Case commentaries
| Published date | 01 October 2015 |
| DOI | 10.1177/1365712715599899 |
| Date | 01 October 2015 |
| Author | Jeremy Gans |
| Subject Matter | Case Commentary |
The International Journal of
Evidence & Proof
Case commentaries
2015, Vol. 19(4) 281–286
ª The Author(s) 2015
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DOI: 10.1177/1365712715599899
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Jeremy Gans
Melbourne Law School, Melbourne University, Melbourne, Australia
Police notebooks—Barbados
We recruit the human being, train him, call him ‘Policeman’, and clothe him with authority to protect society
(including the miscreant, evil doer, he bent on mischief, the good, the bad and the ugly). With full knowledge
that the policeman, being human, is subject to all human failings, we arm him with a notebook and pencil with
which to record events, including the ipsissima verba of those other humans who communicate orally with
him; and thereby make it possible for him to keep an accurate note of his daily activities. When he gives evi-
dence before the court and relies on the contents of his notebook we say, ‘Mr. Policeman, you are a liar’. We
test his veracity by appointing a jury to judge the truth or otherwise of his evidence. When the jury uphold the
veracity of the contents of the policeman’s notebook we say, ‘The jury’s verdict was perverse’.
The above remarks were made by Moore JA in Sealy v R (unreported, Barbados Court of Appeal, 4
March 2015), an appeal by a man convicted of raping a six-year-old. A central issue in the appeal was the
continued legality of a past practice of allowing a police officer testifying in a criminal trial to read aloud
from a notebook that the officer said was a contemporaneous written record of oral admissions said to
have been made by the accused, but which the accused had not acknowledged as a true record either at
the time they were made or at the trial.
In Barbados, the current legality of this practice turns on various provisions of its Evidence Act 1994
(a comprehensive reform statute since followed in St Lucia, St Kitts and Nevis, and the British Virgin
Islands.) The statute contains both a modern statutory bar on the admission of any document containing
an unacknowledged written version of oral admissions said to have been made to a police office, but also
the following general provision:
30 Attempts to refresh memory in court
(1) A witness may not, in the course of giving evidence, use a document to try to refresh his memory about a
fact without the leave of the court.
(3) Where a witness has, while giving evidence, used a document to try to refresh his memory about a fact, the
witness may, with the leave of the court, read aloud, as part of his evidence, so much of the document as
relates to that fact.
In an earlier appeal from a Barbados criminal conviction, the Caribbean Court of Justice held in Francis v
R [2009] CCJ 9 that section 30 can be used even though the document in question is a police notebook con-
taining unacknowledged written notes of oral admissions, because the exclusionary rule for such documents
only bars the admission of the document itself, rather than oral evidence of its contents. However, the apex
Corresponding author:
Jeremy Gans, Melbourne Law School, University of Melbourne, 185 Pelham Street, Carlton, Melbourne, VIC 3053, Australia.
E-mail: jeremy.gans@unimelb.edu.au
282
The International Journal of Evidence & Proof 19(4)
Caribbean court left open for another day the question of whether trial judges should exercise their discretion
under section 30(3) to refuse to allow police officers to simply read aloud oral admissions from their note-
book, noting that such a process ‘approximates much more closely to putting the document into evidence.’
Subject to further appeal to the Caribbean court, the issue left open in Francis is resolved in Sealy. At
Sealy’s trial, the police officer who arrested him on suspicion of rape of a child testified that he had
recalled various remarks Sealy made in his notebook, but added that he could no longer recall what those
remarks were. Defence counsel told the trial judge that Sealy did not object to the officer using the note-
book to refresh his memory, but did object to the officer reading aloud from it. After the trial judge over-
ruled that objection, the officer read out a statement Sealy allegedly made upon being informed of the
investigation (‘I did not have sex wid she. She pokey too small so I put some cream on my finger and
pushed it in she pokey’), a series of answers along similar lines that Sealy made to 15 questions put by
the officer and a further admission (‘This is the cream I used to put on my penis and her vagina’) said to
have been made while the defendant’s house was searched. The officer admitted under cross-
examination that it was ‘best practice’ to ask the...
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