory was unfair to the appellant, as he was required to do by sub-section
(2) (b). As already mentioned, there is nothing on the record to indicate
positively that in granting leave to Sergeant Catwell the trial judge
adverted to section 145. It has been established in Australia (e.g. R. v.
Reardon[FN3]) that failure by a judge to mention the factors listed in their
equivalent of section145(2), does not necessarily mean that he did not taken
them into account. Nevertheless, in this case we will proceed on the basis
more favourable to the appellant, that is, that the judge did not
consciously direct his mind to the factors mentioned in section 145(2). The
question therefore is whether if he had done so, he could reasonably have
found that there was some circumstance(s) which rendered it unfair to the
appellant to grant to Catwell leave to refresh his memory. We answer that
question in the negative.
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[FN3] [2002] NSW CCA 203
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[24] As already pointed out, the mere fact that the Sergeant failed to get
the appellant to authenticate his note, would not of itself provide a
sufficient basis for refusing leave. Failure to have the record of an oral
admission authenticated by the person who made the admission, was never a
bar at common law to using that record to refresh the memory of the person
who made it. It was never suggested that using the record for that purpose
in such circumstances was unfair to the accused. There is nothing in the Act
which suggests that the matter should be viewed differently now.
[25] The trial judge in his summing-up drew the jury's attention to the
failure of the Sergeant to ask the appellant to authenticate his note. He
warned the jury several times that they should treat the evidence of the 'verbals'
with great care. He also referred several times to the failure of the
prosecution to call PC Boyce to 'back up' the evidence of Sergeant Catwell
in relation to both the oral and the written statements, and at one point
told the jury "... in the absence of supporting evidence, you may think that
it might be dangerous to convict ...".
[26] We do not, however, have to pass on the sufficiency of these directions,
for counsel for the appellant expressly disclaimed before us any intention
of challenging the directions given by the judge, saying that to do so would
be 'unfair' to the judge.
[27] We do not consider that either the failure of the prosecution to call
or produce PC Boyce or the fact that the appellant was not legally
represented (dealt with more fully in paras [53] - [54] below) has any
relevance to the question whether the grant of leave under section 30 to
Sergeant Catwell to refresh his memory of the appellant's oral admission,
was unfair to the appellant. In the result the judge's failure (if such it
was) to advert to section 145, produced no miscarriage of justice and
provides no basis for upsetting the appellant's conviction.
SECTION30 (3)
[28] It is important to note that separate and distinct from leave to
refresh memory under section 30 (1), there is provision for leave of a
different kind to be given under section 30 (3) of the Act. This sub-section
provides as follows -
"(3) Where a witness has, while giving evidence, used a document to try to
refresh his memory about a fact, the witness may, with the leave of the
court, read aloud, as part of his evidence, so much of the document as
relates to that fact".
[29] In this case no such leave was sought or granted. It seems to us that
in contrast to the case of a witness merely refreshing his memory from a
document, if a witness reads aloud as part of his evidence the contents of a
document, that approximates much more closely to putting the document into
evidence. Nevertheless, reading a document aloud still differs from putting
the document into evidence and is not subject to the section 73 requirement
of authentication. Cross on Evidence[FN4] explains the subtle difference:
"The Court also has a discretion to permit a witness who must revive memory
about a fact or opinion from a document to read aloud, as part of the
witness's testimony, so much of the document as relates to the fact or
opinion: s 32(3). The contents of the document thus apparently come into
evidence - not directly since the document is not marked as an exhibit and
is not part of the evidence in its own right, but as part of the witness's
oral evidence."
One assumes that if a document containing a record of an oral admission by
an accused, has been acknowledged by the accused, and is therefore
admissible under section 73, it will be put into evidence. The question
therefore, is whether it is ever proper to grant leave to a witness to read
aloud as part of his evidence from an unauthenticated record of an oral
admission and if so, in what circumstances? These questions were not
canvassed before us and do not arise in this case. Accordingly, we leave the
answers to them for another day.
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[FN4] (7th Australian Edition) para [17249]
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[30] It is sufficient for present purposes to note that leave was neither
sought nor granted in this case for the Sergeant to read aloud the contents
of his notebook. It has been suggested, however, that that is exactly what
he did do. Indeed, when one reads the relevant part of the Sergeant's
evidence, it does seem that care may not have been taken to ensure that the
Sergeant merely refreshed his memory from his notebook in accordance with
the leave granted and did not read aloud a portion of its contents as part
of his evidence. It is quite impossible, however, to conclude from the
printed page (which is all we had before us) that the Sergeant exceeded the
leave which he was given. No suggestion that he had appears to have been
made in the Court of Appeal. The trial judge, as already mentioned, regarded
this as the usual case of a witness refreshing his memory, pure and simple.
[31] We find therefore that there was nothing irregular or improper in the
use made by Sergeant Catwell of his notebook. We would urge trial judges,
however, to recognise and maintain the distinction between the two
procedures leave for which may be granted under sub-sections (1) and (3)
respectively of section 30 i.e. the refreshing of a witness's memory and the
reading aloud by a witness of the contents of a document as part of his
evidence. Judges should ensure that when leave to do the former is given,
the witness does not by the way in which he gives his evidence end up doing
the latter.
[32] In the result, the first ground of appeal which relates to the oral
admission allegedly made by the appellant, fails.
THE WRITTEN STATEMENT: GROUND OF APPEAL
[33] Turning to the appellant's complaint about the admission of his written
statement, the ground of appeal as framed in the notice of appeal reads as
follows:
"That the learned trial Judge erred in law in admitting into evidence a
written statement attributed to the [appellant] which statement amounted to
a confession when to do so was unfair to the [appellant] in all of the
circumstances of the case, given the burden of proof and the importance of
the evidence in the case: Section 77 and 135 of the Evidence Act."
The main thrust of the argument that was advanced in support of this ground
was that it was unfair to the appellant to allow the written statement
attributed to him to be introduced into evidence. It was argued in support
of the allegation of unfairness, but also as if it had been pleaded as a
separate ground, that the prosecution had failed to prove to the requisite
standard the voluntariness of the statement.
[34] On the issue of fairness, the appellant relied on section 77 of the Act
which provides as follows:
"In criminal proceedings, where evidence of confession is adduced by the
prosecution and, having regard to the circumstances in which the confession
was made, it would be unfair to an accused to use the evidence, the court
may
(a) refuse to admit the evidence, or
(b) refuse to admit the evidence to prove a particular fact."
[35] The requirement of voluntariness is incorporated in the Act by section
70 which provides as follows:
"Evidence of an admission is not admissible unless the court is satisfied
that the admission, and the making of the admission, were not influenced by
violent, oppressive, inhuman or degrading conduct, whether towards the
person who made the admissions towards some other person or by a threat of
conduct of that kind, or by any promise made to the person who made the
admission to any other person."
VOLUNTARINESS: STANDARD OF PROOF
[36] As mentioned above, although this was not pleaded as a ground of appeal,
it was submitted for the appellant that the judge ought not to have been
satisfied at the conclusion of the voir dire that the making of the
appellant's written statement was free of the influences proscribed by
section 70, and should have excluded the statement accordingly.
[37] While the ground of appeal (see para [30] above) refers to section 135
of the Act, counsel for the appellant argued that the standard of proof
which the prosecution had to satisfy in order to establish that the written
statement was given voluntarily, was proof beyond reasonable doubt as
required by section 134 of the Act.
[38] Section 134 (1) of the Act provides:
"(1) In criminal proceedings, the court shall not find the case of the
prosecution proved unless it is satisfied that it has been proved beyond
reasonable doubt."
Section 135 provides:
"(1) Subject to this Act, in any proceeding the court shall find that the
facts necessary for determining
(a) a question whether evidence should be admitted or not admitted, whether
in the exercise of a discretion or not; or
(b) any other question arising under this Act have been proved if it is
satisfied that they have been proved on the balance of probabilities.
(2) In determining whether it is satisfied as mentioned in sub-section (1)
the court shall take into account, inter alia, the importance of the
evidence in the proceedings".
[39] In Grazette v. The Queen[FN5] this court held that section 135 applies
in criminal cases to the proof of facts which provide a foundation for the
admission of evidence, and that section 134 was limited to findings of fact
based on the whole of the evidence admitted at the trial and made as part of
the exercise of determining the guilt of the accused. We adhere to that view.
Guilt must be proved beyond reasonable doubt but admissibility may be
established on a balance of probabilities. We would point out with regard to
the construction of the two sections that the words 'subject to this Act' at
the beginning of section 135 (1) have nothing to do with section 134 but are
necessary because several other sections of the Act formulate differently
the pre-condition for the making of a finding that determines the
admissibility of evidence. Some of these other sections specify that it must
be 'reasonably open' to find the relevant facts[FN6], others require that
there be 'reasonable grounds' for making the relevant finding[FN7].
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[FN5] [2009] CCJ 2(AJ)
[FN6] Sections 46 (1), 74,75,124(2)
[FN7] Sections 105 (13), 110(3) & (4)
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[40] Counsel for the appellant in support of his submission that the
prosecution had to prove the voluntariness of the appellant's statement
beyond reasonable doubt, apart from relying on section 134, referred us to a
written ruling of Denys Williams J. (as he then was) in R. v. Brijlall (unreported)
(19th October,1983). In refusing to admit confessional statements by the
accused, the learned judge said:
"The law requires that before I can admit these statements in evidence I
must be satisfied beyond reasonable doubt that they are voluntary".
[41] The Act was enacted in 1994 and in 1983 there was nothing in the
Barbados statute book comparable with sections 134 and 135. Williams J.
stated accurately in Brijlall the common law as it had developed in England
and in Barbados. It had developed differently in Australia, where in a
series of cases, beginning with Wendo v. R.[FN8] it was held that in
criminal cases the prosecution need only establish on a balance of
probabilities the preliminary facts justifying the admission of evidence (including
in the case of confessions, their voluntariness). As was pointed out by
Chief Justice Simmons in his judgment in DPP's Reference No.1 of 2001 (unreported)
(2002) at paragraph [30], the Act "is modeled after the Report of the
Australian Law Commission which proposed a new Evidence Act for Australia
but whose enactment was preceded by detailed study, proposals,
counter-proposals and an interim report." In fact it was only in 1995, after
the enactment of the Act in Barbados, that legislation to give effect to the
Report was passed in Australia at the Federal and State levels. The
Australian counterparts of sections 134 and 135 are (save for the inclusion
of something omitted from section 135 (2)) almost identical with these two
sections of the Barbados statute. It should come as no surprise, therefore,
that the Report of the Australian Law Commission and the Acts to which it
gave rise, should on this issue of the standard of proof in relation to the
admission of evidence, reflect the common law as it had developed in
Australia. Sections 134 and 135 do so and they have supplanted the common
law of Barbados as enunciated by Williams J. in Brijlall. It should be noted
that the United States Supreme Court has also held that at common law the
requirements for the admission of a confession may be satisfied on a balance
of probabilities - see Lego v.Twomey[FN9].
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[FN8] (1963) 109 CLR 559
[FN9] 404 US477 (1972)
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[42] We understand section 135 (2) to mean that the greater the importance
of the evidence the admission of which is in question, the less easily
should the court be satisfied on a balance of probabilities of the facts on
which its admission depends. In this case the written statement by the
appellant was crucial to the prosecution's case, so that there may not be
much difference in practice between establishing the voluntariness of that
statement to the standards required by sections 134 and 135 respectively.
THE ABSENCE OF PC BOYCE FROM THE TRIAL
[43] The circumstance on which the appellant relied most heavily in
challenging both the voluntariness of the statement and the fairness of its
admission, was the failure of the prosecution to call PC Boyce, the 'back-up'
police officer, as a witness or to produce him in court or to provide the
defence with a copy of a statement from him. The trial judge and the Court
of Appeal confirmed that it is the practice in Barbados for the prosecution
to call not only the police officer who in the course of the investigation
took the written statement from the accused but also the second police
officer who witnessed the taking of the statement, in order to establish
that the statement was not made under any improper influence. That is what
one would expect.
[44] At the end of the voir dire the trial judge was surprised to learn that
PC Boyce who had not given evidence at the preliminary inquiry, was not
present in court. Both the judge and prosecuting counsel expressed the view
that Boyce was an essential witness. Counsel disclosed that there was no
statement from Boyce in the file and he envisaged that it would be necessary
to serve on the accused notice of additional evidence. Counsel reported that
he had given instructions for Boyce to be present in court that day but he
did not know whether those instructions had reached Boyce. In the result,
the judge stood the matter down for a while and then adjourned it to the
following day so that Boyce might be brought to court.
[45] The following day, however, Boyce still was not present in court.
Prosecuting counsel indicated to the court that after discussion with the
Director of Public Prosecutions, he had come to the conclusion that it would
be unfair to spring on the accused a witness who had not given evidence in
the magistrates' court and had not even provided a written statement. The
judge intimated that he had been thinking along similar lines. So, the
prosecution closed its case in the voir dire without calling any other
witness apart from Sergeant Catwell.
[46] The appellant then made his unsworn statement from the dock explaining
how he came to sign the statement. He did not call any witness to support
his account of being forced to sign a prepared statement after he had been
detained for many hours and had suffered some physical violence at the hands
of Sergeant Catwell.
[47] It was highly unsatisfactory to say the least that PC Boyce was not
called as a witness at the preliminary enquiry and indeed was never required
to submit a statement or proof of evidence. No explanation for these
omissions was ever given. Be that as it may, the trial judge had the duty of
determining whether he was satisfied on a balance of probabilities that the
written statement tendered through Sergeant Catwell (if made by the accused)
was voluntary, bearing in mind in determining whether he was so satisfied
the importance of that statement in the context of the case. Having heard
and seen both Catwell and the appellant give their conflicting versions of
what occurred, the judge, although he gave no reasons, indicated by his
ruling that he was satisfied that the statement was voluntary. The learned
trial judge did not state what standard of proof he applied in making that
determination.
[48] The fact that PC Boyce was not called as a witness to support Sergeant
Catwell could not of itself have precluded the judge from finding that the
statement was voluntarily given, even if the standard of proof applicable
was proof beyond reasonable doubt. As Archbold on Criminal Pleading Evidence
and Practice[FN10] puts it:
"At common law, one witness is sufficient in all cases (with the exception
of perjury) at trial,...."
This is reinforced by section 136(1) of the Act which provides:
"It is not necessary that evidence on which a party relies be corroborated."
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[FN10] 2005 ed. para. 4-4049
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[49] There is no basis on which it can be said that the judge could not or
should not have been satisfied with the requisite degree of certainty by the
evidence of Sergeant Catwell that the written statement taken from the
appellant was made voluntarily (if made by him at all). Lack of
voluntariness therefore cannot be relied on either to challenge its
admissibility under section 70 or the fairness of its admission under
section 77.
UNFAIRNESS: SECTION 77
[50] I turn now to the other circumstances which it was suggested rendered
admission of the statement unfair to the appellant and therefore contrary to
section 77 of the Act.
[51] The first thing to note about section 77 is that the fairness or
unfairness to an accused of using evidence of confession must be determined
by reference to "the circumstances in which the confession was made". The
circumstances (apart from lack of voluntariness) on which the appellant
relied as making the introduction in evidence of his written statement
unfair, were the lack of an opportunity to cross-examine or call as a
witness PC Boyce and the appellant's lack of legal representation. These
were circumstances which related to the trial and did not exist when the
statement was taken. Therefore they were not "circumstances in which the
confession was made" and could not provide a basis for the judge refusing to
admit the statement in reliance on section 77. They could not trigger the
discretion to exclude provided by that section.
[52] But even if these other circumstances fell to be considered, they could
not serve to make the reception of the written statement into evidence
unfair. With regard to the omission of PC Boyce from the prosecution's case
and his absence from court at the trial, it is impossible to assume without
entering the realm of pure speculation, that the appellant would have
benefited from any evidence which PC Boyce might have given or any
information he might have provided with regard to the taking of the written
statement from the appellant. It was for the jury to determine the impact on
the prosecution's case of its failure to call PC Boyce to support Catwell's
evidence, and in doing so, they would have been assisted by the directions
given by the judge, the adequacy of which was not challenged.
[53] So far as the appellant's lack of legal representation is concerned,
that cannot serve to render unfair the admission into evidence of a
statement properly obtained from him. It cannot be that different rules
govern the admission of a confession depending on whether an accused is
legally represented or not. Where the court has a discretion to exclude
evidence, lack of legal representation may be a relevant factor, but it
cannot of itself create such a discretion or render evidence otherwise
admissible, inadmissible.
[54] The submission that the trial judge should of his own motion have
recommended the issue to the appellant of a legal aid certificate, was made
unsuccessfully by the appellant before the Court of Appeal. The appellant
was not given special leave by us to appeal that aspect of the Court of
Appeal's decision and so this issue is not before us. We take this
opportunity nonetheless of endorsing the view which Chief Justice Simmons
expressed in Cumberbatch v. R[FN11] that in cases where the only evidence
incriminating the accused consists of admissions allegedly made by him, it
is desirable that the accused should be legally represented.
----------------------------------------------------------------------------------------------------------------
[FN11] (2004) 67 WIR 46
----------------------------------------------------------------------------------------------------------------
[55] It follows therefore that there is no ground on which a judge properly
directed could in the circumstances of this case have refused to admit the
appellant's written statement in evidence on the ground that it would be
unfair to the appellant to admit it. Accordingly, even though there is
nothing on the record to indicate that the learned trial judge directed his
mind to section 77 and the question of unfairness before admitting the
written statement, his inadvertence, if such it was, did not result in any
miscarriage of justice and provides no basis for interfering with his
conviction.
[56] Since we found no merit in any of the grounds of appeal pleaded or
argued, we dismissed the appellant's appeal against the Court of Appeal's
decision and affirmed his conviction and sentence.
JUDGMENT OF THE HONOURABLE MR. JUSTICE ADRIAN SAUNDERS, JCCJ
[57] I agreed that this appeal must be dismissed and that the conviction and
sentence should be affirmed. It was open to the trial judge, having
conducted a voir dire on the voluntariness of the confession statement
signed by the appellant, to admit the same into evidence. Neither the
failure of Police Officer Boyce to give evidence at the voir dire to support
the voluntary nature of that statement nor the fact that Francis was
unrepresented nor indeed a combination of those matters was fatal to the
admissibility of the written statement. That statement, along with evidence
given by Quimby from the witness stand, provided a sufficient basis to
warrant the conviction of the accused. Quimby had said in his
evidence-in-chief that on the night in question he had seen Francis with the
vehicle and had actually received the vehicle from Francis. I write this
separate opinion to address only the oral statements that were allegedly
made to Sergeant Catwell by the accused.
THE STATEMENTS IN QUESTION
[58] Those oral statements were introduced and admitted into evidence during
the testimony of the Sergeant. The transcript of the trial proceedings
discloses the following exchange:
SERGEANT CATWELL: ...The accused Francis made a statement to me and other
statements during the course of my interview with him. I recorded those
statements in my official police notebook at the time. I do not recall those
statements from my memory and I am seeking the court's permission to refer
to my official notebook.
MR SEALE: Application, My Lord, for the witness to be able to refresh his
memory.
THE COURT: Mr. Francis, you have the depositions before you and you will
have read them. We are at the point now where the officer is going to
continue his evidence and seek to give in evidence statements which he
attributes to you, saying that you made them. I want to know if you are
objecting?
ACCUSED FRANCIS: Yes, Sir, 'cause I did not make them.
THE COURT: Okay. That is going to be - there are a number of statements, so
you are making a formal objection to them?
ACCUSED FRANCIS: All of them.
THE COURT: All right. Let me note that. Yes, noted your objection.
MR SEALE: Much obliged, My Lord.
SERGEANT CATWELL: When I told the accused of his right to consult with an
attorney-at-law, he said, "Talk to me sir, I will get a lawyer if I got to
go to court". I again told the accused of the report made by Rhonica Hinds,
that sometime between the 2nd and the 3rd December 2001, someone stole her
motor vehicle M- 9391, a green Suzuki Fronte motor car valued $4500 from
parked outside her residence. I told the accused that I had reason to
believe that he could assist me in this matter and I cautioned him. The
accused Francis replied, "Truthfully speaking, I is who take up the car but
I had all intentions of carrying it back. I get frighten and I give it to a
mechanic fellow..."
THE RELEVANT LEGISLATION
[59] The Evidence Act, Chapter 121, governs issues surrounding the
refreshing of memory and the treatment of admissions elicited from oral
questioning. The relevant sections for present purposes are sections 30, 73
and 145 which have all already been set out. One of the purposes for
enacting section 73 is to protect police officers from spurious allegations
of improper conduct; the very thing which, if we believe Sergeant Catwell,
has occurred here in this case. Section 72, which has not been reproduced,
promotes the same objective. That latter section provides for the electronic
recording and admissibility of confessions and admissions. Section 72 has
not yet been brought into force. Its operation has been suspended by
Parliament. We were told that the likely reason for the suspension is to
afford some time for the various police stations across Barbados to be
properly outfitted with the appropriate recording systems. Section 73,
however, is in full force and effect must be given to it.
THE GROUNDS OF APPEAL:
REFRESHING MEMORY AND READING ALOUD FROM AN INADMISSIBLE DOCUMENT
[60] As one of his grounds of appeal, counsel for Francis complained that
the trial judge wrongly permitted Sergeant Catwell "to read into evidence
information contained in an inadmissible document". The document in question
was the page of the Sergeant's notebook that contained the Sergeant's record
of the alleged oral admissions. The page had not been initialed by Francis.
In the absence of any such initialing, section 73 does indeed operate to
deem that page an inadmissible document.
[61] In response to this complaint counsel for the Crown alluded to the
difference between simply refreshing one's memory and/or reading aloud from
a document on the one hand, and tendering the document into evidence on the
other. The difference is of some significance. Indeed, section 30 of the
Evidence Act goes so far as to recognise a distinction between refreshing
one's memory from a document and reading aloud from the very document. The
section requires the court to exercise its discretion to give leave to
refresh memory separately from granting leave to read aloud from the
document. Permission only to refresh memory does not extend to permission to
read aloud from the document.
[62] One obvious difference between refreshing one's memory from a document
and putting the very document into evidence is that in the former case, the
document is used as a mere stimulus to revive one's present memory, while in
the latter case, past recollection, as recorded in the document, is allowed
to be adduced. At the trial in the instant case, no attempt was or could
properly have been made to put into evidence the un-initialed page of the
police officer's notebook. That page was clearly an inadmissible document.
But it is useful to bear in mind that, if and when a witness is permitted to
read aloud from such a document, the impact on the jury is not very
different from a situation where the inadmissible document itself is placed
before the jury. Sections 73 and 145(2) of the Evidence Act introduced
safeguards for accused persons and measures to strengthen the integrity of
the criminal procedural process. The question naturally arises as to whether
these measures would not be diminished if under the umbrella of "refreshing
memory" a police officer is, willy-nilly, permitted to read verbatim to the
jury from a document containing an admission in circumstances where the law
specifically declares that document to be inadmissible.
[63] There is another issue to consider. The jury should not lightly be
deprived of such assistance as will help them in carrying out their
fact-finding function. Giving oral testimony from one's present recollection
of events, as distinct from simply reciting the contents of a document,
allows for potentially important observations of non-verbal communication or
what is better characterized as the body language of the witness. Such
observations may sometimes be important in assessing credibility. In a brief
but helpful article on THE POLICEMAN'S NOTEBOOK written over 30 years ago,
the author noted:
...When the jury has the often difficult task of assessing the weight of
conflicting evidence, it will tend to attach perhaps greater weight to the
notebook than it was intended to have. The jury might not appreciate that
the notebook itself is not in evidence, that it is based on memory, and that
it puts the policeman under cross-examination in a defensive position which
might in some cases inhibit the recollection of features which have become
important in the running of the defence. There is no doubt that written
evidence tends to have a strong effect on a jury: it is impossible to prove
that juries are generally able to disregard this strong effect, but a mild
warning from the judge might go a long way towards redressing the balance.[FN12]
----------------------------------------------------------------------------------------------------------------
[FN12] THE POLICEMAN'S NOTEBOOK, R. F. Purves, (1971) Crim. L.R. 212 @ 216
----------------------------------------------------------------------------------------------------------------
[64] There was nothing on the record before us conclusively to suggest that
Sergeant Catwell had actually read aloud from his notebook and therefore
Counsel's ground of appeal on this issue lacks the factual foundation
necessary for it to be successfully argued. As indicated by the President,
the answer to Counsel's complaint must be left for another day.
FAILURE TO ADVERT TO SECTION 145 IN GIVING LEAVE
[65] Section 145(2) of the Evidence Act comes into play whenever by virtue
of a provision of the Act counsel requires the permission of the court.
Permission to refresh memory, like permission to read aloud from a document,
is obtained pursuant to a provision of the Act; section 30, to be exact. The
provisions of section 145(2) were therefore immediately and automatically
triggered when prosecuting counsel sought the leave of the court to have
Sergeant Catwell refresh his memory. The trial judge was required then to
take into account the matters listed in section 145(2) before granting
permission. In this context, sections 30 and 145 must be read together. In
effect, counsel for Francis complained that if the trial judge had adverted
to section 145 of the Evidence Act when considering whether to grant Catwell
leave to refresh his memory, in the circumstances of this case, the learned
judge might have exercised his discretion in a different manner. I think
this complaint was rightly made.
[66] The requirement to pay regard to the provisions of section 145 whenever
permission is requested is a matter that has been emphasised by the courts
of Australia where similar legislation exists. See: Stanoevski v The Queen[FN13].
The relevant provision in that country is section 192 of their Evidence Act.
The trial judge's obligation to take into account the matters listed in
section 145(2) before granting permission does not of course mean that the
judge must refer explicitly to the various limbs of section 145 at every
turn where the judge must give leave, permission or a direction. I would
commend to trial judges the views expressed in Regina v RTB[FN14]. In that
Australian case the court reaffirmed that it was unnecessary for trial
judges to refer to the section number:
[88] .What is required, before leave is given, is that the issues relevant
to the exercise of discretion, including those identified by s.192(2), are
considered. The terms of the judgment may make it obvious that such matters
have been taken into account. Even where the judgment is silent, it may be
apparent that a particular matter was taken into account, either because of
the argument which preceded judgment, or because the matter is so obvious as
to not require statement.[FN15]
----------------------------------------------------------------------------------------------------------------
[FN13] [2001] 202 CLR 115
[FN14] [2002] NSWCCA 104
[FN15] See also Hodgson JA of the New South Wales Court of Criminal Appeal
in R v Reardon [2002] NSWCCA 203@ [30] - [31]
----------------------------------------------------------------------------------------------------------------
[67] The Australian courts are unequivocal about the consequence of a
failure to have regard to matters relevant to the giving of leave, including
matters identified by the provisions contained in section 145. Where there
is a failure to have such regard, a wrong decision on a question of law
would have been made. A Guilty verdict would not stand unless the
prosecution can establish that the conviction has not resulted in a
miscarriage of justice.[FN16] In my opinion the courts of Barbados ought to
abide by a similar standard.
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[FN16] See: Regina v RTB [2002] NSWCCA 104 @ [89]
----------------------------------------------------------------------------------------------------------------
[68] In this particular case, Sergeant Catwell's request to refresh his
memory must be viewed against the background that a) Francis, who had
objected to the grant of leave, had denied making the statements; b) Francis
also alleged that he had been mistreated by Catwell but not by Boyce who was
present at all material times during the interview when the oral statements
are alleged to have been made and c) the three following circumstances.
[69] Firstly, Boyce's failure to appear in court in order to assist the
court with what was said or not said when Francis was being interviewed. The
trial judge was so concerned by Boyce's absence that he stood the case down
and demanded of Prosecuting Counsel to "see if you can locate this man
because I don't like this situation; don't like it". In my judgment, the
trial judge's unease was fully justified.
[70] Secondly, it is not entirely unreasonable to deduce that it was never
intended that Boyce's version of what transpired during the interview should
ever be available to the court. The investigating officer in the matter had
not taken the trouble to have a statement from Boyce recorded
notwithstanding the importance attributed to the oral admissions.
[71] Thirdly, Francis is alleged to have made the oral admissions when being
interviewed in the relative comfort of the Police Station. Sergeant
Catwell's notebook entry was made there and then. But significantly, no
reason was advanced why Francis was not invited to initial the entry
immediately after it was made. There is no indication, for example, that
Francis was unable or unwilling to initial the entry especially as he did
proffer a written statement shortly afterwards in which he admitted his
guilt.
[72] It may be possible to atomise these circumstances, to analyse them
serially and to provide a rational explanation as to why, on its own, each
provides an insufficient basis on which to hold that any of the factors
listed in section 145(2) could be relevant to the exercise of the judge's
discretion to grant leave to Catwell to refresh his memory. Regrettably, I
cannot share that view when I assess the entire picture as a whole. The
Sergeant claimed that he had no independent recollection of the making of
the statements. The grant of leave had the natural consequence of admitting
the statements into evidence in circumstances where there were these three
opportunities to garner for the trial proceedings crucial evidence that
could authenticate or disprove the fact that the oral statements were made.
In each case, Sergeant Catwell and/or the prosecutorial authorities
neglected to avail themselves of the opportunity presented. In each case no
good reason was provided for depriving the court and ultimately the jury of
this assistance. It seems to me that looked at in this way these were
matters which could possibly have impacted on the exercise of the trial
judge's discretion if he had first considered section 145(2)(b) and the
specific issue of fairness to Francis. "Fairness" is a notoriously elusive
concept. It is impossible for me to say that the trial judge might not have
exercised his discretion in a different manner had he adverted to the
relevant section.
[73] Further, had the trial judge adverted to section 145 he might also have
considered whether, in this case, it was appropriate for Sergeant Catwell,
an experienced policeman, to be granted leave to refresh his memory in such
a manner that it was not even clear to counsel appearing at the trial as to
whether he was actually reading from his notebook or not. The oral
admissions were neither lengthy nor complicated. Bearing in mind what is
stated above at [6] and [7], the Sergeant might perhaps have been able to
look at his notebook, revive his memory and put it away before giving
evidence, in the normal manner, of the admissions which he says were made by
the accused. In this connection, section 145(2)(e) might also have been
relevant to the exercise of the trial judge's discretion.
[74] Counsel for the Prosecution cited section 137(1) of the Evidence Act in
support of the proposition that there is nothing inherently wrong with
presenting un-acknowledged evidence of oral responses to police questioning
taken down in writing but in my judgment, the provisions of section 137 do
not justify or excuse a failure to follow section 145.
CONCLUSION
[75] In passing The Evidence Act, Parliament intended "to reform the law
relating to evidence in proceedings in courts in Barbados and provide for
related matters"[FN17]. Parliament set about this by, inter alia,
introducing higher standards of transparency, an enhanced sense of fairness
in the manner in which accused persons and suspects are interviewed,
processed and tried. Those objectives call for the cultivation of new habits.
If we allow the old habits, developed under the common law, to continue
unabated because under this new legislative dispensation a little more
effort and greater diligence are required then the intentions of Parliament
shall be frustrated and the legislation will not fulfill its noble goals.
----------------------------------------------------------------------------------------------------------------
[FN17] 17 See Evidence Act, Cap. 121
----------------------------------------------------------------------------------------------------------------
[76] In my judgment, it was a serious error on the part of the trial judge
not to advert to section 145(2) when determining whether to grant leave to
Sergeant Catwell to refresh his memory. There were circumstances here that
rendered relevant some of the factors identified in section 145(2). For my
part, this error would have been fatal to the conviction if the
prosecution's evidence had rested only on the alleged oral admissions. |
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