Young v. The State (Trinidad and Tobago) [2008] UKPC 27 (6 May 2008)

Privy Council Appeal No 66 of 2006

Francis Young 								Appellant

v.

The State	Respondent

FROM

THE COURT OF APPEAL OF
TRINIDAD AND TOBAGO

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JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL

Delivered the 6th May 2008

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Present at the hearing:-

	Lord Hope of Craighead
	Lord Scott of Foscote
	Lord Rodger of Earlsferry
	Lord Carswell
	Lord Mance
	
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[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 30th 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 dock identification is because there was no formal opportunity for her to test her own memory of the identity of the assailant with the machete in an environment in which the accused would have been protected, where it is he would not have been so obvious.  That is why identification parades are held.

An identification parade is a parade where the suspect is placed. on a line-up with a number of other persons, all of similar height, all of similar looks, could never have the same face.  I mean, you ain’t going to get another handsome young man like Accused No. 2.  You wouldn’t.  You will get somebody looking similar like Mr. Henderson, but you are not going to get exactly the same face.  So they have to settle with people who look similar and generally the same sort of height, size, body, age, colour, same kind of clothing.  In other words, everybody shouldn’t be in black shirt and the suspect in a red shirt for him to stand out.

That is why identification parades are kept in such a way that the suspect is placed among other people to test the witness; that that witness would look along the line and see if that person could pick out the suspect, unaided by the police.  That is why the police, in their investigations, play no part, even in the identification parade.

So, Members of the Jury, there was no identification parade. And, in this case here, the police complainant, Sergeant Walters, tells you it was not convenient.  Now if you understand that to be that the people were not in the country, then you can understand why an identification parade could not have been kept after the arrest of Accused No. 1 and before he was brought to Court.  Understand that, Members of the Jury.

So the result is that Mrs. Offord was brought into the Magistrate’s Court at a certain time – and this is disputed – there was no set of people to sort of insulate him; that he would not stand out like a sore thumb among the group of people. 

And, Members of the Jury, for that reason, I am directing you as a matter of law, that when she points to the accused from the dock here and says, ‘That is the same man that I saw,’ that you cannot convict on that evidence.  It is worthless, and the reason is as I have explained it to you, there was no proper system in place to protect the accused man.  As a result, there is no knowing whether he stood out in such a way that her attention would have been drawn to him.  So you cannot rely on her identification and you have to disabuse your mind of it.

You then have to rely strictly on that statement.  And if you cannot rely on that statement, you must acquit Accused No. 1 because the case against him relies upon that statement.  Without it the Prosecution can go nowhere.”

12.	Faced with this direction and the admission in evidence of a statement from the appellant amounting to a comprehensive admission of guilt, Miss Deal for the appellant focused her attack on the implications of the lack of an identification parade and the dock identification by Mrs Offord.  The Court of Appeal had rejected complaints about the identification process, on the ground that it had become irrelevant when the judge directed the jury to disregard the dock identification.  In a well constructed argument Miss Deal submitted that the identification of the appellant by Mrs Offord was, contrary to the conclusion of the Court of Appeal, a live issue.  The fact that she did identify him may have made the jury readier to accept that the content of his statement was true.  The absence of an identification parade meant that the appellant was deprived of the possibility that she might have failed to pick him out, so weakening the evidence of identification.  That could have created an element of doubt about the truth of the statement and tended to reinforce the appellant’s defence that he was not one of the robbers.  The judge should not have permitted a dock identification and his direction to disregard it was insufficient to remove its effect from the jurors’ minds.  At the very least he should have given a more effective warning about the weaknesses of dock identifications.  In addition he should have given the jury a Turnbull direction, warning them of the dangers of identification evidence and giving them guidance on assessing the quality of the identification in the circumstances.

13.	Miss Deal also made submissions about several matters, including the lack of disclosure of witnesses’ statements to the police and the balance of the judge’s summing-up, which their Lordships will consider briefly before returning to the identification issue.  She argued that it appears from the evidence that Mr and Mrs Offord made statements to the police, which should have been disclosed to the defence in order to allow them to bring out any discrepancies between their contents and the evidence subsequently given by the witnesses.  Their Lordships have not seen these statements, which were not available at the hearing before the Board, and decline to speculate whether they might have been inconsistent in any respect with the evidence given.  It was open to the defence to request copies before trial or apply to the judge, but this does not appear to have been done.  Their Lordships do not consider that there is any weight in this argument. 

14.	Miss Deal drew to the Board’s attention a few discrepancies between the evidence of the witnesses and the appellant’s statement, but their Lordships do not consider that the fact that they were not highlighted by the judge in his summing-up was of sufficient consequence to affect the safety of the conviction, especially as he withdrew the question of identification from the jury.  Similarly, although the judge referred to a supposed inconsistency in the starting time of the party which the appellant said he attended at Mrs Madoo’s house, there is nothing in the note of evidence to support the attribution to the appellant of a commencing time of 10 am.  The judge was nevertheless entitled to comment, independently of any inconsistency, on the implausibility of Mrs Madoo’s averment that the party began at 10 pm and ended at 11pm.  This point does not appear to their Lordships to be one of much significance.

15.	They have also given consideration to the balance of the summing-up and the particular complaints made about it.  They do not propose to go into the details of the portions highlighted by the appellant’s counsel, but they have considered the summing-up as a whole and are satisfied that it was not unbalanced and that the defence case was sufficiently put before the jury.  They therefore reject this ground of appeal.

16.	They come back then to the major argument presented on behalf of the appellant, that relating to the identification of the appellant by Mrs Offord.  Rule 1 of the Judges’ Rules of Trinidad and Tobago relating to identification parades provides:

“In a case which involves disputed identification evidence a parade shall be held if the suspect asks for one and it is practicable to hold one.  A parade may also be held if the officer in charge of the investigation considers that it would be useful.”

These requirements have to be considered in the light of the clear statements in a number of cases decided by the Board and in the English courts concerning the potential effect on the fairness of the trial when a parade has not been held.  The judge correctly set out in his directions the reasons why identification parades should be held, and it has been regularly pointed out by appellate courts that a witness’s failure to make an identification at a parade may confer an advantage on a defendant of which he should not be deprived: see R v Forbes [2001] 1 AC 473, 482, para 13; Pop v The Queen [2003] UKPC 40, para 9; Pipersburgh v The Queen [2008] UKPC 11, para 17.

17.	It also appears clearly from the same authorities that a dock identification, with all its weaknesses, may nevertheless be admitted in evidence with proper safeguards.  In Pop and Pipersburgh the Board rejected submissions that dock identifications are inadmissible where the identifying witness has not previously attended an identification parade.  The trial judge must give sufficient warnings about the dangers of identification without a parade and the potential advantage of an inconclusive parade to a defendant, and direct the jury with care about the weakness of a dock identification.  Much may depend on the circumstances of the case, the other evidence given and the run of the trial, so that it is not possible to lay down a universal direction applicable to all cases.

18.	Their Lordships accordingly are of opinion that the question of the dock identification cannot be simply dismissed, as the Court of Appeal did.  Its admission contained within it the possibility that the identification could tend to reinforce the jury’s acceptance of the truth of the appellant’s statement.  It is necessary therefore to consider the impact of the identification and the way in which the judge dealt with the issue.

19.	It would indubitably have been much better if an identification parade could have been arranged before the hearing in the magistrate’s court.  Once the identifying witness Sarah Offord attended the magistrate’s court and saw the appellant in the dock, the value of a subsequent identification parade would have been very much reduced, so that it was in practical terms too late after her attendance at that court.  When it was proposed to allow Mrs Offord to identify the appellant in the dock at trial, as she had done in the magistrate’s court, the judge had to determine how he would give sufficient warnings and advice to the jury.  Whatever approach he had in mind at the time when the identification took place, he took the view when summing up that the evidence should be disregarded, so he directed the jury accordingly.  The question now is whether this was sufficient to satisfy the requirements of a fair trial and leave the conviction safe. 

20.	Their Lordships have borne in mind Miss Deal’s submissions about the need for a clear exposition of the weakness of dock identifications, but consider that the judge did bring that point sufficiently to the jury’s attention when instructing them to disregard it.  They accept that it would have been preferable if he had spelt out the advantage which a failure to identify a suspect at a parade can confer upon him at trial, but do not consider that the absence of such a direction was a sufficiently serious weakness in the context of the whole summing-up and the run of the case to vitiate the trial.  They do not think that a Turnbull direction was necessary.  In the circumstances, when the judge was directing them to disregard the identification evidence, it would have been confusing and potentially misleading.  Their Lordships accordingly conclude that although they do not share the view of the Court of Appeal that the identification process had become irrelevant, the judge’s directions did not deprive the appellant of a fair trial and there was not a miscarriage of justice.  They will therefore dismiss the appeal against conviction.

21.	The Court of Appeal, when dismissing the appeal against sentence, ruled that the time which the appellant spent in prison between conviction and judgment in the appeal should not count as part of the term of imprisonment, as they regarded the appeal as being devoid of merit.  In so ruling they cited Tiwari v The State [2002] UKPC 29, but did not have the advantage of considering the subsequent decision relating to the same appellant of Ali and Tiwari v The State [2005] UKPC 41, [2006] 1 WLR 269.  In that appeal the Board set out the principles on which appellate courts should exercise their discretion to disallow time between conviction and appeal.  Their Lordships were of opinion, first, that the making of orders backdating sentences to the date of conviction should not be restricted to exceptional cases and, secondly, that any decision to order loss of time should be proportionate.  In respect of the latter principle the Board said (para 17):

“ … [I]t should impose a penalty for bringing or persisting with a frivolous application which fairly reflects the need to discourage wasting the court’s time without inflicting an unfairly long extension of imprisonment upon the applicant.  Their Lordships do not wish to be prescriptive about the appropriate length of loss of time orders, which is a matter for each appellate court in each individual case.  They consider, however, that they should be made with regard to the abuse which they are designed to curb and would not expect them to exceed a few weeks in the large majority of cases.”

22.	Although they have dismissed the present appeal against conviction, for the reasons which they have given their Lordships do not consider that it was devoid of merit, nor can it be said that the appellant was attempting to manipulate the criminal appeal system for his own benefit or deliberately wasting the court’s time and resources (see Ali and Tiwari at para 18).  They are therefore of opinion that there was no foundation for making a loss of time order, and that the Court of Appeal should have directed, pursuant to section 49 of the Supreme Court of Judicature Act, that the full period of time between the appellant’s conviction and the disposition of his appeal should count towards his sentence.

23.	The Board will accordingly allow the appeal against sentence and direct that the time between the appellant’s conviction and the determination of his appeal to the Court of Appeal shall count as part of the term of his imprisonment, which shall run from the date of his conviction.