Frederick Atkins (died 2005) was a convicted murderer who received a mandatory sentence of death from a court in Barbados. He died in prison while the Inter-American Court of Human Rights was considering his appeal.

Atkins was a bus driver prior to his murder trial. In 1998, Atkins was convicted of the murder of 20-year-old Sharmaine Hurley and in 2000 received a mandatory death sentence. He received a execution warrant in June 2002 but it was stayed by the Judicial Committee of the Privy Council, the supreme court of Barbados. On 3 September 2004, Atkins and three other death row inmates in Barbados appealed their sentences to the Inter-American Commission on Human Rights.

On 9 February 2005, Barbados issued another death warrant for Atkins, informing him that he was scheduled to be executed by hanging on 14 February. After appeals to the government by Amnesty International and the Special Rapporteur of the United Nations Commission on Human Rights, the Barbados High Court agreed to stay the execution.

Later in 2005, Atkins died in prison of an illness. In December 2007, the Inter-American Court on Human Rights ruled that Atkins's mandatory sentence and the mandatory sentence provisions of the Barbados murder statute violate the right to life guarantees of the American Convention on Human Rights.

BARBADOS

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL

Criminal Appeal No. 21 of 2000

BETWEEN:

FREDERICK BENJAMIN ATKINS (Appellant)
AND
THE QUEEN (Respondent)

Before: The Hon. Sir David Simmons K.A., B.C.H., Chief Justice, the Hon. Errol DaC. Chase, Justice of Appeal and the Hon. Colin A. Williams, Justice of Appeal

2002: January 30, February 18 and March 27

Mr. Ralph Thorne in association with Mr. Stephen Conliffe for the Appellant

Mr. Charles Leacock Q.C., Director of Public Prosecutions and Ms. Donna Babb for the Respondent

JUDGMENT

SIMMONS CJ: The appellant was convicted on July 21, 2000 for the murder of Sharmaine Hurley (“the deceased”) committed some time between October 10 and 13, 1998. He was sentenced to death.

The Prosecution Case

[2] The Crown’s case was constructed largely upon circumstantial evidence and certain statements of the appellant given to the police. It was the case of the prosecution that about 8.30 p.m. on the evening of October 10, 1998, the deceased left her home at Clapham and went to the South coast with her friend, David King. After visiting two fast food restaurants, she left King and boarded a minivan headed towards Bridgetown. This was some time around 11.00 p.m. [1]

[3] At the van terminal in Bridgetown, the deceased boarded another minivan ZR62 which was routed east to Silver Hill via Rendezvous. This minivan was driven by the appellant. In it were passengers who gave evidence at the trial. These included Joel Bryant, Everton and Esther Trotman and Yolande Thomas. These four persons got off the van near Gall Hill and left the deceased in the van. She changed seats and now sat in a seat towards the front of the van.

[4] David King said that, sometime around midnight, he was standing by the roadside near to his home at Gall Hill, Christ Church. He said that a minivan ZR69, according to him, passed him heading in the direction of Newton Industrial Park. King further said that the deceased was in the van and shouted for him. So far as he could discern, there were about 3 other persons in the van.

[5] The deceased never returned home on October 10, 1998. In fact, her decomposed body was found in a cart road at Bannatyne in the parish of Christ Church some 5 days later by Station Sergeant Forte and other police officers. There were two stab wounds to the chest inflicted with a knife in the expert opinion of Dr. Stephen Jones, Consultant Pathologist attached to the Queen Elizabeth Hospital.

October 13, 1998

[6] Since the deceased never returned home after October 10, 1998, the police commenced investigations into her disappearance and on October 13, 1998, Station Sergeant Eversley saw the appellant driving the minivan ZR62 along Golf Club Road. It was about 5.58 p.m. Station Sergeant Eversley spoke to the appellant and told him that he was conducting investigations into a matter and asked him to accompany him to Worthing Police Station where he would [2] continue his investigations. The appellant allegedly told him that he would “drop off the people first” and then go to the station.

[7] Later, the appellant drove the minivan to the station, removed valuables from it and locked it. Station Sergeant Eversley took possession of the keys.

[8] Station Sergeant Eversley testified that, in the presence of Sergeant Lynch, he told the appellant that he was investigating a report by the deceased’s mother that she was missing and he wanted to interview him.

The appellant said: “I recall seeing a girl on my van when I made the last trip but I put her off by the Newton Roundabout.” The appellant then took the police officers to the area where he said he had “put off” the girl. Station Sergeant Eversley said the appellant’s words were: “I put the girl off here and she get in a Starlet belonging to my boss and Michael was driving it.”

Statement of October 14th, 1998

[9] On October 14th, investigations continued and Station Sergeant Eversley said that on that day the appellant made a voluntary statement to him under Rule 1 of the Judges’ Rules, and he changed one word in the statement viz. “weekly” to “daily”. This statement made without caution was admitted into evidence without objection. It purported to detail the appellant’s movements on Saturday, October 10, 1998 and the material part of it, recounting the appellant’s whereabouts after 9.00 p.m. on that evening, continued:

“About 9.45 p.m. I went back home to collect my girlfriend, went to the River Terminal, put off passengers and took her straight to work. I had called my girlfriend and told her to meet me on the front road. I did not go back home. After I put her off I went back on route and ply the route 9. I collected passengers for Silver Hill after I went back to town from dropping off my [3] girlfriend. I came through Rendezvous putting off passengers and then went on to Silver Hill. When I left Bridgetown on this trip it was not 11 o’clock yet because I checked my watch but I don’t remember what time it was. There were plenty persons in the vans - - in the van at the time. I kept putting off passengers as I travelled along the Silver Hill route used by route taxis. On reaching Newton by the road which would take you onto the industrial estate, I stopped the van and four passengers got off, two male and two female. At the same time I saw a young lady got out from the back of the van and came into the front seat beside me. The girl told me that she wanted me to drop her off by the roundabout at the top of the road because she has to meet someone there. At the time it was only myself and the passenger in the van and she was wearing a white shirt. I took her there and as I approached there I saw a white Toyota Starlet with the registration number H11 something parked on the right of the road facing Bridgetown. The girl said stop, that is the car. She got out of my van, crossed in front of it, and ran to the car. I saw her got into the front passenger seat of the car. I recognized the man who was driving the said car the lady got into was Michael who works for my boss. I recognized the car was belonging to my boss. I don’t know Michael last name but he collects the money from me at times. The girl who I saw got out of my van and got into the car with Michael is the said girl I saw missing in the papers. Her name is Sharmaine Hurley. It was the first time I saw her. I remember that she get into my van from exactly in the River Road Terminal. I did not see anyone else in the car because Mike - - besides Michael. The roundabout was lighted by the electrical bulbs and I saw Michael well. I raised my hand to him but he did not respond.

After the girl got out the van, I drove ’round the roundabout and passed beside the car and at the said time the headlights came on. I then went down Lodge - - I then went down Lodge Road on to Water Street, through by Alleyne the Mini Bus operator, down Silver Hill and Kendal Hill. I did not pick up passengers. I did not see any. Whilst driving down my girlfriend called me on the cell phone and told me to get chicken for her from Chefette. I went to Chefette, Fairchild Street and the chicken was out. I went to Pink Star on Baxter’s Road and bought her chicken and chips. I reached Pink Star about 12.10 a.m. and left there about 12.35 a.m. and took the chicken to my girl at her work place. I travelled along Highway 7. I filled the van with diesel, gave my girlfriend the chicken, checked the money, purchased a large guava pineapple drink and left. I drove to my cousin’s residence at Regency Park and asked him to go with me to work at the night club collecting people. I took him to my home, where we eat and drink. The two [4] of us then fell asleep. I was awaken by my girl about 5 a.m. the morning. My cousin is Michael Atkins. I took back my cousin to his apartment after I got up. I then went - - I then went to work. My cousin name is Michael Atkins.”

Station Sergeant Eversley explained that the reason for the absence of a caution was that he was “gathering information.”

About 7.30 p.m. Eversley said he told the appellant that he had checked the story which he gave and it was not consistent. To this the appellant replied “You talk to Michael? I was lying on he. I just drop her off by Newton Roundabout.”

Dispute over the Statement of October 15th, 1998

[10] On October 15th, Eversley was with Station Sergeant Forte when the deceased’s body was found at Bannatyne. When he left Bannatyne, he returned to Worthing Police Station and placed a black garbage bag over the driver’s seat and the operational pedals of the minivan ZR62.

He sent the van to Central Police Station.

About 6.40 p.m. Station Sergeant Eversley again spoke to the appellant in the presence of Sergeant Lynch.

[11] On this occasion, he told the appellant that the deceased’s body had been found and that he had reason to believe that he could assist and he now cautioned the appellant. He says that the appellant made a statement to him which he recorded in his notebook. He says that he also told the appellant of his right to consult an Attorney-at-Law and the appellant said:

“I talk to my lawyer Mr. Worrell and he tell me to be honest with myself so I going tell you the truth.”

[12] Station Sergeant Eversley then testified that he told the appellant that he believed that he could assist in the whereabouts of [5] Sharmaine Hurley and he cautioned him under Rule 2 of the Judges’ Rules. The caution was in terms that “You are not obliged to say anything unless you wish to do so but what you say will be taken down in writing and given in evidence.”

[13] At this point of the trial an exchange ensued between Counsel for the appellant, Mr. Kissoon and the trial judge. We think that the relevant part of the transcript should speak for itself as to what transpired:

A: I told the accused you are not obliged to say anything unless you wish to do so but what you say will be taken down in writing and given in evidence. He replied - -

Q: Just a minute.

Mr. Kissoon, you are objecting to this?

MR. KISSOON: Yes. Yes. Question of fact, My Lord.

THE COURT: I take it that your objections apply - -

MR. KISSOON: Yes. Yes.

THE COURT: - - to all of these statements?

MR. KISSOON: Yes. Yes, it is a question of fact.

THE COURT: It is a matter of fact. The jury will determine whether he did or not.

So you may proceed and give us all these orals.

Thereafter, Station Sergeant Eversley gave evidence indicating that there had been compliance with the Judges’ Rules and the proper procedural steps had been taken prior to seeking the admission of the written statement made on October 15th. According to him the appellant made a free and voluntary written statement and nothing improper was done to obtain the statement.

[14] When the Director of Public Prosecutions, Mr. Leacock Q.C., sought to have the written statement of October 15th admitted into evidence, Mr. Kissoon objected. Again, we think that it is of fundamental importance that we let the transcript speak for [6] itself.

MR. KISSOON: At this stage we are objecting to the admission of that statement, My Lord.

THE COURT: On what grounds?

MR. KISSOON: On the ground that the accused never made that statement. That the accused gave a voluntary seven page statement and - -

MR. LEACOCK: I don’t know if my learned friend wishes to do this in the presence of the Jury.

THE COURT: Well, he will have to do that eventually if he says he didn’t make it. In any event, the call is his as to whether he invokes this Jury or not.

MR. KISSOON: I understand, My Lord. The accused gave a voluntary seven-page statement, as he said, then was asked to sign the pages of the statement. Having signed, he was invited to sign a certificate saying that he had given a statement but did not sign the certificate. The accused was of the opinion that he was writing the certificate to the voluntary statement he gave. So my instructions are the statement was incomplete when he signed it and he said the first time he ever knew of that statement, My Lord, the one done by the police, was when he appeared in Magistrate’s Court. It is to this that I am objecting.

THE COURT: That’s the only objection?

MR. KISSOON: That’s the only objection, My Lord.

THE COURT: That he did not make the statement?

MR. KISSOON: That he did not make the statement.

MR. LEACOCK: My Lord, I am not inclined to interpret what other people have said but if I am to understand the nature of my learned friend’s objection, he is really saying here, as I understand it, subject to correction from him, that he’s really saying that that document that we are seeking to produce here is basically a forgery because this man has signed some other statement, which we will be producing, the statement under Rule 1 in a minute, but he was asked to sign the certificate, this is how I understand his objection with the greatest of respect, and that he signed the certificate on this document, which I am now seeking to produce, and says he doesn’t know anything about the document that I am seeking to produce and as such it is a forgery. If that is what he is saying - - And as such he would never have made the document which I am seeking to produce. If that is what he is saying, as I understand the law, in Ajodha (1981) 1 All England, 193, at page 202, paragraph h it states the fourth proposition which says that if you are saying that the Prosecution’s statement is a forgery, it does not raise the question of admissibility, it is a matter of fact for the jury. And if that is my learned friend’s objection, subject to my understanding him correctly, it does not, with the greatest of respect, raise the matter that troubles you, sir.

THE COURT: It does not trouble me at all, Mr. Director.

MR. LEACOCK: But I do not know if I understand what he is saying correctly.

THE COURT: I understand him to be saying exactly what you are articulating and it does not bother me in the least. [7]

MR. KISSOON: And that is exactly what I am saying except Ajodha - - but as a fact it is not a forgery because he said he signed. So it is not forgery, it is his signature. But his signature - -

THE COURT: You are saying that the statement was fabricated.

MR. KISSOON: Yes.

THE COURT: At its lowest you’re saying it is a fabrication.

MR. KISSOON: Yes.

THE COURT: Not that the statement was forged.

MR. KISSOON: Yes, Mr. Lord.

MR. LEACOCK: Because if a man says he signed something when in fact he thought he was signing something else, it isn’t a forgery. The fact that he signed. He is not admitting ownership of the contents of that statement. And if that is my learned friend’s objection I will admit it does not trouble me, sir.

MR. KISSOON: My Lord, I agree with that, My Lord.

MR. LEACOCK: If I am correct in my understanding, sir, since it does not trouble you, it does not raise the question of admissibility. I will proceed.

MR. KISSOON: My Lord, I wonder if this is a convenient time for a morning break.

[15] After that exchange between Counsel and the Judge, it appears that the issue was resolved. For at p.117 of the transcript, the Director of Public Prosecutions asked that the statement be admitted “since it will then be purely a matter of fact for the jury.” The Judge then put these questions to Counsel for the appellant:

“You are accepting this is a matter of fact? Your objection is on a matter of fact?

Counsel replied:

“Yes, My Lord. Yes, My Lord. Question solely for the jury.”

The Court then said:

“For the jury. Thank you. Statement admitted”

The Actual Statement of October 15th, 1998

[16] This statement was a confession. It is to this effect: [8]

“Last Saturday night I see a girl name Sharmaine in the River van stand just after 11 o’clock. I did not see any Silver Hill van in and I was driving a route 9 van. I shout for Silver Hill and people as well as Sharmaine get in the van. She sit down behind me. I left the van stand after the van get full and went to Rendezvous first and then by the Life of Barbados roundabout up to the Silver Hill route. I drop off all the passengers and the only person in the van was Sharmaine. I put out the last four persons by the road leading to Newton Park and Sharmaine get in the front seat next to me ’cause I did not have a conductor. I stop and talk to Sharmaine for a little while and I ask her where she was going and she tell me home. I ask her if we could talk for a little bit and she say yes. I drive up by Newton roundabout and went down the highway. I turn right on the road that would go to St. David’s and went in a cart road on the right and stop the van. Sharmaine jump out the van and start to run and I ran behind her and hold her. She start to fight with me. She get away again and run and I run and hold her and bring her back. She start to fight with me. I pull out a knife from my pocket and stab her. She fell down and get back up fighting. I start to beat her up with the hand I had the knife in. She fall down and I felt her and she felt like she was not breathing. She had already take off a chain from her neck and rings and give me because I ask she for them. I hold her by her feet and drag her through the grass on the edge near the hedgerow. I got frighten and got in the van and drive back on the highway and went down the road. I pelt the knife outside the van while I was driving down the highway. I carry home the jewellery and put them in a chair. I did not tell anyone what happened. Signed Frederick Atkins.

I have read the above statement and I have been told that I can correct, alter or add anything I wish. This statement is true. I have made it of my own free will. Signed Frederick Atkins, L. Eversley Station Sergeant 904, R. Lynch 914.”

Circumstantial Evidence

[17] Station Sergeant Eversley’s evidence continued that he told the appellant that, in his statement (of October 15th), he had mentioned a cart road, jewellery and a knife and he would like him to show him the cart road and hand over the jewellery and knife. The appellant agreed to show him everything.

[18] The circumstantial evidence supporting the Crown’s case took on a high degree of significance hereafter. For Station Sergeant Eversley [9] secured a Search Warrant on the night of October 15th and took the appellant with other officers to his residence. He says that the appellant went to a settee, held up the cushion and handed over to him a quantity of jewellery viz. one gold chain, one gold bracelet, one heart-shaped gold pendant, one pair of earrings, one heart-shaped gold ring, a plain gold ring and another gold ring inscribed “LOVE”. The appellant is alleged to have said “I tek them from she.”

He also handed over a pants and shirt which he said he had been wearing on the night of October 10th. The appellant then directed the officers to a cart road at Bannatyne and pointed out an area where he said he dragged the deceased.

[19] On October 16th, Constable Catlyn searched the mini van and found two knives in the compartment of a door and a gold ring with the initials “SH” under the driver’s seat. The appellant was eventually charged about 6.00 p.m. on October 16th.

[20] The deceased’s mother, Ruth Hurley, testified that on the evening of October 10th, when the deceased left home she was wearing a lot of jewellery including a chain with two hearts, a ring with her initials “SH” on it, another ring with ‘LOVE” inscribed on it and 3 other rings including one with a heart on it, one with a leaf on it and one with a little diamond on it.

[21] On November 3, 1998, her other daughter, Sheldene showed her a ring with a diamond on it. It was her ring but the deceased had been wearing it on the evening of October 10th.

[22] It was adduced in the prosecution’s case that on November 3rd Sheldene was shopping at the large departmental store, Cave Shepherd and Co, and she saw Shenelle Rowe in the store. She [10] noticed that Shenelle Rowe was wearing the ring and Sheldene accosted Shenelle and snatched the ring from her and handed it over to the police.

[23] The prosecution also called Shenelle Rowe as their witness, obviously to contradict the alibi of the appellant.

Her evidence was that in October 1998 the appellant was her boyfriend and they shared an apartment in Regency Park. He took her to work about 10.30 p.m. on the evening of October 10th. She saw him on October 15th at Worthing Police Station where she spoke to him. She asked him what happened and he just told her “basic things like he and the young lady talked and stuff like that!” She confirmed the incident with Sheldene at Cave Shepherd’s and gave an explanation for having the ring. Her account was that while she was taking up clothes in the apartment, she heard something hit the ground and saw it was a ring. She took up the ring and put it on her finger. It was a white gold ring with a stone on it.

The Defence Case

[24] The appellant gave sworn evidence. He denied killing the deceased but he admitted driving the van on October 10th. He said he gave one statement to the police. He admitted that Eversley asked him if he would give him a statement in relation to what he did on the Saturday night and he dictated a statement to Eversley. He claimed that 2 pages were altered. He was put in a cell after. This was on October 14th. He saw Attorney-at-Law Randall Worrell after giving the statement. He said that Mr. Worrell asked the officers who was ‘the girl they were charging me for?” That was the first time he says he knew the name of the deceased. He had of course [11] mentioned her in the statement of October 14th which he said was voluntary and to which there was never any objection.

He denied giving the statement of October 15th although his signature was on it. In evidence-in-chief, his Attorney, Mr. Kissoon, asked that the statement of October 14th be admitted as an exhibit. The long statement he said was true. It was voluntary.

[25] As to the two statements, we understand the effect of the appellant’s evidence to be this. The statement of October 14th (paragraph 9) is true but certain insertions of an unauthorized nature were made by Eversley. In respect of the statement of October 15th (paragraph 16), he says that is not his statement. He only signed it and wrote the certificate because he was under the impression that he was completing the statement of October 14th.

The Grounds of Appeal

Ground 1

[26] Counsel submits that the trial judge erred in directing the jury as to how they should consider the written statement of October 15th attributed to the appellant. He criticizes the direction which the judge gave in these terms:

“With regard to the statement allegedly made on the 15th of October, 1998, in deciding whether you can safely rely on that statement, you must decide two issues.

(1) Did the accused in fact make that written statement dated the 15th of October 1998? If you are not sure that he did, you should ignore it. If you are sure that he did make the written statement, then;

(2) Are you sure that the written statement is true?

When deciding this, you should have regard to all the circumstances in which it came to be made and consider whether there are any circumstances that might cast doubt upon its reliability. You should decide whether it [12] was made freely and voluntarily, or was, or may have been made as a result of force used against, or threats made, or promises or inducements held out to the accused by the police officers, or whether it was made in consequence of the police officers misleading the accused to believe that he, the accused, was continuing his statement allegedly made on the previous day, the 14th day of October, 1998.

You should also have regard to the contents of the written statement, that is the statement made on the 15th of October, 1998 itself, and consider whether the accused appears to have made admissions to matters that cannot be true. If you find that the accused did not make the statement of the 15th of October, 1998, or that force was used against him, or promises or inducements were held out to him by the police officers, or that the police officers misled the accused into believing that he was continuing the statement allegedly made on the 14th of October, 1998, in order to get the accused to make or sign that written statement allegedly made on the 15th of October, 1998, you should disregard the oral statements and the written statement made on the 15th of October, 1998. If, on the other hand, you find that the accused made the oral statements, the oral statements attributed to him by the police, and that he made the written statement dated the 15th of October, 1998 freely and voluntarily and that he was not misled into believing that he was completing the statement allegedly made on
the 14th of October, 1998 then you may have regard to the oral statements and the written statement allegedly made on the 15th of October, 1998 and give them such weight as you think fit.”

[27] Mr. Thorne draws attention to section 71 of the Evidence Act. This provides:

“71(1) This section applies only in criminal proceedings and only in relation to evidence of a confession made by an accused.

(2) Evidence of a confession is not admissible unless the circumstances in which the confession was made were such as to make it unlikely that the truth of the confession was adversely affected.

(3) For the purposes of subsection (2), evidence that the confession is true or untrue is not relevant.

(4) For the purposes of subsection (2), the matters that the court shall take into account include -

(a) any relevant condition or characteristic of the person who made the confession, including [13] the age, personality and education of the person and any mental, intellectual or physical disability to which the person is or appears to be subject; and

(b) if the confession was made in response to questioning –

(i) the nature of the questions and the manner in which they were put; and

(ii) the nature of any threat, promise or representation made to the person questioned.”

[28] Mr. Thorne’s submission is that although the direction was in accordance with the section, it did not adequately cover three questions which must be adverted to in a direction on written statements. These three questions, Counsel submits, are: (a) Did the accused make the statement? (b) Was it voluntary? and (c) Did it represent the truth? He further contends, as a proposition, that those questions of utterance, voluntariness and truth must be left to the jury in that order.

[29] No authority was cited for the proposition advanced and we doubt whether any exists. It is well settled, however, that when a confessional statement is left to the jury as a question of fact, their function is to assess the weight and probative value of the confession. In that assessment the jury should take into consideration all the circumstances in which it was made, including allegations of force, if those allegations were thought to be true – Chan Wei Keung v. R. [1967] 2 WLR 552 and Prasad v. R. [1981] 1 AER 319. Voluntariness is a test of admissibility but it is also a matter to be considered by the jury in arriving at the truth.

[30] In the Australian case of Basto v. R. (1954) 91 CLR 628 at p.640 Dixon CJ explained: [14]

“That a statement may not be voluntary and yet according to circumstances may safely be acted upon as representing the truth is apparent if the case is considered of a promise of advantage being held out by a person in authority. A statement induced by such a promise is involuntary within the doctrine of the common law but it is plain enough that the inducement is not of such a kind as often will be really likely to result in a prisoner’s making an untrue confessional statement.”

[31] The live issue in this part of the case related to the statement of the appellant allegedly made on October 15th, 1998. Trying to unravel the purport and effect of the exchanges between Counsel for the appellant, Mr. Kissoon, and the trial judge, it seems clear to us that when objection was first made, it was not on the ground of involuntariness. He was not raising an issue of voluntariness for the judge to rule on admissibility.

[32] We have identified at least 7 instances in the exchanges (at paragraph 11 supra) where Mr. Kissoon made it clear to the judge that the ground of his objection (if that is what it really was) was that the appellant’s contention was that he never made the statement. He was not saying that it was a forgery. He was denying authorship and he signed it under a mistaken belief as to its true nature. Ultimately, Counsel assured the judge that it was “a question of fact solely for the jury.”

[33] In the circumstances, no question of admissibility fell for the judge’s decision. The issue of fact whether or not the statement was made by the appellant was purely for the jury. This would be well within the fourth principle of substantive law enunciated by Lord Bridge in Ajodha v. The State [1982] AC 204 at 222 ‘D’.

[34] In the local case of Curtis Callender and Nicholas Forde v. R. (Criminal Appeals Nos.13 and 14 of 1997 unreported), Sir Denys Williams CJ took into account the experience of Counsel [15] and the tactical decision that may be properly made by Counsel in deciding whether to request a voir dire or not. Sir Denys said at p.15:

“The first observation that needs to be made with respect to this ground is that Forde was represented by an experienced Queen’s Counsel who would have adopted the tactic that he thought was most likely to result in an acquittal for Forde. He did not seek a voir dire and had only one set of cross-examination of the police officers who could testify as to Forde’s treatment by the police during the period when he was with them. He questioned each of them concerning the allegations made by Forde: Station Sergeant Sands (at p.164 of the record), Sergeant Gill (at p.177), Station Sergeant Thompson (at p.194) and P.C. Jackson (at pp.210, 211). At no stage did he apply to have the statement excluded on the ground that it was not voluntary nor did he make a no case submission at the close of the evidence or seek to have the judge direct the jury to disregard the statement. He left the matter for the determination of the jury.”

[35] We find that case helpful. Mr. Kissoon is a very experienced and skilled criminal lawyer of 32 years’ standing in the profession. At no stage did he seek to have the statement excluded. At no stage did he request a voir dire. He chose to leave the matter for the determination of the jury. In fact, in the cross-examination of Station Sergeant Eversley (see in particular pp. 157 to 160) Mr. Kissoon put to the officer that when the appellant signed the statement of October 15th, “he thought he was completing the first statement.” This was denied by Station Sergeant Eversley. And later Counsel said “Basically, the accused man is saying you are fabricating the evidence” (p.160).

[36] It was never put to the Station Sergeant that he tricked the appellant into signing the statement of October 15th nor did the appellant suggest it when he came to give evidence. Thus we do not accept that this case was similar to that of Fletcher, one of the appellants in Ajodha. Fletcher had alleged that he had been tricked into signing [16] his confessional statement. Lord Bridge observed in the course of his advice that where a person was “claiming that his signatures to what in fact was a confession statement were obtained by the fraudulent misrepresentation that he was signing a document of an entirely different character…this equally raises an issue as to whether this statement was the voluntary statement of the defendant and therefore goes to admissibility.” – p.221

[37] In this case we have found no evidence of an allegation that a representation was made to the appellant as to the nature and character of the document signed on October 15th such as to induce a belief that it was fundamentally different from what it in fact was. If there was any mistake as to the nature of the document signed on October 15th, it was self-induced.

[38] We are of opinion that, in all the circumstances, no issue of admissibility arose requiring the trial judge’s ruling. We are further of opinion that the trial judge’s directions to the jury are not open to the criticism proferred by Mr. Thorne. Accordingly, Ground 1 of the appeal fails.

Grounds 3(a) and (b)

[39] These grounds aver that:-

(a) the learned trial judge erred in law in failing to conduct a trial within a trial on the basis of the position taken by the appellant in relation to the written statement attributed to him;

(b) the learned trial judge erred in law in admitting into evidence the written statements attributed to the appellant. [17]

[40] For the reasons given in relation to Ground 1, it is unnecessary to examine these grounds any further. The appellant’s Counsel treated the issue of the written statement as a matter of fact for the jury. No voir dire was requested and none was obligatory in the particular circumstances of this case.

[41] However, notwithstanding that the principles adumbrated in Ajodha in relation to confessional statements have been in existence for the past 20 years, it seems that we should once again re-state the proper procedure governing objections to such statements. We shall be content to reiterate that procedure in point form only.

(i) Before the commencement of the trial, defence Counsel must inform prosecuting Counsel that he intends to object to the admissibility of the statement.

(ii) Prosecuting Counsel must not refer to any contested statement in his opening speech to the jury.

(iii) Before evidence is led of the confession, Counsel for the defence should simply object in court to the evidence.

(iv) Counsel for the defence should indicate to the judge that he intends to make certain submissions in the absence of the jury.

(v) Counsel must not indicate in the presence of the jury the nature and extent of his objections.

(vi) The judge should then instruct the jury to withdraw, indicating only that he has to hear certain submissions.

(vii) If a trial within a trial is to be held, the judge should proceed to conduct it and rule upon the question of [18] admissibility having heard evidence and addresses from opposing Counsel.

(viii) Upon conclusion of the trial within a trial, the judge recalls the jury and continues the case without mention of any reason for the decision which he reached on the voir dire.

Ground 2

[42] Complaint is made that the judge directed the jury that the written statement attributed to the appellant “was direct evidence connecting the appellant with the charge.”

At p.268 of the transcript, the judge had told the jury that “the only direct evidence connecting the accused with the charge is the oral statements and the written statement allegedly made by the accused on October 15th, 1998.”

[43] Counsel argued that the classification of the statements as direct evidence was a grievous misdirection “because the statement was hearsay evidence admitted only as an exception to the hearsay rule.”

[44] Section 69 of the Evidence Act, Cap. 121, provides, so far as material:

“69(1) The hearsay rule and the opinion rule do not prevent the admission or use of –

(a) evidence of an admission; or

(b) evidence of a previous representation made in relation to an admission at the time when the admission was made or shortly before or shortly after that time, being a representation to which it is reasonably necessary to refer to understand the admission.

(2) Subject to subsection (3), where, by reason only of the operation of subsection (1), the hearsay rule and the opinion rule do not prevent the admission or use of evidence of an admission or of a previous representation as mentioned in subsection (1)(b), the evidence may, if [19] admitted, be used only in relation to the case of the party who made the admission concerned and the case of the party who adduced the evidence.”

[45] In our opinion, all that the trial judge was doing was pointing out to the jury that the only evidence, other than circumstantial evidence, connecting the appellant to the crime was the evidence contained in his own statements. In the total context of the summation, it was not an error of such magnitude or consequence as would amount to a serious misdirection or provoke a miscarriage of justice.

[46] Moreover, Counsel could cite no authority for the proposition that such a misclassification of evidence would necessarily lead to the quashing of a conviction.

[47] Accordingly we find no merit in this ground of appeal and it is rejected.

Grounds 4 and 5

[48] These were not pursued with any vigour by Counsel and they, too, are rejected. The one had alleged error in the direction to the jury as to the manner in which they could reach a verdict of manslaughter. The other had alleged a failure to direct on self-defence.

Ground 6

[49] On this ground the appellant contends that the verdict was against the weight of evidence. The basis for argument was that the Senior Forensic Scientist, Lorraine Alleyne, had testified that she found no evidence in her several tests to link the appellant to any of the items tested. These items included two knives, a shirt, a pair of trousers and a pair of shoes belonging to the appellant. She did not carry out tests on blood and hair samples submitted to her.

[50] Counsel did suggest that the judge’s warning to Mr. Kissoon to re-phrase a question was an unwarranted intervention. The [20] transcript reveals that Counsel was putting to Ms. Alleyne that there was no scientific evidence to link the accused man to the deceased. The judge asked him if that was the question he wished to put.

Eventually the dialogue petered out with the Court’s assistance to Counsel that Ms. Alleyne had not carried out certain tests. The clear implication of the intervention was that if no tests were carried out there could be no conclusions.

[51] We think indeed that the Court was saving the appellant from having irrelevant evidence adduced. There was, in the result, no real substance in this ground of appeal and it is noteworthy that, in his submissions that the verdict was against the weight of evidence, Mr. Thorne skillfully avoided an analysis of the strong circumstantial evidence in the case as we set out at paragraphs 17 to 23 of this judgment.

On the evidence as a whole, we do not think that it can truly be said that the verdict was against the weight of evidence.

[52] Accordingly, this appeal is dismissed and conviction and sentence are affirmed.

Delay in Hearing this Appeal

[53] There is one other matter which requires our comment. It is the history of this appeal. There has been a considerable delay in hearing it. The records of the Court of Appeal show that this appeal first came on for hearing on February 1, 2001. It was then adjourned to March 10, 2001 at the request of the appellant. Thereafter it was re-listed for hearing on April 9, 2001; May 30, 2001; July 10, 2001; September 24, 2001 and January 30, 2002.

[54] On every occasion between February 1, 2001, and January 30, 2002, a request for adjournment was made by the appellant. The reasons [21] were various. On February 1, 2001 a Legal Aid Certificate had been issued by the Community Legal Services Commission to Mr. Michael Lashley, Attorney-at-Law. Mr. Lashley wrote to the then Chief Justice on March 13, 2001 indicating that he was acting in association with Messrs. Randall Worrell and Keith Simmons, Attorneys-at-Law. He indicated that he would seek an adjournment when the matter came on for hearing on March 14, 2001. He promised to be ready by “the next court date”. That was later set for April 9, 2001. He was not ready and the appeal was adjourned to May 30, 2001.

[55] By letter dated May 29, 2001, Mr. Keith Simmons wrote to the Chief Justice alerting him to the fact that the appellant could not proceed the very next day. He said that “due to unforeseen circumstances we are unable to proceed with the matter on that date (May 30th) and herein respectfully request an adjournment for a date convenient to the Court.” The case was again adjourned, this time to July 10, 2001. On that date, Ms. Angela Mitchell-Gittens, Attorney-at-Law, appeared in the Court of Appeal, on behalf of the appellant holding papers for Mr. Michael Lashley. She informed the Court that Mr. Lashley was “on his feet in the Assizes” and sought another adjournment. It is especially noteworthy that up to that date, no amended grounds of appeal or particularised grounds of appeal had been filed by or on behalf of the appellant.

[56] The appeal was next to be heard on September 24, 2001. Three days before, Mr. Lashley again wrote to the Chief Justice. It was to inform the Chief Justice that the appellant had dispensed with his services. A handwritten letter from the appellant dated August 10, [22] 2001, merely told Mr. Lashley that he no longer wished him or Mr. Keith Simmons “to represent me at my appeal.”

On September 24, 2001, the Chief Justice gave a long adjournment to January 30, 2002 obviously to provide ample time within which other Counsel could be assigned.

In the interval, Mr. Ralph Thorne was assigned a Legal Aid Certificate on September 26, 2001 and when the matter came before us on January 30, 2002 he informed the Court that the appellant had instructed him to file additional grounds. We gave him leave to amend the grounds of appeal but warned the appellant that this was a capital case and all of the adjournments had been at his request or instigation. The appeal was duly heard on the next date of hearing, February 18, 2002.

[57] This Court wishes it to be clearly understood that at all times, notwithstanding its varied membership from time to time, it was fully conscious of the critical importance of having murder appeals dealt with expeditiously in the light of the implications of the series of cases beginning with Pratt and Morgan v. Attorney General of Jamaica [1993] 4 AER 769. The transcript and record of appeal in this case were ready by November 8, 2000, that is to say, within 4 months of the date of conviction and sentence.[23]

[58] It was through no fault of the system of the administration of justice in Barbados that there has been the long delay in hearing this appeal. The fault lies squarely with the appellant. We feel bound to say that we formed the distinct impression that the appellant has “played fast and loose” with various Counsel assigned at the expense of the State. For what purpose only he can say.[24]

Chief Justice

Justice of Appeal Justice of Appeal