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You are here: BAILII >> Databases >> The Judicial Committee of the Privy Council Decisions >> Williams v. The Queen (Jamaica) [2006] UKPC 21 (25 April 2006) URL: https://www.bailii.org/uk/cases/UKPC/2006/21.html Cite as: [2006] UKPC 21 |
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Williams v. The Queen (Jamaica
) [2006] UKPC 21 (25 April 2006)
Privy Council Appeal No 37 of 2005
Ricardo Williams Appellant
v.
The Queen Respondent
FROM
THE COURT OF APPEAL OF
JAMAICA
- - - - - - - - - - - - - - - - -
JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL
Delivered the 25th April 2006
- - - - - - - - - - - - - - - - -
Present at the hearing:-
Lord Bingham of Cornhill
Lord Hoffmann
Lord Hope of Craighead
Lord Carswell
Lord Brown of Eaton-under-Heywood
- - - - - - - - - - - - - - - -
[Delivered by Lord Carswell]
"Me was in my bed when a woman name Miss Joy send me go buy two box of matterhorn over 'Nitty-Gritty'. When me a com back me see two of me friend, 'Booka Tea' and Richie, over Richie, over Richie yard and me stop and a play a game of ludo with them. Then 'Booka Tea' say him ago a shop go buy something. Me lef and go back over 'Falcon' go give the woman the matterhorn and come back.
Me, 'Booka Tea' and Richie lef and go over 'Marlie' to a Indian woman and we come over back and we a talk. 'Booka Tea' then tell me say a dog come over pan him house top and a give him problems and if the dog come back de night, him want we fi beat him.
'Booka Tea' then said 'Driver' say him, 'Booka Tea', and Richie a plan fi lick off a man shop lock.
The next morning me ina the shop and me hear the shop man tell Vincent say him couldn't sleep in peace the night because due to some big block whe drop into the yard. The man fi the dog say a man tell him say some man a plan fi lick off him lock fi go in a him house go tief. That a 'Driver' say so.
'Driver' then go into him house and 'Booka Tea' puncture the car wheel. After 'Booka Tea' puncture the car, him come round to where me and Richie was. The three of us then walk go round the road. Somebody call 'Booka Tea' and him go whe and take bout fifteen minutes fi come back.
The three of us walk go round the road. When we go round the road, 'Booka Tea' go to him cousin, 'Daygo', fi a gun. 'Daygo' give him a black short gun call 'Spechie'. Then 'Booka Tea' say him ago kill 'Driver'. Him then ask Richie if him a go help him murder him and Richie say him no know.
The three a we then go round a 'Driver'. When we go round de, 'Driver' was under the car and 'Booka Tea' go up to the car, give him a shot in him head, because him de under the car. 'Booka Tea' then give me the gun and me shot him ina him head. Me then give Richie the gun and we run go back whe we did deh. As we reach back pan spot, we see 'Moony' come fi the gun and Richie give him the gun. Me then lef go back over my yard. A so it go."
"Do you wish to say anything whatever you say will be taken down in writing and may be given in evidence."
He did not on this account give the appellant the standard warning that he was not obliged to say anything. McRae stated that the appellant said in response
"A 'Book-a-Tee' give me the gun fi shoot Driver, and if mi never dweet him would a shoot mi sah".
The word recorded as "dweet" appears to have meant "do it".
"(1) there is no evidence from the crown as to the circumstances in which the accused man was brought to the police station;
(2) there is no evidence from the crown as to what was said or done in anything to the accused man while he was in Mr Gauze's office;
(3) the accused was ajuvenile
;
(4) there is no evidence of any effort being made to contact either his parents or his guardian;
(5) there is evidence that leads to the conclusion that from 9.30am in the morning to 6.00pm, the accused was not given anything to eat or drink;
(6) the accused man gave sworn evidence which the crown is not able to rebut because of failure to lead vital evidence on this aspect;
(7) the most senior police officer in whose presence the accused was found, has not given any evidence before the court;
(8) the burden of proving voluntariness rests on the crown and the burden is beyond a reasonable doubt.
In all those circumstances as I have led, either as a matter of law or as a matter of judicial discretion, the statement ought not to be admitted. And finally, for the purpose of this voir dire, the contents of the statement are immaterial."
"HIS LORDSHIP: In the voir dire Mr. Delisser? I understand you are asserting that the statement purported to be given by the accused man was not voluntary. So, I would think therefore, since you are the person who is asserting that there is a burden on you to . . .
MR. DELISSER: The law does not . . .
HIS LORDSHIP: We are not trying the accused on the issue, we are dealing with the issue of an admission as to a caution statement.
MR. DELISSER: Yes.
HIS LORDSHIP: And you have alleged, and the principle of he who alleges must prove must apply."
Defence counsel attempted to correct this misapprehension on the judge's part, but the judge repeated his opinion at page 135:
"HIS LORDSHIP: Mr Delisser, every criminal case lies on the prosecution and it never shifts. But the issue on the voire dire, it is my opinion, if this is so, the defendant is challenging because we have evidence in the trial, both Sergeant Ashman and the Justice of the Peace said as far as they are concerned nothing ontoward took place and that the young man gave a voluntary statement; this is their evidence. And this is evidence of the prosecution in an effort to prove it was voluntary. But now we are on the issue because you have challenged it on that issue. It is my view that a burden lies upon the accused man."
"On the evidence before me, I have no doubt that the statement was taken, that it was given voluntarily, and the accused man admits that it is true what he said, and although he did give evidence that he was so badly beaten - you have by some fifteen men - I don't believe that.
MR. DELISSER: He never said fifteen, he said he was beaten by three persons, not fifteen. Fifteen men arrived in five vehicles but he said he was beaten by three.
HIS LORDSHIP: He was beaten so badly, thumped, all sorts of atrocities, no evidence or any sight of any bruise on him at all. As far a the question asked in the voire dire, I have no doubt in my mind and I feel sure that the statement given by him was given voluntarily and therefore fit to go to the jury."
"In 1994 in July, don't remember what date, in the morning, I had a friend name Miss Joy. She sent me to shop to buy something for her. I went to the shop to buy what she asked me. When I went in the shop, I saw one of my little friend going up the road. Him jook me with a gun, that mean that he point the gun at me, and told me to stop. He said anything he said I had to do it.
Said time he tell me that, I see him fire a shot under the car. Same time I see blood coming from under the car. Same time him stick me up again and give me the gun and say I must fire a shot. When I fired the shot, him grab the gun out of my hand.
I never get the chance to buy anything for the lady. I went back to my yard.
To tell the truth, I don't remember anything more than that. I don't have anything more to say."
"As far as practicable children (whether suspected of crime or not) should only be interviewed in the presence of a parent or guardian, or, in their absence, some person who is not a police officer and is of the same sex as the child."
"(i) The Judges' Rules are administrative directions, not rules of law, but possess considerable importance as embodying the standard of fairness which ought to be observed.
(ii) The judicial power is not limited or circumscribed by the Judges' Rules. A court may allow a prisoner's statement to be admitted notwithstanding a breach of the Judges' Rules; conversely, the court may refuse to admit it even if the terms of the Judges' Rules have been followed.
* * * *
(iv) The criterion for admission of a statement is fairness. The voluntary nature of the statement is the major factor in determining fairness. If it is not voluntary, it will not be admitted. If it is voluntary, that constitutes a strong reason in favour of admitting it, notwithstanding a breach of the Judges' Rules; but the court may rule that it would be unfair to do so even if the statement was voluntary."
The judge in the present case did not make overt reference to the Judges' Rules, to the appellant's age or to the way in which he was exercising his discretion, if he was doing so. He expressed himself as having "no doubt" that the statement was given voluntarily, by which he may have meant that he accepted that the burden of proof was on the Crown to prove this beyond reasonable doubt. In view of his earlier misapprehension it would have been preferable if he had confirmed his acceptance of the correct principle and their Lordships are unable to share without reservation the sanguine view of the Court of Appeal that his misconceptions had been corrected and laid to rest.