Young v The State (Trinidad and Tobago)

JurisdictionUK Non-devolved
JudgeLord Carswell
Judgment Date06 May 2008
Neutral Citation[2008] UKPC 27
Date06 May 2008
CourtPrivy Council
Docket NumberAppeal No 66 of 2006

[2008] UKPC 27

Privy Council

Present at the hearing:-

Lord Hope of Craighead

Lord Scott of Foscote

Lord Rodger of Earlsferry

Lord Carswell

Lord Mance

Appeal No 66 of 2006
Francis Young
Appellant
and
The State
Respondent

[Delivered by Lord Carswell]

1

The appellant Francis Young was on 29 November 2000 convicted, along with another man Marlon Phillip, after a trial before Volney J and a jury at the First Criminal Court, Tobago Assizes, on two counts of kidnapping and two of robbery with aggravation. He was sentenced to ten years' imprisonment with hard labour on the kidnapping counts and to fifteen years' imprisonment with hard labour and fifteen strokes of the birch on the robbery charges, the custodial sentences to run concurrently. He appealed against conviction and sentence and the Court of Appeal (Hamel-Smith, Lucky and Kangaloo JJA) dismissed both appeals in a written judgment delivered on 26 July 2002. The court ordered that the sentences should run from the date on which the appeals were dismissed, on the ground that they were devoid of merit. The appellant has appealed by special leave of the Board as a poor person against conviction and sentence.

2

On 7 June 1998 four British holidaymakers, Mr Malcolm Offord, his wife Sarah and two friends Marcus Blease and Richard Zarapiski, were returning on foot to their rented villa in Grafton, Tobago, after a meal at a local restaurant, when they were confronted by three masked men. These men were armed respectively with a gun, a crowbar (also referred to as a pig foot) and a weapon referred to variously as a machete or a cutlass. The men took them into the villa and searched it, taking money and credit and bank cards.

3

They then forced the party to get into the robbers' car and their own hired jeep. The man with the machete drove the car, with Mrs Offord in the front passenger seat and Marcus Blease and the man with the crowbar in the back. Mr Offord was made to drive behind them in the jeep, along with Richard Zarapiski and the gunman. Mr Offord was required to take the jeep to a bank in Scarborough and draw the sum of $1500 from the cashpoint. He drove back to the villa, then one of the robbers left in the jeep to search for the car. Shortly afterwards the car arrived back at the villa and Messrs Offord and Zarapiski went out to meet it. When the robbers in the car were distracted by an approaching vehicle the four tourists escaped into the villa. Mr Offord had managed to telephone for help a short time before and the approaching vehicle contained three police officers. The robbers tried to escape in their car, but crashed into the police vehicle. There was an exchange of gunfire, then the occupants abandoned the car and escaped on foot. Sergeant Walters found a crowbar lying on the ground just outside the driver's door of the car.

4

Marlon Phillip was arrested on 14 June 1998 and made two statements that morning, in one of which he made admissions about taking part in a robbery which was plainly the one at the villa rented by the Offords. The appellant was arrested in Trinidad on 18 June 1998 and made a statement in the evening of 19 June containing a full admission of participation in the robbery and kidnapping.

5

At trial the appellant challenged the admissibility of his statement, claiming that he had been ill-treated and that the statement did not represent what he had said to the police but was put before him to sign. The judge held a voir dire, at the conclusion of which he held that the statement should be admitted, in the following terms:

"Having heard the evidence, I have no doubt that the accused was not beaten can find no evidence of oppression and find no breaches of the Judges' Rules of such a nature as to render the statement marked 'y' inadmissible."

The judge's admission of the statement was not challenged by the appellant before the Board.

6

No identification parade was held. Sgt Walters said in cross-examination that he did not think it was convenient, though he accepted that it might have been the proper thing to have done. He did not give any further reason, but the judge suggested in his summing-up that it may have been because the Offords had left Tobago the day after the incident. There was no evidence as to whether it would have been practicable to hold a parade before the magistrate's court hearing when they returned to the island.

7

Mr and Mrs Offord gave evidence at a preliminary hearing of the charges against the appellant and Phillip on 30 June 1998 in the Scarborough Magistrate's Court. When she made her deposition, in the afternoon of that day, Mrs Offord gave descriptions of the three robbers, who were masked by the time she could see them clearly. She described the man with the machete, who was wearing no shirt, as being "extremely trim". When she was seated in the front passenger seat of the car which he was driving en route to withdraw money from the bank, he pulled down his mask a few times and she was able to see his profile. She stated that if she saw him she thought she would be able to identify him by his height, physique, eyes and speech. She then pointed him out in the dock. She stated subsequently at the trial that she had seen and recognised him that morning, before she gave her deposition, in the body of the court with a number of other men.

8

When she gave evidence at trial Mrs Offord described the man with the machete as "extremely thin to the point where I could have seen the stomach muscles". When he was driving the car he pulled his mask down on three occasions when they went through villages and his profile was illuminated by street lights and house lighting. Mrs Offord said that she thought she could identify him again and pointed to the appellant in the dock. The appellant's counsel objected before she did so, but the judge overruled the objection, saying that it was a "matter of weight and reliability". The witness added that she was able to recognise him by his height, his shape, his build and his profile.

9

The appellant gave evidence, advancing an alibi, to the effect that on 7 June 1998 he was staying with his aunt Marianne Madoo in Sans Souci, Trinidad. It was his uncle's birthday and he had a party that day. He gave detailed evidence in support of his allegations that he had been beaten and ill-treated by the police to compel him to give a statement and that a police officer had fired a shot during interrogation. He said that he did not dictate the contents of the statement which he made, but it was put in front of him to sign.

10

Marianne Madoo gave evidence in support of the alibi, stating that she had given a birthday party on 7 June 1998 for her uncle and that the appellant and his wife had attended it. She said that the party started at 10 pm and went on until 11 pm, then the appellant and his wife stayed and limed a little before going home.

11

When it came to his summing-up the judge had evidently had second thoughts about the usefulness of the dock identification made by Mrs Offord. He addressed the jury at some length on the issue in a passage which their Lordships will set out in full (Record, pp 185-7):

"Now, Sarah Offord pointed a finger at Accused No. 1 [the appellant] in this Court. She gave the circumstances in which it was that she had seen the accused. She said to you that in that very month of June, she had returned, I think 30 th June, she returned to the Magistrate's Court in Scarborough, and at a time when it was that the Accused No. 1 was in the company and in the presence of other people in the court; which has been denied by Accused No. 1, who says that he was alone. She says that she saw him in the court and then when she gave evidence before the Magistrate later that day, she pointed at him again and said, 'That is the man with the machete.' She then came two years after, plus, in this trial, and again, she pointed a finger at the accused and she said, 'That is the man with the machete.'

Now, when she points him out from here, that is what is called a dock identification. The reason it is a...

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