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Cases On Human Rights

• Volume 1
  
  Fundamental Rights:
  - Right to Counsel - Duty of Police to inform arrested person of right soon after arrest and detention – Effect of failure to exercise duty on confessional statement allegedly made, upon which a conviction was made - Chase (Athelston) v. Court of Appeal of Barbados

Chase (Athelston)

v.

R

COURT OF APPEAL OF BARBADOS

FEDERAL HIGH COURT, NIGERIA PORT HARCOURT DIVISION

Sir Denys Williams CJ
Moe JA
Chase JA

Thursday, 23rd January, Tuesday, 11th February 1997

Facts
Athelston Chase was charged with murder of Winston Skinner-Young, an eighty year old man he knew and regularly visited. While in detention, Chase was interrogatd and he made a confession. However, he was not told of his right to retain a lawyer before he made the confession. During his trial, Chase maintained that the confession was not voluntary. Nevertheless, he was convicted for manslaughter on the strength of the confession and evidence of his fingerprints on the deceased's window pane.

Held (Unanimously allowing the Appeal):
Chase' conviction was quashed, and the Court of Appeal reserved its reasons for a later date. In the reserved judgment, the Court of Appeal held that there had been a deliberate and unexplained breach of the appellant's constitutional right to be informed of his right to retain and instruct without delay, a legal adviser of his own choice. The court drawing inspiration from judicial precedents held that a person in custody ought to be informed about his rights to a legal adviser of his choice before any ‘in-custody interrogation' takes place. On the fingerprint evidence, the court held that the fingerprints were not irrefutable evidence of the appellant's commission of murder as they may have been placed on the deceased's window pane on any one of the appellant's friendly visits.

On the Record: Per Sir Denys Williams CJ
“... a passage from the judgment of Davis JA in the Court of Appeal of Trinidad and Tobago in the Whiteman case ... should be of assistance to police officers in carrying out thier investigation ((1990) 39 WIR 397 at page 407):

‘It would seem to me, therefore, that the interests of justice may best be serviced if police officers were to note or require an accused person to note on any statement from him, the fact that that person has been informed of his right to retain a legal adviser and to hold communication with him at any stage of the investigation, emphasizing the fact that this is so even while the accused was in custody. In addition, the accused should be invited to sign such notation. In my view, this may enable the evidential burden which is on the prosecution to be discharged much more effectively, and will go a long way in assisting the court and jury in determining the question they have to determine, namely, ‘was the statement a voluntary one?'” [page 233 paras B-F]

Case(s) referred to in the Reasons for Judgment
Attorney-General v. Whitmen (1990,1991) 39 WIR 397, (1991) 2 AC 240, (1992) 2 All ER 924, (1991) 2 WLR 1200, Trinidad and Tobago CA and PC.

Representation
1. R. Worrell for the appellant
2. Olton Springer for the Crown.
Sir Denys Williams (Delivering the Reasons for Judgment): On 28th October 1993 the appellant Athelston St Elmo Chase was arraigned on an indictment in which he was charged with the murder of Winston Skinner-Young and on Friday, 5th November 1993, the jury returned a majority verdict of eleven to one of ‘Guilty of Manslaughter'. On Monday, 8th November 1993, he was sentenced to twenty years imprisonment.

On Thursday, 23rd January 1994, leave was granted to argue the following amended grounds of appeal:

1. That the trial judge erred in law by failing to exercise his discretion in favour of the appellant by not excluding the written and oral statements of the appellant and therefore withdraw them from the consideration of the jury.

2. That the trial judge failed properly and/or adequately to direct the jury on the question of circumstantial evidence as it related to the issues in the matter under consideration.

3. That the trial judge failed properly to direct the jury as to the approach they should take in considering the evidence of Mr Victor Forde, especially as it related to the question of mental responsibility of the appellant to read the written statement in the matter.

4. That the trial judge failed properly to direct the jury as to the approach they should take in evaluating the evidence of the police, in particular the evidence in the station diary and the police notebooks.

5. That in all the circumstances of the case the verdict is unsafe and unsatisfactory and should be set aside.
6. That the verdict is against the weight of evidence

7. That the sentence is excessive in the circumstances.

At the conclusion of the submissions for the appellant, counsel for the Crown was asked to respond and he felt unable to argue against the submission that the verdict is unsafe and unsatisfactory. We set aside the conviction and sentence and stated that we would give our reasons at a later date. We now do so.

Winston Skinner – Young aged eighty-eight, lived alone at Jackson, St. Michael. His niece, Esther Rowe, who lived at St. Lawrence Main Road, Christ Church, looked after him. On 25th July 1992 she received a telephone call from one of his neighbours after which she tired to contact him by telephone. When there was no answer she went to his home. There she found him in his bedroom lying on his bed. His hands were tied in front of him and a belt was tied loosely about his neck. He appeared to be dead. She called the police who visited the scene, took photographs and carried out investigations.
He was indeed dead and the autopsy on the body revealed that he had died from asphyxia as a result of ligature strangulation. Sr. Ramulu who performed the autopsy, gave his opinion that a belt could have been used to strangle him.

The case against the appellant rested on a confession and on the discovery of his fingerprint on a louver pane of glass in the window of the bedroom where the body was found. The confession which was admitted in evidence after a voire dire reads as follows:

“I got a girlfriend name Angela Griffith who lives in Rock Hampton Road, Jackson. I go by she pun a day or night for the past three years. Since I did going by my girlfriend I would see an old man who live in front of my girlfriend home. I hear he name Jolly, but I didn't use to talk to he. About a year ago he start to call me and I would go pun he door step and talk wid he for a few minutes. He would always tell me to save my money when I work so I thought he had money save and was always telling me if I can't be good be careful.
“Last Friday night, 24th July this year, the same night as the semi-finals calypsoes at de stadium, I went up by my girlfriend Angela about 7 o'clock. When I did up by my girlfriend Jolly call me. I went to he at de window. He asked me how I is. I tell he I alright. He look through the front window and pat me on my shoulder. I did drinking a beer at the time. I then tell he I gone. He then tell me If I can't be good be careful. I then left he watching the TV and went by my girlfriend. My girlfriend went inside the house and nurse the little baby. I then went inside about minutes to 8 and tell she I gone. I then walk down the road by the wrought iron shop in de gap.

‘I then walk through the track above the wrought iron shop, then walk the track to the back of Jolly house. I then climbed over the guard wall to the back of he house. After I get in he house I see the back two section wooden door open. I went in the open bathroom and hide, because Jolly did still watching the TV. I waited in the bathroom until I think he went to sleep. I come out the bathroom and went in he bedroom. I see he lying on he back like he sleeping. I see a black tie on a ledge near he bed and I take it down and tie he two hands in front of he. I take up a pillow that was near he and I put it over he face and nose and he ain't move. When I did feeling around de bed I find a leather belt and I put round he neck. I then feel and search he shirt and pants pockets to see if he got any money. I ain't find no money. I then remove the pillow from the face and put it on de bed and left de belt pun he. I ain't search nuh other part of de house.

“After I ain't find nuh money I ain't carry away nothing from de house. I get frighten and I run back through the back door. When I did in the bedroom I think I touch some glass louvers when I did feeling beside the bed. After the incident I run straight home. My sister Cheryl open the door for me about 10.30 in the night. The next day I hear that Jolly dead and I went up by my girlfriend and she tell me that Jolly was found dead. I sorry that he get kill. Today the police come for me and question me about it and I tell them truth about what I do. That is all to it.

The appellant elected to make an unsworn statement from the dock and said:

‘The statement that the police had I did not give them. Mr. Brancker gave me two ear bangs. I was frightened. He forced me to sign my name. He told me to trust him that he would help me because I would only get fifteen years in jail. I told him that I ent kill the man. He told me that when I come out I can come and look for him. The man Jolly was my good friend. I used to help him do anything around the house that he asked me to do. That is all.'

Section 13(2) of the constitution enacts as follows:

‘Any person who is arrested or detained shall be informed as soon as reasonably practicable, in a language that he understands, of the reasons for his arrest or detention and shall be permitted, at his own expense, to retain and instruct without delay a legal adviser of his own choice, being a person entitled to practise in Barbados as an attorney at law, and to hold private communication with him.'

It is crucial to this case to note this is a substantive provision of the Constitution and has application not only to a person who is arrested but to someone who is detained.

It is necessary too to refer to Attorney-General v Whiteman (1991) 39 WIR 397 where Lord Keith who delivered the opinion of the Judicial Committee said (at page 412):

‘The language of the Constitution falls to be construed not in a narrow and legalistic way, but broadly and purposively, so as to give effect to its spirit and this is particularly true of those provisions which are concerned with the protection of human rights. In this case the right conferred by section 5(2)(c)(ii) [of the Constitution of Trinidad and Tobago] upon a person who has been arrested and detained, namely the right to communicate with a legal adviser, is capable in some situations of being of little value if the person is not informed of the right. Many persons might be quite ignorant that they had this constitutional right or, if they knew, might in the circumstances of their arrest be too confused to bring it to mind.

The opinion concluded as follows (at page 413);
“Their lordships accordingly consider that persons who have been arrested or detained have a constitutional right to be informed of their right to communicate with a legal adviser both upon a proper construction of section 5(2)(h) of the Constitution of 1976 [of Trinidad and Tobago] and on the basis of a settled practice existing when that Constitution was introduced. Davis JA said towards the end of his judgment of the Court of Appeal: “I am not prepared to lay down any general rule as to the precise point in time when a person in custody ought to be informed of this right, [but it should be] as early as possible, and in any event before any ‘in-custody interrogation' takes place.”

‘Their lordships would endorse that. It is possible to envisage circumstances where it would not be practicable to inform the person of his right immediately upon his arrest. They would add that it is incumbent upon police officers to see that the arrested person is informed of his right in such a way that he understands it. He may be illiterate, deaf, or unfamiliar with the language. It is plain that the mere exhibition of notices in the police station is insufficient in itself to convey the necessary information.'

In Barbados, anyone who is arrested or detained has a constitutional right to be informed of his or her right to communicate with a legal adviser by virtue of section 13(2) of the Constitution. And according to the decision of the Privy Council in the Whiteman case, a person who is arrested or detained ought to be informed of this right as early as possible and in any event before any “in-custody interrogation' takes place. It is against this background that we turn to the questioning of the appellant in this case.

Station Sgt Brancker did the questioning and Cons Carter was present with him. The record discloses some inconsistencies and contradictions about dates and times. No comment need be made on what took place on 28th July; the appellant was at the police station for about half an hour between 8.00 and 8.30pm and during that period was questioned for about twenty minutes and then released.

On the following night, the police picked up the appellant at his home and arrived at the police station at 9.55 pm. Questioning began at 10.30pm and the appellant made an oral confession fifty-five minutes afterwards (at 11.25pm). Before that confession he had made denials, but these were not recorded. According to the police, the confession began at 11.30pm and concluded at 12.15am

The record of the evidence of Sgt Brancker discloses some inconsistencies. At page 153 “The first time I arrested him was on 29th July 1992. But at page 156 ‘I did not arrest him on 29th July 1992; he was not free to leave the station that day'. At page 158 the following evidence appears:

‘I would have released the (appellant) if I were satisfied that his story was true: that he knew nothing about the crime. I did not believe him, and he told me eventually. I told the (appellant) that he had a right to consult with a lawyer who could be present and the (appellant) said “I don't want no lawyer or anybody now. I sorry bout what I do”. I told him of his right to have a lawyer or friend present after I had been speaking to him for about fifty-five minutes. I agree I should have informed him of that right as soon as practicable after he was taken into custody. I did not tell him of this right when he was at home at Haynesville. He did answer the door when I knocked.

Police Cons Carter testified that the appellant was questioned for about fifty-five minutes before the written statement was recorded. He also said that the appellant was free to leave the station before 10.30pm (when the questioning began), but this evidence does not fit comfortably with Sgt Brancker's or the other evidence. Cons Carter further said that the appellant was told that he could have a lawyer or friend present, but not before he started to give the written statement.

It is clear from the evidence that not only was there a breach of section 13(2) of the Constitution and of the law as laid down by R v Whiteman but that it was deliberate and unexplained.

In all the circumstances and bearing in mind the real possibility that the appellant's fingerprint could have been paced on the glass louver in the deceased's bedroom on an occasion when he was in the house innocently, we were of the view that the safe course was to quash the conviction and set aside the sentence.

Reproduced below is a passage from the judgment of Davis JA in the Court of Appeal of Trinidad and Tobago in the Whiteman case which sould be of assistance to police officers when they are carrying out thier investigations ((1990) 39 WIR 397 at page 407):

‘It would seem to me, therefore, that the interests of justice may best be serviced if police officers were to note or require an accused person to note on any statement taken from him, the fact that that person has been informed of his right to retain a legal adviser and to hold communication with him at any stage of the investigation, emphasizing the fact that this is so even while the accused is in custody. In addition, the accused should be invited to sign such notation. In my view, this may enable the evidential burden which is on the prosecution to be discharged much more effectively, and will go a long way in assisting the court and jury in determining the question they have to determine namely, ‘was the statement a voluntary one?'

Appeal allowed, conviction quashed.