Giordano Rolle Jr. v R
| Jurisdiction | Bahamas |
| Judge | Madam Justice Crane-Scott, JA |
| Judgment Date | 04 March 2021 |
| Neutral Citation | BS 2021 CA 40 |
| Date | 04 March 2021 |
| Docket Number | SCCrApp. No. 231 of 2018 |
| Court | Court of Appeal (Bahamas) |
IN THE COURT OF APPEAL
The Honourable Madam Justice Crane-Scott, JA
The Honourable Mr. Justice Roy Jones, JA
The Honourable Mr. Justice Milton Evans, JA
SCCrApp. No. 231 of 2018
Ms. Marianne Cadet with Ms. Brendalee Rae for the Appellant
Ms. Stephanie Pintard for the Respondent
Ajodha and others v. The State (Trinidad and Tobago) [1981] 3 WLR 1; applied
Aritis v. Regina; Flowers v. Regina [2014] 1 BHS J. No. 118; considered
Basil Gordon v. Reg SCCrApp. & CAIS No. 1 of 2016; mentioned
Ferguson v. Attorney-General C.A. decision (1999) 57 WIR 403 considered
Ferguson v. Attorney-General of Trinidad and Tobago [2001] UKPC 3
MacPherson v. The Queen (1981) 147 CLR 512; mentioned
Rashad Sullivan & Patrickedo Rose v. Director of Public Prosecutions SCCrApp. & CAIS Nos. 272 and 248; applied
R v. Keenan [1989] 3 W.L.R. 1193; mentioned
R v. Samuel [1988] 2 W.L.R. 920; mentioned
Reg. v. Cheung Hon-yeung [1993] 1 HKCLR 292; mentioned
Stinchcombe v. R (1991) 3 S.C.R. 326; mentioned
The Queen v. Thomas [2017] 2 BHS J. No. 71; mentioned
Thongjai and another v. The Queen [1997] UKPC 31; applied
Timothy, Dexter Reid & Sheldon Lewis v. The State (Trinidad and Tobago) [1999] UKPC 19; mentioned
Criminal Appeal — Allegation of police brutality and oppression prior to start of police interview — oral admissions contained in answers to police questioning taken down in a record of interview — signed written confession obtained during interview which accused denied authoring or signing — voir dire commenced to determine admissibility of both documents — whether judge erred in prematurely terminating voir dire and admitting both documents without ruling on admissibility — Non-disclosure by Crown of video-recording of police interview — Late production of recording during the ongoing voir dire — whether late production of the recording prejudiced the conduct of the defence during the voir dire — whether conviction unsafe and unsatisfactory
The appellant and a co-accused were arraigned on a Voluntary Bill of Indictment which charged them of being concerned together in committing murder and armed robbery in Exuma. The evidence against the appellant at trial consisted of firstly, adverse statements allegedly made in answer to police questioning and recorded in a record of interview; and a signed confession which according to police was taken from the appellant immediately following the police interview.
Before the Crown's evidence was led before the jury, counsel for the appellant challenged the admissibility of the statements on the ground that the statements attributed to the appellant were obtained by oppression and further, that the signatures which appeared on the record of interview and confession statement respectively, were not his. The judge commenced a voir dire to investigate the issues. However, after the appellant had testified, the judge prematurely terminated the voir dire inquiry being of the view that the issue of voluntariness was no longer in issue because during his cross-examination, the appellant had admitted that the confession statement was not made or signed by him. The judge declared that, in view of the appellant's testimony, there was no longer any need for a ruling because the question whether he made the statement or not was one for the determination of the jury. The judge then terminated the voir dire without ruling on the admissibility of the record of interview and confession.
During the voir dire, it was also brought to light during the cross-examination of the lead police investigator that a video-recording of the appellant's interview, in which the record of interview and caution statement had been obtained, had not been disclosed to the defence. The nondisclosure was immediately drawn to the judge's attention. After inquiries by the judge, the DVD of the recorded police interview was handed over to the defence. By then, the voir dire was well underway as defence counsel had already completed cross-examining one of the police investigators, and had been mid-way in his cross-examination of the other. On learning of the DVD, the judge repeatedly indicated her unwillingness to adjourn the matter and in the end, failed to redress the obvious prejudice to the defence by for example, ordering a short adjournment to permit defence counsel the opportunity to view the video-recording or to recall witnesses who had testified.
In due course, when the main trial resumed, both impugned documents were given in evidence before the jury. Ultimately, the jury found the appellant guilty of murder and armed robbery.
Following his conviction and sentencing, he appealed his conviction and sentence on numerous grounds. He challenged, inter alia, the Crown's failure to disclose the video-recording of his police interview in sufficient time to have enabled his counsel to have viewed it and to mount a proper challenge during the voir dire to the credibility of the investigating officers- (ground 3) He also attacked the judge's decision to prematurely terminate the voir dire, as well as her failure to rule on the issue of voluntariness which was the very basis on which the voir dire had initially commenced — (grounds 1 and 2). He further claimed that his conviction was unsafe and unsatisfactory – (ground 9).
After hearing the respective submissions, the Court reserved its decision.
Held: The appellant's appeal is allowed. His conviction for murder and armed robbery are quashed, together with the associated sentences. We will hear the parties on whether this is an appropriate case to order a retrial. Written submissions on the appropriateness of a retrial shall be filed on or before 22 March, 2021.
The thrust of the appeal on grounds 1 and 2 was that the learned judge the judge's decision to prematurely terminate the voir dire without first ruling on the allegations of oppression which Defence counsel had put to the police investigators during cross-examination and which had outlined in the appellant's sworn evidence-in-chief during the voir dire was wrong in law and deprived him of a ruling on admissibility of the Record of Interview and written confession as required by law
On the state of the evidence given on the voir dire as a whole, this was a case involving a challenge to both oral admissions and a written confession. The appellant's defence could not be said to be an absolute denial of the prosecution evidence. Nor was the appellant simply alleging that the interview never took place; or that the incriminating answers in the record of interview were never given; or solely that the written statement was a forgery which would have brought the case within situation (4) of Ajodja. While denying that he had made the admissions, the appellant clearly also alleged oppressive conduct by the police immediately before the interview where the alleged oral admissions and a written confession were obtained. Properly understood, the appellant's case on the voir dire raised a multiplicity of issues which the judge had carefully to consider.
The appellant denied having authored or signed the Record of Interview or the written Confession. Undoubtedly, his denial raised issues of fact for the jury's determination. However, that was not the appellant's only claim. This was a case where the appellant also alleged that both documents attributed to him were involuntary and inadmissible due to the police oppression which had immediately preceded the interview where they were obtained. That allegation and the appellant's testimony, clearly also raised for the judge's determination the crucial issue of voluntariness of both documents which could not be overlooked and which required a ruling from the judge as to admissibility. Given the appellant's various claims, the mere fact that the appellant had admitted in cross-examination that he did not give any information to the police and had not signed either document, did not entitle the judge to prematurely terminate the voir dire on the basis that those were factual issues for the jury and that there was accordingly, no longer any need for a voir dire.
As their Lordships explained in Thongjai, such issues are not mutually exclusive. Based on the allegations of oppression which Counsel for the appellant had raised at the start of the voir dire, and which the appellant had repeated in his evidence-in-chief before her, the judge was required to approach the matter using the advice which the Board had outlined. Accordingly, faced with the several issues which had arisen on the voir dire, in relation to the two documents, the learned judge was required firstly, to decide whether (on the assumption that the admissions in the Record of Interview and the written Confession were made) they were nonetheless inadmissible as having been obtained involuntarily and by oppression as the appellant claimed. Secondly, if after properly considering the all of the evidence led on the voir dire, she found that the admissions in the Record of Interview and the written Confession were admissible, it was only then that the jury (as the judges of the facts) would be called upon to determine whether the admissions were in fact made.
The premature termination of the voir dire in this case was wrong in law and erroneously deprived the appellant of the all-important safeguard of a ruling by the judge as to the admissibility of the several admissions attributed to him and contained in the Record of interview and written confession respectively, which the prosecution sought to have admitted before the jury. Grounds 1 and 2 succeed.
The thrust of the appellant's complaint on ground 3 was that the non-disclosure by the Crown of the video-recording of his police interview which was not handed over to the defence until well after the trial had commenced, prejudiced him by...
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