TRINIDAD
AND TOBAGO
IN
THE COURT OF APPEAL
Cr.
A. No. 109 of 1998
BETWEEN
PRAKASH MANRAJ
Appellant
AND
THE STATE
Respondent
M.A. de la Bastide C.J.
L. Jones JA
A.
Lucky JA
26th
March, 2001.
J
U D G M E N T
Delivered by M.A. de la Bastide C.J.
The
appellant was convicted on the 29th October, 1998, of the offences of
rape and serious indecency. These
offences were committed on the 28th August, 1988, in a back alley
known as a ‘sewer trace’ in St. Clair, Port-of-Spain. The victim was a forty year old woman whom I shall refer to
as “the virtual complainant’. The
appellant was sentenced to 15 years hard labour and 15 strokes of the birch for
the rape and 3 years hard labour for the serious indecency, both terms of
imprisonment to run concurrently.
We
heard this appeal on the25th February, 2001, and reserved our decision.
On the 2nd March, 2001, we granted leave to appeal but
dismissed the appeal and affirmed the convictions and sentences.
We indicated then that we would give our reasons today and we accordingly
do so now.
The
prosecution’s case depended wholly on the evidence of the virtual complainant.
Her evidence was that at about mid-day on the day in question at Jogie
Road, San Juan, she came upon three men in a car.
The driver, Paul Boodoo also known as ‘brother-in-law’ was someone
she had known for several years. She
identified one of the other men as the appellant.
Boodoo offered her a lift which she refused.
The third man on Boodoo’s instruction, pushed her into the car. The men then went into a snackette. While they were inside she got out of the car but she was
spotted by the third man who came out of the snackette and forced her to get
back into the car. Boodoo and the
appellant then also came back to the car and they drove off.
On reaching Fifth Street, instead of turning right (which was the
direction in which she wanted to go) Boodoo turned left and drove into Port of
Spain. The appellant was in the
front passenger seat and the third man was in the back seat next to her.
At one stage she tried to open the car-door but the third man stopped
her, forced her down on the seat and sat on her head.
The car eventually stopped in one of the narrow back alleys once used as
sewer traces in St. Clair. She
testified that thereafter she was raped by the appellant and Paul Boodoo in turn
and then was forced to perform oral sex on both of them in turn.
She
was eventually dropped off in the San Juan area and warned not to report the
matter to the police. She first
wrote down the number of the car using a pen borrowed from a passer-by and then
went and made a report at the San Juan Police Station.
She was subsequently taken to the Petit Valley Health Centre where she
was examined by Dr. Chen. When Dr.
Chen gave evidence he could remember very little of what transpired at the
examination which is not surprising given the length of time (10 years) that had
elapsed. The only findings he
recorded were that she complained of pains around her neck and her clothes were
a bit soiled. It appears that he
took a vaginal swab which on forensic examination proved negative for
spermatozoa. Her evidence was that
both men who raped had discharged after withdrawing. It also appears that no oral swab was taken although Dr. Chen
said that he would have taken one if told about the oral sex.
In
an identification parade held on the 19th September, 1988, that is
some three weeks after the incident, the virtual complainant picked out the
appellant as one of the men who had raped her. The unchallenged evidence of the
investigating officer, P.C. Marcano, was that when the appellant was held on the
17th September, 1988, and told of the virtual complainant’s report,
he said after being cautioned: “Boss I ent go with dem the man dropped me off
at Fifth Street”. P.C. Marcano
also testified that after he was picked out in the parade and again cautioned,
the appellant said: “Boss if she
say is me she must be know what she saying”.
This too was not challenged by the defence.
The
appellant did not give evidence and called no witnesses.
Originally
there were five grounds of appeal filed. Three
more were added with our leave at the hearing.
Only one of these grounds, that is, the last of the additional grounds
caused us any concern and we can deal with the others quite briefly.
Ground
1: Directions on Identification
The
first of the original grounds was that the Judge had failed to direct the jury
on the weaknesses in the identification evidence.
Of the five weaknesses identified in the argument, three were
specifically mentioned by the trial Judge in his summing-up, i.e firstly, that
the virtual complainant had never seen the accused before, secondly, that she
was extremely frightened throughout her ordeal and thirdly, that the
identification parade was held some three weeks after the event.
With regard to the other two alleged weaknesses, we do not regard them as
such. One was that she admitted
having made mistakes previously in identifying people.
But that is the common human experience which creates the need for the Turnbull
warning. The other alleged weakness
was that she suffered from delusions. The virtual complainant admitted in
cross-examination that she had been a patient at St. Anns apparently as a result
of a conviction she held that a Pundit was practising ‘obeah’ on her.
There was no reason to believe that she was suffering from that or any
other delusion at the time when she identified the appellant.
Further, there was neither evidence nor reason to believe that her powers
of physical perception and recognition were ever impaired by whatever mental
disorder it was that afflicted her.
The
second ground was that the Judge had failed to give proper directions with
regard to the oral statements made by the appellant to the police.
It was suggested that the Judge ought to have given the jury the
directions appropriate for dealing with mixed statements, that is, statements by
the accused which are partly exculpatory and partly inculpatory, and alibis.
The
first statement involved an implied admission that the appellant had been in the
car which took up the virtual complainant and a claim that he had been dropped
off at Fifth Street, that is before anything amiss happened to the virtual
complaint. This was technically a
mixed statement, but it was on the face of it likely to do much more harm than
good to the defence, since it tended strongly to undermine, if not destroy, the
most plausible of the defences run i.e. mistaken identity. It did not require and did not receive much explanation or
elaboration by the trial Judge, which was really as well for the appellant.
We
do not consider that this statement can be said to raise an alibi.
By it the appellant was denying that he was present when the alleged
offences were committed, without stating positively and precisely where he was
at that time.
We
do not think that the appellant suffered any prejudice as a result of the
omission of the trial Judge to direct the jury further with regard to the first
statement.
So
far as the second oral statement of the appellant to P.C. Marcano is concerned,
the Judge very fairly directed the jury that given the way in which people
express themselves in this country, that statement was ambiguous and was not
necessarily an admission of guilt. Another
interpretation which the jury, being familiar with the local way of speaking,
would have understood the Judge to be suggesting, was:
“I cannot be expected to explain why this woman is making this
allegation against me.” The Judge
also made it clear to the jury that any doubt as to the meaning of the statement
should be resolved in the appellant’s favour.
In the result, we can find no fault with the Judge’s directions on the
second statement.
Grounds
3 and 5 were not pursued and we need say nothing about them.
The
fourth ground was that the Judge failed to put the defence adequately to the
jury. We have already dealt with
the complaint about the Judge’s treatment of the two oral statements made by
the appellant to the police. Another
complaint was that the Judge put too much emphasis on the question of whether or
not there was intercourse and if there was, whether it was without consent.
We think this is an unjustified criticism.
In the absence of any positive defence put forward by the appellant, the
Judge quite properly focused the jury’s attention on weaknesses in the
prosecution’s case and on the burden which lay on the prosecution of proving
every element of the offences charged. He
referred expressly to the several inconsistencies which had emerged in the
prosecution’s case, both as between the testimony of the virtual complainant
and that of P.C. Marcano and as between their evidence at the trial and her
statement to the police and his deposition. Wherever there was a point to be
made for the defence, the learned Judge made it somewhere in the course of his
summing-up. For example, he
referred to the failure of the virtual complainant to give the police any proper
description of the man whom she subsequently identified as the appellant. All that she said of him was that he was a ‘red-skin
man’. He also described as
‘improper’ the disclosure by P.C. Marcano to the virtual complainant before
the identification parade that they had held the ‘red-skin’ man.
He drew attention to the absence of any medical or scientific evidence to
support the complaints by the appellant of what had been done to her.
The Judge’s approach is well illustrated by the very last direction
which he gave to the jury. It was in these terms: “Mr.
Foreman, Members of the Jury, if ever there was a case that requires careful
consideration, is this case. It may
have been short. Give it careful
and mature consideration.” In the
result we find there is no substance in this ground either.
We
turn now to the additional grounds. The
first of these was non-disclosure of the reason for P.C. Marcano’s suspension.
According to the notes of evidence, the first answer which the constable
gave in cross-examination was: “I
have been suspended since 6th June, 1988.”
It is obvious that that the wrong date was either given by the witness or
recorded by the Judge, as Marcano was clearly not on suspension when he received
and investigated the virtual complainant’s report in August, 1998.
Counsel for the State provided the correct date of Marcano’s suspension
– the 6th September, 1998. Counsel for the appellant (who it should
be noted did not represent the appellant at the trial) accepted this correction.
In any case, counsel who appeared for the appellant at the trial clearly
knew of the suspension and there is no reason to believe that he was unaware of
the reason for it. Whether he was
or not, he chose not to ask P.C. Marcano what the reason was, even though there
was no risk attached to asking that question.
This ground, therefore, also fails.
The
second additional ground was a complaint that the Judge ought to have conducted
a voir-dire into the competence of the virtual complainant to give evidence.
There is no doubt that an obligation to hold such a voir-dire may arise
if there is reason to doubt the mental competence of a witness.
In this case, no question of the competence of the virtual complainant to
give evidence was ever raised by anyone during the trial.
In fact, there was no evidence that she had had a mental problem until
she was cross-examined. There was
obviously nothing in her demeanour in the witness-box to cause anyone to have
any misgiving about her competence. There
was also nothing said by her in evidence to create any doubt about her then
mental condition. Moreover the
evidence which was elicited from her in cross-examination related to a mental
problem that she had had at some unspecified time in the past.
There was no indication that her problem, whatever it was, was a
continuing one. Indeed, it was never suggested to her that it was.
We set out here all of the answers she gave in cross-examination in
connection with this topic:
“I
did go to press and say “sex mad pundit was using obeah on me.
I can’t recall the year. I
went to the press I told the press an evil attack was put on me.
I never told the press that he was causing my teeth to push out.
I did not tell them that obeah was taking over my body. …
I have been a patient at St. Anns hospital.
I have been admitted into St. Anns.
I had a perception that a pundit was using evil forces on me. I think that the evil forces who make my teeth longer.”
In
our view, this evidence was quite inadequate to create the necessity for a voir-dire
to be held into the question whether the virtual complainant was mentally
competent to give evidence at all. The
effect of it on her credibility was a matter for the jury.
I would mention in passing that the conviction that someone is working
‘obeah’ on you is a ‘delusion’ which is by no means uncommon in certain
sections of our society.
One
must assume that defence counsel took a decision based on adequate information
not to pursue the matter of her mental health further, either in
cross-examination or by calling evidence himself.
It was certainly no part of the Judge’s functions to do so.
Accordingly, there is no substance whatever in this ground of appeal.
We
come finally to the last of the additional grounds of appeal which as indicated
earlier, was the only one to cause us any concern. This ground reads as follows:
“The
learned trial Judge erred in law in that he admitted into evidence during
cross-examination both the deposition and statement of the virtual
complainant.”
The
notes of evidence in this case were those taken by the Judge in his own hand as
this not being a capital case, he did not have the services of a CAT reporter.
In the course of her cross-examination the virtual complainant was
questioned about several discrepancies between her evidence and the statement
which she gave to the police. The
cross-examination then turned to her identification of the accused.
In that context she was questioned about the information she was given by
the police in advance of the identification parade and in particular whether she
was told the accused’s name. She
denied this and is then recorded as saying “I told the magistrate after the
identification parade not before”. Although
this is not clear from the Judge’s note, what underlay the question to which
this was the response, was the references in her deposition to the appellant by
his first name. In other words, she
was explaining that she learnt the appellant’s name after the identification
parade but before giving evidence before the magistrate. At that point in the notes of evidence there is this notation
“Deposition to be admitted into evidence”.
Not long after the cross-examination ended and at the end of it there is
this notation: “Statement of witness tendered and marked RM1”.
The
statement was in fact marked ‘RM1’ and was included in the list of exhibits
prepared by the clerk. The
deposition on the other hand, was neither marked nor included in the list of
exhibits. In the course of his
summing-up the Judge referred more than once to the statement forming part of
the evidence but nowhere in the summing-up did he treat her deposition as part
of the evidence. We are satisfied
that the virtual complainant’s deposition was never put into evidence or read
or given to the jury. Counsel for the appellant appeared to have accepted that
to be so. Accordingly this ground
of appeal must be limited to a complaint about the introduction into evidence of
the virtual complainant’s statement to the police.
Unfortunately,
in the absence of any verbatim transcript of the proceedings it is not
altogether clear by whom and in what circumstances it was put into evidence.
It appears to have been tendered by defence counsel (since there was no
re-examination) and there is no record of any discussion over, or objection to,
its admission.
The
argument for the appellant in support of this ground, however, seemed to be
based on the premise that the statement had been tendered by the prosecution for
the purpose of establishing consistency between the statement and the evidence
of the virtual complainant. We
consider that on the evidence of the Judge’s note, this is a wrong premise.
We are satisfied that it was tendered by defence counsel for the purpose
rather of proving those inconsistencies between the statement and the virtual
complainant’ s evidence on which she had been cross-examined.
Mr.
Rajcoomar submitted that in any event the Judge invited the jury to use the
statement as an indication of the virtual complainant’s consistency.
In support of this submission he relied on the following passage which
came towards the end of the summing-up.
“How
do you treat with this [her statement]? This
is being put before you because this is the first account that she gave, not so
much as to whether it is true or not but look at consistency.
Is she being consistent? What
was this first description that she gave to the police, if any? Is she consistent? She
said several things were said to the police and they did not put it in.
They told her that it is alright. The
police said that is not so.”
This
passage, however, cannot be considered in isolation from the rest of the
summing-up and in particular from an earlier passage (at pages 5 to 6) in which
the Judge highlighted’ contradictions’ in the prosecution’s case.
Two of the contradictions mentioned by the Judge were as between the
virtual complainant’s statement and her evidence.
Firstly, as to whether she was pushed into the car or placed gently in
it, and secondly as to whether her underwear was taken off by herself
‘peacefully’ or by Paul Boodoo. Another
contradiction mentioned was between P.C. Marcano’s evidence in which he said
that he did not tell the appellant on arrest that he fitted the description of
one of the men and his deposition in which he said that he did tell him so.
The Judge then followed up these references by directing the jury on how
to treat inconsistencies in statements made previously by witnesses,
relating these directions specifically to the statement by the virtual
complainant which had been put into
evidence and the deposition of P.C. Marcano.
Taking the summing-up as a whole, therefore, we are satisfied that the
jury’s attention was properly directed to the inconsistencies between the
statement and the evidence rather than to the consistencies.
It
is to be noted that there are some Australian cases in which it was expressly
held that when a previous statement or deposition is put into evidence to prove
inconsistencies, the jury can be invited to consider the parts of it that are
consistent with the witness’ evidence for the purpose of reinforcing or
confirming his credibility (see R. v. Titijewski [1970] V.R.
371 and Krycki v. Nominal Defendant [1962] S.R. (N.S.W.)
552). For reasons which will
appear, we would respectfully decline to follow or adopt these decisions, but if
correctly decided, they would provide a complete answer to this ground of
appeal.
The
question still remains, however, whether it was proper to admit the whole
statement into evidence given that it consisted of a fresher and in some
respects fuller account of the events narrated by the virtual complainant in her
evidence, and therefore might be regarded as largely self-serving in that it
confirmed her evidence in all its material aspects.
Although
no mention of it appears in the record, section 7 of the Evidence Act, Chap.
7:02 alone can provide the basis for the admission of this statement.
That section which corresponds with section 5 of the Criminal Proceedings
Act, 1865 in the United Kingdom, provides as follows:-
“A
witness may be cross-examined as to previous statements made by him in writing,
or reduced into writing, relative to the subject-matter of the indictment or
proceeding without the writing being shown to him, but if it is intended to
contradict the witness by the writing, his intention must, before such
contradictory proof is given, be called to those parts of the writing which are
to be used for the purpose of so contradicting him; but the Judge, at any time
during the trial, may require the production of the writing for his inspection
and may make such use of it for the purpose of the trial as he thinks fit”.
The
first thing to note is that there is nothing in the notes of evidence to suggest
that the virtual complainant’s attention was called to the parts of her
statement which were to be used for the purpose of contradicting her.
It is clear, therefore, that the procedural requirement imposed by this
section for the admission of the document was not satisfied.
This requirement, however, is obviously for the protection of the witness
and it hardly lies in the mouth of the appellant to complain of its non-fulfillment. In fact it was argued for the State in their skeleton
argument that since the statement had been tendered in cross-examination by
defence counsel, it was not open to the appellant to make its admission a ground
of appeal.
It
was further argued for the State that the law required that the whole of the
statement be put into evidence and in this connection reliance was placed on the
decision of this Court in Rampersad v. The State Cr .Apps.
Nos. 37 and 38 of 1989. In that case the appeals of three men convicted of
murder were allowed and their convictions quashed on the ground of what were
held to be two misdirections by the learned trial Judge with regard to the issue
of provocation and the treatment of expert evidence respectively.
The decision of the Court was based on these misdirections but after
dealing with them Ibrahim J.A., who delivered the judgment of the Court, went on
to disapprove of what he described as a recent practice “of trial Judges
admitting into evidence only those parts of a deposition of a witness that are
used to contradict the witness at the trial on his viva voce evidence.”
The Court held that in such circumstances the whole deposition must be
put into evidence because that was necessary in order to enable the jury to
judge whether there had been “any substantial departure” in the evidence
given at the trial from the evidence given by the witness at the preliminary
enquiry. Mr. Justice Ibrahim cited
in support two passages from the 1966 edition of Archbold (at paragraphs 1236
and 1392 respectively) in which the learned authors spoke of the circumstances
in which “the depositions” or “the deposition” might be put into
evidence in order to show inconsistency between the evidence given by a witness
before the magistrate and at the trial. It
is apparent that the Court relied on the absence of any suggestion in these
passages that part only of a deposition might be put in as support for its
conclusion that the whole deposition must always be put in.
The Court specifically disapproved of the decision of the Jamaican Court
of Appeal in R. v. Isaac and Miles (1977) 26 W.I.R. 477 in
which it was held that it was the duty of the trial Judge under the Jamaican
equivalent of our section 7, to admit the inconsistent portions of the
deposition on a sentence by sentence basis and thereafter to make such use as he
thought fit of the other portions of the deposition.
In the judgment of the Jamaican Court no authorities were referred to but
the Court based its decision on the wording of the relevant section.
It would appear that since the decision in Rampersad,
Judges in Trinidad and Tobago have reverted to the former practice of requiring
that if cross-examining counsel wishes to prove from a deposition that a witness
has departed from the testimony he gave before the magistrate, he is not allowed
to put in that part of the deposition on which he relies, but must put in the
whole deposition. Apparently that
practice was followed without discussion or demur in this case.
We
consider that we ought to re-examine this issue. The view of it which the Court took in Rampersad
did not form the basis of their decision in that case, and so strictly speaking,
it was ‘obiter dictum’. Accordingly,
it is not necessary for the purposes of our re-opening the issue, to decide
whether or to what extent this Court is bound by its previous decisions under
the doctrine of ‘stare decisis’. We express no view on that at this time.
We are encouraged to re-visit the issue by the fact that certain
authorities which are very much in point, were apparently not brought to the
attention of the Court of Appeal in Rampersad, and we think
it is necessary to consider the impact of those authorities on an issue which is
of some importance.
In
Rampersad the Court’s ruling that the whole document must
be put into evidence, was directed specifically to depositions, but it is
obvious that for the purpose of interpreting and applying section 7, no
distinction can be made between depositions and previous statements not under
oath, such as written statements given to the police.
Section 7 refers to previous statements made in writing, or reduced into
writing. It is clearly immaterial
whether these previous statements were made under oath in Court or not under
oath out of Court.
The
seminal authority for the proposition that the whole of a document containing a
prior inconsistent statement must be put into evidence appears to be a ruling
made 135 years ago by a Judge at first instance. I refer to the ruling of Channell B. in R. v. Riley
(1866) 4 F & F 964. Reference
is also usually made in this context to the companion ruling given by the same
Judge at the same Assize in R. v. Wright (1866) 4 F & F
967. Both these cases are still
cited in the edition of Archbold for the year 2000 (at paragraph 8-129).
Virtually the whole of Channell B’s ruling in Riley
is set out in that paragraph. It
reads as follows:-
“The
Act allows you to put them [the depositions] into the hands of the witness to
refresh his recollection thereby, and to enable you to cross-examine him upon
them, but you must take his answers, and if with the deposition before him he
denies the suggested contradiction, or adheres to a statement which you suggest
is inconsistent with the deposition, in order to contradict him you must put the
deposition in evidence that the whole may be read, and then it will
appear how far the suggested contradiction exists, and the absence of a
particular statement may be explained by the context or even if there is a
discrepancy on one point, it may appear that it is only a minute point, and that
in all the rest of the evidence there is a perfect consistency so
that the general result of the comparison may be confirmation rather than
contradiction”. (emphasis added).
In
this passage two reasons are given for requiring the whole deposition to be put
into evidence. The first is to
enable the passage relied on by way
of contradiction to be read in context, so that it can be determined whether
there is a true discrepancy. This I
respectfully acknowledge is an unimpeachable reason for allowing in so much of
the deposition as sheds light on the existence or extent of the alleged
discrepancy, but does not justify putting in the whole deposition in every case.
The
other reason given by Channell B. is to enable the jury to weigh the instances
in which the witness has departed from his deposition against those in which his
evidence has remained the same as his deposition, with a view to assessing how
far, if at all, the witness’s credibility has been shaken by the
inconsistencies.
This,
if valid, would certainly justify putting in the whole deposition in every case.
This reason, however, seems to conflict with a basic principle of the
common law, namely that instances of consistency by a witness cannot be relied
upon to enhance or restore his credibility even when that has been attacked on
the basis of some specific instance(s) of inconsistency.
This principle was affirmed by the Court of Appeal in England in R
v. Beattie (1989) 89 Cr. App. R. 302.
This case which is also cited in Archbold (2000 edition) at
paragraph 8-128, was not referred to in Rampersad.
In Beattie the Lord Chief Justice, Lord Lane, in
delivering the judgment of the Court of Appeal said (at page 306):
“The
general well-known rule is that it is not competent for a party calling a
witness to put to that witness a statement made by the witness consistent with
his testimony before the Court in order to lend weight to the evidence”.
The
Lord Chief Justice went on to identify three exceptions to that rule, none of
which has any relevance for present purposes.
He then went on to state (at page 307) “Accordingly there is no general
further fourth exception to the effect that where counsel cross-examine to show
inconsistencies, the witness can be re-examined to show consistency.”
The Lord Chief Justice also referred to two other Court of Appeal
judgments, one delivered by Ognall J. in Weekes (1988) Crim.
L.R. 244 and the other by Karminski L.J. In Oyesiku (1972)
56 Cr. App. R. 240. In Oyesiku,
Karminski L.J. said (at page 245) that the Court regarded as correct the
following statement of the law made by Holmes J. in Coll
(1889) 25 L.R. Ir. 522 at p. 541:
“It
is I think clear that the evidence of a witness cannot be corroborated by
proving statements to the same effect previously made by him, nor will the fact
that his testimony is impeached in cross-examination render such evidence
admissible. Even if the impeachment takes the form of showing a
contradiction or inconsistency between the evidence given at the trial and
something said by the witness on a former occasion it does not follow that the
way is open for proof of other statements made by him for the purpose of
sustaining his credit. There must
be something either in the nature of the inconsistent statement or in the use
made of it by the cross-examiner, to enable such evidence to be given”.
If
the law does not permit the introduction of a prior consistent statement in
order to blunt the impact of a prior inconsistent statement when both statements
are made in different documents, why should the law permit it when they happen
to be in the same document? I can
think of no satisfactory answer to that question, assuming of course that the
meaning and effect of the inconsistent statement is not affected by being read
in context with the consistent statement.
It
is necessary now to return to the case of Beattie.
The facts of the case were that a father was charged with having
unlawful sexual intercourse with his daughter.
The Court of Appeal had to consider the propriety of the trial judge
allowing two statements given by the daughter to the police to be admitted into
evidence. One contained certain
discrepancies from her evidence in two limited areas on which she had been
cross-examined. The other was
entirely consistent with her evidence and had not been the subject of any
cross-examination. Defence counsel
submitted that only those parts of the first statement on which he had
cross-examined should be allowed into evidence and that none of the second
statement should be admitted. The
trial Judge overruled both these submissions and allowed the whole of both
statements to go into evidence. It
was held by the Court of Appeal in relation to the first statement, that it was
open to the trial judge to allow the whole of it to go before the jury, but in
the view of the Court he would have been well-advised in the circumstances to
confine that portion of the statement to be shown to the jury to the two matters
which had been the subject of cross-examination.
In relation to the second statement, the Court of Appeal held that there
was no basis on which the jury should have been given that statement.
Accordingly, it was held that there had been a material irregularity and
the convictions were quashed.
With
regard to the first statement, the Lord Chief Justice said at page 306:
“The
view that we take in this Court is that he would have been very well-advised in
the circumstances to confine anything the jury might take away with them on
their retirement to those two very small portions, which could easily have been
copied on half a sheet of paper, in order that the jury might see where the
discrepancy had taken place. We do not think it was wise for the learned Judge to allow
the statement in those circumstances to be taken away by the jury.”
With
regard to the second statement the Lord Chief Justice said (at page 307) :
“In
this particular case there was no requirement, and indeed no basis for the jury
to be shown the second statement made by this girl, and there was certainly no
basis and no necessity for them to be given that statement with which to retire.
It
was an even greater mischief for this reason, that the second statement had
first of all been shown to the girl in re-examination and she had started to
read it through and to say what portions were correct. But then that became too
tedious an exercise and she was allowed to retire with the statement and come
back and say whether she agreed that was correct or not.
She did agree that it was correct. That
statement contained a great deal more detail not only than the first statement,
but a great deal more detail than she herself had in fact given in her evidence
in chief.
The
introduction of that statement and its being given to the jury before their
retirement was doubly mischievous.”
The
point made by the Lord Chief Justice about the mischief that may be done by the
introduction of a statement which contains far greater detail than the evidence
actually given by the witness in Court, applies with equal force when there is
only one document containing isolated inconsistencies amid a mass of other
highly prejudicial material. Witnesses,
for one reason or another, often do not come up to proof at trial.
In our view it is unfair for an accused to be placed in the dilemma of
having either to forego proof of specific discrepancies between the witness’s
evidence and his previous statement or deposition, or have the whole of that
statement or deposition that may consist largely of highly prejudicial material,
go into evidence. It seems to us
that the only justification for admitting prior consistent statements into
evidence simply because they are contained in the same document as inconsistent
statements, is that the consistent statements in some way modify or affect the
interpretation of the inconsistent statements by providing the context in which
the latter were made. If they
perform this function, then in our view they should be admitted into evidence
along with the prima facie inconsistent statements, but not otherwise.
Beattie
establishes that it is not mandatory that the whole of a statement or deposition
which is relied upon by cross-examining counsel to prove a specific
inconsistency, be put into evidence in every case: The trial Judge has a discretion to allow parts of it only to
be put before the jury. This may be
done either by having them read to the jury or by giving the jurors copies of
extracts containing the relevant passages.
This was confirmed by another decision of the Court of Appeal in R.
v. Longden the Times Law Reports May 31, 1995, in which it was held
that the trial Judge has a discretion which should be exercised with care to put
witness statements before the jury in their entirety, but that there was no
policy which required this to be done as a matter of course.
Insofar, therefore, as the Court of Appeal in Rampersad
held that it was complusory in every case to put in the whole statement or
deposition, the Court in our respectful view came to a wrong decision which
should not in future be relied upon or followed.
It
seems to us, moreover, that it would be a proper exercise of the trial Judge’s
discretion to confine the parts of the statement or deposition admitted in
evidence to those which demonstrate discrepancies from the viva voce evidence of
the witness and such other passages, if any, as form the context of those
discrepancies and have a tendency to modify or alter their meaning and effect.
This
was not the approach adopted by the Judge in this case. We have to consider what the result would have been if that
approach had been adopted. The
discrepancies on which the virtual complainant was cross-examined were quite
extensive and occurred at various stages in the sequence of events which she
narrated. The first discrepancy
related to the very beginning of the episode, that is, when she first entered
the car: did she do so voluntarily or not?
Other discrepancies related to what occurred on the journey from Jogie
Road to St. Clair. Many of these
discrepancies involved the omission from her statement of various things which
she mentioned in her evidence-in-chief e.g. the threat to throw her ‘in the
wharf’, their asking her if she ‘knew the place’, their passing the
museum, etc. etc. In order to
demonstrate that these things had been omitted from the statement, it would have
been necessary to look at substantial portions of the statement.
It could not be done by focusing on one or two sentences.
Then
there was the discrepancy with regard to who took off her underwear.
This occurred at the point immediately before the first rape.
There was also the discrepancy as to who was the first to rape her. She said in her evidence-in-chief that it was Paul Boodoo,
but in her statement she said it was the man whom she subsequently identified as
the appellant. Under
cross-examination she corrected her evidence-in-chief and said that it was in
fact the appellant who first raped her.
It
follows from what has been said above that it would probably have been necessary
given the number and the nature of the discrepancies relied upon, to put before
the jury quite substantial
portions
of her statement, even if the Judge had adopted the approach which we have held
to be the correct one.
I
would mention here in response to a submission by the State mentioned earlier,
that Section 7 makes it clear that it is the Judge’s responsibility to make
such use of the statement as he sees fit, and that responsibility rests on him
regardless of the attitude taken by defence counsel to the admission of the
statement.
We
have also to consider whether the admission of the whole statement resulted in
any prejudice to the appellant. It
is important to remember that nowhere in the statement is there any
identification of the appellant as one of the three men involved. There was in
fact nothing in the statement which served to fortify the subsequent
identification of the appellant by the virtual complainant.
The statement did not incriminate him.
At
an early stage in the cross-examination by defence counsel, it was suggested to
the virtual complainant that the whole episode was a figment of her imagination.
Whatever view the jury might have taken of the plausibility of this
suggestion ought not to have been affected by the knowledge that her account, if
delusional, had been first narrated by her to the police and recorded by them. In the result, the admission of the whole statement did no
real harm to the appellant.
We,
therefore, hold that although the admission of the whole statement is open to
challenge on the ground that it involved a wrong exercise of a discretion (contra
the Australian decision mentioned above), it did not in the circumstances
constitute a material irregularity and certainly was not productive of any
miscarriage of justice.
For
these reasons therefore, we found that there was no merit in this ground of
appeal and having come to the same conclusion for the reasons already stated in
relation to all the other grounds of appeal,
we
dismissed the appeal and affirmed both convictions and sentences.
Chief Justice
L. Jones
Justice of Appeal
A. Lucky
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