Clarke v. R (Jamaica) [2004] UKPC 5 (22 January 2004)

	Privy Council Appeal No. 93 of 2002

Kenneth Clarke	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 22nd January 2004
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	Present at the hearing:-
			Lord Steyn
Lord Hoffmann
Lord Hobhouse of Woodborough
Lord Rodger of Earlsferry
Lord Walker of Gestingthorpe
	 	   [Majority judgment delivered by Lord Hoffmann]
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1. 	On Saturday 24 February 1996, at about 5 p.m., a team of technicians were installing cables to the front of a house in Roehampton Circle in the parish of St Andrew, Kingston.  Two men came up and asked one of them who the boss was.  He pointed to David Darby, who was up a ladder.  Mr Darby came off the ladder and walked towards the men, who took out guns and fired at him.  The men ran away and Mr Darby later died of four bullet wounds.

2. 	On Sunday 17 March 1996, Detective Sergeant Errol Williams arrested Kirk Rose at 19 Myrie Avenue, St Andrew. He came from Thatchwalk District, St Ann, out in the country, but on that Sunday he was in Kingston staying with his aunt Eloise Rose. Mr Williams took him to Constant Spring police station, where he made a statement under caution which was recorded between 3 pm and 4.15 pm. 
3. 	The statement as recorded said that on Saturday 24 February Donovan Starrad, whom Rose knew as “Danny”, arrived at 19 Myrie Avenue in a white Corolla car and spoke to Rose’s cousin Kenneth Clarke, whom he knew as “Paul” and who lived with his girl-friend in a house opposite.  Danny asked Rose to come with him and Paul in the car and they drove to the Chinese Cemetery on Waltham Park Road.  There Danny and Paul got out, leaving Rose on the back seat.  He saw them speak to a “plaited hair man” wearing a black jacket and all three then returned to the car. Danny then drove off, the plaited hair man sitting with him in the front and Paul and Rose in the back.  They stopped at a Mr Chin Bar in Hagley Park Road and had drinks.  Then they drove up Waltham Park Road.  Rose thought they were looking for a woman.  They drove past a fridge repair shop and parked outside a pink house. There Danny took out a chrome 9 mm automatic and the plaited hair man took out a .38 with a long mouth. They all got out of the car but Danny told Rose to stay in the car.  The others went around a corner while he sat in the driver’s seat and listened to music. Soon afterwards he heard 6 shots and then the others came running back.  The plaited hair man got into the front passenger seat and the others into the back.  Danny said “drive the car country man”. Although he had no licence, Rose said that he knew how to drive because he used to do “mechanic work”.  They drove off and stopped at the Esso Gas Station in Waltham Park Road and Hagley Park Road and there Danny took over the driving.  At Myrie Avenue they stopped at the “Plowie” Bar and got out.  There Paul told him that he must not “tek Danny and the plaited hair one simple because is a man them just shot and drop”.  The other three then drove off, leaving Rose to walk home.  Paul returned at 11 that night and the next morning Danny came back with the car and he and Paul drove off.

4. 	After this statement had been recorded, Rose went in a police car and pointed out the street where the shooting took place.  He also told them where to find Kenneth Clarke (“Paul”) and Hopeton Robinson (“Flipper” or “Starchie” or “the plaited hair man”) who, as Rose afterwards said at the trial, were hiding.  After being arrested, Clarke took the police to find Danny.  Between 6.30 and 8.30 the same night, Clarke answered 69 questions under caution. He said that Rose had been living at Myrie Avenue for two months. Hopeton Robinson was his girl-friend’s brother.  Danny was a taxi driver who drove a white Toyota Corolla.  On 24 February Danny had come to Myrie Avenue, picked up Rose and himself and driven to the Chinese Cemetery to pick up Hopeton.  Danny had said that the purpose of the expedition was to “go drop a man” – identified only as a “cableman” - “fi somebody”.  Danny asked Hopeton for the guns and he produced a chrome 9 mm and .38 Special.  They passed a fridge repair shop and drove to Roehampton where “Danny say the cableman we fi kill a do some work”.  Danny identified the cable technicians at work and they stopped the car and got out.  Danny gave Clarke the 9 mm gun and told him to go with Hopeton, ask for Mr Darby and kill him.  They did so and ran back to the car. Rose drove back to the Esso Gas Station where Danny took over.  Asked why they killed Darby, Clarke said that “a Indian man who owns a bicycle shop on Waltham Park Road” and was also in the cable business paid them $90,000 to eliminate competition.  The money was paid over to Hopeton, Clarke and Rose in the bicycle shop.  Clarke took $40,000 (Hopeton and Rose were to “get money later”) and  Danny received the other $50,000.

5. 	Danny made a statement in which he admitted going with Clarke and Rose to the Chinese Cemetery but no more.

6. 	The police decided not to charge Rose and he agreed to be a Crown witness.  On Wednesday 20 March he made a second statement which covered the ground in much greater detail and added some important material.  It appeared that Hopeton, who featured anonymously as the “plaited hair man” in the first statement, was actually quite well known to Rose as Paul’s girl-friend’s brother.  Danny was a good friend of Paul who visited often.  Before Danny turned up on 24 February, Paul had told Rose that they would be going “on a mission”.  When Danny arrived, he pointed to Rose and said “Who is that person?”.  Paul replied “Is my cousin from [the] country” and Danny said “Let him come too”. So Rose took a music tape and got in the car.  The account of the drive followed that of the earlier statement until they arrived at Roehampton Circle, where, instead of identifying the cablers from the car, Danny parked the car and said “come mek wi walk go look fi di man because them suppose fi a work in this area”.  They took their guns and went off.  After the shots, they returned and Danny said “Drive the car country man because all the while yu say yu can drive”. He could drive because he had been an apprentice mechanic at a garage while living in St Ann and learned to drive different types of vehicles. 

7. 	When the four of them stopped outside the bar on Spanish Town Road, Rose asked Paul whom they had shot and he said a cable man and that Danny had got $90,000 for “hit man work” from “a Indian man who fix bicycle on Waltham Park Road”.  Paul said that Danny, Hopeton and himself would share the money equally and promised to give Rose “a change” but did not do so. On the following day, Paul told Rose to keep his mouth shut about the murder because Danny and Hopeton would kill him. On Tuesday 27 February Paul went to town on a shopping expedition and returned with new clothes.

8. 	On 27 March 1996 Rose was put on an identification parade but neither of the eye witnesses identified him as one of the gunmen.  On 28 March one of the eyewitnesses identified Hopeton Robinson.  Neither Clarke nor Danny were put on parades.

9. 	After he had agreed to be a Crown witness, Rose was looked after by the police witness protection programme. He lived first with friends in Mountain View Avenue, then at a stone crushing plant at Yallahs and finally, as the date of the trial approached, in a wooden building behind Constance Spring police station. 

10. 	At the trial, which began on 23 April 1997, prosecution counsel opened the case in 21 minutes and then called Rose as his principal witness.  He elicited at once that Rose had a 1991 conviction for unlawful possession of a gun, for which he had received a three year suspended sentence.  On various points his oral evidence differed from one or other of the written statements. Danny’s car, previously a Corolla, was now said to look like a Honda Accord.  Whereas he had previously said that he had sometimes spoken to Danny when he called to see Paul and mentioned a particular conversation about a cassette, now he said that he had not previously spoken to him at all.  The sighting of the cable workers was also rather different: in the first statement he said only that they parked the car and got out.  In the second, they stopped and Danny said “come mek wi walk go look fi di man because them suppose fi a work in this area”.  In oral evidence, he said that they passed the men and Danny said: “Si de bwoy deh”. He drove the car at Danny’s request because “dem force me to do it, so I has to do it”.  The conversation in which Paul said that he should not “take Danny and Flipper simple” because they had killed a man took place “into the night” when Paul returned to his yard. 

11. 	In the morning, Paul came to him and said that he wanted to go and collect something and the two of them went on one bicycle to a “Chiney-man” who fixed radio and TV by the gas station. Paul and the “coolie man like chiney-man” talked inside while Rose looked through the glass. Then Paul emerged and they went off and bought jeans and a shirt for Rose and saw Danny.  None of this had appeared in the earlier statements. 

12. 	Cross-examination by Mrs Da Costa, for Clarke, began at 2.24 pm.  She put to him that he had only arrived in Kingston in the second week of March, but he denied it and said that he had been living at Myrtie Avenue for three months before the murder.  She asked him whether he had been beaten by the police and he said no.  She then put to him that all his evidence was a lie, that he and Paul never went anywhere in a car and that he had said nothing about $90,000. All this was denied. 

13. 	Mr Koathes (for Danny) then took over.  Rose denied saying that he had learned his driving while an apprentice mechanic; he had learned the woodwork trade and drove his father’s vehicle.  He also revised his degree of acquaintance with Danny, saying that he had not spoken to him before 24 February, but adhered to the essentials of his account of the journey in the car.  He was cross-examined on some of the discrepancies to which their Lordships have referred but stuck to his story.  It was put to him that he had been beaten up by police officers, offered money and offered release from custody in exchange for his evidence.  He denied it all. Mr Koathes left time for one question by Mr Maragh (for Hopeton) before the court adjourned at 4.01 pm.

14. 	On the following day, Mr Maragh cross-examined for most of the morning. Rose became muddled about the month in which the murder took place, saying at one stage that it was the 24 March. But he insisted that it was a Saturday, which the 24 February was but (1996 being a leap year) the 24 March was not. At some points he became angry or distressed and at one stage the court adjourned for him to calm down.  He denied that he had said (as appeared in his statement) that the guns were 9 mm or .38 – he knew nothing of “point” -but described the guns and left the police to classify them. Mr Maragh suggested he had made the statement to save his skin, to which Rose said that “anyone would try to get out of jail” but that he would not lie. There was further cross-examination by Mrs Da Costa and by Mr Koathes, who finished at 3.17 pm, followed by a brief re-examination.  Rose had been in the witness-box for nearly two days.

15. 	During the police evidence, there was a voir dire on the admissibility of Clarke’s caution statements in answer to the 69 questions.  He claimed that he had been beaten on the soles of his feet, had his teeth knocked out and was made to sign a document written by the police. The judge held that the statements were voluntary and admissible.  Before the jury, Clarke did not give evidence but made an unsworn statement in which he repeated these allegations.  He also said that he and Rose had not got on very well.  There was an incident in which Rose had threatened him and his girl friend with an ice pick.  None of this had been put to Rose in cross-examination.

16. 	Summing up, the judge warned the jury that Rose could be regarded as an accomplice and that they should be cautious about relying on his evidence without corroboration.  He directed them that Clarke’s caution statement was capable of amounting to corroboration.  He drew attention to two of the inconsistencies in Rose’s evidence and previous statements: his denial of having been an apprentice mechanic and having spoken to Danny before the day of the murder and said that the jury might consider that the inconsistencies were “neither serious nor central to the issue”.

17. 	The jury convicted Clarke of capital murder and he was sentenced to death.  His appeal to the Court of Appeal was dismissed in a judgment given by Rattray P on 30 July 1999.  One of the grounds of appeal was that Rose’s evidence contained serious discrepancies to which the judge had not drawn attention. In particular, counsel relied upon the absence of any mention in the previous statements of the visit to the “Chiney-man” to collect the money on the morning after the murder.  Rattray P said that this was not so much a contradiction as an omission in the earlier statements; the extent to which it weakened the evidence at the trial was a matter for the jury. 

18. 	After the dismissal of his appeal, Clarke petitioned for special leave to appeal to Her Majesty in Council.  In the course of the preparation of the petition, he was visited in St Catherine’s prison on 17 September 1999 by Wayne Denny, an attorney attached to the Independent Jamaica Council for Human Rights.  Clarke told Denny that Rose was also in the same prison, awaiting trial on a charge of housebreaking and that it would be “pertinent … to speak to him”.  On 29 October Denny went back to the prison and saw Rose, who made a statement.  The contents of the statement were incorporated into an affidavit which Rose swore on 4 March 2000.

19. 	In that affidavit, Rose said that his evidence at the trial was entirely false.  He had only arrived in Kingston two weeks before the date on which he and Clarke had been arrested, i.e. after the beginning of March.  He had gone to Kingston because the police in St Ann were looking for him as a result of a wounding he had committed in January 1996. In answer to questioning, he told the police that he was in St Ann on the day of the murder. Nevertheless, they told him that they had a witness who would identify him as one of Darby’s murderers.  Superintendent Hewitt said that he knew that Rose had nothing to do with the murder but he wanted him to sign a statement and then go to court and say that he was with the men in the car when they killed Darby.  Rose refused but was repeatedly beaten over a period of two days by a number of policemen. He then agreed to give false evidence and was told to say that Danny drove the car, the three of them got out and shot Darby and then ran back. He was to say that on the way back they said “Is somebody we jus drop down” and then left him at the Plough Bar off Spanish Town Road, after which he and Clarke met in the night and went to collect the $90,000.  After the he agreed to give evidence, Detective Sergeant Williams took him to get a passport and then  kept him for “several months” at Constant Spring police station, saying that he would send Rose abroad after the trial.  He was now telling the truth because he realised the wrong he had done.

20. 	For some reason which has not been explained, nothing was said about this affidavit (or the earlier statement on which it was based), when Clarke’s petition came before the Board on 6 March 2000.  The petition was dismissed.

21. 	Instead, Rose’s affidavit and another affidavit by his aunt Tencie Rose of Thatchwalk District were used as the basis of a petition to the Governor-General for a reference back to the Court of Appeal under section 29(1)(a) of the Judicature (Appellate Jurisdiction) Act.  Tencie Rose said that Rose had been in Thatchwalk District until the Friday of the second week in March 1996, when she lent him the $100 bus fare to Kingston.  On the Saturday she heard that he had broken into a shop the previous Thursday and that was why he had run away.  She had told this to Mrs Da Costa during the trial and was asked to give evidence, but when she went to court Mrs Da Costa told her that “the Judge could not wait on me”.

22. 	The Governor-General referred Clarke’s case to the Court of Appeal. Affidavits were sworn by the police. Senior Superintendent Hewitt, whom Rose had identified as the officer who first asked him to give false evidence, said that he had had no involvement whatever in the Darby case.  This was confirmed by Assistant Commissioner Dyer, Detective Inspector Grant and Detective Sergeant Williams, all of whom had been involved.  All of them denied that Rose was beaten or had threats or promises made to him.  

23. 	On 23 November 2000 Rose swore an affidavit in reply to the police evidence, in which he denied that he had given any statement on 17 March 1996, the date recorded on the document. He said that he gave a caution statement “approximately on the third day”, in the presence of a justice of the peace (who was drinking from a flask bottle on his lap) and Inspector Grant and Sergeant Williams, who “kept on telling me what to say”.  He had been put on the witness protection programme and given $4000 a month.  He insisted that Senior Superintendent Hewitt had been in the police party which arrested him and he said that he had not complained to his social worker about the beatings because he thought that if he did the police would not give him any more money or send him abroad after the trial.

24. 	The Court of Appeal heard the appeal on 27 and 28 November 2000 and dismissed it at the conclusion of the argument.  The reasons were given on 25 October 2001.  The submission of Mr Daley QC for Clarke was that the evidence of Rose and Tensie Rose in their affidavits “was credible and ought to be heard”.  Even if the court was not satisfied that the evidence of Rose was true, it “raises an issue and therefore the witness should be heard”.  

25. 	Harrison JA, who gave the judgment of the Court of Appeal, said:
“We regard it as quite unlikely that a witness such as Kirk Rose, a woodworker by trade, who agrees that he can write but asked if he could read, answered ‘Not so good sir’ could have given evidence at the trial and maintained his story consistent with his earlier statements, unless he was speaking the truth and from his own knowledge.  It is unlikely that he was diligently reciting what the police had told him to say. Accordingly, the evidence which was sought to be led as fresh evidence is less than credible.”

26. 	The Court then said that Rose’s conduct in taking the police to the various points on the journey to Roehampton Drive (which was not denied in his new affidavits) showed an “intimate knowledge of the events of 24 February” and coincided with his statements of 17 March and 20 March 1996:
“It is therefore quite likely that he himself did give the latter statements to the police and that makes the ‘fresh evidence’ sought to be tendered less than credible.”

27. 	The Court concluded that Rose’s new evidence was “not capable of belief” and refused the motion to admit it.  As for Tencie Rose, the court pointed out inconsistencies between her affidavit and Rose’s new account: on his own fresh evidence, he was in Kingston before the day on which she said she had lent him the bus fare.  Rose said that he had run away on account of being wanted for a wounding in January but Tencie Rose said it was a shopbreaking in March. Furthermore, the record showed that so far from the judge refusing to hear Tencie Rose, he had granted two adjournments to enable her to be present but she had not appeared. The Court found that her evidence was also not capable of belief and that if led at the trial it would not have “affected the decision of the jury”.

28. 	The Court of Appeal directed itself according to the guidance given by Lord Parker CJ in R v Parks (1961) 46 Cr App R 29, 32:
“…it must be evidence which is credible evidence in the sense that it is well capable of belief; it is not for this court to decide whether it is to be believed or not, but evidence which is capable of belief.”

29. 	The practice of the Court of Appeal in applying this guidance is illustrated by two unreported cases to which Harrison JA referred.  The first was R v Lindsay (18 December 1999) in which the Court of Appeal of Jamaica, after describing the evidence tendered on affidavit, said:
“We thought it necessary in the interests of justice that the witness should attend and be examined before the court.  On 16 November we gave leave to call the fresh evidence and ordered that the witness attend before the court.”

30. 	On 18 December, having heard the evidence, the court said that it was of opinion that if it had been presented to the jury at the trial “it would possibly have had a reasonable doubt”.  It therefore quashed the conviction.

31. 	By contrast, R v McTaggart (6 March 2000) resembled the present case in that the witness whose evidence was tendered claimed to have been paid by the police to point out the accused at an identification parade and then (after suitable coaching) to give evidence against him at the trial and again at a retrial.  Forte P said:
“The evidence that he gave at both trials was long and in detail and his withstanding the thorough and exacting cross-examination of counsel at both trials in our judgment is demonstrative of a witness who was very knowledgeable of the incident of which he was testifying.  A young boy, of limited intelligence and education such as the witness, speaking to a script which he was given and without knowledge of the incident of which he was speaking, would be in our judgment destroyed by the long and detailed cross-examination of five experienced attorneys … [We] came to the conclusion that the evidence of David Morris is incapable of belief and for that reason refused the motion to adduce fresh evidence.”

32. 	Since R v Parks the principles have been considered in Clifton Shaw v The Queen (2002) (unreported, 15 October 2002), an appeal from Jamaica to their Lordships’ Board.  The appellant and four others were convicted of murdering a man and his two children with guns and knives after bursting into their house in Spanish Town Road, Kingston. The main witness for the prosecution was another child, aged 16, who had survived the massacre by hiding under the bed. She identified the accused. Another man, Neville Johnson, who was present in the house and wounded in the shooting, made a statement to the police but did not give evidence.  Two years after the trial, Neville Johnson, who had emigrated to England, swore an affidavit in which he said that the men who burst into the house had worn balaclavas and could not be identified.  The Governor-General referred the case back to the Court of Appeal, which refused to admit the evidence.  Rattray P said that if one compared the new affidavit to the statement he had given the police, “it would not be possible to conclude that the [new affidavit] was credible”.

33. 	The Board adopted the guidance given  by Rose LJ in R v Sales [2000] 2 Cr App R 431, 438:
“Proffered fresh evidence in written form is likely to be in one of three categories: plainly capable of belief; plainly incapable of belief; and possibly capable of belief.  Without hearing the witness, evidence in the first category will usually be received and evidence in the second category will usually not be received. In relation to evidence in the third category, it may be necessary for this Court to hear the witness de bene esse in order to determine whether the evidence is capable of belief. That course is frequently followed in this court.”

34. 	The Board considered that on the facts of Clifton Shaw’s case, the evidence tendered from Neville Johnson fell into the third category and should not have been rejected without an oral hearing. 

35. 	In her submissions to the Board on behalf of Clarke, Miss Montgomery QC said that the Court of Appeal should have taken a similar view of the new evidence from Rose.  It should have been heard de bene esse, together with oral evidence from the policemen who had sworn affidavits in answer.  Only then would the Court of Appeal have been in a position to conclude that it was not capable of belief.  She drew attention to the inconsistencies between Rose’s evidence and earlier statements which, she submitted, made his evidence at the trial less credible and therefore made it more credible that he was now being truthful in saying that it had all been lies.
 
36. 	Miss Montgomery said that the Court of Appeal erred in law because they did not consider the possibility of hearing the evidence de bene esse as recommended in R v Sales and followed in Clifton Shaw’s case.  The judgment suggested that they thought themselves obliged to decide the question of whether the evidence was capable of belief or not on the affidavits alone.

37. 	In addition, Miss Montgomery said that the terms in which Harrison JA described Rose’s new evidence indicated that he had misdirected himself on the correct test to be applied.  He said that it was “quite unlikely” that Rose would have been able to sustain a false story under cross-examination, that his evidence was “less than credible”, that it was “quite likely” that he made the statements which he now claimed to have been fabricated by the police and that this made his new evidence “less than credible”. None of this amounts to saying that the evidence was plainly incapable of belief.  Furthermore, in relation to the evidence of Tencie Rose, Harrison JA said he was not satisfied that if he evidence had been led at the trial “it would have affected the decision of the jury”. The correct test was whether it could possibly have given rise to a reasonable doubt.

38. 	Their Lordships do not think that the Court of Appeal misdirected themselves on their power to hear the witness in order to decide whether his evidence was or was not capable of belief. They may not have used the words “de bene esse” but it is plainly what Mr Daly was urging them to do and the procedure which had been followed in R v Lindsay, to which Harrison JA referred. There is no suggestion that they thought they lacked the power to hear the witness before deciding whether the evidence should be admitted. They simply decided that, as in R v McTaggart, they were not going to do so.

39. 	On the other hand, their Lordships are bound to say that there is some force in Miss Montgomery’s criticisms of the language of the judgment.  The use of the terms “quite unlikely” and “less than credible” may have been intended as meiosis, but their Lordships respectfully suggest that such tropes are better avoided.  The court’s conclusion, however, was that Rose’s new evidence was “not capable of belief” and the question is whether the Court of Appeal was entitled to form this view on the basis of the written material alone.

40. 	In answering this question, their Lordships bear in mind that, as has been frequently said, they do not sit as a second court of appeal.  The degree to which evidence is credible is very much a matter for the Court of Appeal and their Lordships will not lightly interfere with its assessment.

41. 	The Court of Appeal was being asked to entertain the possibility that a number of policemen had conspired to capture a not particularly intelligent rural petty criminal who happened to be in Kingston, beat him into agreeing to sign two written statements which contained certain inconsistencies of their own, and then put him forward as the principal prosecution witness, following which he was not only able to narrate in the most circumstantial detail a wholly fictitious tale, set in a town with which he had a very limited acquaintance, but to carry off the deception over a day and a half of cross-examination so as to convince the jury that he had been telling the truth.  

42. 	Their Lordships share the view of the Court of Appeal that this story was not capable of belief.  The various inconsistencies between the two statements and between the statements and the oral evidence do not in their Lordships’ view support the view that Rose was speaking from a script which he had learned by heart. On the contrary, it seems to their Lordships more likely that if he had learned his lines he would have told the same story throughout. The inconsistencies suggest to their Lordships that Rose may have been more heavily implicated in the crime that he cared to admit and that he was trying to distance himself from the other three.  But that casts no doubt upon the reliability of the essential elements in his evidence.

43. 	The case of Clifton Shaw was very different. The question there was whether an eyewitness who had not given evidence at the trial might be telling the truth on the single point of whether the murderers had worn balaclavas over their faces.  The fact that he had made no mention of this fact in a statement to the police was not considered by the Board to be enough to justify it being rejected out of hand.

44. 	The Court of Appeal was also entitled to reject the evidence of Tencie Rose as incapable of belief.  It was contradicted not only by Rose’s evidence at the trial but also by his new story.

45. 	In addition to the application to adduce new evidence, the appellant complained of the prosecution’s failure to disclose material which might have assisted the defence.  One was the fact that he had been wanted by the St Ann police for a wounding or a shopbreaking (as the case might be) at the time of the murder.  The other was the circumstances surrounding another prosecution for murder against a couple called Livingstone, which (it was suggested) would show that two other men had been hired to kill Mr Darby.  But inquiry has revealed nothing to show that the appellant was wanted by the St Ann police or any connection with the Livingstone proceedings.  These grounds of appeal must therefore fail.

46. 	Their Lordships will therefore humbly advise Her Majesty that the appeal against conviction should be dismissed.  There is also an appeal against sentence which has by consent been adjourned to a date to be fixed.
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Dissenting judgment delivered by Lord Steyn

47. 	The question is whether, upon a statutory reference by the Governor-General to the Court of Appeal to consider the case of a convicted person in the light of new evidence, the Court of Appeal was entitled to decline to hear the new evidence de bene esse before deciding on its admissibility.  After a hearing on 27 and 28 November 2000 the Court of Appeal dismissed the motion to admit the new evidence.  On 25 October 2001, that is 11 months later, it produced the reasons for that decision.

48. 	On 8 May 1997 the appellant was convicted of the capital murder of David Darby.  The offence charged was capital murder because it involved a contract killing for reward.  He was sentenced to death.  At the same time his two co-accused were each convicted of Darby’s non-capital murder.  At trial Kirk Rose was the principal witness for the prosecution.  The Court of Appeal summarised the substance of Kirk Rose’s evidence as follows:
“... He gave detailed evidence of being in the company of the applicant and two other men, in a car which was driven to the vicinity of Roehampton Drive in Kingston, where the men on seeing some other men, left him in the car, after which he heard some gun shots.  The men, including the applicant, returned running to the car, which he the witness drove away as directed.  Minutes later, the applicant told the witness Kirk Rose, that he the applicant had ‘just killed the cableman’ and the following day told him that he was going to collect money for the said killing.”

In addition the prosecution relied on alleged admissions by the appellant in interviews with the police.

49. 	On 30 July 1999 the Court of Appeal dismissed the appeal of the appellant against his conviction as well as the appeals of the two co-accused.  On 6 March 2000 the Privy Council dismissed the appellant’s application for special leave to appeal to the Privy Council.

50. 	On 12 May 2000 the appellant petitioned the Governor-General under the provisions of section 29(1)(a) of the Judicature (Appellate Jurisdiction) Act for a further reference to the Court of Appeal.  The grounds for the petition were said to be contained in the fresh affidavit evidence of Kirk Rose and Tencie Rose.  On 8 June 2000 the Governor-General advised the Court of Appeal that the petition had been granted.

51. 	When the matter came before the Court of Appeal on 27 and 28 November 2000 there were two affidavits by Kirk Rose, dated 4 March 2000 and 23 November 2000, as well as an affidavit of Tencie Rose, the appellant’s aunt.  There were also affidavits by police officers.  It is only necessary to describe the substance of Kirk Rose’s new evidence.  It amounted to a complete retraction of his evidence at trial.  In short Kirk Rose alleged that he had been coerced by violence by the police to testify at trial.  He said:
“Superintendent Tony Hewitt told me he knew I had nothing to do with it but he wanted me to give him some information. Again I insisted that I knew nothing. Along with Superintendent Hewitt were Inspector Chipper Grant and Detective Sgt. Williams.  They told me that they wanted me to sign a statement and go to Court and say I was with the men in the car when they killed Mr Darby.  Inspector Grant did most of the talking.  Superintendent Hewitt did not say much but appeared to be in charge.  They promised to send me abroad and give me a start in life, but I refused to do as they asked.

I was kept at the Constant Spring Station for several months in total until the trial.  On the first two days I was repeatedly beaten by them as well as by other policemen including one called Mr O’Connor who almost broke my jaw.  Mr Hewitt slapped me around, Detective Williams beat me repeatedly with a strip of old tyre rubber and Chipper Grant kept hitting me in the head with a baton, though not very hard.  This continued into the second day until I agreed to do as they asked.”

The Court of Appeal declined to hear the evidence on the basis that it was not satisfied that the new evidence was credible, that is, capable of belief.  It is, of course, one thing to say that, if the court is satisfied that the new evidence is incapable of belief, it may refuse to admit it, and an altogether different thing, in the context of a criminal appeal, to say that if the court is not satisfied that the evidence is capable of belief, it may refuse to hear it de bene esse. That the latter was the approach of the Court of Appeal is made crystal clear in several passages.  First, in regard to the approach to be adopted the Court of Appeal observed:
“The governing principles which guide this Court on the admissibility of fresh evidence, in the exercise of its discretion, were formulated by Lord Parker, CJ in R v Parks (1961) 46 Cr App R 29.  That approach was followed by this Court in Samuel Lindsay and Henry McKoy SCCA 7 and 8/99, delivered 18 December, 1999, (unreported) and recently in R v Deon McTaggart SCCA 57/95 delivered 6 March, 2000, (unreported).  In the exercise of its discretion, the Court must consider and be satisfied that, the said evidence:

(1)	was not available at the trial;
(2)	is relevant to the issues;
(3)	is credible, that is, capable of belief, and
(4)	if it had been given at the trial might have created a reasonable doubt in the minds of the jury as to the guilt of the applicant.”

The opening words of the passage, together with the third requirement, reflects the view of the Court of Appeal that unless it is “satisfied” that the evidence “is credible, that is capable of belief” it must decline to admit the evidence.  That is not an accurate rendering of the observation of the Lord Chief Justice in Parks.  He said [1961] 1 WLR 1484, 1486:
“... it must be evidence which is credible evidence in the sense that it is well capable of belief; it is not for this court to decide whether it is to be believed or not, but evidence which is capable of belief.”

Applying this test to new evidence the Chief Justice observed, at p 1488:
“Having seen the young man give his evidence before us, the court feels unable to say that it is not credible evidence in the sense of being evidence open to a jury to believe.  The only question is whether if that evidence had been given together with the other evidence at the trial, and in the light of the character of the complainant, the jury might have had a reasonable doubt in the matter.

It is well known that these questions of identification are difficult.  They can lead to a miscarriage of justice, and the court, though with great hesitation, has come to the conclusion that it would be unsafe to allow this conviction to stand.  If the evidence to which I have referred had been given at the trial it is impossible to say that the jury might not have had a reasonable doubt in the matter.”

In other words, where the evidence might have been regarded as possibly credible the application could not be rejected outright.  In such a case, the Court of Appeal must hear the evidence de bene esse, as happened in Parks, before ruling on the outcome.

52. 	Secondly, the Court of Appeal repeatedly made clear that it was addressing the question whether the new evidence was “likely to be credible”.  The following passage illustrates the point:
“... We regard it as quite unlikely, that a witness such as Kirk Rose, a woodworker by trade, who agrees that he can write but asked if he could read, answered ‘Not so good, sir’, could have given evidence at the trial and maintained his story consistent with his earlier statements, unless he was speaking the truth and from his own knowledge.  It is unlikely that he was diligently reciting what the police had told him to say.  Accordingly, the evidence which was sought to be led as fresh evidence is less than credible.

Detective Inspector Errol Grant gave evidence at the trial that Kirk Rose took him on 17th March, 1996 to various places, ... This conduct of the witness Kirk Rose displays an intimate knowledge of the events of the 24th February, 1996 and coincides with his detailed statements of 17th March, 1996 and 20 March, 1996.  It is therefore quite likely that he himself did give the latter statements to the police and that makes the ‘fresh evidence’ sought to be tendered less than credible.”

Instead of asking whether the new evidence, if explored viva voce, might be capable of belief the Court of Appeal applied the higher threshold requirement of examining whether in its view of the affidavit evidence, it is “likely to be credible”.

53. 	Thirdly, the Court of Appeal came to the following conclusion:
“for the reasons stated, we do not find the evidence to be capable of belief, nor that if the evidence had been led at the trial it would have affected the decision of the jury.  It cannot be categorised as fresh evidence.”

The Court of Appeal expressed the view that “we do not find” that “if the evidence had been led at trial it would have affected the decision of the jury”.  This is a remarkable conclusion: without the critical account of Kirk Rose at trial the jury might very well have acquitted.  In any event, in considering the potential impact of the new evidence of Kirk Rose the Court of Appeal should not have asked whether it would have affected the outcome of the trial.  Instead it should have considered whether the evidence might possibly have affected the decision of the jury.
54. 	One can sometimes overlook language at appellate level, which literally read, demonstrates a fundamental error in approach on the basis that it could not have been so intended.  Here the content and cumulative effect of the passages make that approach impossible.  In any event, in the present case, bending over backwards to explain away fundamental errors in approach of the Court of Appeal is not appropriate.  It is not a commercial or chancery case.  On the result of the decision of the Privy Council depends the question whether a man should be hanged.

55. 	I accept, of course, that where a witness wishes to retract the evidence which he gave at trial the Court of Appeal is entitled to look at the new evidence with some scepticism.  Common sense so dictates.  But this is no warrant for an excessively robust approach of condemning new exculpatory evidence contained in an affidavit as incapable of belief without allowing it to be explored de bene esse.  Nowhere in the judgment of the Court of Appeal is there any recognition of the difficulty of assessing on paper the credibility of affidavit evidence.  The dangers of making a judgment on the credibility of affidavit evidence have often been emphasised.  In John v Rees [1970] Ch 345, Megarry J addressed an argument that “the result is obvious from the start”.  He stated at p 402:
“As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change.”

That was said in a civil case.  In a criminal case the dangers are even greater: the standard of proof required is higher and, usually, the stakes are higher, notably so in a death sentence case.

56. 	The procedure to be adopted by the Court of Appeal faced with an application to lead new evidence was authoratively explained in R v Sales [2000] 2 Cr App R 431.  Lord Justice Rose, Vice President, explained [at 438].
“Proffered fresh evidence in written form is likely to be in one of three categories: plainly capable of belief; plainly incapable of belief, and possibly capable of belief.  Without hearing the witness, evidence in the first category will usually be received and evidence in the second category will usually not be received.  In relation to evidence in the third category, it may be necessary for this Court to hear the witness de bene esse in order to determine whether the evidence is capable of belief.  That course is frequently followed in this Court.  It was a course which we followed in this appeal, in relation to the evidence of the appellant himself and the three witnesses called in support of his appeal to whom we have referred.”

In R v Pendleton [2002] 1 WLR 72 the House of Lords considered new evidence in the third category.  Lord Bingham of Cornhill observed at p 79, para 11:
“But in practice, and often with the consent of the Crown, the court will hear de bene esse the evidence of the witness whose evidence it is sought to adduce, without preliminary argument whether the requirements of section 23(1) and (2) have been met or not, as was done (for example) in R v Parks: see [1961]  1 WLR 1484, 1488.  There is no objection to this practice.  But if the court receives the evidence, or hears it de bene esse, it must then undertake its second task, of deciding whether or not to allow the appeal.”

This approach was followed by the Privy Council in Shaw v The Queen, [2002] UKPC 53.  Relying on my experience of Court of Appeal practice I am relatively sure that this practical and just procedure would have been adopted in England if a case similar to the present one had come before it.  The comparison is, of course, to some extent inexact: in England the death sentence would not have been involved.

57. 	Sales had been decided and reported before the Court of Appeal gave its decision but it was apparently not cited.  In Parks the Court of Appeal did hear new evidence de bene esse.  In the present case the Court of Appeal referred to the principles stated in Parks.  But nowhere in its judgment is there any indication that it specifically considered whether the case might be in the grey area and whether it might be just to hear the evidence de bene esse. Instead the Court of Appeal simply addressed the issue whether the new evidence was capable of belief and therefore admissible or incapable of belief and therefore inadmissible.  This analysis was not only simplistic but fundamentally unfair.

58. 	It is useful to consider the legitimacy of the approach of the Court of Appeal from another perspective.  Let it be assumed hypothetically that Kirk Rose gave evidence as he did at trial but subsequently, perhaps under cross-examination or upon being recalled, retracted his account as he did in his affidavit evidence. In such an event, the issue would have been a matter for the decision of the jury.  It would have been totally improper for the judge to direct the jury that the later evidence was incapable of belief.  This is, of course, something which happens from time to time in the real life of criminal courts.  It is true that on the actual facts of the present case the retraction came after verdict and after a considerable lapse of time.  That would be a matter to be explored in hearing the evidence de bene esse.  Nevertheless, this point illustrates how over bold the approach of the Court of Appeal was.

59. 	In an impressive speech Miss Montgomery QC submitted that there had been a failure of due process.  I would uphold this submission.  If a man is to be hanged it must be in accordance with the law.  The entire legal process (including all avenues of appeal) must demonstrably comply with the requirements of due process. In my opinion the Court of Appeal’s treatment of the issue falls woefully short of this universal minimum standard of criminal jurisprudence.

60. 	When supporting the judgment of the Court of Appeal Mr Guthrie QC repeatedly emphasised the importance of the statement by Lord Griffiths in Gayle v The Queen, Times, July 2, 1996,  that it is not a function of the Judicial Committee to act as a second Court of Appeal.  This proposition must not be driven too far.  It frequently is.  First, it obviously cannot mean that the Judicial Committee need not consider every petition for special leave and every substantive appeal with the greatest care in order to ensure that potential injustices are properly examined: compare the empirical evidence showing a significant rate of demonstrated judicial error in refusing leave to apply for judicial review: Craig, Administrative Law, 4th ed., 1999, 786-789.  While this applies to all cases before the Privy Council one must never lose sight of the fact that in death sentence cases the responsibility of the Board is an awesome one.  Common humanity demands of the Board the greatest vigilance to identify possible injustices and failures of due process.  Secondly, the proposition in Gayle cannot mean that the Privy Council must defer to the decision of a Court of Appeal where its decision is materially defective as a matter of law (as in the present case) or otherwise unsatisfactory (as in the present case).  Lord Griffiths would have had these qualifications well in mind but I emphasise them because they are sometimes overlooked.  In any event, against the background of the flawed approach of the Court of Appeal, it would be absurd to apply to their decision what is in effect a principle of deference.

61. 	Finally, I pose the question whether, unassisted by the flawed judgment of the Court of Appeal, objectively the new affidavit evidence was so incontrovertibly incapable of belief that it would be right for the Board to dismiss the appeal.  In my view the new evidence, although on the face of the affidavits somewhat implausible, should have been carefully tested by hearing it de bene esse.  It could readily have been done in the two days set aside for the hearing and Kirk Rose was available to be examined and cross-examined.  The short cut adopted by the Court of Appeal was ill-advised.  It was also unjust.  Due process required the Court of Appeal to hear the evidence de bene esse.

62. 	In these circumstances I would allow the appeal, quash the decision of the Court of Appeal and remit the matter for hearing by a differently constituted Court of Appeal.