State v Gobin; State v Griffith

• Jurisdiction: Guyana
• Judge: Bollers, C.J.,Crane, J.A.,R. H. Luckhoo, J.A.,Jhappan, J.A.
• Judgment Date: 31 March 1976
• Neutral Citation: GY 1976 CA 11
• Docket Number: Criminal Appeal No. 62 of 1975
• Court: Court of Appeal (Guyana)
• Date: 31 March 1976

Court of Appeal

Haynes, C.; Bollers, C.J.; Crane, Luckhoo, J.A.; Jhappan, J.A.

Criminal Appeal No. 62 of 1975

State

and

Gobin

State

and

Griffith

Appearances:

R.H. Mckay, S.C., with B. Prasad, S.C. and Stanley A. Moore, for Oswald Gobin

R.H. Mckay, S.C., with Robert Hanoman and Stanley A. Moore, for Allan Peter Boniface Griffith.

G.H.R. Jackman, Assistant Director of Public Prosecutions, With M.L.R. Ganpatsingh, Senior State Counsel (ag.) for the State.

Criminal evidence - Confession — Law and practice

1 CHANCELLOR: In the earliest days of judicial trials in criminal cases in the history of the criminal law of England, a ‘confession’ was a plea of guilty. As such, is was considered, at common law, the best and surest evidence and proof to quiet the judicial conscience and secure a good and firm conviction. In those days, there was no disciplined modern police force to investigate a crime and procure prima facie evidence of guilt, so the routing procedure once a suspect was held, was to seek to obtain a confession. The rack was occasionally employed to induce it, until the reign of Charles I; and it is reported that even the great Lord Edward Coke was prepared to wink at, if not justify, its use, and that the celebrated Lord Bacon once did not hesitate, as Attorney-General, to superintend in person, the torture of an aged clergyman to make him confess to a crime. Gradually, however, this practice was discontinued, and the modus operandi changed to threats and other pressures, and to artful, overbearing, hostile, and intimidatory inquisitorial or compulsory examination of the prisoner, notably in the Court of Star Chamber. Down to the time of the Civil Wars, the interrogation of the prisoner on his arraignment was the most important part of the trial, and, more often than not, terminated in damaging admission or confession. Then, the only question for the trial judge to determine, was the relevancy of the admissions or confessions; if relevant, they would go to the jury without any consideration whatever as to whether or not the obtaining of then was improper or unfair. This procedural questioning of the prisoner to break him down to implicate himself continued under the Stuarts, on to the time of the “Glorious Revolution” of 1688.

2 By then, the tide had begun to turn. In the opinion of some judges this method of judicial proof was intellectually unfair and unprobative. And in a case reported as Case 998, Anonymous, [1734] 88 E.R. 1548, Chief Justice Holt felt moved to say: “The confession of the party is evidence, but the worse sort of evidence.” A popular feeling of revulsion against the inquisitorial methods and barbarous sentences of the court of Star Chamber was gradually being aroused. It came to a head in the case of John Lilburn, (1637) 3 St. Tr. 1315, which brought about its abolition and the firm recognition of the principle that the accused should not be put on oath and that no evidence should be taken from him. This was the genesis of the acceptance into the body of the common law, of the maxim — Nemo tenotur accusare seipsum: — “No man shall be compelled to incriminate himself” — and this maxim in turn was invoked by the judiciary to initiate a powerful safeguard against improper extra-judicial self-incrimination. Originally, in trials for treason, counsel had been promulgating this maxim merely as a law of nature. In support of this we find in the case of The Attorney General v. Samuel Mico, (1658) 145 E.R. 419, Sergeant Hardres submitting, pro defendente (at p. 420) that: “Upon this ground, though the parties own confession of a crime be the clearest proof in the law, yet if such confession proceed from dread, or be extorted by any compulsion, it ought not to be received against him; …” But much later around the middle of the eighteenth century, this law of nature became classified as a law of the land. So it was that in John Entick v. Nathan Carrington & Others (1765) 19 St. Tr. 1030, Lord Chief Justice Camden, in the judgment of the court, was able to say (p. 1073) that: “It is very certain that the law obligeth no man to accuse himself; because the necessary means of compelling self accusation, falling upon the innocent as well as the guilty would be both cruel and unjust …. the innocent would be confounded with the guilty.”

3 I am relating, in some detail, to the history of the development of the law on confessions for this reason: that law is better understood and its right application to these appeals facilitated, if we know its judicial forbears. And as the social and legal condition then extent have left their marks on the case law, they too must be considered. They are those: (i) social cleavages and the feudal survivals of the period resulted in offenders on charges of felony coming chiefly from the so-called “lower classes”, the majority of whom were poor, illiterate, pathetically ignorant, and characterised by what has been described as a “subordination, half-respectful, half-stupid, towards those in authority over them;” (ii) there was no right to testify on their own behalf; or to be defended by counsel or to appeal against conviction; (iii) they had no means of knowing before the trial what the evidence against them was; or of procuring witnesses and evidence to support their cause; or facilities to see such witnesses who, even if available, could not testify on oath; (iv) the Crown could, and often did, brief eminent juniors or leaders at the bar to battle against the prisoner unaided; (v) the sentence for the commonest felonies (of murder, rape, robbery, larceny) was death or transportation; and (vi) even after legal assistance by counsel was allowed in cases of felony, it was at first limited aid; and it was not until the year 1836 that a full representation by counsel was allowed in all such cases. In these circumstances the odds in favour of a conviction must have been 99:1, and that a prisoner may gamble upon a promise or half-promise of forbearance or favour, or relief of any kind, was not an unreasonable choice; and a suggested admission or confession acquiesced in under a threat, or hope of some favour, could appear in many cases to hold out even a faint ray of hope as a solvent of apparently insurmountable legal difficulties. In those days, undoubtedly, prisoners really needed the protection of the courts. And for the next century – 1750–1852 – the judges bent over backwards to give it.

4 Thus, in The King v. Rudd (1775) 168 E.R. 160, Lord Mansfield, C.J. was able to truly say (p. 161): “The instance has frequently happened, of persons having made confessions under threats or promises: the consequence as frequently has been, that such examinations and confessions have not bean made use of against them on their trial.” And we read in The King v. Jacob Thompson (1783) 168 E.R. 248, that a judge at the Old Bailey told counsel (p. 249): “It is almost impossible to be too careful upon this subject…. I do not like to admit confessions, unless they appear to have been made voluntarily, and without any inducement. Too great a chastity cannot be preserved on this subject;.” We see in this pronouncement, the germ of the modern principle. Then in The King v. Warwickshall (1783) 168 E.R. 234, Baron Eyre, again at the Old Bailey, used words regarded by some as stating the true and lawful basis of exclusion. His Lordship said (pp. 234–235):

“Confessions are received in evidence, or rejected as inadmissible, under a consideration whether they are or are not entitled to credit. A free and voluntary confession is deserving of the highest credit, because it is presumed to flow from the strongest sense of guilt, and therefore it is admitted as proof of the crime to which it refers; but a confession forced from the mind by the flattery of hope, or by the torture of fear, comes in so questionable a shape when it is to be considered as the evidence a of guilt, that no credit ought to be given to it; and therefore it is rejected.”

5 But it was not sufficient to lay down a rule of exclusion, without adequate emphasis on the onus of proof; and this was clarified in Regina v. Warringham, (1851) 169 E.R. 575, on a trial for larceny, when an objection was taken to the admissibility of an oral confession. This conversation ensued (p. 576):

“Parke B. — It certainly does not appear that the confession was not made in consequence of an improper inducement.

“W. M. Best for the prosecution. It does not appear that the confession was made in consequence of such an inducement. If the evidence leaves that fact doubtful, the onus does not lie on the prosecution to prove the negative.

Parke B. — Yes, it does. You are bound to satisfy me that the confession, which you seek to use in evidence against the prisoner, was not obtained from him by improper means. I an not satisfied of that, for it is impossible to collect from the answers of this witness whether such was the case or not.”

6 The confession was rejected, and Parke B. noted: “I reject the evidence of admission, not being satisfied that it was voluntary.” I digress at this point to say that, in my view, it is the duty of the trial judge to do likewise; he should record that he has admitted the evidence because he is satisfied it is voluntary; or that he has rejected it, because he is not so satisfied.

7 Regina v. Warringham was an important judgment. Baron Parke's ruling that the prosecution had to prove a negative, was eventually accepted in all common law jurisdictions, and has left marks on the case law on this subject. It demonstrably brought into clear focus these points: (i) that the prisoner did not have to prove any inducement at all, and might base his objection entirely an the evidence led by the prosecution in open court; (ii) that the proof had to be directed to “the confession you seek to use in evidence”, that is to say, if oral, to the words the prosecution...