Friday, July 20, 2007

Judicially-raised appeal points

Occasionally, the best point in favour of an appellant may only be noticed by the judges of the appellate court. This occurred in Charles v R (Saint Vincent and the Grenadines) [2007] UKPC 47 (16 July 2007). The Board observed (para 17):

“…It is the duty of an appellate court to advert to any such matter which may appear to it to be significant and possibly determinative of an appeal in favour of the accused.”

This had happened in favour of the appellant’s co-accused, whose appeal was allowed by the Court of Appeal; but it was overlooked when the same Court dealt with the appeal by Mr Charles.

The critical point in this case was a misdirection by the trial judge about the use that the jury may make of the statements that each of the two accused had made to the police. The jury had been told, wrongly, that they could use each statement as evidence against the other accused.

This is a long established and simple point, and it has survived statutory reforms of the law of evidence. For example, in New Zealand, the Evidence Act 2006 (to come into force on 1 August 2007) preserves this rule in s 27(1). The reason for the rule is the obvious one that each statement will be unreliable to the extent that it is relevant in relation to the guilt of another accused. At para 8 of Charles, the Board observed of the co-accused In the statement he fully admitted complicity in the shooting, but tended, as is not unknown in such cases, to throw more of the blame on his accomplice.”

For the proper form of the direction, the Board recommended as follows (para 16):

“In England and Wales the standard models of directions prepared by the Judicial Studies Board and published in its Bench Books are of great assistance to judges, and any similar venture in other common law jurisdictions is likely to be useful.”

A retrial was ordered in this case because there was no discernable reason for differentiating between the accuseds as far as the significance of the misdirection was concerned.

Some observations were made on identification procedures. Here, the witness (a victim who survived) had had a good opportunity to observe the person who she said was Mr Charles, so any deficiencies that had occurred in relation to the jury being warned as to the need for care were not of critical importance in this appeal. At para 12 the Board summarised the way the use of photographs should be treated:

“Their Lordships consider that some care has to be taken when identification from photographs is carried out, although it is not in itself an improper practice. The rules applicable in England and Wales under Code of Practice D, although not binding, form a reliable basis for good practice. Two basic rules are set out in May & Powles, Criminal Evidence, 5th ed (2004), para 14-35:

'(1) The police may show a witness photographs in order to identify a suspect.
'(2) Once a man has been arrested, and there is therefore an opportunity that he can be identified in person, photographs should not be shown to witnesses before an identification parade.'

“As the learned authors point out, when the police are looking for a culprit, the showing of photographs to witnesses may be essential: indeed, it may be the only way in which the culprit can be identified. Once he has been picked out and is available to take part in an identification parade, photographs should not be shown to witnesses. They should instead be asked to attend an identification parade, as should also the witness or witnesses who picked the suspect out from photographs. In relation to the latter, the procedure set out in the headnote to R v Lamb (1980) 71 Cr App R 198 should be followed, viz, the defendant's advisers should be informed of the showing of the photographs and the decision left to them whether to refer to that at trial. If they do so decide, the photographs should not be shown to the jury, and they should be warned of the consequence that the reliability of the identification is likely to be decreased.”

Another topic mentioned in this case is the Mushtaq direction (blogged here 22 April 2005) concerning the need for the jury to be satisfied that a statement was made voluntarily before they can rely on it (para 14):

“The reasoning of the members of the Appellate Committee was not identical on all points, but a majority held that in the light of section 76(2) of PACE a confession which was not made voluntarily could not be admitted in evidence, and a differently constituted majority held that the direction was inconsistent with the requirements of article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. St Vincent and the Grenadines has a statutory provision equivalent to PACE and their Lordships accordingly consider that in appropriate cases a direction should be given along the Mushtaq lines, that the jury should not rely on a confession which they think has or may have been obtained by maltreatment or oppression, even if they conclude that its contents were true.”

This common law power of the jury to reject a statement as a result of their own assessment of its voluntariness, is in parallel with the judge’s duty to exclude the statement from evidence if he is not satisfied beyond reasonable doubt that it was made voluntarily. The jury here is, in effect, reviewing the judge’s decision as to admissibility. The need for the jury to be directed about this has not been addressed in the Evidence Act 2006[NZ], so, apparently, it remains as a common law requirement.

No comments: