The State v Plowell

• Jurisdiction: Guyana
• Judge: Haynes, C.,Crane, J.A.,Massiah, J.A.,Crane, J.A
• Judgment Date: 18 November 1976
• Neutral Citation: GY 1976 CA 41
• Docket Number: Criminal Appeal No. 104 of 1975
• Court: Court of Appeal (Guyana)
• Date: 18 November 1976

Supreme Court/Court of Appeal

Haynes, C.; Crane, J.A.; Massiah, J.A.

Criminal Appeal No. 104 of 1975

The State

and

Plowell

Appearances:

Michael Hamilton for the appellant.

M. L. R. Ganpatsingh, Assistant Director of Public Prosecutions, for the State.

Criminal Law - Appeal against conviction — Robbery

Criminal Law - Robbery — Whether written confession was voluntary and admissible.

Practice and Procedure - Admission of statement without holding a voir dire — Whether magistrate was in error.

Haynes, C.

1 At the trial of the appellant the proof the prosecution laid on, if accepted, was ample and straightforward. It was that a cane-cutter, Modan Persaud, was robbed of his $35.00 wrist-watch shortly after 1.30 a.m. on September 14, 1974, as he was proceeding south along the eastern half of the Avenue of the Republic. The two miscreants ran east in Charlotte Street where police constable Keith Edwards, travelling in a patrol car north in King Street, saw than, became suspicious, and arrested them. He searched the appellant and found a gent's wrist-watch in a pocket of his pants. A few minutes later, Modan Persaud clamed the watch as stolen property and identified the appellant as one of the thieves. The policeman took him to the C.I.D., Brickdam, for further enquiries; and on the 15th, around 10.55 a.m., without any inducement whatever, the appellant signed a written confession which was admitted in evidence as Ex. ‘B.’

2 The appellant gave sworn evidence. He told the jury he had nothing to do with the robbery; the policeman had stopped him in King Street proceeding north to Regent Street; the watch found on him had just been accepted from a friend, Charles Moon, then present, as security for a loan of $10.00; Modan Persaud had identified him only after being told that the wrist-watch had been found in the appellant's possession. As regards the statement, he told police constable Adams where he was, where he was going, and the transaction with his friend; the policeman wrote, read a statement over to him and he signed it, but it was not the statement he gave. He alleged no threat or promise or inducement whatever to give a statement or to sign. In effect, he told his story to the police and signed the statement put before him freely and voluntarily, but without knowing this: it contained what he did not say; so he said, “Exhibit ‘B’ is not my statement.” He called Charles Moon as his witness. Moon testified it was he alone who stole the watch, and he had parted with the possession of it to the appellant as an innocent party. The jury disbelieved this defence of innocent possession. They found the appellant guilty of robbery with aggravation and he was sentenced to five years' imprisonment; hence this appeal.

3 The main ground of appeal averred that the learned trial judge erred in law when he admitted the statement Ex. ‘B’ in evidence without holding a voir dire to determine whether it was face and voluntary and so admissible; or, alternatively, whether it should be excluded as a matter of discretion, thereby causing an irregularity invalidating the conviction. It was submitted for the State that in the circumstances of this case, and because there was no allegation of any threat or promise or inducement to answer questions or to sign the written statement, there was no duty to enquire upon a voir dire; Ex. ‘B’ was plainly free, voluntary and admissible, and no ground existed for its discretionary exclusion; and, further, in any event the rest of the evidence — his identification by the victim and admitted possession of the stolen property so shortly after the event — was so overwhelming that beyond doubt there was no miscarriage of justice.

4 Ex. ‘B’ was tendered by police constable Adams. He swore he made no promises or threats to the appellant or used force on him to make it. The appellant, undefended by counsel, is recorded as saying then: “The statement is not the statement I gave to the police but I did give a statement.” And the notes of the constable's evidence continued thus: “This is the statement the accused gave me. Tendered admitted and marked Exhibit ‘B.’ Witness reads the statement.” It read:

“Me and Charles bin drinking since the afternoon. We left Sam Chand about 1.00 a.m. on 14.9.74. and then we went to Bakaro on High Street and had a few more beers. We left Bhakaro and went to Camo by America Street to check out a friend but we did not find him. We then left and was coming down Avenue of the Republic when I saw the Indians. I don't know what go in my head but we snatch the watch and went away. Shortly after the police came with a car and arrested us.”

5 Plainly, this confession was received in evidence as a matter of course on this objection, and in his charge to the jury later (p. 27) His Honour said:

“Now, you will recall that when the statement was about to be tendered he objected to the admissibility of the statement saying that the statement, was not the statement that he made. I told you that it is a question of fact for you to say whether he did in fact make the statement. If you find that he did in fact make the statement then you may act on the statement. If you find that he did not make the statement than you will have to discard the statement entirely.

6 It was submitted this approach was unjudicial and wrong. Relying on Lord Summer's well-known classic formulation in Ibrahim v. R. [1914] A.C. 599, counsel argued: (i) that Ex. ‘B’ was admissible only if free and voluntary; (ii) the prosecution had to prove this by ‘affirmative evidence’ whatever the ground of objection was, to the satisfaction of the trial judge; and (iii) accordingly it was his duty before admitting the statement to rule on its admissibility which he did not do. Learned counsel for the State did not disagree with the propositions of law but he contended that in the circumstances here, the trial judge was not required to hold a voir dire and could have ruled on admissibility and must be taken to have done so, on what he described as the unchallenged ‘ prima facie’ evidence of voluntariness given by police constable Adams before the jury. Another submission for the appellant was that upon the voir dire the trial judge should have adjudicated on whether there was sufficient evidence to go to the jury that the appellant did ‘make the statement’ preliminary to the question whether or not it was proved to be voluntary. Counsel for the State relied on the like contention that Adam's evidence before the jury supplied this probative sufficiency and there was no need for any voir dire for this purpose. In the context of these submissions, I propose to consider relevant English and Commonwealth authorities to determine what, in my view, was the correct common law practice and procedure to follow in such a case as this. An appropriate starting point is a passage from the judgment of Crane, J.A. in ( Kirpaul Sookdeo et al v. The State Criminal Appeals Nos. 3, 4 & 5 of 1972 – 30.11.72 — unreported) at p. 21:

“It is always important that a trial judge determines when an accused person says a statement is not his, or he did not make it, what he really means. As I see it, he may mean either one of two things:

Case (i) — that although he himself wrote it or agreed that someone else should write it for him and signed his name to it, he did not make it because someone either forced him to do so, or dictated to him what to write in it or to somebody also writing on his behalf (duress) or that the statement was induced from him by some promise, hope, fear or threat held out by a person in authority.

Case (ii) — that he knows nothing whatever about it; that the statement is a fabrication by those who seek to tender it in so far as it purports to be written in his handwriting and signed by him, or in so far as it purports to be written by someone also and bears his signature. In this case, he is saying both the handwriting and the signature are not his, he is dissociating himself from the handwriting altogether; it is a forgery, and in this sense he is saying he did not make the statement.”

7 His Honour continued later:

“If an accused alleges simply on his taking objection to the admissibility of a statement he did not make it or it is not his statement, his objection is, in the light of the above analysis, clearly equivocal. The trial judge must then ascertain by questions put to the accused or to his counsel: if he is represented, the correct case into which the situation falls, i.e., whether it falls within case (i) or (ii) above. I need hardly mention all questions and answers must be duly recorded.”

8 On this second pronouncement in the later case of Dhannie Ramsingh v. The State (Crim. App. No. 48 of 1972 – 22.3.73 — also unreported), Bollers, C.F. thought differently. The Chief Justice said (p. 16):

“I cannot protest too strongly at the suggestion that when the objection is made the judge must enter into a dialogue with the accused person an order to comprehend the true nature of the objection. A judge is not there to act as an interpreter but is there to see that justice is done between the State and the accused, and if the accused denies the authorship of the statement, he must be taken to mean what he says.”

9 But Persaud, J.A. in his judgment disagreed with this opinion of the learned Chief Justice and observed (p. 15):

“It is essential that a trial judge faced with an objection to the admission of a statement by an accused person should know the precise nature of the objection ……. For my part, I know of no principle which would preclude a judge from asking questions either of the accused or his counsel, as the case may be, with a view to ascertaining the true position. In such a situation, a judge cannot be accused of interfering in any way with the conduct of the defence.”

10 For my part, I agree with Crane and Persaud, JJ.A. When the...