Williams v. The Queen  (Jamaica) [2006] UKPC 21 (25 April 2006)

Privy Council Appeal No 37 of 2005

Ricardo Williams	Appellant
v.
The Queen	Respondent

FROM

THE COURT OF APPEAL OF
JAMAICA
- - - - - - - - - - - - - - - - - 

JUDGMENT OF THE LORDS OF THE JUDICIAL 
COMMITTEE OF THE PRIVY COUNCIL

Delivered the 25th April 2006

- - - - - - - - - - - - - - - - - 

Present at the hearing:-

Lord Bingham of Cornhill
Lord Hoffmann
Lord Hope of Craighead
Lord Carswell
Lord Brown of Eaton-under-Heywood

- - - - - - - - - - - - - - - -

[Delivered by Lord Carswell]

1.	The appellant, who was born on 2 July 1981 and is now 24 years of age, was on 6 November 2000 convicted, after a trial in the Circuit Court for the parish of Kingston before Reckord J and a jury, of the murder of Leslie Grant on 26 May 1994.  He was sentenced on 9 November 2000 to imprisonment for life.  His application for leave to appeal to the Court of Appeal was dismissed at the close of the hearing on 11 November 2001 and written reasons were given by the court on 7 November 2002.  On 22 March 2005 special leave to appeal as a poor person was granted, the respondent’s solicitors having consented in writing to the prayer of the petition.

2.	The trial in 2000 was in fact a retrial.  The appellant was first tried in February 1997, convicted of murder and sentenced to detention at the Governor-General’s pleasure.  He appealed to the Court of Appeal, which on 26 March 1999 allowed his appeal, set aside the conviction and ordered a retrial, on grounds to which their Lordships will return later in this judgment.

3.	The prosecution case against the appellant was that on 26 May 1994, when he was aged 12 years, the appellant took part in the murder of Leslie Grant, otherwise called “Driver”, at Seaview Gardens, Kingston, while the victim was lying underneath his motor vehicle carrying out repairs.  The sole evidence adduced by the prosecution which connected the appellant with the offence consisted of two statements made while in police custody.  The first was a statement in writing made on 11 July 1994, taken after caution and signed by the appellant in the presence of a police officer and a Justice of the Peace.  The second was a brief response made to the caution administered by another police officer when he was putting the charge of murder to him.  In both of these statements, the admissibility of which was challenged at trial, the appellant admitted taking part in the shooting of Mr Grant, but in the latter he alleged that he was acting under duress from another participant, an older youth known as “Booker T”.  He made an unsworn statement from the dock at trial, in which he repeated his account and enlarged upon the allegation of duress.

4.	On 26 May 1994 police were called to Seaview Gardens, Kingston, where they found the dead body of Leslie Grant lying under a vehicle.  He had been shot once in the head and had died from this wound.  Detective Corporal McRae testified that he had searched from spent bullets and cartridge cases, but was unable to remember whether he had found any.  The deceased was identified by his brother-in-law, who gave his proper name Leslie Grant but made no mention of his nickname “Driver”, which was only brought out in the course of cross-examination by the appellant’s counsel.  DC McRae said that he received the information about the deceased’s nickname from his wife, but Mrs Grant was not called as a witness.

5.	No evidence was called by the Crown about the time or circumstances of the appellant’s arrest.  He himself stated in the voir dire that he was arrested in Seaview Gardens on 10 July 1994 and taken to Halfway Tree police station to the ACID squad, where he was beaten and kicked.  He spent the night there and was taken next morning to Hunts Bay police station, where he was again beaten.  It was put to Detective Sergeant Ashman that he arrived at Hunts Bay at about 9.30 am, but the witness could only say that that time could be correct.  The prosecution did not adduce any evidence about the appellant’s stay in Hunts Bay station until late afternoon.  The appellant said in the voir dire that he did not receive anything to eat while he was in the station and no evidence was called to contradict that.  No attempt was made to contact his parents or any other adult on his behalf, nor was he advised of his right to speak to a lawyer.

6.	Detective Corporal Ashman (who by the time of trial held the rank of Detective Sergeant) and Detective Corporal McRae were called into Detective Superintendent Gauze’s room in Hunts Bay station and instructed to send for a Justice of the Peace.  Mr Castell McCormack JP arrived in due course and, after introductions, went into another room with DS Ashman and the appellant.  There DS Ashman told Mr McCormack that the appellant wished to give a story about a murder in Seaview Gardens.  DS Ashman cautioned the appellant and then recorded a statement which the appellant made between 4.50 pm and 6 pm.  The completed statement was read over to the appellant and he was offered an opportunity to amend it, then the appellant signed and dated the statement and DS Ashman and Mr McCormack countersigned it.

7.	The body of the statement read as follows:

“Me was in my bed when a woman name Miss Joy send me go buy two box of matterhorn over ‘Nitty-Gritty’.  When me a com back me see two of me friend, ‘Booka Tea’ and Richie, over Richie, over Richie yard and me stop and a play a game of ludo with them.  Then ‘Booka Tea’ say him ago a shop go buy something.  Me lef and go back over ‘Falcon’ go give the woman the matterhorn and come back.
Me, ‘Booka Tea’ and Richie lef and go over ‘Marlie’ to a Indian woman and we come over back and we a talk.  ‘Booka Tea’ then tell me say a dog come over pan him house top and a give him problems and if the dog come back de night, him want we fi beat him.
‘Booka Tea’ then said ‘Driver’ say him, ‘Booka Tea’, and Richie a plan fi lick off a man shop lock.
The next morning me ina the shop and me hear the shop man tell Vincent say him couldn’t sleep in peace the night because due to some big block whe drop into the yard.  The man fi the  dog say a man tell him say some man a plan fi lick off him lock fi go in a him house go tief.  That a ‘Driver’ say so.
‘Driver’ then go into him house and ‘Booka Tea’ puncture the car wheel.  After ‘Booka Tea’ puncture the car, him come round to where me and Richie was.  The three of us then walk go round the road.  Somebody call ‘Booka Tea’ and him go whe and take bout fifteen minutes fi come back.
The three of us walk go round the road.  When we go round the road, ‘Booka Tea’ go to him cousin, ‘Daygo’, fi a gun.  ‘Daygo’ give him a black short gun call ‘Spechie’.  Then ‘Booka Tea’ say him ago kill ‘Driver’.  Him then ask Richie if him a go help him murder him and Richie say him no know.
The three a we then go round a ‘Driver’.  When we go round de, ‘Driver’ was under the car and ‘Booka Tea’ go up to the car, give him a shot in him head, because him de under the car.  ‘Booka Tea’ then give me the gun and me shot him ina him head.  Me then give Richie the gun and we run go back whe we did deh.  As we reach back pan spot, we see ‘Moony’ come fi the gun and Richie give him the gun.  Me then lef go back over my yard.  A so it go.”

8.	There was then an unfilled gap in evidence about the appellant’s detention until 14 July 1994, when he was cautioned and charged by DC McRae.  When asked by the judge at trial to repeat the words used in the caution, McRae stated that he had said:

“Do you wish to say anything whatever you say will be taken down in writing and may be given in evidence.”

He did not on this account give the appellant the standard warning that he was not obliged to say anything.  McRae stated that the appellant said in response

“A ‘Book-a-Tee’ give me the gun fi shoot Driver, and if mi never dweet him would a shoot mi sah”.

The word recorded as “dweet” appears to have meant “do it”.

9.	The appellant appealed against his conviction on the first trial, on the ground that the trial judge had failed to consider whether the confession statement had been made voluntarily.  The Court of Appeal allowed his appeal on that ground and ordered a retrial.  At the first trial the appellant made the case that the statement was not made by him but written down by the police and given to him to sign.

10.	The second trial opened on 31 October 2000.  At an early stage DC McRae was called and was asked about the appellant’s response to the caution and charge on 14 July 1994.  Defence counsel objected to the admissibility of the response.  Without asking the jury to retire the judge asked him to give the words of the caution and asked him if he had threatened the appellant, made any offer or promise to him or induced him in any way to respond to him, to all of which the witness said that neither he nor anyone else had done any of those things.  The judge then asked if the witness had noticed any injury on the appellant, to which DC McRae replied that he had not.  Without further ado and without giving defence counsel the opportunity to call any evidence or make any submissions, the judge summarily stated that the objection was overruled and received evidence about the appellant’s response.

11.	Defence counsel put it to DC McRae that the appellant had then been 14 years old, and everyone at the trial appears to have gone on the assumption throughout the proceedings that that was correct, notwithstanding the fact that the appellant subsequently gave his then age as 18 and simple arithmetic would have revealed his true age in 1994 as having been 12 years.  Under section 2 of the Juveniles Act he was therefore classed as a child in Jamaican law.  The mistake did not appear until the stage of sentencing, when no one appears to have adverted to its significance for the purposes of criminal liability.

12.	The judge held a voir dire into the admissibility of the appellant’s written statement, but did not follow the procedure approved in Mitchell v The Queen [1998] AC 695, 704 as the appropriate way to proceed.  Defence counsel had already indicated that he would be challenging evidence, clearly referring in the context (Record, p 17) to the confession statement.  Notwithstanding this, he did not ask the judge to hold a voir dire in the absence of the jury nor did the judge commence one until the evidence of DS Ashman had proceeded some distance.  By that time the jury had been made fully aware that a statement had been made by the appellant and that his counsel was challenging its admissibility on the ground that it was not voluntary.  Their Lordships must repeat what they have said in previous appeals, that it is desirable that the jury should not hear discussion about a challenge to a statement which will be the subject of a voir dire, still less the about the grounds on which such challenge will be based.

13.	When the voir dire did get under way, DS Ashman described the manner in which the statement was taken and stated in answer to questions from the judge that he saw nothing untoward or unusual about the appellant, who was comfortable and did not seem to be distressed.  He did not ask for any refreshment or request the presence of any member of his family.  Mr McCormack said that he had asked the appellant if he was threatened, beaten or anything, to which he said that he was doing it of his own free will.  He made no complaint at any stage, no one made any threats or promised him any favours, and he appeared to be in a calm mood.  Mr McCormack said in cross-examination that he had asked the appellant how he became involved in the incident, to which he replied that “Booker T” and “Richie” ordered him to do it.  This remark did not find its way into the written statement recorded by DS Ashman.

14.	The appellant gave evidence in the voir dire, in which he described being beaten and kicked by police officers at and after his arrest and again the next day at Hunts Bay station.  He said then “I get so fed up and meck up a story”, in which he told them that “’Booker T’ did juck mi with a gun” and “him say anything him say mi fi doh, I fi dweet”.  The appellant’s counsel asked him if what he said in the statement was true, to which he replied that it was, but he gave the statement because he was afraid of the beating.

15.	Defence counsel then made submissions to the judge on the admissibility of the statement, focusing in particular on the requirements relating to young persons contained in the Administrative Directions annexed to the Judges’ Rules.  He encapsulated his submissions in a series of succinct and apposite propositions:
“(1)	there is no evidence from the crown as to the circumstances in which the accused man was brought to the police station;
(2)	there is no evidence from the crown as to what was said or done in anything to the accused man while he was in Mr Gauze’s office;
(3)	the accused was a juvenile;
(4)	there is no evidence of any effort being made to contact either his parents or his guardian;
(5)	there is evidence that leads to the conclusion that from 9.30am in the morning to 6.00pm, the accused was not given anything to eat or drink;
(6)	the accused man gave sworn evidence which the crown is not able to rebut because of failure to lead vital evidence on this aspect;
(7)	the most senior police officer in whose presence the accused was found, has not given any evidence before the court;
 (8)	the burden of proving voluntariness rests on the crown and the burden is beyond a reasonable doubt.

In all those circumstances as I have led, either as a matter of law or as a matter of judicial discretion, the statement ought not to be admitted. And finally, for the purpose of this voir dire, the contents of the statement are immaterial.”

16.	In the course of counsel’s submissions the judge made at page 128 of the Record a remarkable observation, which appears in the following exchange:

“HIS LORDSHIP:  In the voir dire Mr. Delisser?  I understand you are asserting that the statement purported to be given by the accused man was not voluntary.  So, I would think therefore, since you are the person who is asserting that there is a burden on you to . . .

MR. DELISSER:  The law does not . . . 

HIS LORDSHIP:  We are not trying the accused on the issue, we are dealing with the issue of an admission as to a caution statement.

MR. DELISSER:  Yes.

HIS LORDSHIP:  And you have alleged, and the principle of he who alleges must prove must apply.”

Defence counsel attempted to correct this misapprehension on the judge’s part, but the judge repeated his opinion at page 135:

“HIS LORDSHIP:  Mr Delisser, every criminal case lies on the prosecution and it never shifts.  But the issue on the voire dire, it is my opinion, if this is so, the defendant is challenging because we have evidence in the trial, both Sergeant Ashman and the Justice of the Peace said as far as they are concerned nothing ontoward took place and that the young man gave a voluntary statement; this is their evidence.  And this is evidence of the prosecution in an effort to prove it was voluntary.  But now we are on the issue because you have challenged it on that issue.  It is my view that a burden lies upon the accused man.”

17.	Defence counsel returned a little later to the task of convincing the judge of his error, and was supported by Crown counsel, who confirmed at the outset of her submissions that the burden was on the Crown to prove beyond reasonable doubt that the statement was voluntarily given by the appellant.  The judge made no further comment either way on the issue.  Notwithstanding the cogency of defence counsel’s arguments, at the end of the submissions he gave a summary ruling:

“On the evidence before me, I have no doubt that the statement was taken, that it was given voluntarily, and the accused man admits that it is true what he said, and although he did give evidence that he was so badly beaten - you have by some fifteen men - I don’t believe that.

MR. DELISSER:  He never said fifteen, he said he was beaten by three persons, not fifteen.  Fifteen men arrived in five vehicles but he said he was beaten by three.

HIS LORDSHIP:  He was beaten so badly, thumped, all sorts of atrocities, no evidence or any sight of any bruise on him at all.  As far a the question asked in the voire dire, I have no doubt in my mind and I feel sure that the statement given by him was given voluntarily and therefore fit to go to the jury.”

18.	The trial then proceeded and the appellant’s statement was put in evidence by DS Ashman.  The latter was not cross-examined by defence counsel about the injuries of which the appellant complained, except to suggest to him that he could not tell because of the appellant’s clothing whether he had bruising on his body, which the witness accepted.  In re-examination DS Ashman said that he did not observe any bruises or injuries to the appellant’s face and that he did not appear to be in any discomfort, nor did he make any complaint about being hungry or thirsty.  Mr McCormack confirmed these statements and said that the appellant was in a good mood and seemed anxious to tell the police what he knew, though he did agree that he appeared to be agitated.  He confirmed that he had earlier described the appellant as “a little boy”.  DS Ashman said that the appellant had told him that he could sign his name, but could not inform the court if he was any more literate than that.  The appellant’s father subsequently said at the time of sentencing that he was slow and “don’t take to the book so good.”

19.	At the close of the Crown case defence counsel made an unsuccessful submission that there was no case to answer.  No witnesses were called on behalf of the defence, but the appellant made an unsworn statement from the dock in question and answer form, which was put together by the judge for the jury as follows:

“In 1994 in July, don’t remember what date, in the morning, I had a friend name Miss Joy.  She sent me to shop to buy something for her.  I went to the shop to buy what she asked me.  When I went in the shop, I saw one of my little friend going up the road.  Him jook me with a gun, that mean that he point the gun at me, and told me to stop.  He said anything he said I had to do it.

Said time he tell me that, I see him fire a shot under the car.  Same time I see blood coming from under the car.  Same time him stick me up again and give me the gun and say I must fire a shot.  When I fired the shot, him grab the gun out of my hand.

I never get the chance to buy anything for the lady.  I went back to my yard.

To tell the truth, I don’t remember anything more than that.  I don’t have anything more to say.”

20.	The judge then summed up to the jury.  Mr Fitzgerald QC for the appellant dealt in his argument before the Board with a number of issues arising out of the content of the summing-up.  In view of their conclusions about the appellant’s statement, however, their Lordships will deal with these only in outline and will not set out in extenso all the passages from the summing-up with which counsel took issue.

21.	The judge did not give the jury any directions about the criminal capacity of the appellant, as all present in court were still under the misapprehension that he had been 14 years of age at the time of the incident.  He did not advert to the fact that the only evidence that the deceased was the person described as “Driver” by the appellant was hearsay.  He did not spell out to the jury that on the only evidence available to them, the appellant’s unsworn statement, the shot fired by him could not have been the fatal wound, since the deceased sustained only one bullet wound and the appellant said that he saw blood coming from under the car before he fired.  He told them in two passages (Record, pp 255, 271) that they must be satisfied that the statement was given voluntarily, but did not explain with any clarity their function of determining the weight to be given to the contents of the statement and the relevance of voluntariness to that function: see R v Mushtaq [2005] UKHL 25; [2005] 1 WLR 1513.

22.	The judge correctly put the case before the jury as one of joint enterprise or common design.  He gave them directions on the elements which required proof in a case founded on joint enterprise, which were not in themselves incorrect or inadequate, and informed them, again correctly, that duress is no defence to a charge of murder.  He did not deal with the issue whether the duress, if not disproved by the prosecution, might be said to negative the appellant’s intention to join in the joint enterprise.  On the contrary, he misrepresented the factual position adumbrated by the appellant in his response to the charge and his unsworn statement from the dock by stating positively that the appellant walked willingly along with the others and willingly accepted the gun from Booker T (Record, p 269).  Their Lordships feel some concern about these matters, but do not propose in this judgment to offer an opinion on the legal issue of duress in relation to joint enterprise.

23.	Mr Fitzgerald in a cogent argument raised all these issues before the Board, and although some of them were answered to some effect by Mr Guthrie QC for the Crown, if they stood alone they would, taken cumulatively, have given rise to a degree of doubt about the safety of the conviction.  Counsel concentrated his main attack upon the admission of the appellant’s written statement, which in their Lordships’ view lies at the heart of the case.  The admissibility of the response to the charge is to a large degree dependent on that issue.  If the statement was properly admitted, the reception in evidence of the response was correct and contained an element which was favourable to the appellant.  If the statement should have been ruled out, then issues would arise about the sufficiency of the caution and whether the factors which caused the statement to be rejected may have been operating at the time of the charge and response.

24.	In giving his ruling on the admissibility of the statement the judge simply stated that he had no doubt that it was given voluntarily.  He added a reference to the truth of the contents of the statement, which was not a relevant factor for consideration in the voir dire.  He did not refer to the Judges’ Rules, although his attention had been drawn to them by counsel in their submissions.  Provisions relating to children and young persons and to comfort and refreshment are contained, not in the Judges’ Rules themselves, but in the Administrative Directions annexed thereto and read with them: see Practice Note (Judges’ Rules) [1964] 1 WLR 152.  Paragraph 3 of the Directions prescribes that “reasonable arrangements should be made for the comfort and refreshment of persons being questioned.”  Paragraph 4 provides in part:

“As far as practicable children (whether suspected of 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.”

25.	Their Lordships had occasion in a recent appeal from Jamaica, Peart v The Queen [2006] UKPC 5, to consider the Judges’ Rules and voluntariness as the criterion for admission of a confession statement.  They would refer to their judgment in that case and need not repeat its contents, but it is convenient to rehearse three of the propositions enunciated in paragraph 24 of the judgment:

“(i)	The Judges’ Rules are administrative directions, not rules of law, but possess considerable importance as embodying the standard of fairness which ought to be observed.

(ii)	The judicial power is not limited or circumscribed by the Judges’ Rules.  A court may allow a prisoner’s statement to be admitted notwithstanding a breach of the Judges’ Rules; conversely, the court may refuse to admit it even if the terms of the Judges’ Rules have been followed.

* * * * 
(iv)	The criterion for admission of a statement 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.  If it is voluntary, that constitutes a strong reason in favour of admitting it, notwithstanding a breach of the Judges’ Rules; but the court may rule that it would be unfair to do so even if the statement was voluntary.”

The judge in the present case did not make overt reference to the Judges’ Rules, to the appellant’s age or to the way in which he was exercising his discretion, if he was doing so.  He expressed himself as having “no doubt” that the statement was given voluntarily, by which he may have meant that he accepted that the burden of proof was on the Crown to prove this beyond reasonable doubt.  In view of his earlier misapprehension it would have been preferable if he had confirmed his acceptance of the correct principle and their Lordships are unable to share without reservation the sanguine view of the Court of Appeal that his misconceptions had been corrected and laid to rest.

26.	Most important, the judge should have given consideration to the sovereign requirement of fairness in deciding whether to admit the statement.  Both the trial judge and the Court of Appeal appear to have taken the view that voluntariness was the sole criterion of admissibilty, but for the reasons given in Peart v The Queen that view cannot be sustained in an unqualified form.  Their Lordships must therefore give consideration to the issue of fairness.

27.	The appellant was aged 12 years at the time of making the statement (a fact which was not appreciated by anyone concerned with the case at the time of the ruling).  His literacy appears to have been in some doubt.  No parent was asked to come to be present during the interviewing and taking of the statement, although his father said rather indignantly at the sentencing hearing that the police knew him but failed to summon him.  Their Lordships are unable to agree with the Court of Appeal’s opinion that the presence of the Justice of the Peace during the taking of the statement was proper compliance with either the letter or the spirit of the Direction.  No evidence was given by Detective Superintendent Gauze about the interviewing process which led up to the appellant’s agreeing to make a statement.  The appellant alleged in the voir dire that he had been beaten by the police, but no evidence from medical examiners or police officers was called to rebut these allegations.  The judge simply rejected his account, which on the facts of the case was far from convincing, but the absence of evidence is not conducive to dispelling all doubts on the question.

28.	Their Lordships will assume for the purposes of consideration of the fairness of admitting the statement that the judge was entitled to hold that no beating or other maltreatment occurred.  Nevertheless, even if this is accepted, the circumstances of the appellant’s detention and of the taking of the statement were such as to create a significant amount of unfairness to him.  Their Lordships cannot conclude that in all the circumstances of the case it was fair to admit the statement.

29.	Once the statement is excluded, the case against the appellant falls to the ground, for the appellant’s response to the charge caution would not in their Lordships’ view be sufficient to sustain a conviction for murder.  On that basis alone, leaving out of account the other matters relied on by counsel for the appellant, their Lordships will humbly advise Her Majesty that the appeal should be allowed and the conviction set aside.  In view of the length of time which has elapsed since the incident and the length of the period which the appellant has spent in custody, they do not consider that a retrial would be appropriate.