Supreme Court
5th July, 1979
Staine, J.

Evidence - Objection to admissibility of evidence - Section 88 of Evidence Ordinance, Chapter 15 - Breach of Judge's Rules - Whether statement given by accused voluntary - Statement admissible.

RULING ON OBJECTION TAKEN TO THE ADMISSIBILITY OF CERTAIN EVIDENCE

In the course of this trial, objection was taken to the admissibility of the statement alleged to have been given by the accused, Teddy Robinson, to Cpl. 197 Rudolph Orio at that time attached to the Crimes Investigation Branch in Belize City.

The outset of this decision it might be useful to mention one procedural matter which came to light during the trial. Counsel for the Defence Mr. Philip Zuniga submitted to the Court that the jury should withdraw from the Court before he gave reasons for raising objection to the matters in question.

The Court acting exabundanti cautel agreed on the adoption to this course of Action.

In my experience spanning nearly two decades, I have not encountered a situation where Prosecution Counsel was not allowed to lead evidence right up to the point of putting in evidence of Admission of Statement which it desires to have admitted. It is at the point of putting in that statement for admission that Counsel for the Defence rises and informs the Court that he is objecting to the admission of the evidence in question and also his reason or reasons for so doing. The objection sometimes goes to a specific non-compliance with section 88 of the Evidence Ordinance, chapter 15 of our Laws, or a breach of the Judges Rules; and it is normal in either case for the specific breach to be mentioned to the Court in the presence of the jury. I have not had a case, and I know of no authority which enunciates that the jury should not even be aware that what is being challenged is an alleged statement and that mention should not be made of that fact in their presence. The practice to which I have grown accustomed and which I have been familiar has the practical benefit of the Prosecution knowing before hand exactly the ground of the Defence's objection and thereof putting it in a better position to meet those allegations.

In this case, we have had the unique position that it was only at the end of hearing evidence and when submissions were being made, that the Court became aware of the true grounds upon which the objections were being formulated.

Perhaps I may be wrong in my concept of the law and practice on this matter, and I should be grateful for that reason if I could be referred to any authority which says that the jury should be unaware that what is being challenged is in fact a statement.

In this case, the objections seem to be based on the ground that the statement in question was obtained by oppression, use of fear and inducement, although this had not been as clearly stated as I have recorded them. Cpl. Rudolph Orio is the only person who gave evidence for the Prosecution on this point. His evidence is that the statement was voluntary, that he knew of no threats being made to the accused, and that he himself nor any other police officer offered any reward or inducement or promise of favour to the accused in order to obtain the statement. From the evidence of Cpl. Orio it could be said then that there was no violation of section 88 of Chapter 15 of the Evidence Ordinance, and the Judges Rules were never directly mentioned, save and except that it was suggested that the accused had not been cautioned.

Throughout the cross examination of Cpl. Orio it appeared that everything that was done to the accused on the 8th February, whilst he was at the C.I.B. was done in the presence of Cpl. Orio, and that even when Inspector Gillett was mentioned as speaking to the accused, it was not made to appear that Cpl. Orio was required, to leave so that Cpl. Orio will be competent to speak of any matters which transpired in the presence of Inspector Gillett as he would have been present and being so, I see no need for the Prosecution to have called Inspector Gillett to give evidence on this matter. Another inspector was in fact mentioned during the cross-examination of Cpl. Orio, but this inspector's name was never mentioned and it would be difficult to surmise who he was and thus summon him to give evidence.

It was all the more difficult when later on in the course of evidence being driven by the accused, it was mentioned that not one but two inspectors had been present at one time or another while Inspector Gillett was dealing with the accused. And even at this point no names were mentioned and what was difficult in the beginning became a virtual impossibility at this stage, that is, to summon these inspectors to give evidence for the Prosecution.

In the course of the accused giving evidence on oath it transpired that, according to him, he the accused was left with Inspector Gillett whilst Cpl. Orio was out of their presence and in another room. Another inspector was present in Inspector Gillett's room or office while Cpl. Orio was present at another time when Inspector Gillett told the accused that he was lying. Later on in the evidence of the accused it emerged that at the time when Inspector Gillett was accusing the accused and questioning him and also telling the accused that Bernadine Codd had said that the accused had threatened to kill people and had threatened to kill her, that Inspector Gillett grabbed him by the shirt collar saying, "Oh you don't want to talk, well we will beat up your ass in here now." Cpl. Orio was not there and then the other inspector who was then present said to Inspector Gillett, "Give me a chance after the f……..boy" and flew at the accused, but Inspector Gillett intervened and pushed the other inspector outside. At that point Cpl. Orio was still outside the room. The accused continued that Inspector Gillett asked him to drop his pants and "peel that thing backway", by which I gather it was meant that he was being required to pull the foreskin of his penis backward.

The accused said he did as he was told and Inspector Gillett then said "Da this same boy rape the gal." It seems therefrom at this stage that Inspector Gillett was both his aggressor and his champion.

The accused's evidence went to say Cpl. Orio returned with a hurricane lantern because there was a blackout and then Cpl. Orio went by an office, put the lamp on a table and came back with a paper in his hand, saying, "Sign here, this is for you to get bail". The accused said he signed but did not read it. He said it was better for him to sign it and get out of there, but he ended up saying he was not let out but was taken over to Patrol Branch where he remained with Bernadine Codd as the Cpl. said they would detain them both until the following morning.

The accused said that he gave the statement at 4:10 p.m. and after that gave no more. He also said that ,as far as he knew the only other document he signed was the one they said was for bail. He could not remember how many times he signed them as he was feeling so terrible.

I would say that neither the use of abusive language and indecent language, of threats or of any improper conduct on the part of a person in authority is sufficient to justify a statement being labeled inadmissible. Such conduct is only of relevance, if by that conduct the accused admits being guilty of an offence in order to bring his torture to an end or to terminate an ordeal which is oppressive. The Court has been referred to the case of the R v Stuart 56 C.A.R., but that case deals with a situation where the judge is being asked to exercise his discretion not to admit a statement on the ground that its probative value be minimal when compared to its prejudicial value. Indeed, Stuart's case dealt with man of weak intellect and its relevance to this situation present before the Court does not arise for consideration.

What is oppressive conduct is mentioned in the well known case the R v Priestley 1967, 51 C.A.R. where Lord Justice Sachs referes to it as conduct which wears down the accused and makes him give in more readily to making an admission which, if circumstances were different, he would not make. In that same case Lord Justice Sachs says that to point out to a man that he is lying is not of itself either oppressive or wrong, nor is it oppressive or wrong to give a man a further opportunity to tell the truth. In this case, the Court's attention has not been directed to anything which was said or done, led the accused to make an unguarded admission or an admission which he would not have made had these circumstances been different, and the only piece of evidence to which I can point as meaning that is that when the accused says he signed the statement in the belief that he was signing a bail form. But this bit of evidence has to be taken in the light of his credibility and his credibility has been badly shaken and matters which were mentioned in his evidence in chief were never directed to Cpl. Orio either directly or indirectly when Cpl. Orio was giving evidence. Further, the accused several times contradicted himself when he told the Court several times contradicted himself when he told the court why he was crying and why he had signed the statement. I do not accept for one moment that I believe the accused evidence concerning the circumstances in which he signed his statement, because looking at the statement in themselves leaves me with a distinct impression that the accused both saw what he was signing and where he was signing and consequently knew what he was signing.

I would refer to the case of the R v Bainton, Baptist and Estell, a decision of this Court given in 1967 by the then Inniss, C.J. in which he said that what is to be considered is whether the matters adduced in evidence tend to show that the person was not on his guard as to the importance of what he was saying or as to its bearing as to some charge of which he has not been informed.

It appears to me that quite apart from the fact that the accused is a person of doubtful credibility, I am not satisfied that anything has emerged by way of evidence that would lead me to believe that the statement which the accused gave was not a voluntary one in the meaning of section 88 of the Evidence Ordinance. There is abundant proof that matters which might be properly regarded as improper police conduct have been put before the Court, but not enough in any way to allow me to stay that this conduct is so reprehensible that it affects the Prosecution's evidence. I accept the evidence of Cpl. Orio that the statement given by the accused was voluntarily made and rule that it is admissible.

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