Sealy v the Queen
| Jurisdiction | Caribbean States |
| Judge | Nelson, J. |
| Judgment Date | 26 January 2016 |
| Court | Caribbean Court of Justice |
| Docket Number | CCJ Appeal No. BBCR 2015/005; BB Criminal Appeal No. 16 of 2012 |
| Date | 26 January 2016 |
Caribbean Court of Justice
Nelson, J.CCJ; Saunders, J.CCJ; Wit, J.CCJ; Hayton, J.CCJ; Anderson, J.CCJ
CCJ Appeal No. BBCR 2015/005; BB Criminal Appeal No. 16 of 2012
Mr. Satcha S C S Kissoon and Mr. Philip A McWatt for the appellant
Mr. Alliston Seale and Mr. Lancelot Applewhaite for the respondent
Evidence - Appeal — Rape — Sentenced to six years' imprisonment — Conviction appealed and rape conviction replaced by indecent assault and sentence reduced to five years — Appeal against the decision of the Court allowing the appeal against conviction for rape but substituting a verdict of indecent assault — Whether Court of Appeal erred when it substituting a verdict of indecent assault — Whether the Court of Appeal erred when it upheld the trial judge's grant of leave for police officers to refresh their memories and to read aloud unsigned statements allegedly made by the appellant from their official police notebooks — Whether the Court of Appeal erred in its conclusion that the trial judge's warning concerning the evidence of the police officers was adequate — Whether a McKinney warning was necessary in the circumstances.
On December 8, 2015 this Court convened a post-submissions hearing of this appeal for the sole purpose of ordering the release of the appellant. The Court calculated that on the basis of the order of the Court of Appeal sentencing the appellant on March 4, 2015 to five years' imprisonment for indecent assault the appellant was due for release when the time spent on remand both prior and after conviction on September 27, 2011 was taken into account. We ordered the appellant's release and further adjourned the appeal pending judgment. We now give our decision and reasons for judgment.
During the course of the trial which commenced on the September 21, 2011, the main evidence in support of the prosecution's case was adduced from the minor virtual complainant then aged 10 and police officers, Sergeant Arthur Springer and Police Constable Christine Broomes.
During the course of the evidence in chief of both Sergeant Springer and Constable Broomes, application was made by the prosecution for leave for the witnesses to refresh their memory and read aloud from their notebooks and leave was granted by the Court.
The appellant was duly convicted by a jury on the September 27, 2011 and after the court obtained a Pre-Sentencing Report, a Psychiatric Report and a Psychological Assessment he was sentenced to a term of six (6) years' imprisonment on September 12, 2012.
The appellant appealed against conviction to the Court of Appeal. The Court of Appeal held by a majority that a verdict of indecent assault should be substituted for the verdict of guilty of rape and that a sentence of 5 years' imprisonment should be substituted for the sentence of 6 years.
The appellant now appeals to the Caribbean Court of Justice against the decision of the Court of Appeal made on March 4, 2015 allowing the appeal against conviction for rape but substituting a verdict of indecent assault.
The issues before the Court are as follows:
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(1) whether the Court of Appeal erred when it upheld the trial judge's grant of leave for police officers to refresh their memories and to read aloud from their official police notebooks unsigned statements allegedly made by the appellant; and
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(2) whether the Court of Appeal erred in its conclusion that the trial judge's warning concerning the evidence of the police officers was adequate and that a ‘McKinney warning’ was unnecessary.
The appellant challenged the Court of Appeal's conclusion that Francis v. The Queen [ [2009] CCJ 9 (AJ), (2009) 74 WIR 108] settled the issue of whether a police officer may read into evidence unauthenticated oral statements attributed to an accused. He submitted that the question remained unsettled in Barbados.
While he did not challenge the trial judge's ability to permit a witness to read aloud, the appellant insisted that in the circumstances it was unfair for the judge to grant leave to the police officers to do so. The trial judge should have considered as a material issue the fact that the statements to be read aloud included unauthenticated statements attributed to the appellant. The trial judge should have considered that section 30(3) of the Evidence Act (‘the Act’) [The Evidence Act 1994, Chapter 121 of the Laws of Barbados (Evidence Act).] which empowered the trial judge to grant leave to a witness to read aloud should be read against the background of section 73 of the Act which prohibits the admission of documents containing unauthenticated statements into evidence as proof of their contents.
The appellant relied on section 145 of the Act which outlines considerations a trial judge should have when granting leave. He first contended that the list of considerations is not exhaustive so that an additional factor for consideration under section 145(2) ought to be whether a document being read by a witness would otherwise be inadmissible and whether or not there was an abuse of section 30 to avoid the consequences of section 73. Secondly, he turned to the considerations listed and highlighted those which concerned unfairness ‘to a party’ and the importance of the evidence in question. He submitted that in the circumstances unfairness arose where ‘evidence of unsubstantiated documents’ was admitted into evidence. He maintained that the trial judge should have considered whether the requests for the witnesses to read aloud were meant to circumvent the prohibition in section 73. In failing to appreciate the effect of section 73, the trial judge erred when she allowed the jury to be exposed to evidence which would have otherwise been inadmissible.
In the alternative, the appellant contended that the trial judge's warnings pursuant to section 137(2) were inadequate in that she failed to inform the jury of the matters that might cause the alleged oral admissions to be unreliable. The learned judge should have directed the jury along the lines of McKinney v. The Queen. [(1991) HCA 6, [1990–1991] 171 CLR 468] While McKinney held that careful consideration should be given to a warning where a confessional statement allegedly made by the accused has been established as the only or only substantial basis for finding guilt, the appellant submitted that the Act requires a McKinney warning whenever police officers' evidence is admitted.
The appellant submitted that the evidence of the police witnesses was unreliable so that a McKinney warning was particularly necessary in the present case since the only other evidence was that of the virtual complainant which was also unreliable and the alleged oral admissions which were read aloud were unauthenticated statements attributed to the appellant.
The respondent contended that section 30 of the Act allows a witness to refresh his memory and section 73 of the Act did not operate to prevent a police witness from refreshing his memory from a document recording unsigned oral admissions of an accused. The Crown contended that the common law position prior to the Evidence Act allowed for ‘verballing’ and the Act only sought to prescribe the circumstances under which ‘verballing’ was recorded by way of sections 72 and 73 with the introduction of video and audio taping of interviews. Section 73 was enacted to prevent the admissibility of evidence which did not comply with section 72. It could not have been Parliament's intention, it was argued, that oral admissions made by the defendant would be deemed inadmissible as a true record of exchanges between the accused and the police officer merely because the appellant did not sign the document.
Counsel for the Crown submitted that the trial judge gave consideration to section 145 when she granted permission to refresh memory. The trial judge properly exercised her discretion under section 30(3) in allowing Sergeant Springer to refresh his memory from his official police notebook and this grant of leave did not result in unfairness to the appellant. Counsel for the Crown stated that section 137(1) anticipated a situation where evidence involved unauthenticated statements by the accused and provided safeguards for this situation in the form of a warning to the jury. If unauthenticated statements were inadmissible, then there would be no need to warn the jury of unreliability pursuant to section 137(1)(d) as the judge would exclude the statements. The respondent also submitted that section 145(2)(b) referred to unfairness that may be meted out to ‘a party’, including the prosecution.
The Crown contended that to impose on a trial judge the burden of giving a McKinney warning was unnecessary and would place police evidence in a special category of unreliability. A McKinney warning was only required in cases where the evidence against an accused was based wholly or substantially on the authenticated confessional statement. The Crown further argued that a judge was not required to use particular words in a warning to the jury in order to comply with section 137. In the circumstances the trial judge had given the appropriate warnings.
Counsel concluded that the majority decision of the Court of Appeal was correct when it substituted a verdict of indecent assault. If the Court found procedural irregularity, the application of the proviso would cure such irregularity thereby rendering the conviction safe.
In the present case, if no regard were paid to the oral admissions in the unsigned record of the interview with the accused, the only issue for the jury would be whether they believed the virtual complainant. There was no other sworn evidence apart from the evidence of other prosecution witnesses before the...
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