CONCEPT 1- INTRODUCTION

DEFINITION OF EVIDENCE:

Evidence can be regarded as information in relation to disputed facts to enable a determination

of which disputed facts are to be believed or not.

THE SIGNIFICANCE OF EVIDENCE:

Evidence is necessary in a trial because facts are put in issue. The evidence in relation to the
disputed facts enables a determination to be made as to which are to be believed or not.

DEFINITION OF TRIAL:

A trial is a forum for evidence to be presented to determine which of those facts put in issue, if
any, ought to be believed.

CRIMINAL TRIALS:

• Proceedings are commenced by the laying of an information.

• A summary offence is one created by statute which is triable on an information. These
offences are triable by Justices of the Peace without a jury and are governed by the
Justices of the Peace Jurisdiction Act. The Judicature Resident Magistrates Act gives the
power to Judges of the Parish Court to try summary offences in lieu of Justices of the
Peace. Summary offences stipulated to be triable by Resident Magistrates alone are
called special statutory summary offences.
• An indictable offence is one triable on an indictment (even though proceedings will
commence with the laying of an information).
• Formerly in Jamaica, Resident Magistrates conducted preliminary enquiries where
witnesses gave oral evidence for the RM to determine whether there is sufficient
evidence for the matter to be subsequently tried on indictment in the Circuit Court
Division of the Supreme Court. However now, the proceedings are called committal
proceedings where the Magistrate’s assessment is based wholly on the written
statements of the witnesses without hearing the evidence, or a combination of both.

CIVIL TRIALS:

• No charges as in Criminal cases, instead these trials have causes of action.

• No complainant or accused, instead claimant and defendant.
• In Supreme Court civil cases the cause of action and the facts in relation to the cause of
action which are put in issue can be identified from formal documents filed in court by
the parties and served on each other. These formal documents are called Statements
of case.

THE PROCESS OF ADJUDICATION:

• The law of Evidence is a form of adjective law, meaning it is the part of law concerned
with practice and procedure in the courts. It concerns itself with what evidence is
admissible or inadmissible in a trial.

CONCEPTS 2 & 3 –DISCLOSURE

CRIMINAL CASES
 • Pre-trial information consisting of statements of witnesses or documents is not evidence
in the strict sense of the word because the material in them has not yet been adduced
from or through witnesses giving evidence at trial.
• A Qualification to the above rule is where common law or statute provides for this as an
exception to the hearsay rule. See for example section 31(C) and 31(D) of the Evidence
Act.

DISCLOSURE AND PRIVILEGE:

• Disclosure means the indication of the existence of certain pre-trial information and the
production of it to the other side for inspection.
• Privilege refers to the body of common law, in some instance modified by statute,
which gives a party to litigation the right to withhold disclosure of pre-trial information
to the opposing side. Because of the concept of privilege, at common law, the defence
generally has no duty to disclose its statements to the prosecution or the court.

DEPARTURE FROM THE PAST PRACTICE OF LIMITED DISCLOSURE:

• The significant Privy Council cases of Berry v R 1992 and Hall v R 1998 held that the
entire statements of certain prosecution witnesses ought to have been disclosed to the
defence in advance of the trial, based on fairness to the accused, although this was at
the time contrary to the then practice of limited disclosure.
• The then practice of limited disclosure allowed the prosecution to not provide copies of
statements taken by the police but instead to provide depositions taken at the
preliminary enquiry. However, the practice then was also that the prosecution owed a
duty to inform the defence if there was a material discrepancy between the contents of
the witness’ statement and the evidence given at trial.
• The above cases paved the way for the current practice of full disclosure of statements
of prosecution witnesses in advance of trial.

Berry v R:

At the appellant's trial the evidence of Z and M contained a small but not insignificant number
of discrepancies when compared with their statements to the police; only one discrepancy was
disclosed by the prosecution to the defence. Also, important evidence was adduced by Z and M
which had not been foreshadowed in their depositions (recorded at the preliminary inquiry).

Held, allowing the appeal and remitting the case to the Court of Appeal for either an order of
acquittal or an order for a new trial, that (although there was a strong case against the
appellant) it was not inevitable that the jury would have convicted him had the defence been
furnished in advance with the three statements made by Z and M, had the jury received a
proper direction on the evidence as to character and had they received guidance from the trial
judge on the factual problem indicated when they first returned to court; the failure to furnish
the statements to the defence and the failure to give an adequate direction as to character
evidence constituted material irregularities in the proceedings, and the failure to give guidance
on a factual problem might, according to circumstances, also have been such.

Hall v R:

67. Their Lordships being of opinion that the contents of the statements of Mrs. Woolery and
Noel Woolery should have been disclosed to the defence, and further being of opinion that the
failure to make the disclosure constituted a material irregularity. Appeal was however
dismissed as the Board did not find that there had been a miscarriage of justice.
FULL DISCLOSURE:

• Generally speaking the present position based on common law is that the prosecution
must disclose to the defence the statements it intends to rely upon in relation to
indictable offences and more serious summary offences.
• The source of and the relationship between the prosecution’s obligation to disclose and
the constitutional right to a fair trial was considered in two Privy Council cases: Franklyn
and Vincent v R 1993 and Ferguson v Attorney General 2001.

Frankly and Vincent v R:

The case involved appeals from separate trials but the appeals were heard together. The
appellants at their separate trials were not provided with the statements of the prosecution’s
witnesses, and after their convictions they appealed on the basis that the prosecution’s failure
to disclose the statements breached their constitutional right to a fair hearing.

Held: Whether non-disclosure amounted to a breach of the constitutional right to a fair hearing
depends on the assessment of the facts of a particular case as against the general standards of
fairness prescribed by the Constitution. It said it was desirable, where practicable, for
statements to be provided; “where the provisions of a statement of a witness is reasonably
necessary for such purpose, it should be provided as being a facility required for the
preparation of his defence”. The PC therefore held that the then practice of limited disclosure
was inappropriate. Despite the issue of non-disclosure the PC found that there was no risk of
unfairness to either of the appellants, the appeals were dismissed.

Ferguson v AG:

In this case the appellant had been tried and acquitted but he sought redress for breach of his
constitutional rights. He contended that the failure of the prosecution to disclose the
statements before or at the preliminary enquiry breached his constitutional rights:

- Not to be deprived of liberty without due process

- To protection of the law, and
- To a fair hearing

The appellant’s application for constitutional redress was denied and he appealed. The PC
emphasized that his complaint did not relate to non-disclosure but to late disclosure. The PC
reasoned that even if the appellant had received early disclosure he would have still been
committed for trial. Also in some circumstances failure to disclose may breach the above
constitutional rights but it did not follow from this that there is a guarantee of disclosure under
the constitution. The PC ultimately held that there was no specific right to disclosure under the
Constitution; there was no express guarantee to disclosure and that neither was there any
implied right to be read into it by necessary implication.

THE TEST OF WHETHER A CONVICTION IS UNSAFE ARISING FROM NON-DISCLOSURE OR LATE

DISCLOSURE BY THE PROSECUTION:

• The significant case of Bonnett Taylor v R 2003 comprehensively considers this test. The
test applies to cases where there is
- an absence of material arising from a failure to disclose,
 - a failure to use material at trial because of late disclosure, or
- cases where fresh evidence is sought to be adduced on appeal.

Bonnett Taylor v R:

The relevant material in question was a statement to the police by a neighbor of the deceased.
She was not called by prosecution but the importance of her statement was that it contradicted
the evidence of the only eye witness for the prosecution that he was at the scene of the killing.
The PC pointed out that despite the gaps in Mrs. Hartley’s statement there were no
unequivocal contradictions of Grey’s evidence. The PC also considered whether the conviction
was safe based on the absence of the statement of Mrs. Hartley. The Board considered R v
Pendleton stating that the question is what effect the evidence would have on the minds of the
jury. The majority of the Board concluded that the balance was in favour of the veracity of
Grey’s account, and there is no reasonable possibility that the jury would have arrived at a
different verdict. The appeal was rejected.

Sangster and Dixon v R:

This case involved non-disclosure of a video tape recording. The PC, applying Pendleton, held
that the non-disclosure might have reasonably affected the decision of the jury to convict. The
convictions were found to be unsafe. The prosecution’s case was that the appellants were two
of four men that took part in the robbery, but the video showed four men and none of them
were the appellants.

DUTY TO DISCLOSE MATERIAL AFFECTING THE CREDIBILITY OF THE PROSECUTION’S WITNESSES:

• The PC case of Jairam and Another v The State 2006 is significant because it confirmed
that the prosecutor may have a duty to disclose to the defence information bearing on
the reliability of a witness for the prosecution and that this is founded upon the
necessity to secure the fairness of the trial.

Jairam & Anor v The State:

The appellants had been tried and convicted for murder. On appeal the CA allowed the appeal
on the basis that certain information had been withheld from the defence (information on past
proceedings against an Inspector Mohammed for misconduct). The Privy Council affirmed that
the prosecution may have such a duty (to disclose) to ensure a fair trial and that the question
comes down to ascertaining whether there was relevant material which could properly for the
subject of a cross-examination directed to challenging the witness’ reliability. They noted that
previous misbehavior or bad conduct may fall into this category but the alleged misconduct
must be by the witness himself and not be a matter by speculation. The PC allowed their
appeals.

PROCESS FOR DISCLOSURE IN CIVIL CASE:

Standard Disclosure-
 • In the Supreme Court this is governed by the CPR (Civil Procedure Rules). Under the CPR,
there is a pre-trial hearing called the Case Management Conference where the court can
and invariably does make an order for standard disclosure.
• An order for standard disclosure is complied with by each party to the litigation filing in
the Supreme Court and serving on the opposing sides a formal document called a List of
Documents (see rule 28.8 of CPR).

List of Documents-

• This is divided into two schedules. Schedule 1 contains two parts:

- Part 1 lists those documents which the opposing side is entitled to inspect,
- Part 2 lists those documents which are privileged and which therefore the other side has
no right to inspect.
• Schedule 2 lists those directly relevant documents the party had but no longer has in his
possession.
• After service of the list of documents, inspection of the documents in respect of which
privilege was not claimed then takes place.
• A party who fails to disclose a document may not rely on it at trial (see rule 28.14).
• A party seeking to enforce an order for disclosure may apply for an order that the other
party’s statement of case be struck out (see rule 28.14).
• Where documents to which the rule extends comes to a party’s attention after the party
has file the List of Documents, the party must file a supplemental List of Documents
(rule 28.13).
• In order to comply with a court order for standard disclosure the party must disclose all
documents which are directly relevant to the matters in question in the proceedings
(rule 28.4).
• Under rule 28.1, a document is directly relevant if:
- The party in control of it intends to rely on it
- It tends to adversely affect the party’s case
- It intends to support another party’s case.
• When giving standard disclosure a party is required to make a reasonable search for
documents which are directly relevant (rule 28.5).

SPECIFIC DISCLOSURE:

• Under rule 28.5 an order for specific disclosure is an order requiring a party to:
(a) Disclose documents or classes of documents specified in the order,
(b) Carry out a search for documents stated in the order and disclose those found as a
result.

CONCEPT 4- PRIVILEGE

PRIVILEGE:

• Disclosure in both civil and criminal cases is subject to the law of privilege and public
interest immunity.
• The right to withhold disclosure where privilege or public interest immunity applies,
relates not only to pre-trial disclosure in criminal and civil cases but it also allows a
 witness at trial or a hearing to refuse to answer questions if those answers would
breach either the privilege or public interest immunity applicable.
• In certain professions such as bankers, doctors, clergymen and journalists there may be
an obligation of confidentiality; however this does not necessarily mean that such
confidential communications are privileged in court proceedings. Therefore
confidentiality by itself is not a legal basis to refuse disclosure in court proceedings.

TYPES OF PRIVILEGE:

1. Legal Advice Privilege-

• This extends to communications which involve the giving of legal advice or which were
made with a view to the obtaining or giving of legal advice. This is also referred to as
Attorney/Client Privilege and applies to all confidential communications between
attorneys and clients in respect of legal advice and it need not relate to litigation.
2. Litigation Privilege-
• This protects from the disclosure of communications from third parties to an attorney
and/or client if its dominant purpose was in contemplation of litigation (See Waugh v
British Railway Board). This is also called Third party privilege.
• Under rule 29.4(3) of the CPR, the rules governing legal advice privilege and litigation
privilege seems to be modified since the court can and invariably does order the filing in
court and exchange of witness statements prior to trial; this is a separate and distinct
procedure from standard disclosure.
• See also rule 32.6 of the CPR that states that the oral or written evidence of an expert
witness may only be called or put in if a report of that evidence has been served. By
virtue of this an expert’s report and instructions to him by an attorney must be served
on the opposing side if that expert report is to be relied upon at trial. Hence even if the
expert’s report is privileged by litigation privilege, that privilege cannot apply if the party
intends to rely on it at the trial, because if so it must be served on the other side.

3. Privilege Against Self-Incrimination-

• This protects persons from answering questions or disclosing documents which may
incriminate themselves in the sense that such answers may tend to expose the person in
question to any criminal charge.
• In a criminal case this means a suspect has a pre-trial right to silence.
• An accused person is not required to give evidence in his defence at trial (see section
9(a) of the Evidence Act 1843. However, if an accused chooses to give evidence in his
defence, he amy be asked any question, typically in cross-examination, which would
tend to incriminate him as to the offence for which he is charged and presently being
tried (Section 9(e) Evidence Act).
• Case to consider- Privy Council case of Bethel v Douglas and others 1995 (Appeal from
Bahamas).

Bethel v Douglas and others:

The appellant was summoned to appear at a commission of enquiry by the Governor General
of Bahamas which was to inquire into allegations of fraud, corruption, breach of trust, conflict
of interest or any wrong doing arising out of the affairs of three named companies. The
appellant, by originating summons, challenged the power to summon him to give evidence. He
tried to rely on Article 20(7) of the Constitution of Bahamas, and section 131 of the Evidence
Act, saying that he could not be compelled to give evidence. The Privy Council rejected his
submission on the basis that the commission had no power to try anyone for a criminal offence.
Therefore the appellant could not rely on article 20(7) to equate a commission with a criminal
trial as they were not the same thing. As for the use of section 131 of the Evidence Act, the
Privy Council stated that it would not be applicable to protect him against self incrimination
since section 11(2) of the Commissions of Inquiry Act 1911 made it clear that no answer given
by a witness can be used in criminal proceedings against him, other than in proceedings for
perjury before the commission. The appellant’s appeal was dismissed.

4. Without prejudice privilege:

• This form of privilege protects communications between attorneys and their clients and
other attorneys and their clients, in pursuance of attempts to settle claims. The privilege
protects the communications from production in court and its purpose is to help
promote the negotiation of settlements of claims.

5. Public Interest Immunity:

• This refers to that aspect of the common law under which a party of person is given the
right by the court not to disclose confidential information or communication on the
basis that it would be contrary to public interest to do so.
• The categories of information covered by public interest immunity are not closed but
may include- documents relating to national security, affairs of state and foreign policy
interests, and sources of police information.
• Public Interest Immunity was once called Crown Privilege, but the change from the use
of privilege to immunity is important. See for example that in privilege a person is
protected from giving evidence in court about communications or information, but
under rule 28.16 of CPR, if a privileged document were to be inadvertently obtained by
the opposing party it may be admissible in court with the permission of the court or
consent of the opposing party. However immunity serves to bar not just the giving of
evidence about the information, but it bars the information itself from being admissible
in court.
• Another important reason for the change in name is that the immunity extends beyond
claims by central government and to confidential communications or information such
as the identity of police informants.
• Another distinction is that where the other forms of privilege may be waived since it
protects their private interest, public interest immunity cannot be waived.
• A court decides a claim of public interest immunity by balancing the interest in
disclosing it and the public interest in withholding it.

STATUTORY BASES FOR PRIVILEGE:

• All the above privileges are based in common law, however statute can create privilege,
example section 6 of the Evidence Act 1843 which creates a privilege in relation to
communications between spouses during marriage.

CONCEPT 6- UNSWORN STATEMENT

Definition- this is a statement given by the accused from the dock in court, in exercise of one of
the three rights available to him to exercise at trial, the other two being to remain silent or to
give sworn evidence. The exercise of this right flows from the fact that the accused is a
competent but not a compellable witness.

The Evidential Value:

• DPP v Walker (Jamaican appeal to PC)- The respondent killed his wife by stabbing her
11 times. He and his wife had been in their car quarrelling about another man and she
rushed out of the car and he went to try to pull her back into the car at which point she
then ceased his testicles and he, feeling faint from the pain, picked up a knife and
stabbed her. At trial his defences were automatism, provocation and diminished
responsibility. The Court found him guilty of manslaughter based on diminished
responsibility and he appealed to the Court of Appeal on the basis that the judge had
not put self defence to the jury based on what was said in his unsworn statement. The
CA found that the defence should have been put to the jury and quashed his conviction
and then ordered a retrial. The Court of Appeal granted special leave to the DDP who
sought guidance on the objective evidential value of an unsworn statement.
Held- (i) since the force used by the respondent was far greater than was necessary to
defend himself, self defence did not arise and without evidence of it or it being brought
up explicitly by the defence the judge was right not to leave it to the jury.
(ii) The judge should give the following directions-
1. The judge should make in plain and simple language make it clear to the jury that
the accused was not obliged to go into the witness box but that he had the free
choice to do so, make an unsworn statement or say nothing.
2. The judge could properly go on to say to the jury that they may be wondering why
the accused chose to make the unsworn statement. That it could not be because he
had an objection to taking oath as he could affirm. Could it be that he feared his
evidence being tested by cross examination? If so why? He had nothing to fear as he
would have been protected by the court and his counsel.
3. The jury should always be told that it is exclusively for them to make up their minds
on whether the unsworn statement has any value and should give the unsworn
statement only such weight as they think it deserves.

Appeal allowed, conviction restored.

• Mills v R 1995 (Jamaican Appeal to PC)- This case affirmed DPP v Walker.

Status of an unsworn statement in relation to a co-accused on one hand and a prosecution

witness on the other:

• [KEY CASE] Ibanez v R (Belizean PC case)- In this case the appellant had been initially
been jointly indicted for murder with a Mr. Saul Lopez Cruz for the death of Mr. Ernesto
Guevera. On the morning of the trial the indictment against Saul Lopez Cruz was
withdrawn and the Crown called him as a prosecution witness. In the unsworn
statement given by the appellant at trial he implied in his statement that it was Saul
Lopez Cruz who had shot the deceased. The trial judge directed the jury to disregard the
statement in the unsworn statement implicating Saul Lopez Cruz as the shooter and that
this was not evidence against Saul Lopez Cruz. On appeal the Privy Council found
i. That the trial judge failed to direct the jury as was instructed in DDP v Walker
where he should have told them to give the unsworn statement such weight as
they think fit.
 ii. That if Saul Lopez had been a co-accused it would have been correct to direct
them that the statement given from the dock was not evidence against him, but
as Saul Lopez was not a co-accused the jury should have been given the DPP v
Walker direction.

Failure to do this amounted to a serious misdirection and miscarriage of justice since it

effectively withdrew the appellant’s defence from the jury. The appeal was allowed.

The Advantages of an unsworn statement: (As per Michael Cohen’s article “The Unsworn
Statement From the Dock”)

i. The accused cannot be cross-examined.

ii. He is not liable to prosecution for perjury if he lies in his unworn statement, as he is
not a sworn witness under the Perjury Act 1911.
iii. He can freely attack prosecution witnesses without allowing evidence to be given of
his own character, convictions and dispositions.
iv. He can in his statement incriminate any co-defendant, and although the jury will be
told to ignore it, the damage would have already been done, and yet the co-
defendant cannot give evidence in rebuttal, nor can the co-defendant where he
gives evidence on oath, attack the defendant without losing his shield.

Disadvantages to an unsworn statement:

i. There is a chance the jury may form an adverse impression of his failure to testify
under oath (See Beckford v R).
ii. An attorney for an accused who gives an unsworn statement has no control over his
client in the process of giving the unsworn statement. There is therefore a risk that
the accused may not respond to vital areas of the prosecution’s case and he may
open areas damaging to his case.

CONCEPT 8- EVIDENCE AS A MEANS OF PROOF

OR DISPROOF OF THE FACTS IN ISSUE

• It is a general rule of the law of evidence that witnesses other than expert witnesses
cannot give evidence of their opinion in relation to the facts because that is the tribunal
of fact’s function. Lay witnesses can only give evidence based on their personal
knowledge of the facts, not opinion evidence.
• Probative Value- this means that the evidence has the capability of proving or
disproving a fact or facts in issue.
• Corroboration- means independent additional evidence which supports a single item of
evidence.

Circumstances where proof is/is not necessary:

• Judicial Notice- where certain facts are so notoriously known that the court takes the
facts as proved without evidence.
 • Rebuttable presumptions- rules of law that provide that on proof of a certain fact by a
party (called the primary fact) then another fact is presumed or inferred (the presumed
fact) in favour of that party, unless the opposing party adduces evidence to the
contrary.
• Conclusive presumptions- are those which are irrebuttable because they cannot be
rebutted. Eg: section 63 of the Child Care and Protection Act, a child under the age of 12
cannot commit a criminal offence.
• Formal Admissions- refers to a recognized process or rule which dispenses with the
need for evidence to prove an alleged fact. Eg: an admission in a Statement of Case.
Where this occurs, the fact is no longer in issue.

THE LEGAL BURN/BURDEN OF PROOF:

Definition- The legal burden, otherwise called the burden of proof, is the obligation to prove
facts that have been put in issue.

• NB- At common law, in criminal trials, the party carrying the legal burden or burden of
proof is the prosecution in relation to all facts in issue, except for the defence of insanity
or where a statute expressly or by implication places a legal burden on the accused as to
a defence. Woolmington v DPP
• The case of Misick and others v R 2015 establishes that the burden of proof lies with the
crown even where it concerns disproving a defendant’s positive case, for example made
by way of alibi or by contention of self defence.

REVERSE BURDEN IN CRIMINAL CASES:

Definition- Where a statute places a legal burden on the accused to prove a fact in issue the
burden is called a reverse burden because it is an exception to the general rule that the
accused does not bear a legal burden to prove facts in issue. Eg: Section 5(2) of OAPA, defence
must prove defence of diminished responsibility.

• Where a statute creating an offence is silent as to whether the defence has a burden of
proof to prove a defence/issues, the court will have to interpret it to determine if the
statute does so by implication.

Constitutionality of Reverse Burdens:

• An issue that arises with reverse burdens is whether or not they are consistent with the
presumption of innocence outline in section 16(5) of the Constitution.

EXPRESS REVERSE BURDEN-

Important Cases-

• Vasquez v R; Oneil v R 1994 (PC appeal from Belize)- In both cases the defendants killed
their estranged mistresses in somewhat similar circumstances. Provocation arose in
both cases but it was contended on appeal that section 116(a) of the Belize Criminal
Code, in which the wording placed the burden of proving provocation on the accused,
was unconstitutional in light of section 6(3)(a) which speaks to the presumption of
innocence in the Belize Constitution.
 Held- (i) where the provision of an Act requires the defendant to prove an essential
ingredient/element of a crime then the provision would be unconstitutional and would
be read down to be an evidential burden.
(ii) Vasquez applying AG of Hong Kong v Lee Kwong-Kut found that the likely exceptions
where the reverse burden would be acceptable are where it is clearly sensible and
reasonable that deviations should be allowed from the strict applications of the
principle that the prosecution must prove the defendant’s guilt beyond a reasonable
doubt; example cases of proving that the defendant doesn’t have a license, or cases of a
claim of insanity.
(iii) Whether a statutory exception to the general burden of proof is justifiable depends
on whether it remains primarily the responsibility of the prosecution to prove the guilt
of an accused to the required standard and whether the exception is reasonably
imposed.
(iv) the exception is limited to offences arising under enactments which prohibit the
doing of an act save in specified circumstances or by persons of a specified class, or with
specified qualifications or with a license of specified authorities. If the true construction
of the provision is that it prohibits the doing of an act subject to provisos or exemptions,
then the prosecution may rely on the exception to impose the reverse burden on the
accused.
The PC held that section 116(a) of the Criminal Code was in conflict with the constitution
and had to be modified to conform with it (read down as an evidential burden).
• AG Reference No 4 2002- By a reference dated 23 October 2002 the Attorney General
sought the opinion of the court on the questions: *269
"(1) What are the ingredients of an offence contrary to section 11(1) of the Terrorism
Act 2000? (2) Does the defence contained in section 11(2) of the Terrorism Act 2000
impose a legal, rather than an evidential, burden of proof on an accused, and, if so, is
such a legal burden compatible with the European Convention for the Protection of
Human Rights and Fundamental Freedoms, and in particular with articles 6(2) and 10 of
the Convention?"
Facts- On 8 May 2002, the defendant, A, appeared in the Crown Court to stand his trial
on an indictment which contained three counts. The first two counts alleged offences
contrary to section 11(1) of the Terrorism Act 2000 of being a member of (count 1), and
of professing to be a member of (count 2), a proscribed organisation, namely Hamas-Izz
al-din al Qassem Brigades (which we shall refer to as "Hamas" hereafter). The third
count alleged an offence of witness intimidation, contrary to section 51 of the Criminal
Justice and Public Order Act 1994.
Held- (i) Thus the first question for consideration in each case is whether the provision
in question does, unjustifiably, infringe the presumption of innocence. If it does the
further question arises whether the provision can and should be read down in
accordance with the courts' interpretative obligation under section 3 of the Human
Rights Act 1998 so as to impose an evidential and not a legal burden on the defendant.
(ii) One form of statutory exception arose where a defendant sought to rely, in answer
to a criminal charge on indictment, on any statutory exception, exemption, proviso,
excuse or qualification. It was clearly established that the burden of proving such
ground of exoneration, on a balance of probabilities, lay on him: R v Edwards [1975] QB
27; R v Hunt (Richard) [1987] AC 352.
(iii) Lord Bingham found that the relevant provision could have been read down to be
an evidential burden even though it had not been a part of the list of provisions in the
Act which were stated to carry an evidential burden.
• R v Lambert 2001- The defendant had been convicted for possessing drugs found on
him in a bag when he was arrested. He denied knowing of them. He was convicted
 having failed to prove, on a balance of probabilities, that he had not known of the drugs.
The case was heard before the 1998 Act came into effect. The issue was whether on his
appeal after the Act, the Act could be applied.
Held: ‘a legislative interference with the presumption of innocence requires justification
and must not be greater than is necessary.’ There is an objective justification for some
interference with the burden of proof in prosecutions under section 5. A reverse legal
burden was disproportionate to address the legislative goal of easing the task of the
prosecution in cases under section 5(3).
- Proving knowledge of the contents of the bag was not an essential ingredient of the
offence.
- The provision could be read compatibly with article 6 as imposing an evidential burden
only on the accused.

Formula for Reverse Burden:

1. Does the statutory provision imposing the reverse burden involve requiring the accused
to prove facts that form an essential element of the offence? If yes, likely to be
unconstitutional. Vasquez
2. Can the provision however be reinterpreted to be an evidential burden? If yes, then it is
not unconstitutional and can be read down as such. Lambert. If no, then move to
question 3.
3. If it cannot be reinterpreted, is it in breach of a constitutional right in the following
sense-
(a) Does the defendant have to prove an essential element of the offence? Vasquez. If
yes it is unconstitutional.
(b) Is it merely a regulatory offence carrying no social stigma? If yes, it is
unconstitutional.
(c) Does public interest override individual right? If yes, NOT unconstitutional. AG Ref
No. 4 2002.

IMPLIED REVERSE BURDEN:

• This issue arises where a statute is silent on the issue of whether a reverse burden
applies. The court then has to interpret the statute to determine whether the reverse
burden is implied.
• R v Hunt- The appellant was charged with use of a controlled substance, morphine, in a
specific amount. He contended that the proof lay on the prosecution as to how much
morphine was in the substance he was found with. Held that Woolmington v DPP did
not hold that a reverse burden could only be imposed by statute where it was expressly
stated. Therefore a reverse burden could be imposed by necessary implication. However
in the present instance the wording of the statute showed that morphine was lawful in
one form and unlawful in another, it meant therefore that as an essential ingredient,
the prosecution had to prove that the defendant was in possession of the substance in
the unlawful form or else no offence was committed.

Formula for Implied Reverse Burden-

1. Where an enactment makes something unlawful save in some specified circumstances,

or where the act is done by a specified class of persons or persons with special licences
or qualifications or permission from specified authorities, then the provision constitutes
a proper exception to the general rule of the burden of proof and the burden may be
properly reversed on the defendant.
 Case in point: R v Edwards- Appellant was charged with selling intoxicating liquor
without holding a license. The above principle was held, indicating the appellant, not the
prosecution, had to prove he was in possession of such a license. It was sufficient for the
prosecution to prove the act in question.
2. Where the Act has a provision where an act is lawful in one circumstance but unlawful
in another, so as to make proving such particular circumstances an essential element of
the offence, then the burden of proof was on the prosecution. See R v Hunt (Eg of
provision- “Anyone who sells an edible product containing marijuana with a THC
component of over 2% is guilty of an offence”.)

STANDARD OF PROOF:

Definition- This is the degree or level that the evidence on a particular fact in issue must reach
before the tribunal of fact can decide that the facts have been proven.

• In a criminal case the standard of proof is “beyond a reasonable doubt”.

• The significant case of Ferguson v R 1979- the appellant was convicted of murder during
a robbery at night. The appeal was based on the direction given by the judge in
summation to the jury, specifically regarding the standard of proof where he told them
their doubt must be as such as ‘might affect the mind of a person in the conduct of
important affairs’. The appellant contended this was too subjective an approach.
Held- Endorsing the principle from Walters v R, as it relates to relaying the standard of
proof the formula used in summing up does not matter, so long as it is made clear to the
jury, whatever words are used, that they must not return a verdict of guilty unless they
are sure of the defendant’s guilt. Appellant’s submission rejected.
• Jackson v The State 1999- The appellant was convicted of murder of man whom he
chopped with a machete and then admitted to witnesses and police that he chopped
him because he “disturbed his spirit”. The accused contended at trial that it was self
defence. It was contested that the judge in his summation (1) inferred that reasonable
doubt would only exist where there was a choice between two equally balanced or
substantially equally balanced but opposing differences and the subsequent direction on
the burden and standard of proof could not correct this, (2) that in the later parts of his
summing up the judge referred to parts of the evidence without always repeating the
direction for the standard of proof, (3) the judge in his summation equated “not sure”
with “unbalanced”, and (4) the judge said “if you find that provocation has been proved
to your satisfaction”.
Held- (1) the judges inferences in the first stated issue was clearly intended to be no
more than illustrative that the scales were to be weighted in favour of the appellant.
The extent to which they were weighted was clear from the immediate context and the
subsequent and repeated emphasis on the required standard.
(2) it is settled law that where the judge gives a clear direction on the burden and
standard of proof at an early stage in his summing up, there is no need for him to repeat
it unless special circumstances so require.
(3) Their Lordships did not endorse the use of “unbalanced” as it might suggest that the
scales between prosecution and defence are even. However in the context which the
word was used, the jury could not have understood it to mean that.
(4) Use of the words regarding provocation was plainly wrong so far as the burden and
standard of proof are concerned, but at the end of the passage dealing with provocation
the judge gave a correct direction relating to the burden and standard of proof.
 • Brown v The State 2003- A murder case. The trial judge in summing up told the jury that
if they entertained a reasonable doubt, not a ‘fanciful’ one, that they were under a duty
to acquit. The appellant argued the use of these words vitiated the effect of the
summing up and that these expressions did not explain themselves.
Held- Any choice of words to convey the appropriate degree of persuasion is bound to
have some element of approximation. But the Lord Goddard in R v Hepworth
emphasized there was no set formula. It depended on the summing up as a whole. Their
Lordships think that this summing adequately conveyed the appropriate standard.

STANDARD OF PROOF ON REVERSE BURDENS:

• Misick v R- Wherever an accused exceptionally bears a reverse burden, the standard of

proof on him is on a balance of probabilities.
• Robinson v The State 2016- The court found that in Trinidad’s OAPA, a reverse burden
was placed on the accused as it relates to diminished responsibility.

STANDARD OF PROOF AS PRE-CONDITION TO ADMISSION OF EVIDENCE:

• Misick and others v R- The Privy Council indicated that the standard of proof in relation
to such facts (example proving voluntariness of confession) as a pre-condition of
admissibility is the criminal standard of proof.

SOME DECISIONS BY TRIAL JUDGE NOT SUSCEPTIBLE TO BURDEN AND STANDARD OF PROOF:

• Misick v R- case involving conspiracy to accept bribes and conspiracy to defraud by Chief
Minister and other ministers of Turks and Caicos. It was challenged that the trial judge
did not direct himself to the criminal standard when considering the section 4 of the
Trial Without a Jury Ordinance (a judge may order to conduct a trial without a jury if he
is satisfied the interest of justice so require). The PC held that it does not follow that
every decision which has to be made by the trial judge during and in preparation for a
criminal case is susceptible to analysis in terms of burden and standard of proof because
there are decisions which involve weighing competing factors and exercising judgment.

STANDARD OF PROOF IN CIVIL CASES:

Re. H (Minors) 1996- The mother had four children, all girls, the elder two by her husband,
from whom she was separated, and the younger two by R., with whom she was living. In
September 1993 the eldest girl, then aged 13, alleged that she had been sexually abused by R.
since she was 7 or 8 years old. She was thereupon accommodated with foster parents and R.
was charged with rape. In February 1994 the local authority was granted interim care orders in
respect of the three younger children, followed by interim supervision orders. In October 1994
R. was tried on an indictment containing four counts of rape of the eldest girl. The jury
acquitted him on all counts after a very short retirement. The local authority proceeded with
the applications for care orders in respect of the three younger children based solely on the
alleged sexual abuse of the eldest girl by R. The local authority, relying on the different standard
of proof in civil and criminal matters, asked the judge to find that R. had sexually abused the girl
or that there was a substantial risk that he had done so, thereby satisfying the conditions
prescribed by section 31(2) of the Children Act 19891 for the making of a care order. The judge
rejected the evidence of the mother and R.; nevertheless he held that he was not sure to the
requisite high standard of proof that the girl's allegations were true and that the statutory
criterion for the making of a care order were not made out, albeit he had his suspicions that
there was a real possibility that the girl's statement and evidence was true. On appeal by the
local authority the Court of Appeal (by a majority) dismissed the appeal.

On appeal by the local authority: -

Held, dismissing the appeal (Lord Browne-Wilkinson and Lord Lloyd of Berwick dissenting), that
the requirement in section 31(2)(a) of the Children Act 1989 that the court had to be satisfied
that the child was likely to suffer significant harm if the care order was not made did not
require a finding that such harm was more likely than not, but it sufficed if the occurrence of
sexual harm was a real possibility; that the burden of proving any relevant fact lay on the
applicant and that the standard of proof was that of the balance of probabilities.
If the balance of probability standard were departed from, and a third standard were
substituted in some civil cases, it would be necessary to identify what the standard is and when
it applies. Herein lies a difficulty. If the standard were to be higher than the balance of
probability but lower than the criminal standard of proof beyond reasonable doubt, what
would it be? The only alternative which suggests itself is that the standard should be
commensurate with the gravity of the allegation and the seriousness of the consequences. A
formula to this effect has its attraction. But I doubt whether in practice it would add much to
the present test in civil cases, and it would risk causing confusion and uncertainty. As at present
advised I think it is better to stick to the existing, established law on this subject. I can see no
compelling need for a change.

CONCEPT 9- INTERPLAY BETWEEN LEGAL AND EVIDENTIAL BURDEN

• From the beginning of the case the prosecution has a legal burden to prove the facts in
issue and with that legal burden there is an evidential burden in relation to the facts in
issue.

Close of Prosecution’s case/No case Submission:

• At the close of the prosecution’s case the judge acting as a tribunal of law will decide
whether its evidential burden has been discharged by deciding whether or not the
prosecution has made out a prima facie case as to the facts in issue. The judge may do
this either on his own motion or in response to a no case submission from the defence.
• If the judge concludes that a prima facie case has not been made out he will stop the
trial and withdraw the case from the jury. The accused would then be acquitted and the
judge would direct the jury to return a formal verdict of not guilty.
• Crosdale v R- This case is authority for the principle that a no case submission ought to
be made in the absence of the jury. The court noted that the jury cannot assist the judge
in deciding whether there was sufficient evidence and furthermore there were
substantial reasons why in the interest of an effective and fair trial a jury should be
asked to withdraw. The judge’s response to the no case submission may very well
influence the decision of the jury and there is no legitimate advantage to having the jury
remain.

Test for whether Evidential Burden is discharged:

• The test for where the trial is by judge alone is set out in the Practice Direction
(Submission of No Case) 1962 otherwise called Lord Parker’s Practice Direction. It states
that a no case submission should be upheld if there is no evidence to prove an essential
element of the offence charged, or the prosecution’s evidence has been so discredited
by cross-examination, or is so manifestly unreliable that no reasonable tribunal could
safely convict on it.
• The test where the trial is by judge and jury is set out in R v Galbraith-
1st Limb- If there is no evidence that the crime alleged has been committed by the
defendant the judge should stop the case.
2nd Limb- (a) where the judge concludes that the prosecution’s evidence taken at it’s
highest is such that a jury properly directed could not properly convict on it, it is his duty
on a submission being made to stop the case;
 (c) Where, however, the prosecution’s evidence is such that its strength or weakness
depends on the view to be taken of a witness’ reliability or other matters which are
generally speaking within the province of the jury and where on one possible view of
facts there is evidence on which the jury could properly conclude that the defendant
is guilty then the judge should allow the matter to be tried by the jury.
• Taibo v R- PC in this case applied Galbraith. In this appeal case from Belize the PC found
that the evidence against the accused was “thin, and perhaps very thin” however it
concluded that there was “material on which a jury could, without irrationality be
satisfied of guilt”. In keeping with Galbraith therefore the PC found that the trial judge
was not only entitled to but required to let the trial proceed and had properly overruled
the no case submission by defence at trial. There were many weak points in the
prosecution’s case against the appellant including:
- the fact that the red shirt put into evidence by the prosecution bore no traces of the
murder;
- the red shirt was further not actually identified as the appellant’s shirt since the witness
Jane Cruz only said the shirt resembled the shirt of the appellant,
- furthermore the shirt was made by a manufacturer with world-wide sales, it could have
been anybody’s shirt
- evidence about the green shirt was flawed, it wasn’t adequately identified as belonging
to the deceased nor that it was the appellant that brought the shirt to Mario Valerio’s
house.
Despite the many flaws the PC found that this was not fatal as there were other
indicators of guilt when added together could have been material on which the jury
could be satisfied of guilt:
- though the red shirt was of common manufacture, its presence thrown away not far
from the scene suggested a connection with the murder, and there was evidence that
the appellant had been wearing a similar shirt no long before the crime,
- the story about the green shirt was unsatisfactory, but if the jury accepted that the shirt
was found in a place lived in by the appellant then obvious questions arose about how a
garment sold only in Europe could have found its way into a small village in central
America,
- finally if the jury believed the evidence of Francisco Valerio that the appellant had told
him he would be spending the night at a house where he was friendly with the
cohabitant of the deceased, then this would be another basis on which his part in the
crime could be inferred.
Therefore the PC concluded that on this basis there was enough evidence, though
circumstantial, for the jury to infer guilt.
• DPP v Varlack- the PC case from BVI also applied Galbraith. In this case the respondent
Varlack had her conviction for murder quashed by the COA who said the trial judge
should have withdrawn the case from the jury at the end of the prosecution’s case. The
evidence was quite circumstantial but on the basis of phone calls made between Varlack
and her co-accused the prosecution sought to show that she had planned with them for
the deceased to be murdered. The COA however found that her guilt could not be
inferred from the fact that phone calls were made between her and the others, since
Varlack could simply have been calling to alert them that the deceased was coming to
meet them. The PC however upheld the test in Galbraith and held that the trial judge
was correct approached the no case submission and not withdrawing the case and
holding that the evidence was such that a reasonable jury might convict, since the fact
that another view consistent with innocence could possibly be held does not mean that
the case should be withdrawn from the jury.
The test for the discharge of the Evidential Burden in identification cases:

• Daley v R (appeal from Jamaica)- This case held that a judge should withdraw the case
from the jury if it was based on identification evidence which, even if taken to be
honest, is so slender that it is unreliable and therefore not sufficient to found a
conviction. The case relied on R v Turnbull and noted the following:
- Where the quality of the evidence is good and remains good at the close of the
accused’s case, the danger of a mistaken identification is lessened and the jury can
safely be left to assess the value of the identifying evidence even though there is no
other evidence to support it.
- When in the judgment of the trial judge the quality of the identifying evidence is poor,
example when it depends on a fleeting glance or a longer observation in difficult
conditions, the situation is different and the judge should withdraw the case from the
jury and direct an acquittal unless there is other evidence which goes to support the
correctness of the identification.
This case considered if Galbraith and Turnbull were in conflict but concluded that they
were not.
• Mills and Gomes v R- The appellants and LT were indicted for the murder of EV on 20
August 1961. The jury convicted the appellants but were unable to agree a verdict in
respect of LT The evidence purporting to identify the three accused as EV's assailants
was principally that of the witness EA to the extent that, although there was some
supporting evidence, no case could be established against the accused without EA's
evidence. At the trial EA testified that he saw and recognised the accused inflicting
injuries on EV in a yard on the night of 20 August 1961. His evidence at the preliminary
inquiry, however, was that he did not recognise any of the assailants. When challenged
on this contradiction he first said that he could not remember saying what he did at the
inquiry, but he would not doubt it as he “could have made a mistake”. When pressed
further he said that if he had so stated it would be a lie and agreed that his evidence at
the trial was just the opposite of what he had stated at the inquiry. The trial judge
properly directed the jury that it was their duty to disregard the evidence of a witness
who made two diametrically opposed statements on oath unless a satisfactory
explanation therefor was given, but went on himself to suggest explanations for the
contradiction which were not justified. Further, he so sought to rehabilitate EA that, in
effect, he eroded his initial direction.
Held: the extent to which EA was accepted by the jury as a credible witness was in a
large measure, if not wholly, due to the persuasion by the judge and in the
circumstances he went far beyond his proper function.

The Defence’s Case:

• If the judge does not withdraw the case from the jury the accused may but need not
undertake an evidential burden. An accused has no legal burden in a case except for the
defence of insanity or where imposed by statute.
• The accused has an evidential burden only in regards to all common law defences he
seeks to raise such as self defence, duress, accident etc. If in the judge’s view the
defence has discharged their evidential burden at the close of their case then he will
leave it to the jury to consider.
• Once the defence has discharged its evidential burden, the prosecution must as part of
its legal burden negative or disprove those defences either by cross-examination or
through its closing speech.
• A qualification to the above is that even if the accused remains silent and does not
undertake an evidential burden, if there is evidence to raise the possibility of that
 defence on the prosecution’s case, the judge must in his summing up, still ask the jury to
consider it.
• DPP v Bailey- In this case a police officer was charged for murder. The incident involved
a struggle between the defendant, the deceased and the deceased’s brother. At trial the
defendant claimed accident as his defence, that the gun went off accidentally in the
struggle. The trial judge in summing up withdrew the issue of self-defence from the jury.
The COA appeal allowed the defendant’s appeal and the PC agreed with the COA that
the trial judge should have left the defence of self defence to the jury even if it had not
been brought up by the defence and once there was sufficiently strong evidence to raise
a prima facie case of self-defence. As there was a struggle between three men and two
of them wanted to get the police man’s gun it was possible the shooting was in self –
defence. PC noted that on the facts self-defence should have been left, and in the
circumstances if the jury rejected accident then the shooting must have for them been
deliberate. This is where had self –defence been left to the jury the defendant could
have availed himself of that defence since it could still amount to self defence even if
the shooting was deliberate. Appeal by the DPP was therefore dismissed.
• Lawrence v R- The charge in this case was one of murder, the deceased was stabbed to
death. The defendant denied that he stabbed the deceased and so identification was
the central issue in this case. On appeal the appellant contended that he was prejudiced
by the judge leaving the defence of provocation and self-defence to the jury since his
defence was a denial of the stabbing in his unsworn statement. The PC rejected this
ground of appeal and noted that the judge had to address the possibility that the jury
did not accept the appellants defence and also the facts indicated that self-defence and
provocation were issues to consider. The appellant was caused no prejudice.
• DPP v Walker- the respondent was tried for the murder or his wife but was found not
guilty of murder and was instead convicted of manslaughter on the ground of
diminished responsibility. On the facts the appellant had stabbed his wife 11 times
when in an argument she squeezed his scrotum. At trial defence relied on the defences
of automatism, provocation and diminished responsibility; self defence was not
suggested by defence. On appeal to the COA the appellant argued that self-defence
should have been left to the jury but the trial judge failed to do so. The COA agreed and
allowed the appeal. The DPP appealed to the PC which concluded that the trial judge
was entirely right not to leave self-defence to the jury. Neither the respondent nor his
counsel had suggested he acted in self defence nor was there a scintilla of evidence
from which it could be inferred that he had. PC noted that the evidence was consistent
with far greater force than conceivably necessary and so an appeal could not succeed on
the ground that self defence should have been left to the jury.
• Jackson v The State- this case was summarized above. In this context the PC rejected a
ground of appeal that the trial judge ought to have put the defence of accident to the
jury although it was not raised by the appellant (his defence was sefl-defence). PC
rejected this because the evidence did not disclose the possibility of accident as the
wounds inflicted on the victim, particularly to the neck and back were defensive in
nature and the position, extent and severity of the wounds clearly negative any
suggestion of accident. However PC noted that had there been only one severe wound it
may have been possible to conceive it resulted from the appellant trying to defend
himself with the cutlass against the blows from the stick.
CIVIL CASES:

• From the beginning of the case the claimant has a legal burden to prove the facts in
issue in relation to his claim and with that legal burden there is an evidential burden to
adduce evidence in relation to those facts in issue.
• The alleged facts which are formally admitted in the statements of case need not be
proved at trial because they are not in issue when formally admitted.

No case submission:

• If a no case submission is made by the defendant in a civil case the judge has a
discretion to put the defendant to his election. This means if the defendant fails in the
no case submission he will be unable to call any witnesses. For this reason no case
submissions are rare in civil cases.

The Defence’s case:

• The general rule that he who asserts must prove applies to the defendant in civil cases.
• The defendant will have a legal burden in relation to affirmative defences he seeks to
raise and an evidential burden only in relation to mere denials of aspects of the
claimant’s case.

CONCEPT 14- BASES FOR EXCLUSION OF EVIDENCE

• The law as it regards the exclusion of evidence was developed because it was felt that a
jury, untrained in the law, ought not to be exposed to certain kinds of potentially
unreliable evidence.
• Exclusionary rules- these are rigid rules of exclusion where if they apply to an item of
evidence it must be excluded as of right, unless it falls within an exception. An example
is where the evidence is irrelevant to the facts in issue, if this is concluded by the judge
the evidence must be excluded.
• Exclusionary principles- these are more flexible than rules and relate to the admissibility
of evidence of offences committed by the accused other than the one that he is
presently charged and being tried for. Generally speaking the prosecution is not allowed
to adduce such evidence because it merely shows a disposition on the part of the
accused to commit other offences; this is prejudicial to the accused and not probative of
the offence for which he is being tried. The competing principle is that if such evidence
of other offences goes beyond merely showing a disposition to commit other offences
generally, and I probative of the offence charged then it will be admissible. (See R v P-
the case that highlights where probative force is great then it is likely to be admissible.)
• Principles may override each other, but in the case of a rule it either applies or does not.
• Exclusionary discretions- more flexible than a rule or principle. This is where the
evidence is technically or otherwise admissible but the law of evidence gives the judge
the option to exclude the evidence despite this. See rule 29.1 of CPR. This discretion to
exclude must be conferred on the judge by statute, rules or common law.
• The case of R v Sang, was confirmed by the PC in Barnes, Desquottes, Johnson v R
(appeal from Jamaica)- Barnes indicated that prejudicial effect operated where, though
evidence has been admitted to prove certain collateral facts, there is a danger the jury
may attach undue weight and regard it as probative to the crime charged. The key issue
 in exercise of the above discretion is whether the prejudicial effect outweighs the
probative value of the evidence. See also Misick v R.
• R v Lobban 1995- Peter Tosh murder case. This case confirmed that this common law
discretion applies to prosecution evidence specifically and not defence evidence.
• Brown v State- Male intruder stabbed elderly couple, man died. Woman claimed to
know the accused as her god daughter’s son. In this context the issue was whether the
judge should have excluded evidence of a miniscule amount of blood on the appellant’s
clothing on the basis that its prejudicial effect outweighed its probative value. In this
case the Forensic Analyst was unable to tell if the blood was human or animal blood
because of the small amount that was there. PC concluded that the evidence of the
bloodstain was not intrinsically prejudicial to the appellant since the appellant was
almost entirely free of blood on his clothes when found and this supported his case. PC
indicated that the bloodstain evidence could not strengthen the case against the
appellant and that the trial judge however should have directed the jury that they could
only consider the bloodstain evidence in context of the appellant’s claim that the virtual
absence of blood on his clothes and shoes meant he could not be the killer. Despite this
the PC noted the propriety of applying the proviso due to the strength of the case
against the appellant.

CONCEPT 17- WARNINGS TO THE JURY

• Corroboration Warning- a warning to the effect that it is dangerous to convict on the

evidence of the category witness in question without corroboration. This warning must
be given in respect of three categories of witnesses-
(i) accomplices giving evidence for prosecution,
(ii) children of tender years giving sworn evidence, and
(iii) complainants in sexual cases (abolished as a requirement but judge has a
discretion).
• Caution Warning- a warning to approach the evidence of the witness with care or
caution where there is evidence to suggest a witness’ evidence may be unreliable or
suspect because the witness has an interest to serve or is tainted with improper motive.

KEY CASES FOR CORROBORATION WARNING:

• R v Spencer 1987- this case sets out the contents of a corroboration warning:
Where no corroboration:
(i) Jury should simply be warned of the danger of relying on the sole evidence of
witnesses of any of the three relevant categories. (dangerous to convict on the
uncorroborated evidence of the witness)
(ii) The warning must be sufficient and explain why it is dangerous to so act.
(iii) Jury is to be told that while as a general rule it is dangerous to rely on this
uncorroborated evidence they are at liberty to do if they feel sure that the
witness is telling the truth.

Where there is corroborative evidence:

(i) The judge in this instance, in addition to (i) and (ii) above, must identify to the
jury such material and explain that it is for them to decide whether to treat such
evidence as corroboration.
 (ii) The judge should further warn the jury against treating as potential
corroborative evidence that which may appear to them to be such, but which is
not so in law, eg: evidence of a recent complaint in a sexual offence.
(iii) Where the prosecution is relying on potentially corroborative material regarding
alleged lies told by the accused, a particularly careful direction is needed.
(iv) A special direction is also to be given where evidence of the complainant’s
distress is relied upon by the prosecution in sexual cases as potentially
corroborative material.
(v) The trial judge has a further duty to warn that accomplices who are parties to
the same charge cannot corroborate each other.
• R v Baskerville 1916- This case sets out the definition for corroboration: evidence in
corroboration must be independent testimony which affects the accused by connecting
or tending to connect him with the crime.
• R v Eric James- This case was a rape case in which the medical evidence only showed
that the complainant had sex but not that she was raped and moreover not that she was
raped by the appellant. It was held that the medical evidence could not amount to
corroboration, but the PC further stated that the judge should have told the jury that
the medical evidence was capable of amounting to corroboration.

Abolition of requirement for corroboration warning in sexual cases:

• R v Gilbert- this case found that the requirement for a corroboration warning was
counter-productive and confusing (outdated), but they held that it should be a matter
for the discretion of the judge whether the corroboration warning is given. The exercise
of the discretion should depend on the circumstances of the case, the issues raised and
the content and quality of the witness’ evidence. The following are considerations laid
out by the court, as taken from R v Makanjoula:
(i) Circumstances of the case
(ii) Issues raised
(iii) Content and quality of the witness’ evidence
(iv) There needs to be evidential basis for suggesting that the evidence of the
witness may be unreliable. Mere suggestion of unreliability in cross-examination
is not a sufficient evidential basis.
(v) If any question arises as to whether the judge should give a special warning in
respect of a witness the question should be resolved by discussion with counsel
in the absence of the jury, before final speeches
(vi) The warning should be given as part of the judge’s review of evidence.
(vii) Where the warning is required it will be for the judge to determine the strength
and terms of the warning.
• Reasoning behind Gilbert-
- When the offence is non-sexual against the same woman the judge is not required to
give the warning. Seems non-sensical. Absurd that all women would lie out of spite,
fantasy or neurosis.
- Danger of injustice when the person raped was the only person witness to the crime,
which more often than not is the case.
• The Sexual Offences Act in Jamaica has also abolished this requirement.

Corroboration warnings for evidence of children:

• Hamilton and Lewis v R- PC found that the judge was right in not giving a corroboration
warning for the evidence of a 16 yr old since common law showed that a child for the
purposes of such a warning was someone under 14.
 • The Evidence Amendment Act has abolished this requirement.

Corroboration warnings for Accomplices

• Davies v DPP- An accomplice was defined as one who fell into any of the following three
categories (applies only to those called for the prosecution):
(i) Participants in the offence charged
(ii) Participants in offences held to be admissible as probative to the offence
charged under the similar fact principle
(iii) On a trial for theft handlers receiving stolen goods from the thief qualify as an
accomplice
• Krishna v The State- This case illustrates the application of Davies and highlights the
difference between an accomplice corroboration warning and a caution warning. In this
case the witness Bisson gave evidence that the appellant had threatened him and the
appellant’s co-accused and under such duress he assisted the appellant in his attempt to
rob a house. The appellant had also previously shot a man in a car and Bisson claims he
did not know about the gun. The co-accused, Hossein, however testified to the contrary,
that Bisson was aware of the gun and actively participated in the attempted robbery. PC
concluded that the judge’s ruling that Bisson was not an accomplice was wrong since
there was evidence to suggest he was, and so the judge should have given an
accomplice corroboration warning and not a caution warning. (An accomplice does not
have to be a former co-accused).

Caution warnings:

• A caution warning- requires the judge to warn the jury to proceed with caution in the
view of the reasons why the evidence may be suspect.
• In a caution warning the judge is not obliged to tell the jury that it would be dangerous
to convict on the suspect evidence without corroboration.
• In caution warnings the judge is not required to itemize the evidence which could or
could not be corroborative.
• A corroboration warning is stronger than a caution warning therefore.
• Unlike a corroboration warning there are no limits to the categories of witnesses that
may be given a caution warning.
• Tillett v R- case where the appellant robbed a clothing store and killed the deceased
with a gun upon exiting the store. The appellant contested that the witness Billy
Sanchez should have been treated as an accomplice and so an accomplice corroboration
warning should have been given. The PC held that Sanchez was not an accomplice, his
previous murder charge relating to the same incident had been dropped against him
and so he was not an accomplice to the appellant in this case. However PC held the
judge had a duty to give a caution warning to the effect that Billy Sanchez had an
interest to serve in the evidence which he gave.
• Lawrence v R- In this case the appellant and a Mr. Salmon were both charged for the
murder of the deceased who was stabbed on Christmas Eve. Mr. Salmon was acquitted
after a no case submission but the appellant was convicted. The prosecution had relied
upon evidence from Mr. Salmon’s younger brother who testified that the appellant
confessed to him that he had stabbed the deceased. When the brother gave his
statement to the police as well he was aware that the police were looking for his
brother. PC concluded that the trial judge should have warned the jury of the possibility
of the younger brother’s evidence being tainted by improper motive. A caution warning
should have been given. Quoting from Pringle v R the court held that for a caution
 warning to be given in this context there must be evidence to support the possibility
that the witness’ evidence is tainted by improper motive.
• Benjamin and Ganga v The State- In this case the appellants were tried for the murder
of the deceased by hanging him. The deceased’s wife Mrs. Ganga as a witness gave
contradictory and questionable evidence. The nature of her evidence was capable of
suggesting that Mrs. Ganga was lying and might have herself committed the murder,
especially in light that she testified to having been abused by her husband. One ground
of the appellant’s appeal was that the judge failed to give a specific caution warning
based on the evidence of Mrs. Ganga. PC held that where the appellants had not made
an explicit case that Mrs. Ganga’s evidence was tainted by improper motive or she had
not been given the opportunity to deal with that grave suggestion that she was giving
false evidence because she was in fact responsible for the killing, then there was no
need for the judge to give a specific caution warning. It was sufficient that the judge in
summation pointed out the frailties of her evidence and alerted the jury to consider her
evidence with care.( Essentially there was not sufficient evidence adduced to support
the possibility that Mrs. Ganga’s evidence was tainted by improper motive.

Lucas Direction:

• R v Lucas- This case held that lies told by an accused may amount to corroboration of
prosecution evidence against the accused. However the jury must be given a special
direction:
(i) To amount to corroboration the lie told out of court must first of all be
deliberate,
(ii) It must relate to a material issue,
(iii) The motive to lie must be a realization of guilt or fear of truth,
(iv) Jury should be told that people lie sometimes to bolster a just cause, out of
shame or to conceal disgraceful behaviour from family.
(v) The statement must be clearly shown to be a lie by admission or by evidence
from an independent witness.
• R v Burge and Pegg- This case sets out four categories of cases where a Lucas direction
should be given (including but not limited to corroboration warning cases):
(i) Where defence raised an alibi
(ii) Where the judge deems it fit to suggest that the jury look for support or
corroboration of one piece of evidence from other evidence in the case, and
among that other evidence drew attention to lies told or allegedly told by the
defendant.
(iii) Where the prosecution sought to show that something said by the accused in or
out of court in relation to a separate issue was a lie, and to rely on that lie as
evidence of guilt in the present charge.
(iv) Where the prosecution did not intend to adopt the approach in (c) but the judge
reasonably envisaged that there was real danger that the jury might do so
• Benedetto v R; Labrador v R- This case indicated that two point sufficed in making a
Lucas direction-
(i) The lie must me admitted or proved beyond a reasonable doubt
(ii) The mere fact that the defendant lied is not in and of itself evidence of guilt since
defendants may lie for innocent reasons, so a lie can only support the
prosecution’s case if the jury is sure the defendant did not lie for an innocent
reason.
 In this case the issue rested on lies told be Labrador which the PC found to be trivial
(one being that he lied that he did not know that Benedetto was on intimate terms with
the deceased). However prosecution made clear attempts to use the lies as support of
their case. PC held that a Lucas direction should have been given because of the
prominence which the lies were given by prosecution and that failure to do this was a
significant defect. PC did not comment on if this led to a miscarriage of justice since the
appeal for Labrador was allowed based on the failure of the trial judge to give a caution
warning as to the cell confession in the case.

• R v Peart- When the defendant was being interviewed by police he gave a statement
with several inconsistencies and at trial made further statements which were also
inconsistent with his prior statement. It was held that a Lucas direction was required
because the effect of his evidence and the exposure of his lies was prejudicial to his case
and was likely to have had a material effect on the jury when they considered their
verdict.

Caution warnings in cell confession cases:

• Bendetto v R; Labrador v R- cell confession case with the witness Mr. Plante who on the
evidence was a plain dishonest man with many convictions for crimes of dishonesty
(theft, fraud etc), he had also previously experienced the benefits of given evidence
against other fellow prisoners. The PC held- there was a need for a caution warning in
Labrador’s case and the appeal must be allowed. Benedetto’s appeal was also allowed
because Plante could not be seen as a credible witness, and what he claimed he heard
Benedetto say could not have amounted to a confession, and since the case would have
stood or fallen on the evidence of Plante it was clear the appeal should be allowed.
Relying on Pringle v R, the PC also indicated two steps to be followed when giving the
special warning in cell confession cases:
(i) Draw the jury’s attention to the indications that may justify the inference that
the prisoner’s evidence is tainted
(ii) Advise the jury to be cautious before accepting the evidence.

CONCEPT 18- EXAMINATION IN CHIEF

Leading questions:

• These are questions which suggest the answer to the witness, are normally close ended,
requiring yes or no answers.
• Subject to a few exceptions leading questions are not allowed in an examination in
chief. Exceptions include:
- Preliminary formalities, eg name and address
- Matters not in dispute
- Matters where there is an agreement between counsel that leading questions can be
asked.
• Taibo v R- the PC held that the suggestion of a date in this instance did not alter the
substance of the evidence.
• Leading questions may not be asked in re-examination of a witness either.

Refreshing Memory:
 • The common law allows a witness to refresh his memory from a prior written statement
that he had given out of court before stepping into the witness box. The judge also has
discretion as to whether to allow a witness to refresh his memory from his statement
while in the witness box. This is allowed on the basis that it is likely to assist the witness
in giving reliable evidence for the party examining him in chief, rather than making his
evidence a test of memory were he not allowed to do so.
• R v Richardson 1971- this case establishes that a witness may refresh his memory from
his statement or document before giving evidence at trial and this is permissible without
conditions.
• R v Da Silva- This case speaks to the conditions under which a witness may be allowed
to refresh his memory while giving evidence at trial from a statement made near in time
of the events in question, even though it does not come within the definition of
contemporaneous. The conditions to be satisfied are as follows:
(i) The witness indicates that he cannot now recall the details of events because of
the lapse of time since they took place,
(ii) That he made a statement much nearer to the time of the events and that the
contents of the statement represented his recollection at the time he made it
(iii) That he had not read the statement before coming into the witness box, and
(iv) That he wished to have an opportunity to read the statement before he
continued to give evidence.

The court found that it wouldn’t matter if the witness stayed in the box to read the statement
or if he withdrew from the box to read it. The court noted that there must be no
communication with the witness while he is reading the document and once the witness reads
it he should not be permitted to refer to it again, unlike a contemporaneous statement which
may be used to refresh memory while giving evidence.

• R v South Ribble Magistrate’s Court ex parte Cochrane- held that the conditions set out
in Da Silva were not mandatory. It held the court had a real discretion whether to
permit a witness to refresh his or her memory from a non-contemporaneous statement.
The court did not see the logical difference between a witness who read the document
and forgot the information and someone who had not read their statement at all. The
case suggested, contrary to Da Silva, not only that the witness should be able to see the
document again but that the judge had a discretion to allow the witness to refer to the
document while giving evidence.
• A document used to refresh memory is not admissible as evidence generally speaking
because it is the witness’ oral statements at trial that amount to their evidence.
• R v Seckhon- A police man’s log book used to refresh his memory at trial was admitted
into evidence and the defendant appealed that ought not to have been admitted as
evidence. Held- Where it was suggested in cross-examination that the witness had
made up his evidence, this would usually involve an implied allegation that the record
had been concocted. The record might then be admissible to show consistency and to
show whether it was a genuine record of the incident in question.
• R v Edward Harvey- Graham-Perkins JA stated inter alia: “…The jury are also entitled to
see the document-if the witness is cross-examined as to parts of it not used by him to
refresh his memory with the consequence that the document is rendered admissible as
an item of evidence and may be so admitted at the instance of the party calling the
witness-since it may assist them in assessing the witness’s credit-worthiness”.
• Senat v Senat (K, H and B intervening)[1965] 2 All ER 505 -the editors of the report stated
per curiam: where a document was used to refresh a witness’s memory, cross-examining
counsel might inspect the document, in order to check it, without making it evidence,
provided that his cross-examination did not go further than the parts which were used
for refreshing the memory of the witness; accordingly, the mere inspection of a document
 did not render it evidence which counsel inspecting it was bound to put in, but if a party
called for and inspected a document held by the other party, then he was bound to put
it in evidence if required to do so.

Hostile Witness:
• The general rule at common law is that, a party who calls a witness cannot in examination
in chief seek to discredit his own witness by questions akin to cross-examination.
• The exception to this rule is where a party’s own witness demonstrates by his conduct
and/or answers that he does not intend to give evidence fairly or to tell the truth. In those
circumstances the party calling the witness may with permission of the judge, treat the
witness as hostile and in effect cross examine his own witness to discredit him. When the
witness gives evidence this is governed by section 15 of the Evidence Act. If the witness is
hostile by his refusal to give evidence it is governed by common law.
• R v Darby- A witness was called by the Crown in the expectation, based on his
statement, that he would give evidence distinctly adverse to the defendant. At an early
stage it became clear that he was not going to do so. The Crown in the usual way made
an application to treat him as hostile. The learned Judge in the first instance did not
finally deal with that application which was opposed by the defence. He sent the jury
away and he decided to allow further questioning of the witness Sutherland before
finally determining whether he was hostile or not. In the upshot, having heard that
questioning, which involved the statement which Sutherland had made being put to him
by the Crown, and after hearing submissions from the defence, the Judge ruled that the
witness was hostile. The jury were allowed to return to court and the Crown were
permitted in the ordinary way to cross-examine him.

Held- In the experience of this Court, it is not normal to allow cross-examination or

examination of the witness in the absence of the jury in order to determine the question
of hostility. Normally that is to be determined as a result of his answers and his
demeanour when being questioned in the presence of the jury.

However, as Mr Machin has pointed out, in the event, in the present case, it made not
the slightest difference, because as appeared from the questions which he was asked
and the answers he gave, the witness was plainly hostile and the same matters were
canvassed in the presence of the jury as had been canvassed in their absence.
Accordingly we reject the first of the points which is taken under this head.

• R v Thompson 1976- the appellant was convicted of incest with his daughter. She had
made a statement to the police implicating her father but, when sworn as a witness at
the trial, she refused to give evidence, and leave was given to treat her as hostile. She
was asked leading questions, her previous statement was put to her, and she eventually
agreed that its contents were true. It was argued, on appeal, that since the girl had
initially given no evidence, there was no 'present testimony' with which her previous
statement could be said to be inconsistent, and therefore s. 3 did not apply. Lord Parker
CJ found it unnecessary to decide whether s. 3 applied to the facts, since the common-
law cases prior to the 1865 Act recognised that pressure could be brought to bear upon
witnesses who refused to co-operate. The appeal was dismissed. It is submitted that if
the witness in the case had denied making the previous statement and not accepted the
truth of its contents, it would not have been open to proof at common law.

• R v Christopher Parkes- The appellant was convicted of murder. Two persons gave
statements to the police that they witnessed the crime. One witness C.R. gave
statement to the effect that she heard the victim crying. However at the trial, when she
persisted in speaking inaudibly the trial judge ordered that she be removed from the
witness box. When he subsequently allowed her to be recalled she said when she
reached the scene of the crime she heard crying but did not see the victim. She was
reluctant in admitting that it was her signature on the statement given to the police. The
trial judge allowed her to be treated as a hostile witness and told the jury that they
should disregard her evidence entirely. On appeal. Held: (i) Having regards to the
 conduct of the witness she had as section 15 of the Evidence Act provides proved
adverse i.e. hostile and that allowed admission in evidence of her previous inconsistent
statement. (ii) There is no rule of law that where a witness is shown to have made a
previous statement inconsistent with that made at the trial, the jury should be directed
that evidence given at the trial should be regarded as unreliable. The explanation given
by the witness for the previous statement might be acceptable to the jury but where
no explanation is given the trial judge would be acting consistent with his
responsibility to ensure a fair trial to direct a jury that the effect of the evidence is
negligible. (iii) Here the witness has given no evidence favourable to the defence. The
trial judge was acting consistent with his duty to ensure a fair trial in telling the jury to
disregard her evidence.
• Eaton Douglas v R SCCA 180/99 decided 8/10/2001- Where leave is given to treat a
witness as hostile, and the witness, upon being cross-examined upon a previous
statement, says that its contents are true, it is incumbent on the judge to warn the jury
to approach any evidence given by the witness incriminating the accused after being
treated as hostile with caution, pointing out that the evidence was only elicited as a result
of cross-examination by prosecution counsel: R. v. Ugorji [1999] 9 Archbold News 3, CA
(98 06131 W3).

Previous Consistent Statements:

• Whereas in cross-examination there can be proof of a previous inconsistent statement
of a witness to discredit the witness, it is on the contrary impermissible at common law
in examination in chief to prove the previous consistent statement of the witness.
• A previous consistent statement is an out of court statement made by a witness before
giving evidence at trial which is consistent with his present evidence at trial. It is
therefore seen as self-serving and amounts to self-corroboration and therefore
inadmissible and the witness cannot refer to or rely on the statement to enhance the
credibility of their evidence.
• Exceptions to the rule against previous consistent statements include:
- Recent complaints in sexual cases
- Evidence of previous identification
- Res gestae statements
- Statements to rebut an allegation of recent invention
- Statements by accused on arrest
• White v R- The general rule at common law is that a witness may not be asked in
examination in chief if he has formerly made a statement consistent with his present
testimony. He cannot narrate such a statement or refer to it and other witnesses cannot
be called to prove it. The PC in this case mentioned two common law exceptions being
recent complaints in sexual cases and statements of a witness to rebut imputations that
his evidence is a recent invention. In a sexual case it is necessary that the complainant
testify and also the person to whom the statement was made gives evidence that such a
statement was made to them for the out of court statement to be relied on by the
complainant when giving evidence. If the person to whom the complaint was made does
not give evidence then this cannot assist in either proving consistency or negativing
consent. In this case the complainant testified to having told five people ‘what
happened’ after she was allegedly raped. Held: The PC concluded that the complainant
ought not to have been allowed to testify such. PC drew a distinction between saying
that one spoke to five people after the incident, and that one told five people ‘what
happened’. On the latter the inference which the jury were bound to draw was that she
made statements in terms substantially the same as her evidence to the court. The PC
however did not go as far as to say that the evidence should have been inadmissible, but
they considered whether an adequate corroboration warning was given. The trial judge
had advised that the evidence that the complainant told five people did not amount to
corroboration, that the complainant’s evidence was uncorroborated and that it was
dangerous to convict on uncorroborated evidence but they could do so if they were sure
of the complainant’s evidence. PC held that the trial judge misdirected the jury by not
instructing that her evidence of complaint to the others was of no value whatsoever in
confirming her credibility, as there was a risk given the direction above that the jury
 might think that even without corroboration the evidence of complaint could be seen as
confirming her credibility.

CONCEPT 19- CROSS EXAMINATION

• One of the central aims of cross-examination is to discredit the witness, because since
the witness is not for the cross-examiner there is no underlying assumption that the
witness is favourable to the party cross examining him.
• Leading questions are permissible in cross examination.

The duty of a party to put its case in cross examination:

• At common law the cross examiner has a duty to give the opposing witness an
opportunity to respond to the cross-examiner’s version of the facts, where that version
is different from the witness’ version.
• DPP v Nelson (PC appeal from Antigua)- this case endorsed the duty of counsel to put
his case- “if a party proposes to invite the jury to disbelieve the evidence of a witness on
a particular point, that ought except in unusual circumstances to made clear to the
witness so that he had the opportunity to offer an explanation which he may have for
what he says, and to show if he can that his evidence is reliable…”
In this case the appellant was a police officer who shot the deceased after a scuffle
when he accompanied the deceased’s girlfriend to their house when the deceased had
put her out, she needed to recover some necessities for her child. The crown’s case was
that the appellant shot the deceased after the deceased punched him. The defendant
maintained he shot in self defence when the deceased charged at him and another
officer present with a weapon. There was evidence that when the scene was later
examined a pair of scissors was found in the hands of the deceased. The appellant on
appeal argued that the Crown’s case involved the hinted suggestion that the scissors
were planted but this was never put to the defendant, they only put to the appellant
that there were no scissors at the time of the shooting. PC concluded that the challenge
by the crown to the appellant’s truthfulness about seeing a shiny object in the pocket
and hands of the deceased were sufficient in the circumstances. The court reasoned
that the appellant could not have been unaware of the possible inference that the
scissors had been put in place after the shooting. There was therefore no unfairness to
the appellant.
• Ebanks v R- The issue in this case was whether it would be improper for defence counsel
to put to the police in cross-examination that they were lying and fabricated a
statement by the accused, if counsel did not intend to call the accused to give evidence
to this effect. PC held that this would not be improper and that counsel had a duty to
put his case to this effect even if the accused were not to give evidence to support it.

Previous Inconsistent Statements:

• One of the ways to discredit an opposing witness in cross examination is to prove that
he or she has made previous inconsistent statements, or in other words, statements
inconsistent with the witness’ present evidence at trial.
• Section 16 of the Evidence Act- applies the law in relation to written and oral
statements and provides that proof may be given of a previous inconsistent statement
where the witness does not distinctly admit that he has made such a statement.
• Section 17 of the Evidence Act- applies to written statements only and provides that a
witness can be cross examined on previous statements made by him in writing without
such writing being shown to him; but if it is intended to contradict such witness by the
writing, his attention must be drawn, before such proof can be given, to the parts of the
writing which are to be used for the purpose of so contradicting him.
• Brown and McLaughlin v R- this case discusses the scope of the two above sections. It
also shows that an omission can constitute a previous inconsistent statement and that a
witness may be cross examined on a document that is not the original statement. In this
case, the witness Martha gave evidence that she had named the appellant Brown in her
statement. The original handwritten statement she admitted giving the police could not
 be found for cross examination, but prosecution provided defence counsel with a typed
statement bearing the witness’ signature, but the taker of the statement had not signed
it. Brown’s name did not appear in the statement as one of the gunmen. The trial judge
refused counsel’s application to have the statement put into evidence and refused full
cross examination of its contents. The PC held that these two rulings by the judge
constituted major irregularities. Held-
(i) At common law, a statement made by a witness on a previous occasion, which is
inconsistent with his evidence, may be used in cross examination to impeach his
evidence and if the statement is in writing and the witness if first shown it, he
could be asked then whether he had said the different matters in the statement
previously.
(ii) The inconsistency went beyond a collateral issue and went to the central issue of
whether Brown was one of the three gunmen. In those circumstances it fell
within cross examination in the phrase “relative to the subject matter of the
indictment or proceedings” then common to both sections 16 and 17 of the
Evidence Act. Defence counsel therefore had a right to cross examine on the
document and to have it made evidence.
(iii) Section 16 applies where the witness does not distinctly admit to having made
the statement, but where they admit it then section 17 could be used where the
issue satisfied being “relative to the subject matter on the indictment”. For
section 17 to get the statement into evidence, if it is being used to contradict the
witness, the witness must be shown the statement and his attention drawn to
the contradictory parts.
(iv) In the instance with the appellant McLaughlin where Martha says she was
threatened by the appellants mother to make a particular statement saying she
didn’t know him, the PC found that duress did not affect the statement’s
admissibility but affected the weight of it.
(v) Both appeals were allowed.
• R v Ronald Johnson-
• R v Askew- In this case the complainant who had been plied with drinks by the
defendant with a plan to rape her, in her statement she alleged that the appellant and
another were the main movers in trying to ply her with drinks, but in evidence at trial
she made no reference to the other man. The first point taken for the appellant is that
the learned Judge fell into error in misdirecting the jury as to the use which they could
make of a statement which the girl had made to the police shortly after the events of
that night, when she had recovered her senses the next day. During the course of her
evidence the girl had been crossexamined upon that statement by counsel for the
defence, and that enabled the learned Judge at his discretion to allow the jury to have
the girl's statement before them when they retired, but only for the purpose of
comparing its contents with the girl's evidence in the witnessbox, to see if that would
enable them to decide whether her evidence in the witnessbox was credible. If a person
gives accounts of an incident with a nine-month interval between giving those accounts
it is almost inevitable that there will be discrepancies between the two versions of the
same incident, even if he or she is attempting to tell the truth. On the other had, the
two versions may be so extraordinarily different that the only proper inference to be
drawn is that one or other of the statements is not a truthful account of what
happened. The only use that a jury is entitled to make of a statement in those
circumstances is to decide for themselves which they think is the proper inference. The
jury must be told that the statement is not itself evidence of what happened and that
they receive it for only this limited purpose (credibility). The case shows that In criminal
cases the previously inconsistent statement merely goes to the credibility of the
witness.

In summing up the judge also invited the jury to make comparison between the
previous statement of the witness and her evidence at trial. The judge inferred that at
the time of the making of the statement the witness remembered more of the incident.
The Court found the trial judge erred in this as it might have misled the jury to believe
that they were entitled to prefer the contemporaneous statement to the evidence that
she gave in the witnessbox and to act on that. The appeal was allowed and counts 1 and
 2 quashed because the way the judge dealt with the statement of the witness would
have severely undermined the credibility of the appellant.

• R v Peter Blake- In cross-examining Constable Wilson, Counsel for the Defence placed a
document, a newspaper clipping, in the witness' hands and began asking certain
questions, to test his credibility. He was prevented by the Judge from so doing, the
Judge holding that the relevance of document must first be established before he would
permit any questions to be asked. On appeal the court held that Counsel was entitled
in cross-examination to confront a witness with a document regardless of its
admissibility and without disclosing its contents, to elicit a response from the witness
which might be favourable to the facts which the cross-examiner is seeking to establish
or damaging to the credit of the witness being cross-examined as a result of questions
which may subsequently be asked. The court deprived itself of a vehicle of testing the
credit of a witness on an issue in the case the outcome of which the guilt or innocence
of the appellant largely depended. If a document written by another person is put to a
Defendant in cross-examination and the Defendant accepts what the document
purports to record as true, the contents of the document become evidence against him;
but if the Defendant refuses to accept as true what the document purports to record, its
contents cannot be evidence against him.

Evidential value of Witness's previous statement in civil cases:

• 31I. (1) Where in any civil proceedings -
(a) a previous inconsistent or contradictory statement made by a person called as a
witness in those proceedings is proved by virtue of sections 15 to 17; or

(b) a previous statement made by a person called as aforesaid is proved for the purpose
of rebutting a suggestion that his evidence has been fabricated, that statement shall, by
virtue of this subsection, be admissible in evidence of any fact stated therein of which
direct oral evidence by him would be admissible.

(2) Nothing in this section shall affect any rule of law relating to the circumstances in
which, where a person called as a witness in any civil proceedings is cross-examined on a
document used by him to refresh his memory, that document may be made evidence in
those proceedings; and where a document or any part of a document is received in
evidence in any such proceedings by virtue of any such rule of law, any statement made
in that document or part by the person using the document to refresh his memory shall,
by virtue of this subsection, be admissible as evidence of any fact stated therein of which
direct oral evidence by him would be admissible.

Finality of answers in Collateral Issues:

• It is permissible for a cross examiner to discredit a witness by reference to collateral
matters however a restriction applies.
• The common law rule called the rule of finality of answers on collateral matters
operates where a witness during cross examination answers questions on collateral
matters, those answers are final. Final in this sense means the cross examiner cannot
later call witnesses to contradict/rebut the answers the opposing witness gave earlier in
cross examination on the collateral matters.
• Exceptions to the above rule include:
- Section 18 of Evidence Act- a witness’ previous convictions
- Sections 16 and 17 of Evidence Act- a witness’ previous inconsistent statement.
- Bias on a witness’ part
- A witness’ general reputation for untruthfulness.
- A physical or mental condition affecting a witness’ reliability.
• Tiwari v The State- Appellant was convicted of robbery with aggravation, arson and rape.
The court had to consider if the credit of the Ms Mahabir and her mother could be tested
by the appellant calling later evidence to disprove her claim that the men she identified
 were the gunmen, since two of the men gave sworn affidavits saying they were in prison
at the time of the robbery. PC held that it would have been admissible. It was held that in
a criminal trial where there is only one central issue before the jury (in this case,
identification) and the prosecution case depends on the evidence of a witness in relation
to that issue (and the credibility of the witness is attacked by the defence), there is no
real distinction between a question going to the credit of that witness and a question
going to the issue in the case and the trial judge should allow the defence to adduce
evidence going to the credit of the witness which also is relevant to the crucial issue in
the case.

• R v Nagrecha- The Appellant was convicted of indecent assault, by a majority verdict. He

denied that the assault had ever taken place. The Appellant appealed on the ground
that since the case depended solely upon the evidence of the complainant and himself,
he should have been permitted to call a witness who would have stated that the
complainant previously made false claims of indecent assault against others. The
complainant denied making such claims and the judge refused to allow the Appellant to
challenge that denial in cross-examination. The issue in case was essentially the
complainant's credit. The Appellant contended that by failing to permit such evidence,
the judge's ruling had been unfair. The case came before the Court of Appeal. Held: In a
case where the complainant had denied making previous accusations, an Appellant
should have been entitled to call evidence in that regard. The witness evidence had not
merely involved the complainant's credibility, but had gone to the heart of the case, as
to whether or not there had been any indecent assault. Since only the Appellant and the
complainant had been in a position to give evidence, the judge should have permitted
the evidence to be called since it might well have led the jury to take a different view of
the complainant's evidence. It followed that the appeal would be allowed and the
Appellant's conviction would be quashed.

Re-examination:

• Re-examination is the process whereby a party calling a witness may seek to explain or
clarify any points which arose in cross-examination and appear to be unfavourable to his
case. Re-examination is, therefore, possible only where there has been cross-
examination and is limited to matters raised in cross-examination. It is not an
opportunity to adduce further evidence in chief. But cross-examination opens the door
to re-examination on any matters raised for the first time in cross-examination. Leading
questions are not permitted. In Jamaica, re-examination is a creature of the common
law.

CONCEPT 20- IDENTIFICATION PROCEDURES

• Pipersburgh and Another v R 2008- Approving Holland v HM Advocate, outlined the

advantages of an identification parade and the disadvantages of a dock identification.
Identification Parade Advantages-
(i) It is usually held much nearer in time to the offence, when the witness’
recollection is fresher.
(ii) Placing the accused among a number of stand ins of similar appearance provides
a check on the accuracy of the witness’ identification, reducing the risk that the
witness is simply picking someone who resembles the perpetrator.

Dock Identification Disadvantages:

 (i) The implication that the prosecution is asserting that the accused is the
perpetrator is plain for all to see.
(ii) There is a risk that the witness will be influenced when giving his evidence by
seeing the accused in the dock.
(iii) Dock id’s lack the safeguards of id parades.
(iv) The accused’s position in the dock increases the risk of a wrong identification.

CIRCUMSTANCES WHERE ID PARADE IS USEFUL:

• Ronald John v The State 2009- The appellant was charged and convicted of murder. The
only witness who gave evidence against the appellant did a dock id. The only evidence
against the defendant was that given by an accomplice, L, a taxi driver. The defendant
was never put on an identification parade. At trial, L contended that on the day of the
killing he had driven the defendant and two other men to various locations, including
the club in question, so that they could 'mark a scene', that at the club the appellant had
got out of the car with a gun in his hand, that L had remained in the car under threat
during the course of the robbery, that he had then driven the men back to Sea Lots
where he had first picked them up, and that he had been in a position to describe the
appellant to the police (sufficiently to enable the police to arrest the appellant on 6
December 2002). The Appellant appealed on the basis that the absence of an
identification parade caused him an injustice. The Board agreed the circumstances
called for an id parade, but a lack of one was not a ground to withdraw the case from
the jury (no miscarriage of justice) especially since they were properly directed on
assessing the credibility of the witness and the possibility of mistaken identity.
Baroness Hale dissenting- found that (1) an id parade should have been held given the
circumstances that id was in dispute and the appellant was not well known to the
witness nor vice versa. (2) thorough and careful though the judge’s summing up
undoubtedly was, it did not deal satisfactorily with the lack of an identification parade
and the potential advantage that this might have brought, whether or not they believed
that Mr. Lewis (the witness) did know the accused by sight beforehand. (3) There had
been a miscarriage of justice. The majority may believe that the possibility that the
police had leapt to the wrong conclusion is so slim that there is no risk of a miscarriage
of justice. But this would not be the first time that the police had, quite understandably,
leapt to a conclusion which turned out to be wrong. I may be more cynical than the
majority, but I could not in all conscience send a man to his death on that basis.
Principle from case- As a basic rule, an id parade should be held whenever it would
serve a useful purpose. This principle was initially stated in R v Popat. These are
instances where an id parade may be useful or not useful:
(i) When the police have a suspect in custody and a witness who, with no previous
knowledge of the suspect, saw him commit the crime ( or saw him in
circumstances relevant to the likelihood of his having done so). An id parade is
useful here unless the witness had previously provided the police with a
complete identification by name or description so as to enable the police to take
the accused into custody.
(ii) Where the suspect and the witness are well known to each other, an id parade
cannot help here, and would be not merely unnecessary but could be positively
misleading as the witness will naturally pick out the person whom he knows and
whom he believes he saw commit the crim.
(iii) When the witness claims to know the suspect but the suspect denies this. The
advantage of holding an id parade here is that if the witness failed to pick out the
accused on the parade, her assertion that the accused were known to her would
have been shown to be false. An id parade is therefore useful here.
 • Smith v R- It is a desirable practice to hold an id parade where there has been an
identification which is disputed by the suspect. However if the witness makes it plain
they cannot identify the suspect, it is useless to hold an id parade. Similarly if the
witness can only identify the clothes the culprit was wearing, an id parade would not
help.

ADMISSIBILITY OF PREVIOUS IDENTIFICATIONS:

• Sealy v The State- Attempted robbery case of man and body guard on the way to the
bank, body guard killed. The appellant appealed on the basis that the judge had allowed
hearsay evidence and a previous consistent of a corporal in identifying him. The Board
held- An identifying witness can testify to his pre-trial identification of an accused as an
exception to the rule against previous consistent statements. The Board drew a
distinction between admissible evidence that a witness had identified the accused on an
earlier occasion, and inadmissible hearsay evidence by a witness of what a third person
not called as a witness said in making an identification. The pre-trial identification in the
former type of evidence serves to prove consistency.

UNFAIRNESS IN ID PARADES:

• R v Charles (appeal from st. Vincent)- Murder case where appellant and co-accused
were identified by an eye witness with photographs of the suspects shown to her by the
police. She first identified someone different from the defendants on a first set of
photos, then on another date picked out the defendants on a second set of photos.
Then she identified them at an id parade at a later date. She later testified that the
police told her that the photographs she viewed were of the criminals. The appellant
challenged based on the showing of the photos to the witness before the id parade.
Held- in relation to the id procedure the Board found it was not wholly satisfactory but
found that the jury would have no difficulty accepting the witness’ id evidence as
reliable since she had ample time to view them.
• Dunkley and Robinson v R 1994 (appeal from Jamaica)- murder case where a ground
of appeal was wrongful admission of id evidence. It appears the witness failed to id the
appellant on his first sight of the parade, but returned to view the parade on a second
occasion and made a positive id. The Board found that though this reduced the value of
the id evidence it did not render the evidence inadmissible. An appropriate warning
from the judge to the jury in the circumstances would have been sufficient.
• Ricketts v R 1996 (appeal from Jamaica)- Witness asked members of id line up to speak
their name. The appellant appealed on the ground that this should have made the id
evidence inadmissible. PC held that asking men to speak their names and only their
names in an id parade was an undesirable practice which should not be followed,
especially because if the witness already knew the suspects name, it would influence
the identification. However, this did not make the evidence inadmissible in this case
because there was no evidence that the witness knew the suspects name, and he
indicated he had identified the suspect before asking him to speak his name.

CONFRONTATION IDENTIFICATION EVIDENCE:

• Williams (Noel) v R 1997 (appeal from Jamaica)- This case outlines when a pre-trial
confrontation identification is permissible and when an id parade should be used
instead. The case involved a robbery on a bus where an officer was killed and the
 witnesses were two off duty officers. There was confrontation where, acting on
information, one of the officer witnesses went with police to arrest the appellant.
Held- from the principle in R v Hassock (another robbery case where the witness didn’t
know the appellant previously) Where a witness to an incident knows well the person
suspected of involvement in the incident, the suspect may properly be confronted by
the witness so that the latter may confirm that the suspect is the proper person to be
held in connection with the incident. Where the witness does not know the suspect
well, an identification parade is the proper means of identifying the suspect and
confrontation should be confined to rare and exceptional circumstances.
This case was distinguished from Hassock, as the witness in this case was a serving
police officer effecting an arrest at the time of confrontation. There was no question of
his being tutored with a view to assisting him in his identification of the perpetrator and
the directions of the trial judge were also sufficient. There was no need for the
evidence to be excluded.
• Brown and Isaac v The State- This is the case where Charmaine and Desmond were
dragged away by two men in the night at Charmaine’s house and her mother and
another man saw and heard her say “Foots come fi kill mi”. The mother and the other
man had been taken to the police station to see if the men were the right men. No id
parade was held. Both the man and the mother claimed to know both the men well.
One man denied knowing the mother, but confirmed he used to visit Foots, which is
how the mother described him. The Board found that the confrontation identification
was not improper. The confrontation was not arranged to provide evidence of
identification, but to reassure the police they had not arrested the wrong people.
• Brown v The State- Male intruder with a knife stabbed elderly couple at their home. The
husband died but the wife survived. The wife purported to know the man as the son of
her god-daughter. The appellant had been advised by the police that they would bring in
the witness who purported to know him to verify that he was who she said he was. The
contended issue was that the verification procedure of identifying the accused as
arranged by the police was used not just to reassure the police they had not arrested
the wrong man as in Brown and Isaac, but was being used at trial as evidence of the
identification. The PC found that the trial judge had made it abundantly clear to the jury
that this was an procedure of verification of identification after the witness had already
identified the appellant by name. The PC was also satisfied that the trial judge did not
suggest to the jury that the verification procedure supplemented the identification
evidence. The use of confrontation was acceptable since Ms. Bailey knew the appellant
before, the appellant also did not dispute this when he was told she was coming in to
verify it was him, and he further made statements saying “I was coming to help” when
she confronted him so this shows he knew her as well. (Satisfies the test in John v The
State).

DOCK IDENTIFICATION:

• France and Another v R 2012 (appeal from Jamaica)- Drive by shooting done by the
appellants on two men, one died. The other surviving man claimed to know the two
men and did a dock id at trial. The appellants contended that the judge's direction was
generally deficient; that the case could not properly be characterised as one of
recognition but, if it could, that the judge had not warned the jury in sufficiently clear
terms of the dangers attendant on that species of evidence; that the judge had not
adverted sufficiently to the fact that no identification parade had been held; and that
the appellants had been subject to impermissible dock identifications and that the
 prejudice which that evidence had caused was compounded by the judge's failure to
address its adverse impact in his direction.
Held-
(i) The judge found that under the circumstances this was a recognition case and
not a dock id in its real sense, since the witness claimed to have known the
appellants for some 8-10 years before the incident. Where the so-called dock
identification is the confirmation of an identification previously made, the
witness is not saying for the first time 'This is the person who committed the
crime'. He is saying that 'the person whom I have identified to police as the
person who committed the crime is the person who stands in the dock'.
(ii) It was established that an identification parade should be held where it would
serve a useful purpose. In F's case there was no challenge whatever to S's
claimed prior knowledge of him and the holding of an identification parade
would have served no useful purpose. In V's case, it was at least very doubtful
that any useful purpose would have been served by holding an identification
parade and in any event it could not plausibly be suggested that the failure to
hold an identification parade had caused a serious miscarriage of justice.
(iii) A dock identification in the original sense of the expression entailed the
identification of an accused person for the first time by a witness who did not
claim previous acquaintance with the person identified and the dangers inherent
in such an identification were clear. However, it should not be assumed that the
dangers present when the identification took place for the first time in court
loomed as large when what was involved was the confirmation of an
identification already made before trial. Nor should it be assumed that the
nature of the warning that should be given was the same in both instances.
Where the so-called dock identification was the confirmation of an identification
previously made, the witness was not saying for the first time 'This is the person
who committed the crime'; he was saying that 'the person whom I have
identified to police as the person who committed the crime is the person who
stands in the dock'. The instant case was not in any real sense a dock
identification. It was a pure formality. The warning in the instant case therefore
needed to be directed not to the danger of the witness assuming that the
persons in the dock, simply because of their presence there, committed the
crime but to the need for careful scrutiny of the circumstances in which the
purported recognition of the appellants was made. Appeal was dismissed.

ADMISSIBILITY OF DOCK ID AND SPECIAL DIRECTIONS:

• Tido v R 2011 (appeal from Bahamas)- sets out the law on the admissibility of dock ids.
The Board clarified and rejected the position in Edwards v R that a dock id was only
admissible in exceptional circumstances.
(i) The Board held that a dock id is not inadmissible evidence per se and that the
admission of such evidence is not to be regarded as permissible in only the
most exceptional circumstances. A judge has the discretion to consider its
admissibility on the basis of whether its admission might imperil the fair trial of
the accused. However in this case the judge exercised her discretion improperly
by failing to address or consider the reasons that an identification parade was
not held. If those issues were addressed it is possible that the dock id could have
been properly allowed. Since they were not, its admission into evidence cannot
be upheld in this case.
(ii) Where a dock id is admitted it will always be necessary for the judge to give a
jury direction on the dangers of this type of evidence:
 (a) Warn of the danger of this type of evidence
(b) Warn of the disadvantages to the accused of having been denied the
opportunity of an id parade.
(c) Draw attention to the possibility of an inconclusive result to an id parade if it
had been held, and that this could have been used on the defendant’s behalf
to cast doubt on the accuracy of any subsequent identification.
(d) Remind jury of the obvious danger that a defendant occupying the dock
might automatically be assumed by even a well-intentioned witness to be the
person who committed the crime.
• Neilly v R 2012- The reason for not holding an id parade is a relevant factor to the
exercise of the discretion of the judge to admit dock id evidence. In this case the witness
identified the appellant by dock id. There was no id parade for the appellant by one was
held for his co-accused. The appellant had been in hospital at the time of the id parade.
The PC held the judge erred in finding that the hospital stay was a good excuse for not
holding the id parade as it could have been done after his discharge from the hospital.
Appeal allowed.
• Jason Lawrence v R 2014 (appeal from Jamaica)- In contrast to Tido and Neilly, in this
case there was an id parade but the witness did not identify the accused in the line-up
and the judge allowed a dock id at trial. PC held that the prosecution ought not to have
invited the dock id by the witness. This case also held that judicial directions which met
the Turnbull guidelines on the dangers inherent in all identification evidence did not
address the separate issue of the dangers of dock identification (MUST GIVE BOTH TIDO
AND TURNBULL DIRECTIONS).
Held- Judge misdirected the jury by not addressing the advantages of an id parade or
warned of the risk of a dock id. The misdirections on dock identification and on the
alleged confession were sufficient to render the appellant's conviction a miscarriage of
justice. Appeal allowed.

SPECIAL WARNINGS FOR DISPUTED IDENTIFICATION:

• R v Turnbull- sets out the special directions to be given by a judge where the
correctness of identification is in issue. It also sets out the circumstances when a judge
should withdraw such a case from the jury.

Turnbull Direction requirements- WEMERDS

(i) a statement that there was a special need for caution, no special form of words need
to be used; W
(ii) an explanation of the reasons for such need; E
(iii) a direction that a convincing witness can be mistaken; M
(iv) a close examination of the circumstances of the purported identification (How long
did the witness have the accused under observation? At what distance? In what
light? Was the observation impeded in any way, as for example by passing traffic or
a press of people? Had the witness ever seen the accused before? How often? If only
occasionally, had he any special reason for remembering the accused? How long
elapsed between the original observation and the subsequent identification to the
police?); E
(v) a direction as to whether there was any material discrepancy between the
description of the accused given to the police by the identifying witness and his
actual appearance; D
(vi) in cases of purported recognition a special warning that mistakes in recognition of
close relatives and friends are sometimes made; and R
 (vii) a review of the various aspects of the evidence which were said to support the
claimed identification and those which cast doubt on it. S

Turnbull requirements in special circumstance:

(i) Where the quality of evidence is good the jury may safely be left to assess it and
may convict on that basis.
(ii) Where the quality of id evidence is poor the judge should withdraw the case from
the jury, and direct an acquittal, unless there is other evidence which goes to
support the correctness of the identification.
(iii) Where the accused does not give evidence, the judge must direct the jury that the
fact that the accused elected not to give evidence cannot itself support the id
evidence although he may point out the id evidence is uncorroborated by the
accused.
(iv) Where the accused puts forward an alibi the jury may regard its falsity as supporting
identification, but should only do so if they think the false alibi was put forward to
purposely deceive them and not out of stupidity or panic.

• Donald Phipps v DPP and AG (appeal from Jamaica) 2013- confirms the applicability of
the Turnbull guidance and warning to disputed voice identification cases. This is the case
with Zeeks and the three witnesses who claimed to identify his voice over a phone call.
Two were unfamiliar with his telephone voice but one was. The PC agreed with the CA
that the one criticism of the judge’s summing up was the judge’s omission to tell the
jury that it is a notorious fact that mistakes have been made in voice recognition in the
past. The court however concluded that this was outweighed by the judge’s repeated
emphasis of the need for caution in assessing the evidence of voice identification. PC
agreed the omission was not a material defect. PC confirmed the application of the
Turnbull guidelines to voice recognition cases. Even though the trial judge had not
highlighted some of the key weaknesses in the witnesses’ identification evidence, PC
said the judge could have hardly done more to bring attention to the need for caution,
the reason for it and their duty to consider each of the witnesses individually. PC
concluded, no basis to challenge lower court’s decision. Appeal denied.
• Reid and others v R- There are factors other than the Turnbull directions that ought to
be considered by a judge in summing up. Some that arose in this case include-
- (non-turnbull) Inability to reconcile witness evidence with medical evidence and other
evidence given at trial. In this instance the judge should withdraw the case from the
jury.
- Visual identification evidence is a particular category of evidence that was susceptible to
error and accordingly has to be treated with special care.
- If convictions are to be allowed upon uncorroborated identification evidence there must
be strict insistence upon a judge giving a clear warning of the danger of a mistaken
identification which the jury must consider before arriving at their verdict. It is only in
the most exceptional circumstances that a conviction based on uncorroborated
identification evidence will be sustained in the absence of such a warning. This was not
an exceptional case. The conviction cannot therefore stand.
- In their Lordships' view this was a classic case where the uncorroborated identifying
evidence was so poor, depending solely on fleeting glances and further made in difficult
conditions, that the judge should have withdrawn the case from the jury at the- end of
the prosecution evidence and directed an acquittal.
 • Daley v R 1994- Appellant and another man broke into the house of a shopkeeper at
2am in order to get him to open his shop so they could rob it. The men shot the
shopkeepers wife and thereafter he managed to escape and hid in a place from where
he could see the house. The men ransacked the house and left a half hour later. The
appellant was identified at id parade 4 months later.
Held- a judge ought to withdraw a case from the jury if it was based on identification
evidence which, even if taken to be honest, was so slender that it was unreliable and
therefore not sufficient to found a conviction.
• Livingstone v R 2013-
• Langston and Freeman v R 2005- Deceased was set upon by three men who beat him
up, he sustained fatal injuries. Their Lordships accordingly have reached the conclusion
that notwithstanding the judge's conscientious efforts to comply with Turnbull
requirements, the summing up fell short of the standard required to ensure that the
difficulties involved in the identification of the appellants were placed before the jury
with sufficient clarity in an ordered fashion.
- Where, as in the present case, the identification depends upon the recognition by the
witness of a person or persons previously known to him, the jury should be reminded
that there is room for mistake in such cases as well as in those which turn on the
identification of a person thitherto unknown to the identifying witness who is
recollected by description.

- The judge referred briefly at p 82 of the Record to the relevance of a false alibi, when he
said:

“And even if you conclude that the alibi was false, that does not of itself entitle you to
convict the accused. The Prosecution must make you sure of their guilt. An alibi is
sometimes invented to bolster a genuine defence.”

That direction is serviceable so far as it goes, but it would have been more effective if it
had expanded to some extent on the reasons which may underlie a false alibi, on the
lines of the instruction given in R v Turnbull at p 230, quoted in para 22 above.

• Bernard v R 1994-

CONCEPT 21- HEARSAY

Definition – Any out of court statements (written or oral), made by persons prior to trial
whether on oath or not, are hearsay if they are relied upon as proof of truth of the facts stated
in them; (in other words, relied upon as proof of the truth of their contents).

• The General rule is that hearsay evidence is inadmissible in court; however the rule is
subject to numerous common law and statutory exceptions.

A statement made by the witness himself-

• The hearsay rule applies not only to pre-trial statements by persons other than the
witness, but also to pre-trial statements by the witness himself. (See the Privy Council
case of Murphy v R 2002 from Bahamas). In this case the appellant was charged for
burglary and armed robbery. The complainant subsequently pointed out the appellant
 at an identification parade. At trial, prosecuting counsel sought to question the
complainant as to her description of the person she saw enter the apartment. The Privy
Council concluded that the trial judge had correctly stopped this line of questioning by
the prosecuting counsel, on the basis that it would be hearsay and might have
amounted to self corroboration.

Implied Statements as hearsay-

• The hearsay rule may apply to evidence that implies an out of court statement. (See
Hopson v r 1994- this is the case where the police was asked by counsel if the victim
told him something in the hospital and what he did after hearing what he was told. The
police said he obtained a warrant to arrest the appellant. The PC held this clearly
implied what the victim said, (that the appellant was the person responsible).

Distinction between Hearsay and Original Evidence-

• Original evidence refers to evidence to prove the fact that a pre-trial out of court
statement was made, instead of and without reliance on it to prove the truth of the
facts stated/its contents. Like all other evidence, original evidence must be relevant to
be admissible.
• Ganga Singh v Singh and Singh- (CCJ case) illustrates well the distinction between the
two- This is the case with the purchase of property where Singh failed to pay the
purchase price within the time limit and indicated in his testimony that he only acted as
such because he was told by a Registry staff member that he could not pay the purchase
price at the initial time he attempted because there were pending proceedings against
him by the original owners. The CCJ found that this was not hearsay, but was original
evidence, since it was made to establish the fact that the statement was made and it
caused him to do a certain act, it was not made to establish the truth of the statement.
• Subramaniam v Public Prosecutor 1956- this case involves an appellant who was
charged for possession of ammunition, but he insisted he acted under duress from
terrorists who made him fear for his life if he did not so act. The Privy Council held that
the evidence of conversations between the appellant and the terrorists was not hearsay
as it was made to establish the fact of the statements by the terrorists and not the truth
of the statements; the statements whether they were true or not, if believed by the
appellant could have caused him to apprehend fear and act under duress. This case was
approved in Ganga Singh. The main principle from this case is that evidence I hearsay
and inadmissible when the object of it is to establish the truth of what is contained in
the statement, it is not hearsay and admissible when it is proposed to establish by the
evidence, not the truth of the statement, but the fact that it was made.

Liberal approach to hearsay in civil cases:

• Ganga Singh v Singh and Singh- is significant furthermore because it shows the court’s
liberal approach to hearsay in civil cases tried by judge alone as distinct from jury trials.
The court emphasized that in civil cases tried by a judge, if no objection is taken to
hearsay evidence at the time it is being given in the witness box then such evidence is
admitted as part of the evidence in the proceedings, though what weight if any is given
depends on the judge in light of available evidence.
Hearsay and opinion evidence:

• Myers v R-

EXCEPTIONS TO THE HEARSAY RULE:

Dying Declaration:

• This common law exception allows the admission into evidence of statements of
deceased persons made prior to death, in the trial of murder and manslaughter cases,
provided there is evidence that the deceased was under a settled hopeless expectation
of death.
• Nembhard v R- In this case the wife of a police officer arrived home to find her husband
shot. Her husband told her “I am going to die.. You are going to lose your husband. It is
Neville Nembard, Ms Nembard grandson that shot me and take my gun”. The PC held
that evidence of what the husband said was admissible as an exception to the hearsay
rule as it was unlikely that a deliberate untruth would be told by a man who believed he
was face to face with his own impending death. It will always be necessary for a jury to
scrutinize this kind of statement since they have to discern if the witness is reliable and
because they would not have had the opportunity ascertain the deceased’s own
reliability by observing him under cross examination.

Criteria:

- Statement made under a settled hopeless expectation of death.

- The declarant has died (this exception only applies to murder and manslaughter cases).
Jury Direction: These are some adequate directions but the PC stated it felt it
unnecessary and would be a mistake to lay down new rules to be followed for a judge to
discharge his duty to the jury in assessing the significance of a dying declaration-
- Establish to the jury the difference between evidence given on oath by an appearing
witness and hearsay evidence of a dying declaration.
- Explain the tests that the declaration must satisfy.
- The jury should be directed that they must be satisfied as to the reliability of the witness
relaying the declaration.
- Where they are satisfied of the witness’ reliability they must still assess the probative
value of the dying declaration.

Res Gestae:

• This is another common law exception to the hearsay rule which includes an out of
court statement made by a person approximately contemporaneous with the event, so
that the event dominates the mind of the maker of the statement and excludes the
possibility of concoction.
• Mills and Mills v R- In this case the deceased was involved in a family feud. Four
members of the Mills family attacked him with machetes. One prosecution witness said
that the deceased victim shortly before he died said “Jules and him bwoy dem chop mi
up”. PC did not come to a conclusion as to whether this constituted a dying declaration
since it found this was admissible under res gestae. This might have been that the
evidence did not conclusively show that the deceased was actually under a hopeless
expectation of death when he made the statement. In this case the deceased’s last
 words were closely associated with the attack and the victim’s grave wounds would
have dominated his thoughts.
• Brown and Isaac v The State- The appellants were convicted for the murders of two
victims Charmaine and Desmond. Charmaine’s mother witnessed her being dragged
from her house in the night by Brown and Isaac. On seeing her mother Charmaine said
“Oh God Mammy, help me: look Foots come here with a gun to kill me”. On appeal the
PC noted that the statement was admitted under the Res gestae rule , however it said
that the judge did not warn the jury that before giving the statement weight they must
be satisfied that the declarant did not concoct or distort it. The PC refered to the
principle laid out in R v Andrews that before giving weight to the statement the jury
must be satisfied that the declarant did not concoct or distort to his advantage or the
disadvantage of the accused the statement relied on and that where there is material to
raise the issue, that he was not actuated by malice or ill-will. PC however found that
there was no misdirection by the trial judge as once the mother was accepted by the
jury as a witness of truth as to what Charmaine said, the possibility that Charmaine was
guilty of concoction, distortion or malice was unrealistic.

• R v Andrews- Two men entered M.'s flat and attacked him with knives; property was
stolen. Shortly afterwards M., grievously wounded, made his way to the flat below his
own to obtain assistance. Two police officers arrived within minutes and M. informed
them that O. and the defendant had been the assailants. Two months later M. died as a
result of his injuries. The defendant was jointly charged with O. with aggravated
burglary and the murder of M. At the trial before the Common Serjeant of London and a
jury the Crown sought to have the deceased's statement admitted, not as a dying
declaration, but as evidence of the truth of the facts that he had asserted, namely, that
he had been attacked by O. and the defendant, and therefore admissible in the
circumstances as evidence coming within the res gestae exception to the hearsay rule.
The judge ruled in favour of its admissibility. The defendant was convicted of aggravated
burglary and manslaughter. On appeal by the defendant against his conviction, the
Court of Appeal (Criminal Division) dismissed the appeal.

On appeal by the defendant:-

Held, dismissing the appeal, that where the victim of an attack informed a witness of
what had occurred in such circumstances as to satisfy the trial judge that the event was
so unusual or startling or dramatic as to dominate the thoughts of the victim so as to
exclude the possibility of concoction or distortion and the statement was made in
conditions of approximate but not exact contemporaneity, evidence of what the victim
said was admissible as to the truth of the facts recited as an exception to the hearsay
rule; that, accordingly, in the circumstances the deceased's statement had rightly been
admitted in evidence

• Ratten v R- This is the case where the man shot his wife with a shotgun and claimed it
was an accident when he was cleaning his gun. However a telephone operator gave
evidence that shortly before the time of death of the victim she got a call and the
response was “Get me the police”. At the trial the prosecution sought to introduce the
telephonist’s evidence in order to rebut appellant’s account of what had occurred
immediately after the shooting. Objection was taken to this evidence on the ground that
it was hearsay and that it did not come within any of the recognised exceptions to the
rule against hearsay, but the objection was overruled. On appeal against conviction:
Held the appeal would be dismissed for the following reasons – (1) the evidence of the
telephonist was not hearsay evidence and was admissible as evidence of fact relevant to
an issue, ie as evidence that, contrary to appellant’s account, a call was made only some
three to five minutes before the fatal shooting by a woman who could only have been
deceased; it was also relevant as possibly showing (if the jury thought fit to draw the
 inference) that deceased was at the time in a state of emotion or fear; (2) even if there
was some hearsay element in the evidence and the jury understood the words said to
have been used to involve an assertion of the truth of some facts stated in them, the
words were nontheless admissible as part of the res gestae since there was ample
evidence of the close and intimate connection between the statement ascribed to
deceased and the shooting which occurred shortly afterwards; they were closely
associated in time and place and the way in which the statement came to be made and
the tone of voice used showed intrinsically that the statement was being forced from
deceased by an overwhelming pressure of contemporary event; it carried its own stamp
of spontaneity and this was endorsed by the proved time sequence and the proved
proximity of deceased to appellant with his gun.
• Furbert and another v R- The victim, C, was sitting in the room of a house when he was
wounded by a single gunshot which came from outside. The appellants, Furbert and
Franks, were seen in the vicinity of the house before and after the shooting and, after C
had run out of the house, Franks was alleged to have attacked him with a stick. C later
died from the gunshot wound. Franks was arrested and gunshot residue was found on
his clothing and hands. In a statement he claimed that it was Furbert's suggestion that
they went to the house, that he went to the house armed with a stick and that a shot
was fired. He denied attacking C with the stick. However, before C died he was alleged
to have told his mother and sister that it was Franks who had shot him. At the instance
of Furbert's counsel, the trial judge admitted evidence of C's statement that Franks had
shot him as a 'dying declaration' or alternatively as part of the res gestae. The evidence
given at trial by both Furbert and Franks implicated each other. Both were convicted of
murder on the basis that they had gone to the house on a joint enterprise. Held- the
evidence of C's 'dying declaration' should have been excluded as of no relevance, as the
Court of Appeal had held, because C could not have seen or known who shot him but
there was no risk of a miscarriage of justice because there very strong evidence that
Franks was guilty of murder under s 287(1)(c) whether he or Furbert had fired the gun.

The admissibility of depositions as a statutory exception:

• Justice of the Peace Jurisdiction Act section 34- allows for the admission of depositions
(taken on oath at preliminary enquiry) of persons who cannot give evidence at trial due
to death, illness causing inability to travel, absence from the island and incompetence
due to insanity. NB- that Jamaica no longer has preliminary enquiries and so provision
for this might be under the Committal Proceedings Act now.
• Barnes, Desquottes and Johnson v R- This case concerned two issues- whether a trial
judge in a criminal case has the discretion to refuse to admit a deposition of a witness
who died before trial; secondly if such a discretion exists, in what circumstances should
it be exercised. In this case the only witness who identified the appellants had been
murdered before trial. The PC held that the mere fact that the witness is unavailable is
not sufficient ground to exercise the discretion to exclude the deposition as this was
what parliament contemplated when passing the Justice of the Peace Jurisdiction Act.
The PC held that the following should be observed:
- the jury should be warned that they have not had the benefit of seeing the deponent
tested by cross-examination and to consider this when they consider how safely they
can rely on it as evidence
- the judge should point out the particular features of the deposition evidence that
conflicts with other evidence given at trial
- in an identification case it will be necessary for the judge to warn the jury of the dangers
of identification evidence
 - the deposition must be scrutinized by the judge to ensure it does not contain
inadmissible matters such as hearsay or that it is more prejudicial than probative and
such matters should be excluded from the deposition before it is read to the jury.
The discretion to exclude may be exercised where:
- the judge is satisfied that it would be unsafe for the jury to rely on the evidence in the
deposition.
- The evidence of identification is so weak that a judge in the absence of corroborative
evidence would withdraw the case from the jury, then if there is no corroborative
evidence the judge should exercise his discretion to refuse to admit the depositon.
- If the identification evidence in the deposition is the only evidence and the judge
decides that no adequate direction to the jury could ensure a fair trial to the accused
then the deposition should be excluded.
• Henriques and Carr v R- in this case the admission of the deposition of a Dr. Venugopal
was in issue. The PC held that the trial judge had not adequately directed the jury on
how to deal with the deposition evidence. The court indicated the judge should have:
- Warned the jury that the deposition evidence was not necessarily the same weight as
evidence which they had heard tested before them by cross-examination.
- Warned the jury that as they have not seen the deponent being cross-examined they
must consider this in regard of his reliability.
- Point out particular features of the deposition evidence which was in conflict with other
evidence given at trial.
- Point out that no inference adverse to the accused should be drawn for lack of cross-
examining the witness at preliminary inquiry.
However despite finding that the trial judge erred in not adequately directing the jury
the PC considered that the appellants suffered no prejudice as a result of these errors.
This might be in light of the evidence of the other witness Junior Blackwood who was an
eye witness.
NB- the witness Junior Blackwood had known one of the appellants for years and had
the opportunity to observe the other over an extended period of time. Junior
Blackwood had had the opportunity of observing both the appellants over periods of
hours during the days preceding the attack on the deceased. He had observed them
with the deceased in circumstances which were, to say the least, curious and hardly
indicative of great goodwill on the part of the appellants towards the deceased. The
appellants in their unsworn statements confirmed some at least of Junior Blackwood's
prior sightings and placed themselves at the locus at the time when the deceased was
being beaten. In all these circumstances their Lordships consider that the judge's
warning was sufficient.

The admissibility of statements in documents as a statutory exception to hearsay:

• Grant v R- This case involved murder where a man shot another man 13 times. He
claimed the man first approached him with a gun while he was peeing. In this case the
constitutionality of section 31D of the Evidence Act was challenged in light of the
Constitutional provision (then 20(6)(d) now 16(6)(d)) that says every person shall be
offered the opportunity to examine or have examined by their legal representative,
witnesses who appear against them. This was because section 31D allowed for a
statement made by a person in a document to be admissible as evidence in criminal
proceedings if it is proved that the person is:
- Dead
- Unfit bodily or mentally to attend as a witness
- Outside of Jamaica and it is not reasonably practicable to secure their attendance
- Cannot be found and all reasonable steps have been taken to find them
 - Is kept away by threat of bodily harm and no reasonable steps can be taken to protect
them.
The court found that section 31D was not unconstitutional for the following reasons:
- Common law and statutory exceptions to hearsay existed prior to the constitution and it
would be wrong to construe the constitution as guaranteeing there would be no further
statutory exceptions to hearsay.
- The ECtHR insisted that admissibility of evidence is governed by national lawand its sole
concern is the overall fairness of the proceedings.
- Section 31D requires certain conditions to be met before the statement is admissible,
and section 31J gives the defence enhanced power to challenge the credibility of the
author of a hearsay statement.
- Section 31L acknowledges the discretion of the court to exclude a statement if its
prejudicial effect outweighs its probative value. PC also noted the cases of Scott and
Walters v R and Henriques and Carr v R and indicated that these cases concerened
depositions, but the need for a judicial discretion to exclude is even greater when the
evidence in question has never been tested on oath at all.
- There were directions that a judge must give that were valuable safeguards of the
defendant’s interests:
(i) It is not correct to say that a statement admitted under section 31D is not
evidence. The judge must however remind the jury that the statement has not
been verified under oath nor tested by cross examination
(ii) Judge should point out the potential risk of relying on a statement by a person
who they have not been able to assess or see tested by cross-examination and
invite the jury to scrutinize the evidence with particular care.
(iii) It is proper to direct the jury to give the statement such weight as they see fit.
(iv) Direct the jury to consider the statement in context of all other evidence, and to
point out any discrepancies between the statement and the other evidence
given at trial.

PC noted that omission of some of these directions may not necessarily lead to an unfair
trial but because these directions are a valuable safeguard to the defendant’s interests,
it may.

The PC concluded in this case that plain fairness required the evidence of not just Bryant
but Kinglock as well to have been admitted into evidence. They found that the trial
judge failed to discharge her duty to ensure the overall fairness of the proceedings; she
could have invited prosecuting counsel to adduce Kinglock’s evidence and if they
declined she could have declined to admit Bryant’s evidence out of fairness if Kinglock’s
evidence was not also adduced. The failure to adduce Kinglock’s evidence amounted to
unfairness and this was further compounded by the inadequate direction on Bryant’s
evidence by the judge. The jury were given no encouragement to scrutinize it with
particular care and were not alerted to the apparent discrepancies between it and the
evidence of Constable Wynter. On this basis the appeal was allowed.

Hearsay and Real Evidence:

• In relation to objects, a witness will have to authenticate the object before it can be
admissible, and so objects also are generally proved through witnesses. The witnesses
must be able to testify from personal knowledge that the object is what it purports to
be. The witness must therefore be examined in court to obtain answers to show the
witness’ ability to authenticate and identify the document or object in question and its
 relevance. The term for these preliminary questions is called the foundation. Once the
proper foundation has been laid the document or object will be admitted into evidence
and will be called an exhibit.
• For some items or the results of testing a chain of custody has to be established for it to
be admitted. A chain of custody requires all persons who had custody of the item to give
evidence of their possession and the condition of the item when they had it, and the
handover of the item from that witness. Initially the item will be marked for identity
after each witness gives evidence to establish the chain, once the chain is established it
becomes an exhibit.
• Grazette v R- This case concerned establishing a chain of custody of blood samples
taken from the accused for testing it against sperm samples taken from the victim who
had been sexually assaulted and murdered. The appellant contended that Segeant
Walcott’s evidence that the package which he marked SPI contained samples that were
attributed to the appellant, amounted to inadmissible hearsay. The PC rejected this on
the ground that even though Sergeant Walcott could not testify that these samples
were indeed taken from the appellant it was implicit in his evidence that the attribution
of samples to the appellant was made by Constable Rouse who had seen the blood
sample taken from the appellant. The same sample that was attributed to the appellant
by Constable Rouse was handed over to him (Walcott) and this was sufficient to
establish the chain. Furthermore the appellant submitted that the link between the
sample K4 and SPI was hearsay since the DNA examiner Ms Luttman had not
redesignated the samples herself nor saw them redesignated and she had no been the
one to receive the samples from Walcott. The CCJ rejected this as well being that the
samples had labels affixed to them with the appellant’s name, and considering that the
standard of proof was on a balance of probabilities for a chain of cutody, it was
sufficient. This case shows that a break in the chain is not necessarily fatal provided that
there is no need to doubt the integrity of the sample.

CONCEPT 22- PRE-TRIAL SILENCE

• Hall v R 1971- This case is the authority on the principle that a person is entitled to
refrain from answering a question put to him for the purpose of discovering whether he
has committed a criminal offence. Hence he has no obligation to respond when
informed that someone else has accused him of an offence. No adverse inference is to
be drawn from D’s silence.
• The above highlights two contexts when pre-trial right of silence might arise:
(i) When the accused is being question to discern if he has committed a crime.
(ii) When the accused is informed that someone else has accused him of a crime.
• Generally speaking, courtesy of the above principle, subject to few exceptions, an
accused’s silence in both contexts cannot be considered as evidence of his guilt.

Duty of Police Officers and Investigators to Caution Accused:

• Judges’ Rules are not law, but are rules of guidance as to the proper practice of the
police officers and professional investigators in relation to questioning and taking
statements of suspects and persons charged with an offence.
• Under the Judges’ Rules an officer should advise a suspect, person charged, or person
informed of possible prosecution against him, that he has a pre-trial right to remain
silent. A person so advised is to be cautioned.
 • Where a suspect or accused gives a statement it should be under or after caution. Such
a statement is called a caution/cautioned statement. Oral statements given after
caution are called statements after or under caution.
• Rule I of the Judges’ Rules entitles an officer to question anyone whether suspect or not
in order to investigate a possible offence.

Pre-trial accusations:

• Evidence of pre-trial accusations made against an in the presence of the accused is

hearsay unless he accepts the accusation.
• Shabir Ali v The State- In this case a man was convicted of the murder of his child,
whose head he banged against a concrete platform due to an argument with his wife.
The PC treated as hearsay the evidence of a police superintendent of an accusation out
of court that had been made by the wife of the appellant against him, which the
superintendent then told to the appellant. The court feared that even if the jury was
warned to ignore the hearsay evidence, the damage was already done and they could
not be sure that this would not have influenced the jury. Appeal allowed.
• Langford and Freeman v The State- The appellant Freeman was in a bar fight, the
proprietor of the bar held on to the other man and the deceased held on to Freeman to
part the fight. Freeman then left the bar. Later that night an eye witness saw three men
pursue the deceased and beat him to death. The eye witness identified both Langford
and Freeman to the police but both denied being there at all. At trial Inspector Laudat
testified to matters which he stated to the appellants concerning their identification by
the witness. The PC found this to be hearsay evidence. This in addition with the fact that
the judge failed to warn the jury that they must not take into account the hearsay
evidence recounted by Inspector Laudat as evidence of the truth of those statements,
the court found the convictions were unsafe.

Accusations made against accused in his presence may be evidence of guilt if accepted by him:

• R v Christie- This case was adopted in Shabir Ali v The State, and highlights the
exception to the rule that accusations made against and in the presence of the accused
are hearsay. The exception is that such accusations may amount to evidence and be
admissible if they are adopted by the accused. If the accused accepts the statement
partly then only to that extent would he have been deemed to have adopted it. He may
accept the statement by word or conduct, action or demeanor. It is up to the jury to
determine if his words, action, conduct or demeanor amounts to an acceptance of the
accusation in whole or in part.

Accusations made against the accused and in his presence by a person in authority:

• Hall v R- Ganja was found by the police on the premises occupied by the appellant and
two others; the appellant was not home at the time of search. Later the police brought
the appellant to the premises and told him of the search and an accusation by one of
the occupants that the ganja belonged to him. He remained silent. He was later tried
and convicted. PC held on appeal that mere silence by the accused on being informed
by the police that someone had made an accusation against him could not give rise to
an inference that he accepted the truth of the accusation (no adverse inference).
In Hall the Crown tried to argue that D’s pre-trial silence when confronted with the
accusation by the police could have amounted to acknowledgment of it because the
accused was not cautioned beforehand. PC indicated- The caution merely serves to
remind the accused of a right which he already possesses at common law. The fact that
in a particular case he has not been reminded of it is no ground for inferring that his
 silence was not in exercise of that right, but was an acknowledgment of the truth of the
accusation.
• Berry v R- Case with appellant who killed wife of Zaidie and sister of Matadial that the
appellant was having an affair with. The case confirmed a defendant’s pre-trial right to
silence and that it was improper for prosecuting counsel to comment adversely on a
defendant’s exercise of that right. Though the trial judge did not correct crown counsel
at the time of what was said, in summation the judge did tell the jury that the accused
had a right to pre-trial silence and exercise of this could not be used against him. PC was
therefore satisfied that there was no great adverse effect on the jury regarding this.

Accusations made against the accused and in his presence by a person on equal terms:

• Parkes v R- Appellant was tried and convicted of murdering a young woman with a
knife. Prosecution’s case relied upon evidence of the mother of the deceased. When the
mother found her daughter in her room bleeding, she went outside to the accused who
lived in the same house, and accused him twice of stabbing her daughter. He made no
reply, but when the mother threatened to detain him until police were sent for, he
attempted to stab her. The principle from this case is that the pre-trial silence of the
accused coupled with incriminatory conduct on his part can be evidence that he has
accepted the truth of pre-trial accusations against him if made by a person on even
terms. The PC distinguished Hall v R, in that in Hall the person by whom the accusation
was communicated was a police officer, this case was distinguishable because the
mother and appellant were on equal terms. The PC agreed with the dicta in R v Mitchell
which noted “undoubtedly, when persons are speaking on even terms, and a charge is
made, and the person charged says nothing, and express no indignation, and does
nothing to repel the charge, that is some evidence to show that he admits the charge to
be true”. This may be an indication that regardless of incriminatory conduct, silence in
the face of an accusation by a person on even terms may be allowed as evidence upon
which a jury may draw an adverse inference.

• R v Chandler- The appellant was suspected of being part of a gang that obtained TVs
dishonestly. In the presence of his solicitor, the appellant was questioned by a detective
sergeant at a police station. Both before and after being cautioned he answered some
questions and remained silent or refused to answer other questions in relation to other
alleged members of the gang. The issue was whether the appellant's silence amounted
to an acceptance by him of what the sergeant had said. Court of Appeal held- When the
trial judge's comments are examined against the principles enunciated in both R v
Mitchell and R v Christie we are of the opinion that the appellant and the detective
sergeant were speaking on equal terms since the former had his solicitor present to give
him any advice he might have wanted and to testify, if needed, as to what had been
said. We do not accept that a police officer always has an advantage over someone he is
questioning. Everything depends on the circumstances. A young detective questioning a
local dignitary in the course of an enquiry into alleged local government corruption may
be very much at a disadvantage. This kind of situation is to be contrasted with that of a
tearful housewife accused of shoplifting or of a parent being questioned about the
suspected wrongdoing of his son. Some comment on the appellant's lack of frankness
before he was cautioned was justified, provided the jury's attention was directed to the
right issue which was whether in the circumstances the appellant's silence amounted to
an acceptance by him of what the detective sergeant had said. If he accepted what had
been said, then the next question should have been whether guilt could reasonably be
inferred from what he had accepted. To suggest, as the judge did, that the appellant's
silence could indicate guilt was to short circuit the intellectual process which has to be
followed. The same kind of error is seen in the comment which the judge made whether
 the appellant had been evasive in order to protect himself. He may have been; but that
was not what the jury had to decide. It follows, in our judgment, that the comments
made were not justified and could have led the jury to a wrong conclusion. Appeal
allowed.
• R v Gilbert- The appellant and his victim worked together on a building site. The victim
owed the appellant money for tax in respect of a private job they had done together.
They had words, the victim agreeing to pick up the appellant the next day and take him
to work, but failed to do so. Four days later the appellant went to the site to collect his
tools, saw the victim working there with another hod carrier. He climbed up to him and
asked him about his money. The appellant then averred that his victim struck him with a
trowel, he grabbed a tool from a nearby tool bag, which was a knife, and “just stuck the
knife into him.” He made a statement to the police under caution about his relationship
with his victim, but remained silent when the police asked him about the incident
leading to the victim's death. He rightly told the jury that no adverse inference was to be
drawn against Gilbert on account of his refusal to answer the questions put to him by
the police officer. The words of the caution made it clear that he was entitled to keep
silent. As the law now stands, although it may appear obvious to the jury in the exercise
of their common sense that an innocent man would speak and not be silent, they must
be told that they must not draw the inference of guilt from his silence.

CONCEPT 23- ILLEGALITY/UNCONSTITUTIONALITY IN OBTAINING EVIDENCE

The general rule as to illegally obtained evidence:

• The pre-trial illegality/unconstitutionality in obtaining evidence does not necessarily

make it inadmissible at trial.
• R v Sang- In this case the court was asked to certify the following:
“Does a trial judge have a discretion to refuse to allow evidence (being evidence other
than evidence of admission) to be given in any circumstances in which such evidence is
relevant and of more than minimal probative value?”
The House of Lords held:
(i) A trial judge in a criminal trial always has a discretion to refuse to admit evidence
if in his opinion its prejudicial effect outweighs its probative value.
(ii) Save with regard to admission and confessions and generally with regard to
evidence obtained from the accused after commission of the offence, he has no
discretion to refuse to admit relevant admissible evidence on the ground that it
was obtained by improper or unfair means. The court is not concerned with how
it was obtained.

Extended scope of the exclusionary discretion:

• The question which flows from the above is whether the court has a discretion to
exclude an item of evidence if it is not more prejudicial than probative and also if it is
not evidence obtained from the accused after the commission of the crime.
• Barnes, Desquotte and Johnson v R; Scott and Walters v R- Each of these cases
concerned the admissibility of deposition evidence from witnesses who died before
trial. The trial judge in each case admitted the depositions into evidence under section
34 of the Justice of the Peace Jurisdiction Act which allowed such depositions of
witnesses who died to be admitted. The Act however did not confer on the judge a
discretion to exclude the depositions. The above outlined question arose in this case.
 Citing R v Sang the PC rejected that the discretion to exclude evidence was restricted to
instances where the prejudicial effect outweighed the probative value. PC noted that
the category of such cases of discretionary exclusion by the court is not and never can
be closed except by statute. The court concluded its analysis by referring to authorities
conferring a discretion at common law to exclude deposition evidence sought to be
admitted under statute. It held in light of this it was satisfied that the exclusionary
discretion of a judge to ensure a fair trial included a power to exclude a deposition but
that there were no grounds for the exercise of the discretion on these facts.
• Grant v R- The PC considered the discretion conferred on the court in section 31L of the
Evidence Act to exclude evidence if its prejudicial effect outweighed its probative value.
PC treated the discretion as similar to that conferred in R v Sang and that the discretion
applied to evidence which it adjudged to be unfair to the defendant in that it puts him
at an unfair disadvantage or deprives him unfairly of the ability to defend himself.

The effect of a breach of the constitution:

• King v R (appeal from Jamaica)- Appellant was searched by police under a search
warrant and ganja was found on him. He was charged with possession of ganja. At trial
the appellant submitted that evidence of the ganja found ought to be excluded because
the warrant was defective and so the evidence obtained under it was a breach of his
constitutional right not to be illegally searched without consent. PC held that though the
search was illegal and therefore breached his constitutional right, the evidence was
properly admitted because the police had not been unfair to him (because they had not
willfully misled him). The court also found that the judge had a discretion on whether to
exclude evidence in fairness to the accused where the evidence was admissible and this
discretion applied to constitutional rights. PC found however that there was no ground
to interfere with how the judge had exercised the discretion.
• Mohammed v The State- This case concerned the admissibility of an incriminating
statement to the police by the appellant in relation to the murder. The statement in
question had been taken from the appellant in breach of his constitutional right to be
informed of his right to a lawyer. The trial judge had proceeded on the basis that he had
the discretion to admit the statement. Appellant submitted that the confession
obtained in breach of constitutional rights was inadmissible and should have been
excluded. The PC held that though King v R was concerned with real evidence and not a
confession, it was good law, and therefore the judge had a discretion to admit a
confession in the context of evidence obtained in breach of a constitutional right. The
PC also considered the appellants submission that the confession was prima facie
inadmissible and ought only to be admitted in exceptional circumstance. PC held that
the discretion of the judge was neither prima facie exclusionary or inclusionary and that
the judge in exercising his discretion has to conduct a balancing exercise in weighing the
interest of the individual against the interest of the community but highlighted that it
would generally not be right to admit a confession if the police deliberately breached his
constitutional rights. PC also acknowledged that the view in King that it didn’t matter
whether it was a common law right that was breached or a constitutional right was
narrow; they indicated that though the discretion applied to constitutional rights as
well, constitutional protection to a right gives it added value and a breach of that right is
a cogent factor in favour of exclusion. It is important to note which constitutional right
was breached. It would generally not be right to admit a confession where the police
have deliberately frustrated a suspect’s constitutional rights. PC concluded that trial
judge had exercised his discretion correctly, in the process noting that the police acted
in good faith. Appeal was allowed on other grounds.
 CONCEPT 24- LEGAL BASES TO EXCLUDE INCRIMINATING STATEMENTS

• Seeraj Ajodha and Others v The State- This case confirms the general principle that
voluntariness is a requirement for the admission of confessions/incriminating
statements by an accused to a person in authority and in the absence of this such
statements must be excluded.
• This principle was approved in Ibrahim v R- No statement by an accused is admissible
against him unless the prosecution can show it was voluntarily given, in the sense that it
has not been obtained from him by fear of prejudice or hope of advantage exercised or
held out by a person in authority.

Definition of person in authority:

• A person in authority is one who is concerned in the arrest, detention, interrogation or

prosecution of the defendant, and who therefore may be properly thought by the
defendant as having influence or control over the case against him. This highlights the
importance of proving voluntariness of confession since the person’s authority might
create a risk that the defendant would confess out of fear or hope of advantage.

Requirement for absence of inducement:

• Sparks v R- The appellant was tried and convicted of indecent assault of a four year old
girl. The mother of the girl had left her in the car to go bowling, and on intermittently
checking on her discovered she was missing. Witnesses recalled seeing the man with a
little girl following him from the parking lot of the bowling alley. On the night the police
came to his home, the appellant gave an oral statement which suggested his complete
innocence. He said he was high and drunk that night and had no recollection of having
assaulted her, and after crashing his car he saw the little girl who was crying and he took
her to the party he went to later that night. Later that day when he went to the police
station at the police’s request he made oral statements and in the end he signed a
written statement in which he changed his account and confessed to indecently
assaulting the girl. The appellant contended that the confession was inadmissible
because: (i) the officers told him there was a chance he would be tried in military court
and not civil courts if he made the statement, (ii) they told him it would be worse for
him if he didn’t make the statement as they would also try him for the motoring
offence, (iii) they told him to make it to avoid publicity and embarrassment to his friends
and family, (iv) he was told if he made the statement it would enable his wife to leave
the island in time because if there was an investigation she would have to stay. The PC
concluded that on acceptance of the appellant’s evidence there were various
inducements including fear and advantages. The PC rejected the notion that the
acknowledgment by the appellant of the caution that he was not obliged to say anything
was an indication that inducements no longer continued to operate. On the contrary the
court held that the caution marked the moment when the inducements became
effective. PC therefore held that the statements made at the police station should have
been held inadmissible by the trial judge as they were not voluntary. There was in this
case a miscarriage of justice. PC rejected the trial judge’s notion that although there
were inducements they were not calculated to make the appellant’s confession untrue.
 PC said what was to be considered was whether there were inducements which showed
the statement was not a voluntary one.

Requirement of the absence of oppression for admissibility:

• Callis v Gunn- Added to the words of Lord Sumner in Ibrahim v R that for the
admissibility of confessions the prosecution must show that it was not obtained in an
oppressive manner and that it was voluntary in that it was obtained without threat or
inducement. Whether there were instances of oppression is a question of fact, and as
what one man finds oppressive may not be oppressive to another the ultimate question
is whether the circumstances in fact induced the defendant to make the confession.

Role of Judge and Jury in relation to admitting confession statements:

• Seeraj Ajodha and Others v The State- The appellant and others were convicted of
murder. All the accused had signed confessions, however they contended they had not
authored the statements and were forced to sign them by violence and threats of
further violence. One appellant said he was tricked into signing. The question in this
case was whether it was a question of law for the judge as to the admissibility of the
statements where the prosecution sought to tender evidence of a confession signed by
the accused who denies having written the statements and says it was obtained by
force. The Court gave guidance on four possible scenarios:
(i) The accused admits making the statement but says it was not voluntary- Judge
must rule on admissibility and if statement is admitted leave to the jury all
questions of its value and weight (voir dire).
(ii) Accused denies authorship of written statement but says he signed it
involuntarily- Judge must rule on admissibility and if statement is admitted leave
all issues of fact as to the circumstances as to the making and signing of the
statement for the jury to evaluate (voir dire).
(iii) Evidence tendered by prosecution suggests that confession was obtained by fear
of prejudice or hope of advantage, irrespective of any challenge to prosecution
evidence by defence- Judge must rule on admissibility based on whether
statement was voluntary (voir dire).
(iv) On the face there is no suggestion that statement was involuntary but defence
offers an absolute denial say either an oral statement never happened or in the
case of a written statement saying it is a forgery- No issue of voluntariness so no
voir dire. The issue of fact whether or not the statement was made by the
accused is purely for the jury.

Procedure in Jury trials for voir dire:

• Ajodha v The State-

- Defending counsel will notify prosecuting counsel before trial that an objection to
admissibility will be raised and prosecuting counsel will refrain from mentioning the
statement in his opening to the jury
- At the appropriate time during trial the judge will conduct a voir dire to decide on
admissibility, this will be in the absence of the jury, but only at the request or with the
consent of the defence.
- Defence for tactical reasons may want the voir dire to be done in the presence of the
jury, even though this means they would have heard the impugned statement. If
Defence does this it may be open for him to submit at the close of the evidence that if
the judge doubts the voluntariness of the statement he should direct the jury to
 disregard it or if the statement is necessary to sustain the prosecution’s case the judge
should direct an acquittal.
- It may sometimes be the case that the issue of voluntariness arises where the accused
himself raises it while giving evidence. In this case it will be at the discretion of the judge
whether to recall the relevant prosecution witness for further cross-examination.
- Where the defendant is unrepresented, if the judge has any reason to suppose that the
voluntary character of the statement is likely to be in issue he should speak to the
defendant before trial begins and explain his rights in the matter.
• Mitchell v R- This case gave further guidance on the procedure of voir dires to
determine admissibility of evidence. In this murder case where the appellant contended
the confession was obtained by violent force, prosecuting counsel had blurted out in the
presence of the jury graphic details of what her case would be in the voir dire. The PC
laid out guidelines for the voire dire-
- Defence counsel must alert the prosecution and judge of his intention to object to the
admissibility before trial. If prosecuting counsel is unclear on defence’s intention he has
a duty to seek clarification in the absence of the jury.
- At an appropriate time, counsel must ask the judge to request the jury to withdraw so
that a matter can be raised which requires his ruling.
- The judge must simply tell the jury that a matter has arisen and ask them to please
retire for the time being.
- When the voir dire is completed and the judge has given his ruling he should give no
explanation of the outcome of the voir dire to the jury.

Admissibility of oral confessions and incriminating conduct amounting to an admission:

• Timothy, Reid and Lewis v The State- In this case the PC found that a voir dire ought to
be equally held where the confession manifested in conduct where two of the
appellants had taken a Sergeant to show him where the guns were, if this conduct was
done involuntarily and by force.

Exclusion of Statements by accused for breaches of the Judge’s Rules:

• Shabadine Peart v R- this case as concerned with a breach by the police of rule III of the
Judge’s Rules which prohibits the questioning of a suspect after he has been charged
unless there are exceptional circumstances. Appellant was convicted of murder of a
security guard. The appeal before the PC concerned the admission of a written record of
63 questions and answers by the appellants to an Inspector after he had been arrested
and charged. A voir dire was held and the defendant gave evidence that he was beaten
an threatened with a firearm. Trial judge however found that the answers were given
voluntarily and admissible. In addressing the issue contended by the appellant that
there was a breach of rule III with no exceptional circumstances the PC noted:
- the disadvantage to a suspect is the risk that at that stage he may feel a greater
compulsion to answer questions and may be unfair in that it might possibly require him
to incriminate himself (R v Johnson).
- Voluntariness was not the only criterion for admissibility as R v Sang observes that an
admission may be voluntary but still unfair to admit it. The overarching criterion is the
fairness of the trial.
- The youth of the appellant and the fact that he didn’t have the advice of an attorney
were factors which demonstrated unfairness.

The court further held:

- The judge’s rules are administrative directions but possess considerable importance as it
concerns the standard of fairness to be observed.
- A court has the discretion to allow a statement to be admitted even if it was in breach of
the judge’s rules, but also the court may refuse to admit a statement even if the terms
of the judge’s rules have been followed.
- If a prisoner has been charged, he should not be questioned in absence of exceptional
circumstance as per the judge’s rules, however the judge may nevertheless admit the
statement in response to such questioning, even if there are no exceptional
circumstances. The increased vulnerability of the prisoner’s position after being charged
and the pressure to speak will militate against admitting such a statement.
- The criterion for admission is fairness. The voluntary nature of the statement is the
major factor in determining fairness. If it is not voluntary it will not be admitted, but if it
is voluntary that constitutes a strong reason in favour of admitting it notwithstanding
the breach, but the court may rule that it would be unfair to admit it even if the
statement was voluntary.

The PC did not agree with the COA that there were exceptional circumstances. COA
contended that the questioning related to an area don who was still at large, but PC found
that only a few of the 63 questions concerned the whereabouts of the don. The questions
were instead geared at pinning down the appellant as to his movements on the night of the
murder. PC said it did not see that the questioning was voluntary but even if it was in this
instance it was unfair to admit the statement into evidence- defendant was 18, no lawyer,
there were inconsistencies in his answers, also inconsistencies in his answers at trial which
would have influenced jury, no proper lucas direction was given by judge based on the lies D
told in his evidence. Appeal was allowed.

• Ricardo Williams v R- this case deals with a section of the Judge’s Rules administrative
direction para 4 that provides: As far as practicable children (whether suspected of a
crime or not) should only be interviewed in the presence of a parent or guardian or in
their absence, some person who is not a police officer and is of the same sex as the
child. The appellant in this case was tried and convicted of murder, he was 12 at the
time. The only evidence against the appellant were one written and one oral statement
by the appellant to the police while in custody. In both the appellant admitted
participation in the murder. The written statement was recorded after caution and was
signed by the accused. The appellant contended it was inadmissible because the police
had beat and kicked him to get it. The judge ruled it was voluntarily given and
admissible. The later oral statement was made a few days later when the accused was
cautioned and charged. The trial judge did not hold a voir dire in relation to the oral
statement despite objections by the defence counsel. The PC noted that the trial judge
had made no reference to the judge’s rules or the age of the appellant. PC also noted
that the trial judge was under the misapprehension that the burden of proof was on the
defence to prove the allegations of beating on a balance of probabilities. PC also noted
that the trial judge appeared to have taken the view that voluntariness was the sole
criterion and did not account for fairness to the accused. Ultimately PC found that in the
circumstances, it was unfair to the appellant to have admitted the statements even if no
beating had occurred. Unfairness included- appellant was 12 when statement was
made, his literacy appears to have been in some doubt, no parent was asked to be
present during the interview and taking of the statement, the presence of the JP was
not proper compliance with Administrative Direction para 4, no evidence was called by
prosecution to rebut the boys account of the beatings the judge simply rejected his
account. PC’s view was that once the written statement is excluded the verbal
statement was insufficient to sustain a conviction of murder. Appeal allowed.
Exclusion of statements for breaches of the constitution:

• Recall Mohammed v The State- this case outlined that a trial judge could exercise his
discretion to admit confession evidence even where it was done in breach of a
constitutional right, in this case the right to have a lawyer present when being
questioned.
• Simmons and Greene v R- this case concerned the murder of a police man by the
appellants during a housebreaking. The appellant Simmons was questioned and a
confession taken from him without his attorney present. The issue here was largely that
Simmons made repeated requests to see his lawyer, he was not cautioned before the
statement was taken, the inspector continuously ignored Simmons’ request to see an
attorney and seemingly tried to dissuade him from seeking legal advice, and when
Simmons’ counsel attended the police station he was lied to that Simmons was not
there. PC found that there was the clearest possible breach of Simmons’ constitutional
right, not merely of his right to communicate with a legal advisor but much more
importantly that the inspector positively and repeatedly denied him that right. PC noted
that one cannot say for certain he would have confessed had his lawyer been there even
though he mentioned he planned to anyway. PC concluded on the facts that the trial
judge should have excluded the confession statement, and should have had more
regard to fairness and the appellant’s constitutional right. However appeal was still
dismissed as the PC felt the jury would have still convicted.
• Hunte and Khan v The State- In this case the appellant Hunte was tried and convicted of
murder. The issues were that when Hunte was visited by his attorney at the station he
was not allowed to have private audience with him and had to speak to him in front of
the officers, furthermore even though upon leaving the attorney gave the police his
number to call if they had further interviews to do the police went ahead and
questioned Hunte in absence of his attorney at which point Hunte made a written and
oral confession. The PC found that there was a clear breach of the Judge’s Rules and
Hunte’s constitutional right to have private access to his legal advisor. Hunte claimed he
had not made the oral statement and was induced to sign the written statement by
physical mistreatment. PC however held that breach of Hunte’s constitutional right did
not automatically mean it was wrong in law to admit the confession and two things had
to be considered- was the statement voluntary? And did fairness require it to be
excluded? PC concluded that there was no issue with the trial judge having found the
statement as being voluntary and secondly that as to the issue of fairness, Hunte was
not deprived a fair trial since he had been previously advised by his attorney before he
left not to make a statement, and further Hunte signed the confession after speaking to
a JP in private and acknowledged he was properly treated.

Special directions to the Jury on the issue of whether a confession was obtained improperly:

• Barry Wizzard v R- this case was a murder appeal case to the PC from Jamaica.
Prosecution at trial sought to rely on an incriminating statement by the appellant to the
police under caution. The appellant contended that the police had beaten him to sign a
prepared statement. The trial judge had told the jury in summation that if they were not
sure whether the statement was made or was true they should disregard it, but if they
were sure it was made and was true they may rely on it even if it may have been made
as a result of oppression or improper circumstances. PC considered the applicability of
the Mushtaq Direction- the jury is to be directed to disregard a confession if they
conclude that it was or may have been obtained by oppression. PC held that the
Mushtaq direction applied to Jamaica and could be applied retrospectively (the decision
 in Mushtaq came after the trial). PC held that a Mustaq direction would be required
where it is a possibility that the jury may conclude:
(i) That a statement was made by the defendant;
(ii) That the statement was true
(iii) The statement was, or may have been induced by oppression.

PC however found that in the present case there was no need for a Mushtaq direction.
PC pointed out that in the appellant’s unsworn statement he indicated that he had not
made the statement nor even know what was in the document but was forced to sign it.
They found that the Mushtaq direction would have been appropriate where it was seen
that the statement under caution was forced out of the appellant by violence.

• Benjamin & Ganga v The State- see summary under Caution warnings. In this case the
prosecution relied on a written statement under caution from each appellant and an
oral admission from the appellant Benjamin. At trial both appellants applied to have
their confession statements excluded. A voir dire was held, each appellant denying
having made either the oral or written statements but that their signatures were
obtained by the police as a result of beating. The trial judge rejected their claims and
ruled the statements admissible. On appeal defence contended that a Mushtaq
direction should have been given, but the respondent claimed that the case was much
like Wizzard and therefore didn’t require a Mushtaq direction. PC disapproved of the
reasoning in Wizzard and found that a Mushtaq direction was appropriate since it was
open to the jury to conclude that the appellants made the statements, that they were
true and that their signatures were as a result of oppression. PC said that it was not right
in Wizzard for the Board to have concluded that a Mushtaq direction was not necessary
because the accused made an unsworn statement denying making the statement at all.
In this case however the PC found that all the necessary elements of a Mushtaq
direction were present in the judge’s summation and therefore dismissed the appeal.

Caution warnings in relation to alleged oral confessions:

• Benjamin & Ganga v The State- in this context of the case the PC addressed the issue of
warnings of the dangers of relying on an oral statement as the basis of conviction. It said
that whether such warning is required must depend heavily on the particular facts of an
individual case. PC said that obviously if the oral statement is the only evidence being
relied on there is plainly a need for caution particularly if the statement had not been
recorded contemporaneously and if it has it has not been verified in writing by the
accused. In contrast PC indicated that if the oral statement is only a minor part of the
case against the defendant then to single out the oral statement as deserving special
care would have been at best potentially misleading. This was the case in the instant
matter, there was also written statements and evidence from the wife of the deceased
which formed the more essential part of the case against the appellants.
• Burke v R-

CONCEPT 25- EVIDENTIAL VALUE OF PRE-TRIAL STATEMENTS

• The law is straightforward as to the evidential value of a statement by an accused to the

police amounting to a full admission of guilt. It is admissible as a common law
exception to the hearsay rule and can therefore amount to proof of the truth of its
contents.
Evidential value of mixed statements:

• R v Sharp- In this case the question for the court was where a statement made to a
police officer out of court by a defendant contains both admission and self-exculpatory
parts, do the exculpatory parts constitute evidence of the truth of the facts alleged? In
its judgment the HOL held- Where a mixed statement is under consideration in a case
where the defendant has not given evidence the jury should be told that the whole
statement must be considered by them in deciding where the truth lies. It is not helpful
to explain to the jury that the exculpatory parts are something less than evidence of the
facts they state. The judge should point out that the incriminating parts are likely to be
true whereas the excuses do not have the same weight. The above question was
answered in the affirmative.
• Hamilton and Lewis v R- This case spoke of the evidential value of exculpatory
statements. The court said- A statement that is not an admission is admissible to show
the attitude of the accused at the time when he made it. This is not to be limited to a
statement made on first encounter with the police but the longer the time that has
elapsed the less weight will be attached to the denial.

Evidential value of mixed statements when accused gives evidence at trial:

• Whittaker v R- this case confirms that pre-trial mixed statements have the same
evidential value outlined in Sharp whether accused remains silent or gives evidence. In
this case the appellant was convicted for murder of a man who called him a police
informer. The appellant told to the police and gave evidence at trial to the same effect
that the deceased had attacked him with a knife and after they wrestled he realized the
deceased had been injured. The trial judge described the excuse given self-serving to
the jury. PC concluded that the trial judge’s description of the statement to the Corpral
was a misdirection. This was so because the statement was not one which was wholly
exculpatory but one which contained both admissions and self exculpatory statements.
The principle of its evidential value also remained the same regardless of whether the
accused gave evidence at trial. The jury was therefore required to consider whether the
appellant’s account as to what happened was true. Despite the finding of the
misdirection PC dismissed the appeal as the jury properly directed would still have
convicted since they had clearly accepted the witness’ account over the appellant’s
account.

Duty of prosecution to tender statements by the accused to the police:

• R v Gordon- This is a murder case where 4 police officers saw the appellant beating the
deceased with a piece of wood. This case involved the issue where the PC held that as a
matter of fairness the prosecution should have adduced in evidence a mixed written
statement by the accused to the police. The statement had been made available to the
defence but there was a note on file by the DPP that the statement should not be
tendered because it could not “possibly advance the prosecution’s case”. The
appellant’s story was that the deceased attacked him and he tried to escape but the
deceased continued to approach him with a knife so he picked up a board and hit him
repeatedly. Appellant did not give evidence at trial but gave an unsworn statement that
said he was defending himself. PC agreed that the written statement ought to have
been adduced in fairness to the accused so that the jury could know his explanation
shortly after arrest. PC held that consistent with Sharp the statement was admissible
and prosecution should have adduced it. Appeal was allowed, verdict of manslaughter
substituted.
Duty of Prosecution when tendering statements by accused to tender related statements by
him:

• Trevor Palmer v R and Cedric Gordon v R- in both cases the PC concluded that the
failure of prosecution to tender written statements to give context to oral statements
given resulted in unfairness to the appellants. In both case the prosecution had adduced
evidence of oral statements by the accused but did not adduce related written
statements by the appellants.

The approach of the court in the editing of mixed statements of an accused incriminating a co-
accused:

• Wallace and Fuller v R- In this case the appellants each gave statements before trial
which incriminated the other. On appeal defence counsel contended that the trial judge
should have edited the statements to remove the names of the appellants. PC agreed
with the court of appeal’s reasoning that the trial judge had a discretion not to do this as
it would have made the statements unintelligible to the jury. However the trial judge
had a duty to impress upon the jury that the evidence contained in the statement of one
accused cannot be used as evidence against the other. Second complaint was that the
evidence led by prosecution that Wallace was known as Macca (that was the name used
in Fuller’s statement) thus identifying him as the person named by Fuller should not
have been led. The PC agreed but noted that there were no objections to this by
defence counsel at trial, and defence counsel first in cross examination brought up the
question to Supt Brown asking if he knew Wallace under the name Macca. PC noted
therefore that this puts out of the court any suggestion that the identification could
have seriously prejudiced the fairness of the trial. Thirdly it was argued that there ought
to have been separate trials. The PC rejected this and pointed out that no such
application had been made and noted that criminal trials were adversarial and the
moments a judge should take initiative in relation to such matters were few. Defence
should have raised this upon arraignment or during voir dire, the task of the judge was
simply to hold the scales of justice. Also it noted that an appellate court should not be
ready to impose retrospectively on a trial a shape which nobody present though it
should have. Even if the application was made, the PC concluded the trial judge would
not have been wrong to refuse it. This appeal failed.
• Lobban v R- This case concerned the murder of Peter Tosh. In it there were two
appellants, Lobban and Russell, but a no case submission was accepted for Russell and
he was acquitted. The issue here was incriminating statements made in Russell’s
statement about Lobban. Counsel for Lobban wanted the statement to be edited
because as he contended it was prejudicial to Lobban. The PC considered two important
principles to discern if a trial judge had a discretion to edit Russell’s statement- (i) a
judge has a discretion to exclude evidence where its prejudicial effect outweighs its
probative value (R v Christie and confirmed in R v Sang); (ii) the discretion may only be
exercised in relation to evidence tendered by prosecution, it does not extend to exclude
at the request of one co-accused evidence tendered by another. The Privy Council
concluded based on these two principles that the discretion to exclude relevant
evidence applies only to evidence on which the prosecution proposes to rely and does
not extend to the exculpatory part of the statement on which a co-defendant wishes to
rely and in the case before the court the prosecution was not entitle to rely on any part
of Russell’s statement against Lobban. Furthermore the compromise solution of
substituting names with letters was contrary to the above established principles and did
not reflect the common law of England and Jamaica. As for the potential prejudice the
PC noted that one remedy was to apply for separate trials (even though the judge has a
 duty to inform the jury that the statement wouldn’t be evidence against the co-
accused). It noted that the trial judge had properly directed the jury that Russell’s
statement wasn’t evidence against Lobban. Appeal was rejected.

Mixed statements by accused incriminating a prosecution witness:

• Ibanez v R- The ruling in the case contrasts with Lobban. In this case the appellant had
given a statement that incriminated one of the prosecution witnesses in the crime (Cruz
who was initially jointly charged but then the charge was dropped). The trial judge had
directed the jury to disregard the contents of the appellant’s statement that spoke
about Cruz’ part in the crime. The PC held this was a misdirection and was contrary to R
v Sharp and R v Aziz which states that the whole statement of the accused must be
considered by the jury.

The significance of and approach to mixed statements where the accused’s defence at trial
differs from the mixed statement:

• Von Starck v R (appeal from Jamaica)- In this case the appellant, a visiting German was
convicted of killing a girl in his hotel room. The appellant initially gave a mixed
statement which stated that he was high on cocaine and that the cocaine caused him to
kill the girl. At trial via an unsworn statement the accused gave a different story that he
woke up in his hotel room and found the body of the girl, he denied killing her and
made no mention of a knife or any drug use as he did in his statement. The judge had
not left manslaughter to the jury since he only left the defence that was put up at trial.
The PC found that this approach was unsound and that the trial judge had a
responsibility to place before the jury all possible conclusions open to them which have
been presented at trial, this was so whether or not they have all been canvasses by
either of the parties in their submissions. If the evidence is wholly incredible or so
tenuous that no reasonable jury could possibly accept it then of course the judge is
entitled to put it aside. The threshold of credibility as was recognized in Xavier v The
State is a low one, and as the case recognized it would only cause unnecessary
confusion to leave to the jury a possibility which can be seen beyond a reasonable
doubt to be without substance. But if there is evidence on which a jury could
reasonably come to a particular conclusion then there can be few circumstances if any
in which a judge has no duty to put the possibility before the jury. In Xavier the defence
at trial was alibi, but the court observed that if accident was open on the evidence then
the judge ought to have left the jury with the alternative of manslaughter; however the
threshold was not reached here so accident was not left. PC held that manslaughter
should have been left to the jury in this case of Von Starck.
• Xavier v The State- Although in a criminal trial the trial judge must leave to the jury any
possible defence, even if it is inconsistent with that put forward at the trial, the defence
must cross the threshold of credibility. Even though the threshold is low, it had not
been reached in the present case as the evidence on which the defence of accident was
based was wholly incredible. There is nothing whatever to support the theory that the
gun went off accidentally when the appellant used the gun to hit the deceased, more
especially as the direction of aim was upwards.

The evidential value of mixed and exculpatory statements tendered by the defence is different
if tendered by prosecution:

• Hamilton & Lewis v R- In this case the appellant made a mixed statement to the police
but prosecution did not introduce the statement into evidence and the trial judge had
 ruled that the defence could not adduce it as it would have been self-serving. This case
shows that where prosecution decides to tender evidence of a mixed statement by the
accused the whole statement would have been admissible for the truth of its content,
as per R v Sharp. If the same evidence was adduced by defence, PC found it ought to be
admissible; however it would not be evidence of the truth of its contents based on the
rule against self-serving statements. As per R v Pearce it would be admissible as an
exception to the rule against self serving statements, and was admissible only to show
the appellant’s attitude when he gave himself up to the police.

• R v Myers- At about 9.30 p.m. on 12 April 1994 the defendant, the co-defendant and a
15-year-old girl, who was not prosecuted, hired a mini cab. Later that evening the driver
was found, near the cab, fatally stabbed. Both the defendants were arrested and on 25
April they were charged with murder. While in police custody the defendant, during
general conversation with police officers and without being cautioned, stated that
although she did stab the driver they only wanted to rob him and did not mean to kill
him and that she was the one who had the knife and used it. But in evidence the
defendant denied that such conversation took place and each defendant blamed the
other. The Crown did not seek at the trial to adduce the evidence of the police officers
concerned with that conversation. At the start of the trial, the defendant's counsel
applied for separate trials. The judge refused the application. He also decided that the
co-defendant was entitled to adduce in evidence the statements allegedly made by the
defendant so as to help his defence. The defendant was convicted of murder and the
co-defendant of manslaughter. The Court of Appeal dismissed the defendant's appeal
against conviction.

On appeal by the defendant: -

Held, dismissing the appeal, that a defendant in a joint trial should be allowed to put
voluntary statments made by the other defendant, even though incriminating the
maker and not used by the prosecution, to witnesses to whom those statements were
made provided that such statements were relevant to the defendant's defence since he
had an unquestionable right to lead relevant evidence in his defence and the trial judge
had no discretion, as between co-defendants, to exclude it; that where such statements
were relevant both as to credibility and the facts in issue the defendant was entitled to
cross-examine the maker of those statements or the person to whom they were made
as to their terms; and that, accordingly, the judge and the Court of Appeal came to the
right conclusion.