Vincent Leroy Edwards Richard Orlando Haynes v The Queen

• Jurisdiction: Caribbean States
• Judge: Wit,Hayton,Adrian Saunders,Winston Anderson,Rajnauth-Lee,Saunders,Anderson
• Judgment Date: 25 July 2017
• Neutral Citation: [2017] CCJ 10 AJ
• Date: 25 July 2017
• Docket Number: CCJ Appeal No BBCR2015/006
• Year: 2017
• Court: Caribbean Court of Justice (Appellate Jurisdiction)

[2017] CCJ 10 (AJ)1

[2017] CCJ 10 (AJ)

IN THE CARIBBEAN COURT OF JUSTICE

Appellate Jurisdiction

Before

The Honourables

Mr Justice Saunders

Mr Justice Wit

Mr Justice Hayton

Mr Justice Anderson

Mme Justice Rajnauth-Lee

CCJ Appeal No BBCR2015/006

BB Criminal Appeal No 9 & 10 of 2013

Between

Vincent Leroy Edwards

Richard Orlando Haynes

Appellants

and

The Queen

Respondent

Appearances

Mr Andrew O. G. Pilgrim, QC and Mrs Angella Mitchell-Gittens, Ms. Carol-Ann Nico Best, Mr. Lesley T. Cargill, Ms. Chamika J.O. Carrington, Ms. Rashida R. Edwards and Ms. Kamisha N. Benjamin for the Appellants

Mrs Donna C. B. Babb-Agard, QC and Mr Alliston Seale for the Respondent

Uncorroborated oral confessions in police custody — no case submissions — ss. 71, 72, 73, 77, 116 and 137 of the Evidence Act of Barbados — use of audio and sound-recordings and the reliability of confession evidence

Criminal Practice and Procedure - Appeal against conviction — Whether the appellants' conviction should have been set aside as the judge erred in allowing a conviction for murder based solely on un-initialled statements which were disputed — Whether a person charged with an offence could be properly convicted in circumstances where the only evidence against them was an unacknowledged uncorroborated oral confession allegedly made to investigating police officers whilst in police custody but which the accused denied making — Whether the Justices of Appeal erred in law when they allowed the convictions for murder to stand based solely on un-initialled disputed oral statements — whether the judge erred in law when he failed to adequately direct the jury as to the dangers and deficiencies in relying on the oral statements allegedly made by the appellants and allegedly written down contemporaneously by the police officers in their official police notebooks.

JUDGMENT SUMMARY

1 This appeal considered whether, having regard to the provisions of the Evidence Act of Barbados 1 (‘the Act’), a person may be convicted in circumstances where the only evidence against him is an unacknowledged, uncorroborated, oral confession allegedly made to investigating police officers whilst in police custody which he denies making.

2 Vincent Edwards and Richard Haynes were tried and convicted for the murder of Damien Alleyne. The only evidence linking them to the murder was the alleged oral confessions made by them in separate interviews with police officers while at the Glebe Police Station on July 19, 2007, almost a year after Alleyne's death. The officers said that they made contemporaneous notes of the confessions in their notebooks. The learned judge allowed the officers to refresh their memory and read aloud from the notebooks without objections from defence counsel.

3 Mr. Pilgrim QC, made a no case submission on behalf of the Appellants. He argued that the case was too weak to be left to the jury as the sole evidence against them was unreliable as there was no independent means of verifying the alleged confessions in circumstances where the government had been dragging its feet in proclaiming s. 72 of the Evidence Act which requires the use of video or sound-recordings whenever an

accused gave a confession. He argued that it was therefore the duty of the trial judge to guard against the use of unreliable evidence and to withdraw a case from the jury

4 The learned judge held that the Act required that the matter be left to the jury to determine, as a matter of fact, whether the confessions had been made, subject to the safeguard of a warning to the jury pursuant to section 137 of the Act. He opined that until Parliament amended the legislation, it was not for the court to usurp the fact-finding function of the jury. The trial proceeded on this basis. In his summing up the judge on numerous occasions warned the jury that the confessions may have been fabricated. Despite the judge's warnings, the accused men were found guilty and on June 6, 2013 and were sentenced to suffer death as mandated by the Offences Against the Person Act.

5 Appeals against their conviction and sentence were dismissed by the Court of Appeal on July 9, 2015. That court found that there was no evidence of any impropriety, breach of the Judges' Rules or any oppression by the police. In their opinion, the judge properly left the case up to the jury as the issue in dispute concerned a decision on the reliability of witnesses which was within the province of the jury; R v Galbraith 2 applied. The court was also satisfied with the judge's directions to the jury was consistent with s. 137 of the Act.

6 Mr. Pilgrim QC submitted to this Court that the convictions were unsafe and unsatisfactory for two main reasons: (a) there was no case to answer as the sole evidence was the unacknowledged and disputed oral statements allegedly made while in police custody; and (b) the trial judge failed to adequately direct the jury as to the dangers and deficiencies in relying on these oral statements. The appeal was decided on ground (a) in the judgment of Mr. Justice Winston Anderson, with whom all the other judges agreed, while ground (b) was considered in a separate concurring opinion by Mr. Justice Adrian Saunders.

7 The Court acknowledged that it could reasonably be argued that, leaving aside consideration of the Evidence Act, the test in Galbraith 3 supported allowing the case to proceed. There was also precedent that supported the view that a person could be convicted of an offence even where the sole evidence against that person was an alleged oral confession provided that some word of caution was given to the jury. 4 These authorities, however, all pre-date the Evidence Act, which was specially enacted “to reform the law relating to evidence in proceedings in courts…” 5 and apply “standards that are more stringent than the common law, [compel] the judiciary to be guided by

fresh approaches and [require] the executive to make available to the police new technologies.” 6

8 The Court noted that when faced with a case of disputed confessions such as the present, the trial judge must have due consideration to ss. 71, 73, 77 and 116 of the Act not only in order to determine whether the confessions are admissible but also in order to assess their impact on the test to be applied to a no-case submission. The Court also reiterated its position taken in Clarence Sealy v The Queen 7 and Julian Francis v The Queen 8, that although the unsigned document (the police notebook) detailing an oral admission was inadmissible in these proceedings by virtue of s. 73 of the Act, the judge may, after considering a host of factors, exercise his discretion to allow witnesses to refresh and read aloud of the said document. 9

9 The Court stressed that what the judge cannot do is to move in a ‘straight line’ from finding that the oral statements are admissible to the conclusion that the case must therefore go to the jury. The judge was under a duty to consider whether, on its entirety, and in light of the clear scheme of the Evidence Act, the evidence against the accused satisfied the test laid down in Galbraith. Specifically, the judge should consider whether there are electronic or other independent means of verifying that the admission was in fact voluntarily made; whether it contains materials that only the perpetrator of the crime would know; whether there is other evidence that corroborates aspects of the confession; and whether there is some other evidence tending to show that the accused committed the offence. The Court noted that these were mere examples and did not exhaust the category of material considerations.

10 In the present case, the Court noted that there was no independent corroboration of guilt. There was no electronic or video evidence of the alleged confessions nor were there any eyewitnesses, finger prints, DNA or other forensic evidence. Accordingly, the Court concluded that the no case submission should have been accepted by the judge and that the convictions of the appellants could not stand.

11 In his concurring judgment, Saunders J agreed that the judge should have upheld the no case submission. Additionally, he found that, even if the no case submission had been rightly disallowed, the trial judge's summation was inadequate. Citing section 137 of the Act and the decision of this Court in Clarence Sealy, 10 he reiterated that a trial judge should focus on three primary points in his summation, (i) the judge must warn the jury that such evidence may be unreliable, (ii) he must inform the jury of matters that may

cause the evidence to be unreliable and (iii) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it

12 Saunders J held that the directions failed to fully comply with the requirements of section 137 as it did not address the matters that may cause the evidence to be unreliable. The judge failed to adequately assist the jury in balancing the issue of credibility. He wrongly assumed that the scales of credibility were even and that the jury merely had to decide whether the verbals were fabricated or were truly given. The judge should have ensured that the jury was aware of the vulnerable position the appellants had found themselves in — in police custody where there was no sound-recording or some person independent of the police present at the interview who can confirm that the admissions were made or not made. Additionally, the judge should have highlighted that police officers are generally practised witnesses and it may be difficult to tell whether such a witness was being honest.

13 Saunders J was also critical of the present state of the Evidence Act in Barbados. He was concerned about the prolonged suspension of s. 72 which was suspended in 1994 due to lack of resources. In his view, such an argument is no longer sustainable in this technological era...