REPUBLIC OF TRINIDAD AND TOBAGO
IN THE COURT OF
APPEAL
CrA #58 – 61/99
BETWEEN
GERALD MINOTT, MICHAEL PAUL
APPELLANTS
SHERWIN ABRAHAM AND JERMAINE OLIVER
AND
THE STATE
RESPONDENT
AND
CrA #62/99
BETWEEN
THE STATE
APPELLANT
AND
MICHAEL PAUL, SHERWIN ABRAHAM,
GERALD MINOTT AND JERMAINE OLIVER
RESPONDENTS
PANEL:
M.A. de la Bastide, C.J.
R. Hamel-Smith, JA
L. Jones, JA
APPEARANCES:
MR. D. ALLUM, S.C. AND MR. R. RAJCOOMAR appeared for
GERALD MINOTT
MR.
GUERRA AND MS. P. ELDER appeared for MICHAEL PAUL AND
SHERWIN ABRAHAM
MR.
D. DALY AND MR. R. PERSAD appeared for JERMAINE OLIVER
MR.
M. MOHAMMED, S.C., MS. G. LUCKY AND MRS. DASANT appeared
for THE STATE
DATE
DELIVERED:
April
12, 2001
J U D G M E N T
Delivered
by M.A. de la Bastide CJ.
The
four appellants were allegedly caught red-handed by a party of policemen packing
a large quantity of marijuana in a container in a warehouse at Arima.
The police party raided the warehouse which was in a fenced compound at
Tumpuna Road, at about midnight between the 6th and 7th
January 1998, and there came upon a container in which they found a large number
of parcels of marijuana weighing a total of 1630 kilograms.
The raid followed a day-long observation of the compound by two parties
of policemen. It was not in dispute
that the four appellants were in the warehouse at the time of the raid and were
held there by the policemen. There
were two crucial issues in the case which were interlinked.
These were:
(a)
was the container open or locked when the police arrived, and
(b)
were the appellants inside the container at that time?
The
defence was that the container was locked when the police arrived and that three
of the four appellants were upstairs on what appears to have been a mezzanine
floor in the warehouse, when the police raided. These were straightforward issues of fact which the jury
might be thought to have resolved by the verdict of guilty on the charge of
being in possession of marijuana for the purpose of trafficking, which they
returned against all four appellants. The
difficulty in this case, however, arises from the fact that there was a fifth
man, Peter Homer, who was allegedly found by the policemen together with the
four appellants in the container and who was tried together with the others on
the same charge. In his case,
however, a security guard, Sherman Stewart, who was on duty at the gate of the
compound on the night in question, testified under cross-examination that Homer
had been arrested outside the warehouse immediately after the police entered the
compound and not inside the warehouse, as the policemen claimed.
No doubt because of this evidence by Stewart, the jury acquitted Homer.
In fact all the verdicts were majority verdicts:- in the case of Homer, 8
to 1 for acquittal, and in the case of all the appellants, 7 to 2 for
conviction. The evidence which
placed the appellants in the container was given by three police officers,
Assistant Superintendent Craig, Sgt. St. Cyr and P.C. Miguel.
These policemen all testified to having found five men handling the
packets of marijuana inside the container.
This was exactly the same evidence on which the case against Homer
depended. The principal ground of
appeal in this case, one which we confess has caused us considerable difficulty,
is that the jury’s verdicts are inconsistent since the jury acquitted Homer
and convicted the appellants, although the prosecution relied on the same
evidence against all of them. Another
related ground of appeal is based on the allegedly erroneous direction which the
trial Judge gave to the jury as to how the conclusion they reached with regard
to Homer would impact on the case against the other accused.
The Judge directed them that if they came to a positive conclusion that
the police had lied in relation to Homer, then they must acquit everyone but, if
they were left in a state of doubt as to whether or not the police had lied
about where they held Homer, they must acquit him, but might still convict the
others if satisfied beyond a reasonable doubt of their guilt.
Before
dealing with these grounds, it is necessary to set out more fully the evidence,
starting with the prosecution’s case. The
observation of the compound on the 6th January, 1998, was carried out
by a party of policemen from the Woodbrook Police Station led by Sgt. St. Cyr
and including P.C. Miguel, from 7.30 a.m. to 8.30 p.m., and also by another
party of policemen led by Asst. Supt. Craig between 5 p.m. and 10 p.m.
At 7.30 p.m. the appellant Paul was seen by the police driving into the
warehouse compound in a white Hyundai motor-car which had been rented by him the
previous day. Next to him in the
front seat was the appellant Minott. There
were three other men in the back seat who were not identified. At about 8.00 p.m. Paul was seen to leave the compound alone
in the same car: he returned at about 10.00 p.m., again alone.
After that both parties of policemen having met and conferred, proceeded
to the warehouse compound. After
Craig had spoken to the senior security guard at the gate, Sherman Stewart,
Stewart raised the barrier and the police drove one car in and parked it in the
compound. The police party then held a final briefing in the compound
and proceeded to a warehouse occupied by a company called Islandwide Importers
Ltd. The door of the warehouse was
ajar. The policemen entered and saw
the car which Paul had been driving, parked inside the warehouse.
They heard noises coming from a 40 ft. container which was in the
warehouse. They found the far end
of the container open and inside were the five accused.
The three police witnesses, Craig, St. Cyr and Miguel, described the
location of each accused in the container and what each was doing when surprised
by the police party. There were a
large number of beige and black packages in the container.
Most were neatly stacked in a compartment at the closed end of the
container, but some were strewn on the floor of the container.
All five men were busily engaged in doing various things to the packages.
Oliver was said to be in the act of passing a package to Homer.
St. Cyr shouted: “Police,
don’t move.” The five men
obeyed. St. Cyr, Miguel and another
policeman, P.C. Crooks, entered the container.
St. Cyr asked about the black and beige packages.
The men did not reply. St.
Cyr then picked up a package and slit it. It
contained plant material which appeared to be marijuana.
The accused were then handcuffed and made to sit against a wall of the
warehouse. One of the policemen,
P.C. McCalpin, who had been posted on perimeter duty, had a camcorder with him
and about half an hour after the arrest, he used this to film inside the
warehouse. After one or two minutes
of filming, however, his battery ran out. McCalpin
said in evidence that the quality of the film he took that night was poor and
that he had subsequently filmed over that footage.
An official police photographer eventually arrived at the warehouse at
about 2.30 a.m. He took a shot of
the inside of the container and one of the accused sitting handcuffed against
the wall. These two photographs
were put into evidence. The one of
the container shows it much as the police witnesses described it. In the other photo, at least two of the accused are
bare-backed. A peculiar feature of
the evidence was that the defence denied that the police photographer who
claimed to have taken the photographs, ever came to the warehouse that night,
but insisted that it was a different man of East Indian origin, who came and
took photographs. The packages were
all removed from the container and each was numbered, weighed and marked in the
presence of the accused. There were
a hundred beige packages and sixty-one black packages. The beige packages contained more black packages.
The total weight of the packages was approximately 1,630 kilograms.
Evidence was given by a Scientific Officer from the Forensic Centre that
the material inside the packages was indeed marijuana.
The accused were eventually taken to the Woodbrook Police Station where
they were charged.
As
we have indicated, the principal witnesses for the prosecution were A.S.P.
Craig, Sgt. St. Cyr, and P.C. Miguel. The
Judge in his summing up was extremely critical of the evidence of St. Cyr.
He told the jury that if the prosecution’s case had depended on St.
Cyr’s evidence, he would have withdrawn it from them and directed an
acquittal. He said St. Cyr’s
evidence was “fraught” with inconsistencies, discrepancies and unexplained
omissions. He urged them more than
once not to rely on it. The Judge
also endorsed the criticism which had been made by defence counsel of the
policemen’s failure to make contemporaneous notes in their pocket-diaries or
where appropriate, entries in the station diary.
For
the defence, Paul, Abraham and Homer gave evidence. Oliver and Minott did not.
Paul and Abraham told basically the same story.
They had gone to the warehouse that night at about 10 o’clock together
with Oliver and Minott (who were visitors from Jamaica) in a car driven by Paul.
They had seen a container in the warehouse which was locked with a large
silver padlock. The two of them
with some assistance from Oliver had busied themselves sorting biscuits, juice
and mineral water while Minott was drinking Guinness. At a certain point they heard what sounded like gunshots and
then banging on the container. Three
of them Paul, Abraham and Oliver were upstairs when they were arrested - Paul,
in an office, Abraham on the catwalk and Oliver in the bathroom.
Paul and Abraham were cousins and both lived in the same house in Arima
at the time. Paul who represented
this country as an athlete at two Olympic Games, had been living in the United
States. There he had made the
acquaintance of one Mr. Gomez who ran a bakery in New York.
Mr. Gomez had invited him to participate in some import/export business
which Gomez was establishing. Paul
had gone to the warehouse the first time that evening expecting to meet Gomez
there, but Gomez did not turn up. Paul
had met Oliver in Jamaica. Oliver
was visiting Trinidad and had contacted him.
Paul had been entertaining him while he was in Trinidad.
It was their intention that night to go to a night-club but they had
first gone to the warehouse as Paul still hoped to meet Mr. Gomez and wished to
assist him by sorting the shipment of biscuits, juice and water.
Homer
gave evidence of having gone to the compound that night alone in search of Paul.
His sister was Paul’s girl-friend and he was hoping to get some money
from Paul to help him with the medical expenses he was incurring as a result of
an injury to his arm, which he had suffered in a motor-car accident.
As a result of that injury, his arm was in a cast that night.
According to him the security guard did not allow him to go any distance
into the compound but had him remain not far from the guard booth, where he was
held by the police upon their arrival. According
to him after his arrest he was put in a car and kept there by the police for
about half an hour, after which he was taken to the warehouse where the other
accused had been held. As I have
already indicated, Homer’s case received an unexpected boost from the evidence
of Stewart in cross-examination. Counsel
for Homer put to Stewart that Homer was arrested by the police outside the
guard-booth on the public road. Stewart’s
answer was: “Not that I can remember”.
Stewart was unable to identify Homer as the person but said that he could
recall there was a young person in the compound in Lane 1 at a distance from the
guard booth which he estimated at about 5 to 10 yards. Stewart recalled that the
young person did have a cast on one arm. It
was not disputed that the only person around that evening with a cast was Homer.
Stewart said he asked him what he was doing there, Stewart further said
that after the police went in, he saw the young person with the cast coming out
with the police, having been arrested by them.
In answer to the question where he saw him with the police, Stewart
answered:
“He was
coming way down from the back, he came from way down the back and when coming
out to the light, I saw him when he had arrived in front of our booth”.
He
also said that he saw the police come out with the man immediately after they
went in. Stewart said he saw Homer
placed by the police in a car, but he never saw him again after that.
According to Craig’s evidence, Homer was separated from the other
accused much later on and taken out by himself and placed in a car while the
other accused were placed in a panel van. This
led the Judge to raise with the jury the possibility that Stewart might have
been confused as to the time when the police emerged with Homer from the
darkened area. One unsatisfactory feature of Stewart’s evidence was that
on a visit paid by the Court to the scene, Stewart indicated that Homer was
arrested at a spot quite close to the guard-booth.
This was not consistent with his initial evidence that Homer was brought
out “from the back” by the police. One
aspect of the matter which might have been (but was not) explored by the
prosecution with Homer in cross-examination and Stewart in re-examination, was
how Homer managed to gain entry to the compound if not as a passenger in
Paul’s car. As I have mentioned,
the initial suggestion put to Stewart by Homer’s counsel was that Homer was
arrested outside the compound on the public road, but it is clear
from Stewart’s evidence that when he first saw the man with the cast, he was
inside the compound.
We
now turn to the grounds of appeal mentioned earlier. We shall deal firstly with the alleged inconsistency in the
jury’s verdicts. This ground was
formulated in two different ways. In
the notices filed on behalf of Paul and Abraham the first ground of appeal read
as follows:-
“The
conviction of the applicant/appellant is unsafe and unsatisfactory in light of
the inconsistent verdicts delivered by the jury which acquitted a co-accused.”
In
the case of Oliver and Minott, the corresponding ground reads as follows:
“The
conviction of [the appellant] was inconsistent with the verdict of not guilty in
relation to the other co-accused Peter Homer as no reasonable jury applying
their minds properly to the facts in the case against the background of a proper
direction on the burden of proof could have arrived at the conclusion which was
arrived at by the jury in this case.”
The
complaint that verdicts are inconsistent may be raised either when a single
accused is charged with more than one count or there are several accused that
are tried on the same charge. It
has been held that the same principles govern both situations see: R.
v. Baker White Tyrell Johnson Brown and Phipps (1972) 19 W.I.R. 278.
In its purest form the objection of inconsistent verdicts will only
succeed in rare cases. There is a
heavy burden on the appellant who relies on this ground, to demonstrate not only
that the verdicts are logically inconsistent, but even if they are, that it is
not possible to postulate a legitimate train of reasoning which could reasonably
explain the inconsistency see R.
v. G. (1998) Crim. L.R. 483. In
the instant case there is no logical inconsistency evident on the face of the
verdicts. But there is another type
of inconsistency deriving from the evidence which may result in a conviction
being quashed because in the language of the English legislation, it renders the
conviction unsafe, and in the language of our legislation, it constitutes a
miscarriage of justice. This occurs
when on analysis of the evidence the Court of Appeal is driven to the conclusion
that a jury which has considered certain evidence not sufficiently reliable to
support a conviction on one charge, nevertheless has relied on the same
evidence, or more usually, on evidence from the same source, in order either to
convict the same defendant on another charge, or to convict another defendant on
the same charge. It is possible to
detect in the authorities, even those from the same jurisdiction, two different
and indeed opposite, approaches. Those
judges who favour non-interference by the appellate court, emphasise that the
role of the jury is paramount and that their verdict is not lightly to be
interfered with. They argue that it is not for a Court of Appeal to speculate
how on the evidence the jury could have convicted one accused and acquitted
another or convicted on one count and acquitted on another. In doing so the jury will have done no more than follow the
conventional direction which they are given, to consider separately each count
of the indictment or the case against each accused. It has been said that a person’s credibility is not a
‘seamless robe’ and that in this respect it is overly simplistic to draw a
distinction between reliability and credibility.
Also, that it is for the jury to decide on the basis of all the material
before it whether it is sure of the particular allegation in each count (or
against each accused). This was the
approach taken by the Court of Appeal in England in R. v. G. [1998]
Crim. LR 483 in which the appellant was convicted on four specimen counts of
indecent assault and two specimen counts of gross indecency, but was acquitted
of two further counts of rape. All
the offences were allegedly committed against a young girl who was between 4 and
10 years old at the time of the offences, but only complained of them when she
was 22. The Court of Appeal in
dismissing the appeal rejected the argument that the convictions were
inconsistent with the appellant’s acquittal on the rape counts, although the
evidence which supported all the charges came from the same source, that is, the
complainant. The Court of Appeal
held that it was not the case that convictions were necessarily unsafe where a
complainant’s credibility was in issue, there was no corroboration, and the
jury accepted some and rejected other of her allegations.
The Court regarded as exceptional, cases like Cilgram
[1998] Crim. L.R. 861, where a conviction was held unsafe in the absence of
logical inconsistency.
In
R.
v Eldridge & Salmon
(1999) Crim. L.R. 166 the Court of Appeal reiterated that the mere fact that a
jury disbelieved a witness on certain counts did not mean that they were
necessarily acting irrationally in accepting his evidence on others, but held
that in this case the factual matters were so intimately interlinked that the
conviction of two men for buggery and indecent assault could not be upheld in
the light of their acquittal on counts of taking indecent photographs of the
acts which constituted the offences of which they were convicted.
The complainant on all counts was the young son of one of the appellants
who was aged 5 at the time of the alleged offences.
The Court of Appeal regarded the taking of the photographs as an integral
part of the abuse to which the young boy was allegedly subjected.
Since the jury did not accept the allegations with regard to the taking
of photographs, then there must be a doubt about their verdict on the count of
buggery. The verdict on that count
was unsafe and the same had to be said of the count of indecent assault
depending as it did on the same witness as the only witness on the buggery
count. The Court of Appeal in this
case, therefore, while paying lip service to the approach adopted in R. v. G., seems in
practice to have adopted and applied what I suggest is a different and indeed
opposite line of reasoning, namely that a conviction cannot be safe if it
depends solely on evidence from a source which the jury has demonstrated by its
acquittal of the same accused on another count (or of another accused on the
same charge), it regards as unreliable.
The
same line of reasoning also underlies the judgment of the Court of Appeal of
Jamaica in R.
v. Baker, White, Tyrell, Johnson, Brown and Phipps (cited above).
In this case a prison riot resulted in 13 prisoners being charged with
the murder of a warder. Seven of
the accused were acquitted and six were convicted of murder.
They all appealed. Two of
the appellants, Tyrell and Johnson, argued as one of their grounds of appeal
that the verdict of guilty of murder against each was inconsistent with the
acquittal of two co-accused, as there was nothing to distinguish the cases
presented against those co-accused respectively from those presented against
them. The Jamaican Court of Appeal
after a careful and detailed analysis of the evidence, held that in the case of
Tyrell a valid distinction could be drawn between the case against him and that
against the co-accused on whose acquittal he relied, but in the case of Johnson,
no such distinction could be drawn between the evidence implicating him and that
against a co-accused by the name of Stoner who was acquitted.
The Court refused to make any distinction between the cases of Johnson
and Stoner on the ground that Stoner gave evidence on oath in his defence while
Johnson did not, “bearing in mind where the burden of proof lay”.
Evidence had been given against both Johnson and Stoner by a witness
called Blake. Giving the judgment
of the majority of the Court, Smith JA said (at page 299):
“The fact
that Stoner’s sworn evidence may have been accepted in preference to Blake’s
can only operate to Blake’s discredit and it is precisely because, by the
jury’s verdict, he was discredited in respect of Stoner where his evidence
stood alone why it is said that a similar view should be taken in respect of
Johnson where his evidence also stands alone.”
In
the result the application of Johnson for leave to appeal succeeded.
Both
schools of thought had their proponents in the High Court of Australia in the
case of Jones v. The Queen [1997] 191 C.L.R. 439.
In that case a gym instructor was charged with three acts of sexual
intercourse with a young female pupil who was aged between 11 and 12 years at
the time of the offences, though complaint was not made by her until 4 years
after the first offence. According to the girl’s evidence the acts charged in the
first two counts occurred in the gymnasium after everyone else had left, the
first one on a Saturday and the second on a week night. The third incident was alleged to have occurred at the
appellant’s home. The defence led
evidence from the defendant’s wife and daughter that whenever he went to the
gym on a week night they accompanied him and were driven home by him.
The defendant’s female assistant testified that on Saturdays she was
driven home by the defendant and that he always left the gym before her.
She did admit, however, under cross-examination that during the month in
which the first offence was alleged to have occurred, it was possible that she
might have taken the train home on some occasion.
The jury acquitted the defendant on the second count but convicted him on
the first and third counts. It was
held by a majority of the court comprising Brennan CJ, Gaudron, McHugh and
Gummow JJA with Kirby J. dissenting, that the convictions must be set aside
because they were unsafe and unsatisfactory.
Gaudron, McHugh and Gummow JJ. held that given the jury’s finding on
the second count, it was not open to them on the whole of the evidence to be
satisfied beyond a reasonable doubt of the guilt of the accused on the first and
third counts. The quality of the
complainant’s evidence upon the first and third counts was no higher than that
upon the second. Once the jury
found that the evidence of the complainant with respect to the second count
lacked sufficient cogency to convict, the Crown’s case on the first and third
counts wore a different complexion for it meant that when the evidence could be
set against other reliable evidence, it failed to carry sufficient conviction to
reach the criminal standard of proof.
There
was a distinction that could be made in the strength of the defence case on the
three counts. On the second count
the defendant had a cast-iron defence once his wife and daughter were believed.
On the first count, however, his assistant’s evidence left a small gap
when she conceded that there might have been an occasion on which she took the
train home. So far as the third
count was concerned, the defendant could call no witness to support his denial.
Brennan CJ, however, in relation to the first count pointed out that the
gym assistant’s uncertainty was attributable to the delay of four years by the
girl in coming forward and making her complaint.
He found that the judge was at fault in failing to give the jury an
adequate warning against permitting the defence to be prejudiced by this delay.
In relation to the third count, the Chief Justice held that the fact that
the jury were not satisfied beyond reasonable doubt about the appellant’s
guilt on the second count, and may not have been satisfied of his guilt on the
first count if they had been adequately directed about the significance of the
delay in the prosecution, combined with the absence of any complaint by the
child until two and one-half years after the alleged third act of intercourse
and the apparent friendliness which she exhibited to the defendant and his wife
during that time, made it clear “that the jury could not have properly
evaluated the dangers of convicting on the child’s uncorroborated evidence so
long after the events of which she complained”. The Chief Justice went on to say (at page 446):
“Once the jury decided to acquit on the second count the only proper
verdict which a reasonable jury could have returned on the first and third
counts had they followed the direction that ought to have been given were
verdicts of acquittal. In those circumstances, it would not have been reasonably
open to them to convict on the first and third counts”.
One
judgment was delivered by Gaudron, McHugh and Gummow JJA. In that judgment they
considered the impact of the jury’s acquittal on the second count on the
complainant’s evidence on the first and third counts. They said (at page 453) “The jury’s finding of not guilty
on the second count damaged the credibility of the complainant with respect to
all counts in the indictment. Implicit
in the appellant’s acquittal on the second count was a rejection of the
complainant’s account of the events which were said to give rise to that count
… It is difficult then to see how it was open to the jury to be convinced
beyond a reasonable doubt of the guilt of the appellant with respect to the
first and third counts. There is
nothing in the complainant’s evidence or the surrounding circumstances which
gives any ground for supposing that her evidence was more reliable in relation
to those counts than it was in relation to the second count”.
The judges also pointed to the uncorroborated nature of the complaints
(particularly the absence of any corroborative medical evidence) and the lengthy
and unexplained delay in the making of the complaints.
They held that when these were combined with the “credibility factor”
the convictions on the first and third counts could only be regarded as unsafe
and unsatisfactory.
A
different view was taken by Kirby J. He
referred with approval to the repeated directions which the jury had been given
as to the need to bring in separate verdicts upon each of the counts of the
indictment. He saw no reason why
the jury might not entertain a reasonable doubt about whether the second count
had been proven to the criminal standard, given the evidence of the
defendant’s wife and daughter, without necessarily rejecting the
complainant’s evidence as a whole. He
reasoned as follows:
“For
example, they might have considered that the incident probably did occur but, in
conformity with the instruction about the standard and burden of proof, they
could properly conclude that they should acquit on that count.
Any other hypothesis would require a conclusion that, in all cases of
this kind, complainants must be wholly believed or wholly disbelieved.
This would put at naught the need for separate verdicts on the separate
counts of the indictment and the principle of particularity in the proof of
separate offences charged upon such separate counts.
The principle necessarily posits the possibility (at least given the way
this trial was conducted) that different verdicts may be returned on different
counts, as occurred here. It would
also overlook the practical way in which juries often approach different charges
expressed in different counts of an indictment”.
In
the result he found no “fatal incompatibility” between the jury’s
verdicts.
In
The
Queen v. James (1999) N.S.W. CCA 191, the New South Wales Criminal
Court of Appeal sought to apply the decision of the High Court in Jones
but this resulted again in a divided court.
The appellant had been charged with five counts of indecent assault on a
young girl who was his sister-in-law. He
was convicted on the first, second and fifth counts but was acquitted on the
fourth count and the jury could not agree on the third.
The incident to which the fourth count related was alleged by the
complainant to have occurred in a building on a parcel of land which the
appellant was thinking of buying, on the occasion of a visit paid to the
property by the appellant, the complainant and other family members.
There was independent evidence, however, that at the material time there
was in fact no building on that piece of land.
The incident to which the third count related was alleged to have
occurred in the course of an expedition in the country to pick mushrooms, when
the appellant and the complainant became separated from the other members of the
party. The complainant testified
that after the incident, as the appellant held apart two strands of a
barbed-wire fence to allow her to pass through, he made a strange remark to the
effect that she should be careful not to tear her nightie.
The majority of the court comprising Simpson and Bell JJ with Brazley JA
dissenting, allowed the appeal and quashed the convictions, holding that they
were unsafe and unsatisfactory. In the course of his judgment (with which Bell
J. agreed) Simpson J said that he could see no relevant distinction between Jones
and the case before him. He said:
“All that can be drawn from [the jury’s acquittal on the fourth count and
their disagreement on the third] is that, where there was any positive material
to contradict, or create a doubt about the complainant’s claims, the jury
doubted her credibility. As in Jones,
if they had a doubt about her credibility on the fourth count (and some, at
least obviously had doubts about her credibility on the third as well) then,
automatically they must (or ought to) have doubted her credibility generally. An
appellate court will not interfere with a verdict of guilty if there is a proper
way of reconciling the different verdicts. In Jones the only reasonable explanation for the differing
verdicts was doubt about the complainant’s credibility.
That does not provide a proper way of reconciling the verdicts”.
Brazley
J.A. took a different view. He held
that the case was distinguishable from Jones.
In this connection he mentioned that in Jones
the judge had failed to give any direction in relation to the lack of
corroboration whereas there was no such failure in the instant case.
Also in Jones
there had been internal inconsistencies in the complainant’s evidence, whereas
in the instant case there was evidence of complaint to a school friend and of
the existence of a diary kept by the complainant in which entries incriminating
the appellant had been made. Brazley
JA in considering the complainant’s evidence with regard to the fourth count
posited various explanations of it. He
said: “A number of possibilities
of course present themselves as to the complainant’s version.
She may, for example, have made up the incident.
Her recollection may have been seriously awry as to the condition of the
property. There may have been such
an incident which she confused or perhaps merged different incidents.
Whatever be the correct position, there is no doubt that the complainant
was not believed on her oath in respect of the incident alleged. This, of course, is a matter which affects her credit.
However, the jury had the benefit of seeing and hearing both the
appellant and the complainant and clearly believed the complainant on the count
in respect of which they returned a guilty verdict.
A logical and reasonable explanation of the differences in the verdict is
that the jury obeyed, as they were bound to do, the directive that each charge
had to be considered on its own and that they had to be satisfied of the guilt
of the accused beyond a reasonable doubt before being able to come to a guilty
verdict”.
The
judge considered that seen in this light, the difference in verdicts presented
“no affront to common sense”. He
identified the question for decision as “whether the doubt as to the
complainant’s credit in respect of the third and fourth counts so infected her
evidence generally that there should have been a reasonable doubt as to the
guilt of the appellant on all counts”. The
judge evidently felt able to answer this question in the negative.
Questions
as to the divisibility or indivisibility of a witness’ credibility seem to
arise repeatedly in the context of cases in which persons are charged with a
series of sexual offences alleged to have been committed against the same
complainant. Another case of this
type decided by the Court of Appeal in England, is R v Hayward [2000] Crim. LR 189.
The defendant in that case was charged with three others in 24 counts
with a series of sexual offences against four of his children when they were
very young. The jury convicted the
defendant on a count alleging buggery of his son P when P was aged 7 or 8.
P’s evidence was supported by a younger brother, T.
The jury however, were unable to reach a verdict on a count alleging
indecent assault on T when he was between 3 and 5 years old. The jury acquitted the defendant on all other counts.
On appeal it was contended that the conviction of buggery was unsafe as
the jury had by their other verdicts indicated that they did not accept the
evidence of P and T. In dismissing
the appeal the Court of Appeal likened the function of the Court of Appeal in
dealing with the plea of inconsistent verdicts to that of a trial Judge dealing
with a no case submission. Just as
the trial judge had to leave the case to the jury once there was sufficient
evidence to entitle them to convict, so the Court of Appeal must reject the plea
of inconsistent verdicts unless they were satisfied that the verdicts were so
inconsistent that no reasonable jury could have arrived at the conclusion which
the jury reached. It was pointed
out that in this case there was no insufficiency of evidence nor any logical
inconsistency between the verdicts. What
seemed to have weighed with the court was the fact that in relation to the count
of buggery the evidence of P was supported by the evidence of T.
The commentary on the case in the Criminal Law Review makes the point
that T’s recollection of the abuse which he himself suffered, appeared to have
been sparked by drug induced flashbacks. There
may have been some basis therefore for the jury to have given greater credit to
his evidence of abuse of his brother P. than they did to his evidence of being
himself abused. So that here again
there appears to have been some basis in the evidence for the jury having placed
greater reliance on the evidence which a witness gave in relation to one count
than that which he gave in relation to another.
After
this appeal was heard, we were sent by the Director of Public Prosecutions the
transcript of a case R. V. Martyn decided by the Court of
Appeal in England on the 30th March, 1999. In that case the defendant was charged in 16 counts with
sexual offences, 9 of them against one of his step-daughters and the others
against another step-daughter. The
defendant was convicted on some of the counts and acquitted on others.
The Court of Appeal rejected the argument that the convictions should be
quashed because their inconsistency with the acquittals rendered them unsafe.
The Court of Appeal endorsed statements made in some of its earlier
judgments about the latitude allowed to a jury deciding issues of fact and not
regarding credibility as a seamless robe. The
Court of Appeal, however, adverted to the fact that the charges did relate to
incidents which were alleged to have occurred several years before.
In this connection the Lord Chief Justice, Lord Bingham, said:
“The
judge had warned the jury about the risk of fading memory with the passage of
time … the jury had of course to
be sure that the complainants were truthful in relation to each count before
convicting but they also had to be sure that the complainants were reliable.
They could quite logically have found the complainants to be truthful
throughout, but have questioned their reliability and accuracy in some
instances.”
The
Chief Justice then went on to demonstrate in each case in which the jury had
acquitted or were unable to agree that there could be found in the evidence some
explanation of the jury’s verdict (or inability to agree) which did not
involve the deliberate fabrication of evidence by the complainants.
Another feature of the case which helps to explain the Court of
Appeal’s decision was identified by Lord Bingham when he said:
“We
remind ourselves that these counts related to different incidents in different
places over a long period of time”. Another
point mentioned in the judgment was that although the trial Judge did not
instruct the jury that they must decide all the counts involving the same
complainant in the same way, he did indicate to them that for the most part the
counts in each case did stand or fall together, and that the defence had
acquiesced in this direction - a situation which is rather different from that
in this case in which the trial Judge’s direction was at variance with the
position adopted by both sides at the trial, namely that either all or none of
the accused should be convicted
Some
of the authorities on inconsistent verdicts were reviewed by this court in Geronimo
Charles v. The State (unreported) Cr. A. No. 41 of 1997.
The defendant in that case had been charged with two counts of having
sexual intercourse with, and committing an act of serious indecency upon, a girl
under the age of 14. The act of serious indecency alleged was the insertion of a
finger in the girl’s vagina as a prelude to having intercourse with her.
The jury acquitted the defendant on the charge of intercourse but
convicted him of serious indecency. The
prosecution’s case on both charges depended on the uncorroborated evidence of
the girl.
The
Court of Appeal held that the conviction of serious indecency must be quashed
because there was no sensible, plausible and reasonable explanation for the
different verdicts, given that the defendant denied that any sexual activity at
all had taken place while the complainant testified to intercourse having taken
place immediately after digital penetration of her vagina. The jury could not reasonably have accepted the
complainant’s evidence about the one act but rejected her evidence with regard
to the other. In the course of my
judgment in that case I made the following comment with reference to two English
cases, that is, R. v. Cilgram (cited above) and R.
v. Van der Moles (1997) Crim. L.R. 604:
“A
comparison between these two cases … illustrates the danger of generalising
and seeking to erect from the decision in any particular case, a principle of
application which extends beyond the facts of the particular case.
One might have been forgiven for concluding from the earlier decision of Cilgram
that whenever a verdict of guilty of a sexual offence involved the acceptance of
part of the uncorroborated evidence of a virtual complainant and a verdict of
not guilty by the same jury on another count indicated that the jury had
rejected another part of the evidence of the same complainant, the verdict of
guilty would be regarded as unsafe. A
fortiori, if both counts related to incidents occurring in the same sexual
episode. The decision in Van
der Moles shows that to state principle in that form would be to
state it too broadly”.
Notwithstanding
my recognition of the danger of trying to formulate any principles of general
application in this area of the law, I would venture to suggest that the
following guidelines can be extracted from the authorities (despite their
apparent lack of consistency):
1.
The Court of Appeal should be extremely slow to quash
a conviction on the ground that it is supported by evidence from a source which
must have been regarded by the jury as unreliable having regard to a ‘not
guilty’ verdict which they returned against the same accused on another count
or against a co-accused on the same charge.
If there is any plausible way at all of explaining how a reasonable jury
might have reached the two verdicts, the Court of Appeal will not quash the
conviction.
2.
If there is any evidence to support the conviction
which is confirmatory of, or supplemented to, the evidence which has been
rendered questionable by the acquittal, this is sufficient to justify different
verdicts and the conviction will be upheld.
3.
If the implied rejection by a jury of a witness’
evidence inherent in a verdict of acquittal can be explained on any basis which
does not involve attributing to that witness an intention deliberately to
mislead e.g. faulty recollection, mistake, confusion, etc. a conviction based on
other evidence from the same witness will not necessarily be regarded as unsafe.
4.
Even if an acquittal connotes lack of confidence by
the jury in the truthfulness of a witness, a conviction based on the unsupported
and challenged evidence of that witness may nonetheless be upheld if from the
evidence there is available some reasonable basis for believing that the witness
may have lied in relation to the charge that failed, but told the truth in
relation to the charge that succeeded.
5.
In determining whether it was reasonable for a jury to
have accepted one segment or aspect of a witness’ evidence while rejecting
another segment or aspect of his evidence, it is material to consider how
closely linked in terms of time, place and subject matter are the two segments
or aspects of his evidence.
6.
If an acquittal cannot be explained on any other basis
but that the jury doubted the truthfulness of a witness, a conviction which
depends on the jury having accepted that same witness as a witness of truth,
cannot in the absence of some explanation of the jury’s differing assessment
of that witness’ credibility, stand.
We
are very far from suggesting that these propositions represent any sort of
comprehensive statement of the law on the topic of inconsistent verdicts. We
wish to make it clear that we have sought to distill them from the authorities
with a view to applying them to the facts and circumstances of the instant case.
This will become more apparent if we identify what seem to us to be the
outstanding features of those facts and circumstances.
Firstly,
in the instant case the evidence against the appellants was exactly the same as
the evidence which implicated Homer i.e. the oral testimony of the three
policemen Craig St. Cyr and Miguel.
Secondly,
there is no question of these policemen having been mistaken when they said they
found Homer in the container in the warehouse, and not outside the warehouse.
The jury’s acquittal of Homer can only be understood as demonstrating a
doubt as to whether or not these policemen were telling the truth in relation to
Homer.
Thirdly,
the link between the evidence against Homer and that against the appellants, is
extremely close. It amounts to a single verbal snap-shot of what (and whom)
they saw in the container.
Fourthly,
there is no reason to believe that these three persons would be any more
truthful in their evidence against the appellants than in their evidence against
Homer. In other words, if they lied
about Homer being in the container, there is no reason to suppose that they did
not lie about the appellants being in it as well.
No rational basis can be found for making a distinction between the
policemen’s credibility in relation to Homer and their credibility in relation
to the appellants – that is in our view fatal to the conviction of the
appellants.
There
is no reasonable sensible and plausible explanation of how the jury could have
doubted the policemen’s veracity in the case of Homer but felt sure of it in
relation to the appellants. In the
language of the Australian judges, it was not reasonably open to the jury having
acquitted Homer in the teeth of the policemen’s evidence, to be convinced of
the appellant’s guilt on the strength of that same evidence.
The
conclusion we have reached with regard the ground of appeal based on the
inconsistent verdicts, makes it strictly speaking unnecessary for us to consider
the other related ground to which reference has been made.
This is the ground which arises from the trial Judge’s direction to the
jury that if they were sure that the police arrested Homer outside the warehouse
they should acquit all the accused, but if they were not sure where he was
arrested, they should acquit Homer but were entitled to convict the others if
satisfied of their guilt. With
regard to the first limb of this direction, the learned Judge reasoned, much as
we have in dealing with the first ground of appeal, that if Homer was arrested
outside the warehouse, then the policemen must have fabricated the case against
him. He told the jury that if they
were sure about this then that was the end of the trial, as the prosecution’s
case would then be “cancered” and “unreliable”.
He went on however, to deal with the alternative situation, in which they
entertained a reasonable doubt as to whether Homer was arrested outside the
warehouse. He directed them that in such case they would be under a duty to find
Homer not guilty, but would be “entitled to go on to consider the rest of the
case for the prosecution, and to decide having regard to the evidence of
Stewart, whether it impacts in such a way, whether the reasonable doubt, if you
so find in relation to (Homer) has impinged upon the whole of the
prosecution’s case in such a way as to create in your minds that the
prosecution’s evidence given by the four police officers is not
trustworthy”. It is obvious from
the verdicts that a majority of the jury entertained a reasonable doubt as to
where Homer was arrested, but nevertheless following the Judge’s direction,
having considered the evidence against the four appellants, found them guilty.
The fact of the matter is that given that the burden of proof in a
criminal case rests on the prosecution and the standard of proof required to
discharge that burden is proof beyond a reasonable doubt, there is a logical
defect in the Judge’s direction. There
were two questions to be answered in this case.
The first is was the conviction of the four appellants dependent on the
truthfulness of the three police officers. The answer to that was clearly yes. The second question was would the truthfulness of their
evidence against the four appellants be undermined if they were lying as to
where they arrested Homer. We have
held that the answer to that question is also in the affirmative. It does not matter in that setting whether the jury were sure
that the police witnesses lied on Homer or whether the jury felt that they might
have lied on Homer. In the first
case the jury would be sure that the policemen’s evidence against the
appellants had been undermined, in the second, they would be unsure whether or
not it had been so undermined and the appellants, like Homer, would be entitled
to the benefit of the doubt and so, to be acquitted.
It
is striking that in the judgment of Gaudron, McHugh and Gummow JJA in Jones
they recognised that the acquittal of the appellant on the second count was more
likely the result of the jury entertaining some doubt of the appellant’s guilt
than of their being convinced that the complainant had fabricated her evidence
on that count. But that for them
did not blunt the impact which that doubt had on the complainant’s evidence on
the other counts. The relevant
passage from their judgment reads as follows (at page 453):
“The
jury may have acquitted because the unshaken evidence of the appellant’s wife
and daughter with respect to the absence of opportunity engendered a reasonable
doubt about the appellant’s guilt on the second count.
They may possibly have acquitted because they were of the view that the
complainant had fabricated the circumstances giving rise to the second count.
Having regard to the convictions on the first and third counts, the
latter alternative seems an unlikely explanation of the verdict on the second
count. Whatever the explanation
may be however, the jury’s rejection of the complainant’s account on the
second count diminished her overall credibility”. (emphasis added)
By
the same token it was immaterial whether the jury in the instant case was sure
that the policemen were lying about finding Homer in the container, or whether
they thought that the police might have been lying but they were not sure.
In either case they could not reasonably or safely have convicted the
four others who were said by the same witnesses to be in the same container at
the same time with Homer.
Whatever
direction the jury were given the convictions of the four appellants would in
any event have been bad and inconsistent
with the acquittal of Homer, but they are also bad because they were the result
of a misdirection by the learned trial Judge.
We have no option, therefore, but to quash them.
We
should mention that there were a number of other grounds of appeal advanced by
the appellants but it is not necessary in the circumstances for us to deal with
them. Suffice it to say that we
were not persuaded that any of them would have warranted our interfering with
the jury’s verdicts.
For
the reasons which we have given we grant leave to appeal, allow the appeals of
all the appellants and quash their convictions.
The appellants must, therefore, be discharged.
M.A. de la Bastide
Chief Justice
R. Hamel-Smith
Justice of Appeal
L. Jones
Justice of Appeal