Chandree et Al v The State
| Jurisdiction | Trinidad & Tobago |
| Judge | Hyatali, C.J.,Corbin, J.A.,Scott, J.A. |
| Judgment Date | 15 July 1977 |
| Neutral Citation | TT 1977 CA 32 |
| Docket Number | Criminal Appeal Nos. 28, 29 & 35 of 1976 |
| Court | Court of Appeal (Trinidad and Tobago) |
| Date | 15 July 1977 |
Court of Appeal
Hyatali, C.J.; Corbin, J.A.; Scott, J.A.
Criminal Appeal Nos. 28, 29 & 35 of 1976
Desmond Allum and Selwyn John for Peter Chandree.
T.R. Guerra for Dennis Fletcher.
A. Lawrence for Lincoln Noreiga.
J.A. Wharton, S.C. & Oka Seepaul for the State.
Criminal Law - Appeal against conviction (Murder).
Criminal Law - Confession.
The appellants Peter Chandree, Dennis Fletcher and Lincoln Noreiga, were jointly charged with the murder of Andrew Britto (the deceased) a Corporal of Police. The indictment against them alleged, that acting together with one Rudy John, they murdered the deceased on 24 May 1974, at Tabaquite Road, Rio Claro. Each appellant was found guilty by a jury at the Port-of-Spain Assizes, where the case was entered for trial in pursuance of an order made to that effect by the Attorney General under s.3 (5) of the Criminal Procedure Ordinance Ch. 4 No.3. Chandree and Fletcher were sentenced to death but Noreiga who was under the age of 18 years when the offence was committed was ordered to be detained during Her Majesty's, but now the States pleasure.
On 24 May 1974, Kadir Shah, a paymaster attached to the Ministry of Finance was robbed of $24,000.00 at the Tabaquite Pay Station at Rio Claro by four bandits, three of whom were armed with shotguns. In the course and furtherance of the robbery, the deceased, who had accompanied Shah to Rio Claro as one of his armed escorts was killed. He was shot twice by one of the bandits and, as he lay helpless on the ground thereafter, the same bandit relieved the deceased of his revolver and shot him through the head with it. The bandits escaped in Shahs car, after compelling him to hand over its ignition keys to one of them.
The case for the prosecution against Chandree, was based on an oral confession made to Cpl. Haroun Baksh on 26 June 1974, a written confession made to Inspector Richards on the same date, and the evidence of two witnesses, Lionel Stephenson, and Poochoon Dookie, who pointed out Chandree on 27 June 1974, at an identification parade as one of the bandits referred to; as against Fletcher, it was based on a written confession made to Asst. Supt. Clarke on 10 September 1974, and the evidence of Stephenson and Dookie, who pointed out Fletcher at an identification parade held on 11 September 1974, as another of the said bandits; and as against Noreiga, it was based on a written confession made to A.S.P. Clarke on 12 September 1974, and the evidence of Dookie, who pointed out Noreiga at an identification parade on 13 September 1974, as yet another of the bandits aforesaid.
At the trial no objection was taken to the admissibility of either Chandree's oral or written confession. Following the testimony of witnesses for the prosecution that both confessions were made voluntarily, the learned judge allowed them in evidence and had the written confession read to the jury. In cross- examination however, it was suggested by his counsel in relation to the written confessional statement (a) that Chandree made no such statement; (b) that it was fabricated by Inspector Richards; and (c) that he was beaten and forced to affix his signature to it. All these suggestions were denied. In an unsworn statement from the dock at the close of the prosecution case, Chandree, inter alia, supported the allegations put in cross-examination to the witnesses prosecution.
In the case of Fletcher also, no objection was taken at the trial to the admissibility of his confession. After the prosecution had led evidence to show that it was made voluntarily, the learned judge admitted it in evidence and had it read to the jury, with the exception of the first thirteen lines thereof which he considered prejudicial to Fletcher.
In cross-examination however, it was suggested to, but denied by, Asst. Supt. Clarke, that Fletcher was tricked into signing the confession – the trick alleged being, that Fletcher who was suffering from gun shot injuries to his head at the time of his arrest, was falsely led to believe that he was signing a statement containing his report of the shooting incident in which he was involved.
In his unsworn statement from the dock at the close of the prosecution's case, Fletcher referred to the gun shot injury he had received, his loss of consciousness thereafter, his realization that he was lying on a bed when he came to, and his transfer thereafter to the police station at San Fernando where he was placed in a room with boxes. While there, he said, the police asked him about the killing of a policeman and other crimes. He denied knowledge of them. Asst. Supt. Clarke then presented some documents to him for his signature, stating that they concerned the incident when he was shot, and that he should not be afraid as everything was going to be all right. He then signed the documents, after which Asst. Supt. Clarke told him, he was going to be a “witness for the Crown”.
In Noreiga's case, as well, no objection was taken to the admissibility of his confessional statement. Following the testimony of two prosecution witnesses that it was made voluntarily, the learned judge admitted it in evidence and had it read to the jury, with the exception of the first thirteen lines thereof which he considered prejudicial to Noreiga. It was suggested in cross-examination to, but denied by, Asst. Supt. Clarke, that Noreiga was handed a prepared statement, and that he signed it in consequence of violence applied and threats made to him. In an unsworn statement from the dock Noreiga supported the allegations put to and denied by Asst. Supt. Clarke in cross-examination.
There were inconsistencies in the evidence of both Poochoon and Stephenson which made them unreliable witnesses. The learned judge so advised the jury in his summing up, but he directed them that the confessional statements of each appellant, if given their full weight and value, was sufficient to convict each of them of the murder of the deceased.
Mr. Allum argued five grounds of appeal against the conviction of Chandree. He contended that the trial judge (1) erred in law in failing to conduct “a trial within a trial” to satisfy him that Chandree's confession was a voluntary one before admitting it in evidence; (2) erred in law in leaving it to the jury to determine whether Chandree's confession was voluntary; (3) misdirected the jury on the evidence, in reference to Chandree's allegations of the violence applied to and injuries sustained by him; (4) summed up unfairly, by urging too strongly and too often, that they need only consider whether the statement was given by Chandree and that that alone, would be a sufficient basis to convict him; and (5) failed to give any guidance to the jury on the proper approach to take in considering Chandree's alibi.
We agree with counsel's submission that the learned judge erred in leaving to the jury the question whether Chandree's confessional statement was voluntary. His direction on this point was based on a statement of the law in R. v. Bass [1953] 1 All E. R. 1064, 1066. In delivering the judgment of the Court of Criminal Appeal, Byrne, J. said, inter alia, that the trial judge should firstly direct the jury to apply to their consideration of a statement made by an accused, the principle enunciated by Lord Sumner in Ibrahim v. R. (1914) A.C. 599, 609, and secondly, that. “if they are not satisfied that it was made voluntarily, they should give it no weight at all and disregard it.”
In Chan Wei-Keung v. R. [1967] 1 All E.R. 943 however, the Privy Council did not accept the validity of the second limb of the direction suggested by Byrne, J. and accordingly, did not follow it. Instead the learned Lords thereof expressed their preference for and adopted the dictum of the High Court of Australia, in Basto v. R. [1951] C.L.R. 628, 640, in which Dixon, C.J. said, inter alia:
“The jury is not concerned with the admissibility of evidence; that is for the judge, whose ruling is conclusive upon the jury and who for the purpose of making it must decide both the facts and the law for himself, independently of the jury. Once the evidence is admitted the only question for the jury to consider with reference to the evidence so admitted is its probative value or effect. For that purpose it must sometimes be necessary to go over before the jury the same testimony and material as the judge has heard or considered an a voir dire for the purpose of deciding the admissibility of the accused ‘s confessional statements as voluntarily made.”
That statement of the law was adapted and applied by the Court of Appeal (Criminal Division) in R. v. Ovenell [1968] 1 All E.R. 933, 938 and in R. v. Burgess [1968] 2 All E.R. 54 n. In the latter case, Lord Parker speaking for the Court said that:
“the position now is that the admissibility (of a confessional statement) is a matter for the judge; that it is thereafter unnecessary to leave the same matter to the jury; but that the jury should be told, that what weight they attach to the confession, depends on all the circumstances in which it was taken and that it is their right to give such weight to it as they think fit.”
That passage, in our view, neatly summarizes in apt language the decision of the Privy Council in Chan Wei-Keung v. R. (supra) and for present purposes we respectfully adopt it. The question for consideration nevertheless, is whether the direction complained of was prejudicial to the appellant. The fact is, that it was not. Indeed, it was unduly favorable to him. Counsel, quite rightly, conceded this and in the circumstances it is only necessary for us to repeat the admonition that to direct the jury, that unless they are convinced that a confessional statement is voluntary they must disregard it, is to disregard the principle that ...
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