Peart v The Queen

JurisdictionUK Non-devolved
CourtPrivy Council
JudgeLord Carswell
Judgment Date14 Feb 2006
Neutral Citation[2006] UKPC 5
Docket NumberAppeal No 5 of 2005

[2006] UKPC 5

Privy Council

Present at the hearing:-

Lord Rodger of Earlsferry

Lord Steyn

Lord Carswell

Lord Mance

Sir Swinton Thomas

Appeal No 5 of 2005
Shabadine Peart
Appellant
and
The Queen
Respondent

[Delivered by Lord Carswell]

1

The Judges' Rules constitute a striking example of judge-made law. Although classed formally as administrative directions for the guidance of police officers interviewing suspects, they were afforded over time a higher status, and a general requirement became established that police officers had to observe them if confessions received were to be admitted in evidence. They have been replaced in England and Wales by the provisions of Code C made under the Police and Criminal Evidence Act 1984, which have similar strong persuasive force, but in jurisdictions such as Jamaica which have not replaced them by legislative provisions the Judges' Rules retain considerable importance. This appeal concerns the status of the Judges' Rules, the requirements of rule III( b) and the way in which trial judges may exercise their discretion to admit evidence if there has been a breach of the Rules.

2

On 10 July 2000 the appellant was convicted of capital murder after a trial in the Home Circuit Court before James J and a jury and sentenced to death. He appealed against conviction and sentence to the Court of Appeal of Jamaica (Downer, Bingham and Smith JJA), which in written judgments given on 19 December 2003 affirmed his conviction and, by a majority, held that the mandatory sentence of death was constitutional in Jamaica. At the hearing for special leave to appeal to the Privy Council, which was given on 12 July 2004, it was conceded on behalf of the Crown that in the light of the Board's decision in Watson v The Queen (Attorney General for Jamaica intervening) [2005] 1 AC 472 the mandatory sentence of death must be regarded as unconstitutional and that the appeal against sentence should be allowed.

3

The deceased man Delroy Parchment was a security guard employed by Jamaica Protective Services Ltd, which issued to him for use in his duties a Taurus .38 revolver and ammunition. He also had a week-end night-time job as a security guard at DYC Fishing Plant, whose premises were at Brentford Road, Kingston. He customarily walked along Curphey Road, which joins Brentford Road, en route to his evening employment. On the evening of Friday 14 May 1999 between 7.30 and 8 pm he was shot and killed in Curphey Road on his way to DYC Fishing Plant. A witness who was in Brentford Road heard two gunshots from the direction of Curphey Road, ran to the scene and saw a Honda "Ninga" motor cycle being ridden away. The rider and passenger were by his estimate in their early twenties and wore multi-coloured plaid shirts and white and red peaked caps. As they passed him he heard one say "Mi bun de boy." After the incident the deceased's gun was found to be missing. The cause of death was found to be a gunshot wound from a 9 mm Beretta handgun. Wounds were also found on the backs of the thighs of the deceased, which could have been caused either by shotgun pellets or by fragments of a copper jacketed bullet, which could also have come from a Beretta gun. One spent 9 mm cartridge case was found at the scene.

4

The prosecution evidence directly linking the appellant with the murder came from Claudette Newell, who lived at 2 Lower Ivy Road, Kingston. She stated that about 7 pm on 14 May 1999 she came home from work and saw in the yard behind her house the appellant (whom she had known for about two years), a man known as Joycie Boy, a man named Dennis who lived in the same house and a tall man whom she knew only by sight. The appellant and Joycie Boy were each holding a handgun. Miss Newell went inside and came out a few minutes later into the yard. The four men were still there and she heard the appellant say "We are going for a security guard up by Curphey Road to kill him for his gun." Joycie Boy said "Come no man before it is too late." Joycie Boy and the appellant put their guns into their waistbands and got on a motor cycle, Joycie Boy in front and the appellant behind him. They drove off in the direction of Brentford Road. The time was then about 7.30 to 8 pm.

5

Miss Newell stated that about 15 or 20 minutes later the appellant and Joycie Boy returned on the motor cycle from the direction in which they had left. When they had parked it she heard the appellant say to Joycie Boy and Dennis "Dem two shot weh me give the security boy me sure him can't live." He took two guns from his waist and said of one of them "This is the gun that we took from the security." Joycie Boy said "Me have a feeling that the boy no dead." The appellant laughed and said to Miss Newell "Mummy, you done know how dem things yah go." He put the gun he had taken from the security man back in his waist and gave the other to Dennis, saying to him "Me have to show the boss weh me tek from the security." It was alleged by the Crown that the person referred to as "the boss" was a man known as Pie Q, who was also termed the "area don" or controller of the neighbourhood.

6

Miss Newell immediately went to the police to report the incident. When she arrived home later that evening she was met by the appellant, Joycie Boy and the tall man. The appellant said "Me hear say you go call up mi boss name a station" and the three men commenced to beat her, accusing her of being an informer. The assault continued for some little time, and she was rescued only by the arrival of the police, who took the appellant and also Miss Newell and her children to the police station.

7

In cross-examination the defence brought out a number of discrepancies between the evidence given by Miss Newell at trial and the content of a statement made by her to the police on 17 May 1999. It was put to her that her nickname was "Tuffie" (perhaps properly "Toughie"), because she was a "warrior" who was always picking fights with people (which latter allegation she denied). It was also put to her, and denied, that she had fabricated a case against the appellant because she was jealous of the appellant's girlfriend, had tried to get him to enter into a sexual relationship with her and was angry when he refused.

8

The appellant was detained in custody and on 18 May 1999 he was arrested and charged with the murder of Delroy Parchment. He was cautioned and said in reply "A mi woman house mi did deh when that happen". There was no evidence about what, if any, interviewing of the appellant had taken place before that time. The next morning 19 May Detective Inspector Wright, who was in charge of the investigation into the murder of the deceased, spoke to the appellant and told him of his intention to ask him a number of questions in relation to the murder of Delroy Parchment with which he had been charged. At this stage rule III( b) of the Judges' Rules applied to the case. The material part of rule III( b) (1964 revised version) reads:

"It is only in exceptional cases that questions relating to the offence should be put to the accused person after he has been charged or informed that he may be prosecuted. Such questions may be put where they are necessary for the purpose of preventing or minimising harm or loss to some other person or to the public or for clearing up an ambiguity in a previous answer or statement." (See Practice Note (Judge's Rules) [1964] 1 WLR 152, 154.)

The appellant was taken to the CIB office, where Detective Inspector Wright and Detective Woman Corporal Campbell conducted an interview. DI Wright asked him if he had any objection to being asked the questions, to which he said he had not. DI Wright then wrote out a caution, which the appellant signed and dated, then asked him a total of 63 questions. The questions and answers were each recorded in writing by DI Wright and read over to the appellant, who initialled each. The questions and answers were witnessed by Detective Woman Corporal Campbell and certified by DI Wright.

9

The questions and answers so recorded read as follows:

"Q.1. What is your name?

A.1. Shabadine Alphanso Peart.

Q.2. Where do you live?

A.2. Number 135 Torrington Park housing scheme, Kingston 5.

Q.3. With whom do you live?

A.3. My mother Ida Graham.

Q.4. What is your age?

A.4. 18 years.

Q.5. When were you born?

A.5. The 4 April, 1981.

Q.6. Where were you born?

A.6. Kingston Public Hospital.

Q.7. Where was the first place you lived after birth?

A.7. Number 103 Upper West Street, Kingston.

Q.8. Where did you live next?

A.8. At my present address.

Q.9. Where did you attend school?

A.9. Saint Annie's Primary and Secondary School, Bond Street, Kingston.

Q.10. Did you attend any other school?

A.10. No, sir.

Q.11. What did you do if anything for a living after leaving school?

A.11. I got employment as a porter at the Kingston Public Hospital from that time up until now.

Q.12. Do you work at any other job?

A.12. Yes. Sometime I help Mr. Henry to fix fridge at his shop off Lyndhurst Road. I do not remember the address.

Q.13. Do you know Joycie Boy?

A.13. Yes, mi know him.

Q.14. For how long do you know him?

A.14. Mi know him from youth. Him born and grow a Hannah Town with mi.

Q.15. What does he do for a living?

A.15. Him do sanitation work at K.P.H.

Q.16. Which school did Joycie Boy attended?

A.16. Chetolah Park Primary School.

Q.17. Is he your friend?

A.17. Yes, my best friend.

Q.18. Where does he live?

A.18. Torrington Park. I do not know his lot number.

Q.19. Can he drive or ride a motor cycle?

A.19. Yes.

Q.20. By what other name is he known?

A.20. Delroy Morgan.

Q.21. Do you know the name of his mother?

A.21. Miss Joyce, Joycie.

A.22. Where does she live?

A.22. At the back of Torrington Park scheme with Delroy.

Q.23. When was the last time you saw Delroy Joycie Boy?

A.23. Friday morning in Torrington Park going to work.

Q.24. Did...

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