Springer v R
| Jurisdiction | Barbados |
| Judge | Simmons, C.J. |
| Judgment Date | 31 July 2002 |
| Neutral Citation | BB 2002 CA 32 |
| Docket Number | Criminal Appeal No.30 of 2001 |
| Court | Court of Appeal (Barbados) |
| Date | 31 July 2002 |
Court of Appeal
Simmons, C.J.; Williams, J.A.; Worrell, J.A. (Ag.)
Criminal Appeal No.30 of 2001
Mr. Ralph Thorne and Mr. Stephen Conliffe for the appellant.
Mr. Delroy Saddler for the respondent.
Evidence - Admissibility — Dock identification — Whether the trial judge erred in law in admitting into evidence testimony which allegedly constituted a first time identification in court — No identification parade — Finding that there was no impropriety in the dock identification and moreover, the appellant had been identified out of court by the virtual complainant at the police station.
Practice and procedure - Directions to the jury — Voir dire — Whether the judge erred in disclosing the result of the voir dire to the jury — Finding that this amounted to an irregularity but the irregularity was not fatal to the convictions since the jury would have inevitably convicted the appellant.
Practice and procedure - Sentence — Rape — Finding that the sentence of thirty years imprisonment was excessive — Sentence reduced to twenty-five years.
On June 7, 2001, the appellant was convicted of the rape and robbery of G.A.W. (“the virtual complainant”) committed in the early hours of July 14, 1995. He was sentenced to 30 years' imprisonment for the rape and to 15 years' imprisonment for the robbery, the sentences to run concurrently. This appeal is against both convictions and sentences.
The facts, in so far as relevant and material to the issues on appeal were these. The virtual complainant was a conductress on the minibus B-192 about 11.00 p.m. on the 13th of July 1995. Her driver was Alistair Piggott. They were working the Bridgetown to Indian Ground route. With a load of 26 passengers they left the Bridgetown terminus and headed North towards St. James and St. Peter, putting off passengers as they went along.
When the minibus reached French Village in St. Peter it stopped. The driver had a chat for two to three minutes with a young man, Shawn Bovell, who was walking his girlfriend home. Bovell gave evidence that, while talking to the driver (“Red Man”) he saw the appellant sitting in the bus. According to Bovell he could recognize the appellant but he did not know his name. In court he identified the appellant as the man he had seen on the bus. The interior of the bus was well lit and there was nothing obstructing his view. He did not know the appellant before the night in question.
The driver drove away after his conversation with Shawn Bovell and continued into French Village. On reaching an incline, the virtual complainant asked the 4 remaining passengers (men) in the bus where they were “getting off”. At that moment, the men rushed forward and one of them put a weapon to the back of the driver's head and told him “next turn”. The driver turned the bus into a gap and stopped it.
The driver was ordered to turn off the lights of the bus and one of the men, armed with a gun, ordered him to close the door. About this time, another man rushed towards the virtual complainant and snatched the jewelry she was wearing around her neck. This man had a gun and was identified by the virtual complainant as the appellant. Her personal money of $50.00 as well as the day's takings were snatched from her. She and the driver were made to undress and go to the back of the bus. All four men thereafter proceeded to rape the virtual complainant.
After raping the virtual complainant, the men ordered the driver to drive away the bus. With commendable presence of mind he drove in a North-Easterly direction “thinking about getting to the police station” at Belleplaine. At Greenland one of the men took over the driving and the driver directed him to drive in a direction which the driver knew would lead to the police station. The men were apparently unfamiliar with the area. When the bus got to Belleplaine, the bus driver, who was standing near to the door, “hit the emergency button, the side door opened and [he] hopped off and made for the police station.” He left the 4 men in the bus with the virtual complainant and reported the events to the police at Belleplaine Station. The men ran away from the station, the virtual complainant ran into it. Only a skirt covered her naked body.
Three days after the sordid events, the virtual complainant went to the Holetown Police Station and identified the appellant, during what the police call an informal exercise, as one of the men who had raped and robbed her. This informal exercise was held because, according to the testimony of Inspector Bruce Rowe, the appellant objected to the holding of an identification parade. In fact, Inspector Rowe said that, when he informed the appellant about an identification parade, he said: “I tell you I pull that job. I don't want any identification parade.” In the informal exercise, the virtual complainant pointed to the appellant and said: “I recognize him as one of the men.” Inspector Rowe explained in evidence that he interpreted the appellant's words as an objection to a parade and that is why he conducted the informal exercise.
Earlier in the day of July 17, 1995, the police had taken the appellant into custody and a gold chain and pendant which he was wearing at the time of his arrest were identified by the virtual complainant as her son's property, which she had been wearing on the night of the attack.
A written statement, amounting to a confession by the appellant, was admitted into evidence after a voir dire was held. During the trial, there was evidence of oral statements made by the appellant to police officers in which be confessed his guilt. At the trial, the appellant made an unsworn statement from the dock in which he said, inter alia, that “I could not or would never, ever rape or rob anyone…I have not raped or robbed anyone nor will I ever do such a thing.”
The appellant filed 11 grounds of appeal but did not pursue all of those grounds at the hearing. Ten of the grounds were related to the convictions.
On ground 1, it was contended that the trial judge had erred in law in admitting into evidence “testimony which constituted a first-time identification in court”. Counsel argued that the witness Shawn Bovell had never attended either an identification parade or an informal exercise at which to test his recognition of the appellant but he identified him in court. It is said that the purported identification by Bovell offended against section 100(1) of the Evidence Act as well as the common law. Mr. Thorne submitted that the trial judge had a discretion to exclude the evidence in so far as its prejudicial effect could have outweighed its probative value. He conceded, however, that it was not an irregularity of such materiality as to cause the conviction to be quashed because it was not the only evidence in the case of identification of the appellant.
On the other hand, Mr. Saddler pointed out that the trial judge had complied with the guidelines in R. v. Turnbull [1977] Q.B. 224 and had given the jury an ample warning about the need for caution when identification was in issue.
The record of the appeal shows that the trial judge was careful to direct the jury as to the undesirability of inviting a witness to make a first-time dock identification of an accused person – See p.230. He told the jury:
“Now the accused is quite entitled to object to taking part in any of the parades. However, if the accused objects, it may still be desirable in the interest of justice, to test the ability of a witness. But it is undesirable to invite a witness to identify for the first time a defendant or an accused person when he is in the court. In order to avoid this problem, in cases where the accused man objects or refuses to take part in an identification parade, so as to get over the hurdle of the undesirability of having to ask a witness to identify for the first time an accused person in court, arrangements may be made to allow a witness the opportunity of seeing the suspect among a group of persons in order to test the witness's ability to identify the person he or she saw on a previous occasion. That is what happened in this case.”
Moreover, the conductress had herself identified the appellant at the Holetown Police Station when he refused an identification parade but was put on an informal exercise. So there was evidence of an out-of-court identification.
Mr. Saddler cited Noel Williams v. R. [1997] 1 W.L.R. 549. In that case, coincidentally an armed robbery and murder on a bus in Jamaica, the criminal conduct was witnessed by two off-duty police officers, Cornwall and Lawrence, who were passengers on the bus. On the day after the robbery and murder, Cornwall while on duty, accompanied other officers to a street where the accused was present and was arrested. Cornwall recognized the accused as the robber and murderer. At the trial Cornwall gave evidence confirming his identification of the accused as the killer and he also made a dock identification.
The Privy Council dismissed the appeal, holding that proper practice requires a suspect in police custody to be kept apart from eye-witnesses and shown only by means of an identification parade, except where the suspect was already well known to the witness. Moreover, it was held that the dock identification by Cornwall, though undesirable, had been unprompted and had been made the subject of a specific warning by the trial judge.
Lord Hope of Craighead observed at p. 554 that Cornwall had identified the appellant on the bus and when he accompanied the police officers to Princess Street “there were sound operational reasons, in the public interest, why Constable Cornwall should have been included in that team because he had been an eye-witness to the robbery…There was no question of...
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