Cletus Timothy and Others v The State
| Jurisdiction | UK Non-devolved |
| Judge | Lord Slynn of Hadley |
| Judgment Date | 22 April 1999 |
| Judgment citation (vLex) | [1999] UKPC J0422-1 |
| Date | 22 April 1999 |
| Court | Privy Council |
| Docket Number | Appeal No. 18 of 1998 |
[1999] UKPC J0422-1
Privy Council
Present at the hearing:-
Lord Slynn of Hadley
Lord Clyde
Lord Hutton
Lord Hobhouse of Woodborough
Sir Patrick Russell
[Delivered by Lord Slynn of Hadley]
On 22nd May 1995 the three appellants and Lennox McKain were convicted of the murder on 22nd September 1992 in Bon Accord, Tobago of Keith Alfred and all were sentenced to death. The evidence clearly established that Alfred was killed at home late at night by a single bullet which entered his forehead and left through the back of his head. It was subsequently found in a wooden partition at Alfred's house. McKain died in prison before, on 12th March 1997, the Court of Appeal of Trinidad and Tobago dismissed the appeals against conviction of the present appellants.
The prosecution case was that two of the accused went to a street in Bon Accord where a number of men were standing around and some of the latter were made to lie face down in the street. Two others arrived in a Sentra car carrying cutlasses. The first two men made Colin Chapman, who was one of the men in the street, take them to the house of the deceased after a cryptic conversation - "who is the pusher man?", "Lakhan" "where Lakhan lived?" "down the road". Chapman identified the first two as Timothy (who had a short gun) and Reid (who had a long gun, a shot gun). It was the prosecution case that it was the short gun or a .45 revolver from which the bullet found was shown to have been fired which was used to kill Alfred. The Sentra car was said to have been rented by one Emmanuel Dillon at the request of Timothy, Lewis and McKain. Ancil Farrell, another of the men in the street, identified McKain as having come in the car. Gabby Williams who was also there identified McKain as having cut Williams' hand with a cutlass and Lewis as having stolen Williams' green sneaker shoes. It was in the Sentra car that the four men got away after the shooting. The prosecution sought to rely on written confessions by Timothy and Reid and on the evidence of Police Sergeant David that Timothy and Reid had shown him where the guns were, as a result of which he took possession of them.
All the accused gave evidence on oath. The defence case was that none of the men was there. They denied all the allegations and contended that they had been set up by the police.
On 23rd September 1992 Sergeant David, a police officer, said that he went to the house of McKain who he alleged said that he had been at Bon Accord the previous night but that it was Timothy who shot Alfred and that Lewis was also there. McKain gave the police officer the keys of the car and Lewis said that the shoes he was wearing he had taken from a man in Bon Accord on the previous night. Both were arrested as were Timothy and Reid and all were taken to Scarborough Police Station.
On behalf of Timothy and Reid Mr. Dingemans took a number of points. In particular he argued that the identifications in this case were unsatisfactory and unreliable. Farrell was not asked to identify any of the four on an identification parade and it was only in the dock that he identified Timothy whom he had known for two years and McKain whom he had known for nine years. Emmanuel Dillon did not attend an identification parade but identified Timothy, McKain and Lewis in the dock. Gabby Williams did attend an identification parade where he identified only Lewis and McKain neither of whom he had known before the incident but not Timothy or Reid. Chapman also attended an identification parade and he identified Reid and Timothy but the identification of Timothy was said to be unreliable since, unlike any of the other men on the parade, Timothy was bleeding from the head at the time of the parade and was dressed in a different way from the others - he wore a heavy jacket but was barefooted. It was said that he therefore stood out from the others and that it was not a fair parade. There was a serious dispute as to this wound. The wound had been seen by a magistrate Mr. Baird, by Sergeant David the police officer who took a statement from Timothy, by Inspector Waldron, another police officer, and an officer at the prison but was denied by Police Inspector Jolefield who was in charge of the parade and by Chapman who identified Timothy. Moreover Chapman had given evidence that one of the two men with guns wore a mask and no one was masked at the identification parade.
Then it was said that the evidence of Sergeant David was inconsistent internally and inconsistent with evidence of the others. There was in addition a discrepancy between the report of the bullets which he said he had handed in and those which were referred to in the forensic report. The judge on the voir dire formed an unfavourable view of the reliability of the evidence of Sergeant David (which the jury did not know about) and he should have made, but did not make, this clear to the jury. This was particularly important since there was a clear risk that the green sneakers said to have been taken from Williams by Lewis and handed over by Lewis to the police had had the letter I cut out of the name "Fila" so as to make it appear that they were Williams' sneakers. This must have been done either by Sergeant David alone or by Sergeant David in conspiracy with Williams.
It was also submitted that the jury were not adequately instructed that the McKain statement implicating Timothy was not evidence against Timothy. Morover the jury were made aware of inadmissible evidence of confessions and were left in the belief that the judge had heard evidence which the jury had not heard and which further implicated the accused man.
On behalf of Lewis Mr. Andrew Nicol Q.C. adopted many of these criticisms and further criticised the failure of the trial judge to disregard the evidence of Sergeant David and Emmanuel Dillon. He also criticised the failure of the judge to rule as inadmissible the statements of Sergeant David as to Lewis' comments about getting the sneakers from a man in Bon Accord the previous night which was damaging to Lewis in that it undermined his alibi. Moreover Gabby Williams' evidence was clearly unreliable since he must have been frightened and was made to lie on the ground so that he could not see properly.
There is more force in some of these points than in others. Thus there is no doubt that it would have been better to have required Farrell and Dillon to attend an identification parade. The trial judge could have been more explicit about some aspects of the credibility of Sergeant David if, as appears, his view of Sergeant David was unfavourable. On the other hand the judge gave a strong direction in accordance with Reg. v. Turnbull [1977] 1 Q.B. 224 and he made it plain beyond doubt that if the jury thought that the identification parade had not been properly conducted (because Timothy alone had a head wound) so that it was in reality a farce they should ignore the identification evidence. Moreover on most matters the learned judge gave a summing up which was detailed, clear and accurate.
It is, however, not necessary to rule on all these matters singly or in combination since Mr. Dingemans has taken another point which in their Lordships' view is determinative of this appeal.
Timothy, Reid and McKain all made written statements. There was criticism of the way the statements were taken. In respect of all three statements, however, it was objected that the statements were not voluntary but had been obtained after violence and oppression.
After objection by Timothy the judge ordered that a voir dire should be held. Timothy gave evidence that when he was arrested at 5.30 a.m. five or six policemen came to his house on 23rd September. He was taken to a river, a cord or rope was tied round his neck and he was pulled up and down in the river. He was taken to the police station where he was beaten including beatings with an iron bar. It was then that he was hit on the head which explained his head wound. It was as a result of this violence and his fear of further beating that he signed the statement prepared by Sergeant David who was not himself involved in the beating.
At the end of the voir dire in regard to Timothy's evidence the judge reminded himself of Ibrahim v. Rex [1914] A.C. 599 at page 609:-
"It has long been established as a positive rule of English criminal law, that no statement by an accused is admissible in evidence against him unless it is shewn by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear or prejudice or hope of advantage exercised or held out by a person in authority."
The judge found that the statement was made before the magistrate arrived. He added:-
"According to David, there were other police officers around at the time the statement was being dictated, yet, he failed to have any police officer present throughout the taking of the...
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