Judgment - Norbert Aaron V The State

THE REPUBLIC OF TRINIDAD AND TOBAGO
IN THE COURT OF APPEAL
Crim. App. No. S026 of 2017

CR. No. S098/2012
BETWEEN
NORBERT AARON
Appellant
AND
THE STATE
Respondent
PANEL:
A. Yorke-Soo Hon, J.A.
M. Mohammed, J.A.
G. Lucky, J.A.
APPEARANCES:
Mr. J. Singh, Mr. D. Khan, Mrs. U. Nathai-Lutchman, Mr. M. Gayle and Ms. M. Gonzalez appeared
on behalf of the Appellant.
Mr. G. Busby and Mrs. S. Dougdeen-Jaglal appeared on behalf of the Respondent.
DATE OF DELIVERY: May 31, 2022.
Page 1 of 107
JUDGMENT
Joint Judgment delivered by A. Yorke-Soo Hon, JA; M. Mohammed, JA; and G. Lucky, JA.
INTRODUCTION
1. The Appellant was charged with attempted incest, two counts of grievous sexual assault and two
counts of indecent assault. He was convicted by a jury on all counts. He was sentenced to twenty
years imprisonment for the offence of attempted incest, sixteen years imprisonment on the two
counts of grievous sexual assault and five years imprisonment on the two counts of indecent
assault. The sentences were ordered to run concurrently.
The Appellant has appealed his convictions.
THE CASE FOR THE RESPONDENT
2. The virtual complainant, P.A., (the VC) was the Appellant’s eldest daughter. At the trial, she gave
evidence in relation to her age, address, occupation and family structure. Thereafter, in the
absence of the jury, she indicated to the court that she no longer wished to give evidence in the
matter1. She explained that she had, in effect, moved on with her life and was trying to have a
relationship with her father again2.
3. In the presence of the jury, the prosecutor questioned the VC in relation to: (i) whether she
recognised what was depicted in a photograph shown to her, (ii) whether she lived with her
father and three sisters during the years 2008 to 2009, (iii) whether she remembered a Sunday
in the month of April, 2008 (the first date of the incidents referred to in the indictment), and (iv)
whether she recalled giving a statement to the police on November 2, 2009. In response to each,
the VC indicated that she did not wish to answer any questions3.
1
Notes of Evidence dated April 4, 2017 at page 34.
2
3
Notes of Evidence dated April 4, 2017 at pages 40-41.
Page 2 of 107
4. An application was successfully made to treat the VC as a hostile witness, pursuant to section 5
of the Evidence (Amendment) Act Chapter 7:02 (EAA).
5. Thereafter, the VC was asked to identify her signature on a document and she indicated that she
no longer wished to proceed with the matter. She explained that she could not recall many of
the incidents, which would have occurred, and that she now had a relationship with her father
and did not wish to see him go to prison4.
6. The VC was shown the two statements which she would have given to the police and her
deposition from the Magistrates’ Court. She refused to identify her signatures on those
documents or to answer further questions.
7. The prosecution thereafter called the recorders of the statements and the deposition to give
evidence about the circumstances surrounding the recording of those documents.
8. The VC was recalled to the witness box and the contents of her previous statements and her
deposition were put to her. She refused to answer any questions. Following this, the prosecution
made an application pursuant to section 15H of the EAA to admit the documents into evidence.
The two statements which she gave to the police as well as her deposition were subsequently
read into evidence.
9. In her statements to the police and in her deposition, the VC gave details of the sexual acts
perpetrated against her by the Appellant, which were alleged to have occurred on various days
in the years 2008 and 2009.
On either Sunday 13 April, 2008 or Sunday 20 April, 2008
10. The VC said that on either Sunday 13 April, 2008 or Sunday 20 April, 2008, she was at her home
in Mafeking Village in Mayaro. She lived there with her father and three younger sisters. Her
parents were separated and her mother resided elsewhere. She was 15 years old at the time.
4
Page 3 of 107
Around 8:00p.m., she was watching television on the couch, when the Appellant arrived home.
He sat next to her on the couch and began “tickling” around her navel. He asked her if she wanted
to try something and she replied in the negative. The Appellant then put his hand inside her pants
and pulled down her pants and underwear. He positioned her with her body halfway off the chair,
stepped down in front of her and sucked on her vagina for approximately two minutes. The
Appellant then pulled up her pants and underwear and asked her, “How you trembling so, you
frighten or what?” He asked her if she knew about getting her vagina sucked and she replied in
the negative. He told her that she had just experienced it and that if she ever heard children in
school talking about it, she would know what it felt like. The Appellant told the VC not to tell
anyone what he did because this would lead to him going to prison and her mother was not
financially secure to take care of her and her sisters. He also told her that the reason that he was
doing this to her was because his side of the family was “hot-blooded”.
August 27, 2008
11. On August 27, 2008, around 5:15a.m., the VC was lying in her bed when the Appellant came into
the room and laid on top of her. He raised up her top and sucked on her breasts. He asked her if
she wanted to have sex with him and she replied in the negative. The Appellant then took off the
VC’s pair of pants and sucked on her vagina. She pushed him off and asked him what he was
doing. The Appellant attempted to put his penis into her vagina and told her that her vagina was
too small. He proceeded to insert his index finger into her vagina. The VC pushed him off and he
said to her, “I just wanted you to know yuhself.” The VC fixed her clothes and the Appellant left
for work.
A day in September, 2009
12. On a day in September, 2009, around 5:00a.m., the Appellant got into the VC’s bed and laid on
top of her. He took off her top, sucked on her breasts and also sucked on her vagina.
Page 4 of 107
October 2, 2009
13. On October 2, 2009, the VC asked the Appellant to attend her friend’s birthday celebration in
Arima. The Appellant proceeded to lay on top of her and touched her on her vagina, before giving
her permission to go.
The report and ensuing investigation
14. On October 31, 2009, the VC, her sisters and her mother went to a restaurant in Mayaro to
celebrate the VC’s birthday. Whilst there, the VC went to the bathroom and began crying. Her
mother met her in the bathroom and saw her crying. They had a conversation and then
proceeded to the Mayaro Police Station where they made a report to WPC Toussaint. That
afternoon, Sgt. Doodhai, PC Bachoo, the VC and her mother visited the Appellant’s home. PC
Bachoo approached the Appellant, identified himself and told him of the report made against
him. Upon being cautioned, the Appellant replied, “That child lying on me.” The Appellant was
arrested. The VC then pointed out several areas in the house to PC Bachoo.
15. On November 3, 2009, PC Bachoo accompanied PC Snaggs, a police photographer, to the house.
PC Snaggs took photographs of the areas which were pointed out by the VC. Later that day, the
police complainant met the Appellant at the Mayaro Police Station and introduced herself to him.
She informed him of the report under investigation and cautioned him. The Appellant remained
silent. He was subsequently charged for the offences in question.
THE CASE FOR THE DEFENCE
16. The Appellant did not give evidence at the trial and no witnesses were called on his behalf. The
tenor of his defence was that of a denial. The prosecution led evidence that when the Appellant
was confronted by the police officers with the allegations in question, he said to them, “That
child lying on me.” At the time of the trial, the Appellant was a man of good character.
Page 5 of 107
THE APPEAL
17. The grounds of appeal 1 and 2(a) are connected and we proceed to consider them together. We
shall examine ground 2(a) first as this would allow for a more orderly consideration of the issues
involved.
Ground 2(a): The Learned Trial Judge erred in law when he deemed the virtual complainant a
“hostile witness” since there was no previous inconsistent statement made by the witness and
therefore there was no factual basis on which to deem the witness hostile. (sic)
The Appellant’s Submissions
18. Counsel for the Appellant, Mr. Khan, submitted that the record does not show that the VC in fact
alleged that the contents of her deposition at the Magistrates’ Court or her two statements to
the police were untrue. He submitted that in those circumstances, there was insufficient material
upon which to deem her hostile. He stated that rather, she could have properly been described
as an “uncooperative” or “reluctant” witness. She did not resile from the statements given in her
deposition or the statements to the police, nor did she give conflicting evidence. Although Mr.
Khan accepted that his submissions on this issue were contrary to the learning in the decisions in
R v Thompson5 and R v Honeyghon and R v Sayles6, he did not recant them.
The Respondent’s Submissions
19. Counsel for the Respondent, Mr. Busby, submitted that the judge has an absolute discretion to
deem a witness hostile. He submitted that this is not a decision that an appellate court should
5
(1977) 64 Cr App R 96.
6
[1999] Crim. L.R. 221.
Page 6 of 107
lightly interfere with. This is because appellate courts do not have the advantage, which trial
judges do, of looking at the demeanour of the witness, which is a material factor to which regard
must be had in the determination of hostility.
20. Mr. Busby submitted that the judge’s decision to deem the VC hostile was proper and could not
be assailed. He submitted that the VC plainly had evidence to give, but repeatedly declined to do
so. He relied on the decisions in R v Thompson7 and R v Honeyghon and R v Sayles8 in support
of this submission.
Ground 1: The Learned Trial Judge erred in law in his treatment of the evidence of the virtual
complainant by (a) admitting both the deposition and the police statements of the virtual
complainant and (b) failing to warn the jury not to rely on the consistencies in the deposition
and the police statements as supportive of its truth. (sic)
21. Mr. Khan, accepted that, on the authority of Jashier Daniel v Roody Sookdeo Police Corporal
#139359, it is open for a previous inconsistent statement to be read into evidence for the jury.
He submitted however that the VC’s deposition and the two statements which she gave to the
police, could not be described as “inconsistent”. He submitted that it was improper for all three
documents to be read into evidence and that the proper course would have been for the judge
to allow either the deposition or one of the two previous statements to be read into evidence.
22. Mr. Khan submitted that there was a real danger that the jury might have believed that they
could rely on the consistencies in the information contained in all three documents to support
7
Thompson (n. 5).
8
Honeyghon, Sayles (n. 6).
9
Mag. App. No. 66 of 2012.
Page 7 of 107
the truth of the information therein. In effect, Mr. Khan submitted that this infringed the rule
against self-corroboration/narrative.
23. He submitted in the alternative that, if this Court found that it was not improper for all three
documents to be read into evidence, it was necessary for the judge to warn the jury that the
previous consistent statements could not be relied upon to support the VC’s credibility and to
support the truth of the contents of her previous consistent statements.
24. Mr. Busby submitted that the actions of the VC in declining to answer the relevant questions
posed by the prosecutor made her equally hostile to the interests of the prosecution as if she had
made a second, inconsistent statement relative to the facts. He relied on the decisions in R v
Thompson10 and R v Honeyghon and R v Sayles11 in support of this submission.
25. Mr. Busby contended that each of the three documents was admissible, pursuant to section 15H
of the EAA, because each was inconsistent with the testimony of the VC at the trial. He contended
that the jury would not have been able to make a full assessment of the VC and her evidence
without all three accounts being placed before them in their entirety. He submitted that this was
beneficial to the defence in that it would have allowed for a consideration of any possible
omissions, inconsistencies or contradictions in the VC’s evidence.
26. Mr. Busby submitted that the rule against narrative, which disallows a previous consistent
statement made by a witness from being admitted into evidence, was not applicable in this case.
He submitted that the VC was not attempting to “make evidence for herself”, which is what the
rule was designed to protect. He contended that the statements were admitted because they
were inconsistent with the witness’ present testimony.
10
Thompson (n. 5).
11
Page 8 of 107
27. Mr. Busby further submitted that if there was an infringement of the rule against narrative, as
contended for by the Appellant, in consideration of the fact that the jury could rely on any
inconsistency in the witness’ present testimony as evidence of the truth, it would, in reality, be
impossible for the judge to give the suggested direction.
Further Submissions
28. On September 7, 2021, the Court directed both parties to the reasoning in the recent decision of
R v Muldoon12 and requested further submissions on, inter alia, whether section 15H of the EAA
could have been legitimately invoked in this case, given the circumstances which led to the VC
being deemed a hostile witness.
The Decision of R v Muldoon
29. In Muldoon, the appellant was convicted of stabbing the victim with a knife and of smashing the
windows of a house belonging to the victim and his girlfriend. The victim and his girlfriend both
indicated that they wished to support any action taken by the police in respect of the incident.
They gave written witness statements which named the appellant as the perpetrator and later
identified him in an identification parade. During the trial, the victim and his girlfriend declined
to answer any questions other than those on certain preliminary matters. The victim accepted
that he had provided a written statement to the police but refused to answer any questions as
to its contents. In cross-examination he refused to answer any questions other than seeming to
shake his head when it was suggested that he had framed an innocent person. The victim’s
girlfriend also refused to answer most questions from the witness box. They were both treated
as hostile witnesses and the prosecution put their statements to them under section 3 of
the Criminal Procedure Act 1865 (CPA). The judge determined that their accounts in the witness
box were inconsistent with their witness statements and that their statements were admissible
12
[2021] EWCA Crim 381.
Page 9 of 107
under section 119(1)(b) of the Criminal Justice Act 2003 of the United Kingdom (CJA). This section
is couched in similar terms as section 15H of the EAA. The judge further considered whether the
statements should be excluded under section 78 of the Police and Criminal Evidence Act 1984
(PACE), having regard to section 114(1)(d) of the CJA and the factors in section 114(2), but
concluded that the statements had considerable probative value and that the balance fell in
favour of admission.
30. On appeal, the appellant submitted that as the victim and his girlfriend had refused to answer
any substantive questions in the witness box, they had not given inconsistent oral evidence and
therefore the requirements of section 119 of the CJA had not been satisfied. In the alternative,
he submitted that the evidence should have been excluded under section 78 of PACE, having
regard to the factors in section 114(2) of the CJA.
31. The Court of Appeal of England and Wales held that in the circumstances of this case, admission
of the statements under section 119 of the CJA was not available. The requirements of section
119(1)(b) were that the witness must have given oral evidence and a previous inconsistent
statement must have been proved by virtue of sections 3, 4 or 5 of the CPA. Although the victim
and his girlfriend were clearly hostile witnesses, save for some preliminary matters, they
remained silent and had not made an earlier statement which was inconsistent with their
essentially non-existent testimony in court. Although the prosecution would have been entitled
to cross-examine them on their previous statements under the common law, applying the
language of section 3 of the CPA and the decision of R v Honeyghon13, for the purposes of section
119 of the CJA, neither witness had admitted making a previous inconsistent statement, nor
could a previous inconsistent statement made by either witness be proved by virtue of section 3
of the CPA. The court held that it would unduly strain the language of section 119(1) of the CJA
to suggest that either witness had given oral evidence; they simply had not given any evidence
regarding any matters in their witness statements.
13
Honeyghon (n. 6).
Page 10 of 107
32. The court found that on the facts of that case, the only available gateway through which the
previous statements could have properly been admitted was section 114(1)(d) of the CJA. That
section provides that in criminal proceedings, a statement not made in oral evidence in the
proceedings is admissible as evidence of any matter stated if the court is satisfied that it is in the
interests of justice for it to be admissible. There is no equivalent statutory provision in Trinidad
and Tobago.
The Submissions on the decision of R v Muldoon14
33. Counsel for the Appellant, Mr. Singh, contended that the reasoning in Muldoon was sound and
that the facts and statutory framework in that case cannot be distinguished from those in this
appeal. In relying on the reasoning in Muldoon, he submitted that section 15H of the EAA was
improperly invoked in this case, where the VC was deemed hostile upon choosing to remain silent
and refusing to answer questions, including the question as to whether she had made an earlier
statement. He submitted that the VC’s previous statements were accordingly inadmissible
hearsay evidence and that the conviction, having been based on this evidence, was unsafe. He
further submitted that although the decision of Muldoon is not binding on this Court, it is highly
persuasive.
34. Conversely, Mr. Busby submitted that the rigid and semantic interpretation of the relevant
section in Muldoon should not be followed by this Court. He submitted that the question as to
whether the witness’ testimony in this case was “inconsistent” with her previous statements was
a question of mixed law and fact to be determined by the trial judge. This, he submitted, much
like the determination of whether she was hostile, was a decision within the discretion of the
trial judge who, having had the benefit of seeing and hearing the witness, was uniquely placed
to answer that question.
14
Muldoon (n. 12).
Page 11 of 107
35. Mr. Busby urged the court to follow the reasoning in the Singaporean decision of Public
Prosecutor v Heah Lian Khin15 which adopted a more flexible interpretation to the words
“previous inconsistent statement”. He submitted that an inconsistency is to be determined not
by individual words or phrases alone, but by the whole impression or effect of what has been
said or done. He submitted that using such an approach, taking into consideration the
circumstances which led to the VC being deemed hostile in this case, the only conclusion which
could be drawn was that her evidence was inconsistent with her deposition and/or with her
statements to the police. He submitted that accordingly, section 15H(1) of the EAA was
applicable.
36. Mr. Busby further submitted that the decision of Muldoon16 is distinguishable from the present
case. He submitted that unlike the witnesses in Muldoon, the VC gave much more evidence than
could properly be characterised as “brief” and “preliminary”. She also clearly gave evidence that
she was reluctant. He submitted that her evidence related to matters contained in her deposition
and statements and that her evidence was inconsistent by implication.
The Law, Analysis and Conclusion
37. Based on the foregoing submissions on Ground 2(a), Ground 1 and the decision of R v Muldoon,
two issues arise, which will be considered in turn.
[A] Whether section 15H of the Evidence (Amendment) Act was properly invoked to deem the
virtual complainant as a hostile witness and whether the trial judge erred in allowing her
deposition and her two statements to the police to be read into evidence.
38. It is necessary to set out the interaction between the prosecutor and the VC and the trial judge
and the VC in order to provide the requisite context which led to the decision to deem the VC
15
[2000] SGHC 154.
16
Muldoon (n. 12).
Page 12 of 107
hostile. After being sworn in, the VC answered some introductory questions17 after which the
following exchanges occurred,
The Prosecutor: Now the house you were living in, the house you were living in 2008 -2009
could you tell us what it look like.
The Witness: Your honour I really don't wish to give any evidence or anything in this
case anymore.
The Prosecutor: Hold on one second Ms. [A], I am asking you if you could tell us what the
house that you lived in back in 2008-2009 what the house looked like, are
you able to answer that question.
The Witness: A wooden house, part wooden, part concrete.
The Prosecutor: My Lord with your leave may the witness be shown SS1.
The Court: Yes we have SS1
The Prosecutor: Actually for that matter all of the photos please My Lord the whole bundle.
The Court: You have it, just take a look at them.
The Prosecutor: If I can ask you ma'am just to look at the first picture. Do you recognize
what is in the first picture?
The Witness: I … don't wish to give any more evidence in the case your honour.
The Prosecutor: My Lord I wonder then if we could taking His Lordship's guidance I am
prepared to press on as best I can but I don't know if His Lordship, having
regard to what the witness last says is minded to have any further
conversation with the witness in the absence of the jurors before I
proceed.”18
(sic) [emphasis added]
17
18
Page 13 of 107
39. The following exchanges then occurred between the trial judge and the VC19,
The Court: Right so [PA] why you don't want to give evidence again. Matter is what,
since 2008, call together investigations, police, doctor, give evidence in the
Magistrates’ Court, Lawyer involved, court involved, expense, time, we
here again now you tell me why you don't want to give evidence again.
The Witness: Your honour I apologize but I no longer wish to proceed any evidence in
the court seeing that it has been a long space of time and I really given
some thought and forgive my father right and will just like to move on
with my life and not go back not through this whole thing, seeing that it
has really been hard in a sense that mentally and psychology and in other
ways too.
…
The Court: …So you are saying that you don’t want to go with again ok, what other
reason you gave, we have to know otherwise the State can still go ahead
you know and put your evidence before the court, all your evidence you
gave before so I mean what other reason you have for not wanting to.
The Witness: Present seeing that I have a daughter and everything I have found it in
my heart to look past this and I kind ah starting back a relationship with
my dad in the sense that me and my common law husband we try to
maintain a relationship with him that the grandchild see him and what
not and thing and put aside certain differences.
…
…
The Court: …I heard what you said let me ask you something, you are being forced to
do this, somebody is putting pressure on you to do this?
…
The Witness: No. Your honour for the past how much years it has really been hard and
my mom presently is HIV positive, she and my dad has been at it for a
19
Notes of Evidence dated April 4, 2017 at pages 35-36 and 38.
Page 14 of 107
very long time in terms that she have this thing against him, he have this
thing against her and [the way] I see it my mom could [die] anytime right
now, it really hard. I have three sisters after me right, and I does try my
best to see how I could help them and what not and if today or tomorrow
my mother dies or something my father is the only person there and as
bad as certain things in the past and what not we really don’t have
anybody else.
40. After a break in the VC’s evidence before the jury, the prosecutor continued her examination-in-
chief. The following exchanges occurred,
The Prosecutor: [Ms. PA] , if I can ask you the question I was asking you before if you could
look at that first photograph for me please, do you recognize what is shown
in it?
The Witness: I do not wish to answer any questions your honour.
The Court: Yes Mrs. Dougdeen-Jaglal.
The Prosecutor: My Lord regrettably it will save us time but the law provides proper
procedure required to follow so I shall ask a few more questions and try to
adopt that procedure first before I go to something else if His Lordship
understands what I am saying.
The Prosecutor: Let's move away from the photographs for a moment then [Ms. PA], you
said to us before that in 2008 to 2009 you were living with your father and
your three sisters yes?
The Court: That is what you said this morning 2008, 2009 you were living with your
father and your three sisters.
The Witness: I don't wish to answer anything else your honour.
Page 15 of 107
The Prosecutor: My Lord again I just don't want to run afoul of on the Court of Appeal has
mandated so that it might be so pulverous but perhaps I shall one more
and then do what I need to do.
The Prosecutor: [Ms. PA] do you remember a Sunday in the month of April 2008.
The Witness: I don't wish to answer any more questions your honour.
The Prosecutor: Do you recall giving a statement to the police on the 2nd of November
2009.
The Witness: I don't wish to answer anything else your honour.
The Prosecutor: Could you tell us why you are saying you no longer want to pursue the
matter?
The Witness: Being a long space of time I really cannot remember a lot of incidents and
I really don’t want to proceed with this matter, given a lot of personal
reasons.
The Prosecutor: You said a lot of personal reasons what you talking about when you say a
lot of personal reasons?
The Witness: Seeing that I now have a relationship with my dad and I don’t wish to see
him go to jail.20
20
Page 16 of 107
41. The VC, having indicated her reluctance to give evidence several times, both at the voir dire and
before the jury, was treated as a hostile witness pursuant to section 5 of the EAA, which provides
that,
“[5] A party producing a witness shall not be allowed to impeach his credit by general
evidence of bad character, but he may, in case the witness in the opinion of the Judge proves
adverse, contradict him by other evidence, or by leave of the Judge, prove that he had made
at other times a statement inconsistent with his present testimony; but before such last
mentioned proof can be given, the circumstances of the supposed statement, sufficient to
designate the particular occasion, must be mentioned to the witness, and he must be asked
whether or not he has made such statement.”
42. Section 15H(1) of the EAA stipulates that,
“[15H] (1) Where in criminal proceedings a person gives oral evidence and—
(a) he admits making a previous inconsistent statement; or
(b) a previous inconsistent statement made by him is proved by virtue of section 5,
6 or 7,
the statement is admissible as evidence of any matter stated in it of which oral evidence
by that person would be admissible.”
43. The law in relation to a judicial officer’s discretion to treat a witness as hostile is well-settled. In
the decision of R v Thompson21, the appellant was charged with incest of one of his daughters.
She was called for the prosecution and after she had been sworn in and answered certain
preliminary questions, she refused to give evidence. The judge allowed her to be treated as
hostile and to be cross-examined about a statement which she gave to the police. On appeal, the
Appellant contended that the judge had not properly exercised his discretion in so doing. The
court found that the judge had properly exercised his discretion since section 3 of the CPA (which
is analogous to section 5 of the EAA), had not destroyed or removed the basic common law right
21
Thompson (n. 5).
Page 17 of 107
of the judge in his discretion to allow cross-examination when a witness proved to be hostile. In
referring to the decisions in Clarke v Saffrey22 and Bastin v Carew23, the Lord Chief Justice said
at page 99,
“Quite apart from what is said in section 3, the common law did recognise that
pressure could be brought to bear upon witnesses who refused to co-operate and
perform their duties….If the hostile witness declines to say anything at all, that is as
inconsistent with his or her duty as making a second and inconsistent statement
about the facts.” [emphasis added]
44. In the decision of R v Honeyghon and R v Sayles24, the court considered the circumstances in
which a witness may be deemed hostile. At pages 5-7, Beldam LJ said,
“In the adversarial system the conventional understanding of the hostile or adverse
witness is of a witness who is called by one of the parties to support his case but who
either contradicts his proof of evidence on an important circumstance or gives an
account of events which positively supports the adversary’s case. But there are other
cases too. A witness who stands mute and declines to answer questions or who
asserts an inability to recall what he has formerly said may be equally hostile to the
interests of the party who is relying on his testimony. It is a principle established by
the common law that the party thus let down by the witness may, with the leave of
the judge, ask leading questions of the witness and if necessary cross-examine him…
…
…it has been suggested that a distinction should be drawn between the witness who
has on oath in the witness box made a statement inconsistent with his earlier proof
of evidence or deposition and the witness who is simply reluctant, professes to have
lost his memory or who simply stands mute.
22
(1824) Ry. & M. 126.
23
(1824) Ry. & M. 127.
24
Page 18 of 107
As in these cases the witness has given no testimony inconsistent with an earlier
statement, it is argued he cannot be cross-examined upon that statement. Whilst
there may be difficulties about the witness who gives no evidence at all beyond the
formalities of his name, address and other particulars, the witness who on oath
states that he is reluctant to give evidence is by implication stating that he may
have evidence to give but declines to do so. The adverse witness who professed to
have no recollection can properly be cross-examined with a view to showing that at
an earlier stage he did have a recollection. In principle we can see no distinction
between the stance of these witnesses and that of a witness who departs from his
proof or deposition in favour of the other side or the defendant. The witness who
simply refuses to speak at all presents a different problem which may in the
appropriate case be dealt with as a contempt of court.
In our view the judge has in each case a discretion to allow the witness to be cross-
examined about a previous statement…” [emphasis added]
45. In the decision of the Court of Appeal of England and Wales in R v Hengari-Ajufo and Anor25,
Lady Justice Hallett at paragraph 59 said that in assessing whether a witness is hostile for the
purposes of section 3 of the CPA, a judge will consider many factors, including whether the
witness is in a position to assist, whether the witness has indicated a willingness to assist, any
previous accounts given and the witness’ demeanour. The issue does not depend solely on
whether the witness has been previously inconsistent in a written statement or in evidence on
oath.
46. In the decision of the High Court of Singapore in Public Prosecutor v Heah Lian Khin26, the
respondent was tried on three charges of receiving information communicated in contravention
of section 5(2) of the Official Secrets Act. The charges related to three incidents where the
25
[2016] EWCA Crim 1913.
26
Heah Lian Khin (n. 15).
Page 19 of 107
respondent received information from one Corporal Tay relating to raids. Corporal Tay had given
a previous written statement in which he related a detailed account of the surrounding
circumstances and events during which he supplied the relevant information to the respondent.
However, when called to give his oral testimony, he claimed that he could not recall many of the
material details relevant to the three charges. In light of his oral testimony, the prosecution
sought to impeach Corporal Tay’s credit with his previous written statement and to admit it as
substantive evidence pursuant to section 147(3) of the Evidence Act (Cap 97, 1997 Rev Ed). The
district judge disallowed the application on the ground that there was no material inconsistency
between Corporal Tay’s previous written statement and his oral testimony and discharged the
respondent on the three charges.
47. On appeal, the submissions of the Director of Public Prosecutions (DPP) and the court’s view of
them were summarised at paragraphs 30 and 31 of the judgment,
“30. The DPP submitted that the phrase “previous inconsistent or contradictory
statement” need not be restricted to a situation where the witness gives two substantive
opposing version of events. He contended that, when a witness failed to give a version
which was materially similar to his previous statement, that per se constituted a
materially inconsistent testimony. He argued that, when a witness had given a detailed
account of events in a previous statement, the implicit idea or feature of that statement
was that he remembered the events and was able to provide an account of it. If the
witness subsequently claimed that he was unable to remember the events stated in his
previous statement, even after it was shown to him to refresh his memory, this was a
“combination of ideas or features of a situation that were opposed to one another”. The
DPP further argued that when a witness had provided a detailed account of events in a
previous statement but subsequently, without any reason, gave testimony which did not
agree “in substance, spirit or form” with the previous statement, the previous statement
constituted a materially inconsistent statement.
Page 20 of 107
31. I found the DPP’s submissions to be of merit. There was, in my view, support for
adopting a flexible as opposed to a rigid, semantic interpretation of the phrase
‘previous inconsistent or contradictory statement’. ” [emphasis added]
48. In allowing the appeal, the court held inter alia that,
“…(2) In construing the phrase “previous inconsistent or contradictory statement”, a

flexible as opposed to a rigid, semantic interpretation should be adopted. Due to
varying permutations of inconsistent statements, an absolute oppositeness was not
essential and the operation of the statutory provisions should not be so unduly restricted.
The court should compare the oral evidence with the previous statement as a whole to
determine whether they were compatible, congruent or consonant in substance, spirit or
form.
(3) In interpreting s 147 of the EA, and bearing in mind s 9A of the Interpretation Act (Cap
1, 1999 Rev Ed) a purposive approach should be adopted so as to give effect to the
intent and will of Parliament. Applying a purposive approach, the phrase “previous
inconsistent or contradictory statement” must necessarily encompass a witness who had
deliberately and falsely claimed that he was unable to recall the facts…
(4) The district judge applied the wrong approach in determining whether Cpl Tay’s oral
evidence was materially inconsistent with or contradicted his previous written
statement. She should have assessed whether the alleged lack of recollection was a lie
and stemmed from a deliberate refusal for whatever reason, to testify as to his true
recollection. Taking all the circumstances into account, there were sufficient grounds to
conclude that Cpl Tay lied when he claimed to have no recollection of the relevant events.
The district judge should have allowed the Prosecution to proceed to prove and cross-
examine Cpl Tay on the relevant portions of his previous written statement…” [emphasis
added]
Page 21 of 107
49. At paragraphs 66 and 67, the court relied on the following,
“66. The following passage from Sir John Woodroffe & Amir Ali’s Law of Evidence vol 4
(15th Ed, 1992) at p 769 is instructive:
‘… a failure to assert a fact, when it would have been natural to assert it, amounts in
effect to an assertion of the non-existence of the fact. This is conceded as a general
principle of evidence. … Whether silence or omission amounts to an inconsistency
depends upon the individual circumstances of each case… Obviously there may be
omissions in the previous statements which make it inconsistent with and therefore
contradictory to the evidence given by the witness in court. The test is, would it have
been natural for the person to make the assertion in question.’
67. As explained in Dasu v State of Maharashtra 1985 Cri LJ 1933 at [14]:
‘In order to see whether there is a contradiction by omission it is necessary to find out
whether the two statements cannot stand together. It is also necessary to see whether
the statement which the witness has made in the witness-box should have been made
by him while reporting the matter soon after the incident. If the two statements made
by the witness cannot stand together and the statement in the court is such that the
witness would necessarily have made at the time of his earlier statement, then alone
omission thereof can be considered to be a contradiction’ ”. [emphasis added]
50. In the decision of Muldoon27 (referred to at paragraphs 29-32 above), the court, in summary,
held that section 119 of the CJA was not available for the following reasons:
(i) The witnesses remained completely silent save for the briefest testimony on
preliminary matters;
27
Muldoon (n. 12).
Page 22 of 107
(ii) The witnesses did not say that they were reluctant to give evidence;
(iii) The witnesses simply had not given any evidence regarding or relating to any
matters in their witness statements; and
(iv) The witnesses had not made an earlier statement which was in any way
inconsistent with their essentially non-existent testimony in court.
51. This court, not being bound by the decision of Muldoon28, declines to adopt the reasoning set
out in that case for the following reasons,
(i) In our view, the focus of the court in Muldoon appears to have been the interplay
between section 119 of the CJA (which is equivalent to section 15H of the EAA) and
section 114(1)(d) of the CJA, which is not reproduced in any form in our legislation.
(ii) We observe that the issue of the meaning of “previous inconsistent statement” was
interrogated on a purely legal substratum as opposed to one of mixed fact and law. In
determining whether to deem a witness as hostile, consideration must necessarily be
given to the legal requirements as well as to relevant factual issues, which may include
the demeanour of the witness.
(iii) The court in that case was not required to embark on a purposive interpretation of
section 119 of the CJA since in the UK, statements which do not meet the section 119
threshold can still be admitted under section 114(1)(d), which empowers the court
with a residual discretion to admit a statement not made in oral evidence as evidence
of any matter stated, if it is satisfied that the interests of justice so require. There is
no similar provision in our legislation and therefore there is no scope for the exercise
of such a discretion by a trial judge in this jurisdiction.
28
Ibid.
Page 23 of 107
52. In any event, we are of the view that the decision of Muldoon29 is quite clearly capable of being
distinguished from the facts of this case. Unlike the witnesses in Muldoon, the VC had started
and continued giving evidence before indicating that she no longer wished to do so. She stated
that she was reluctant to give evidence for several reasons:
(i) She had forgiven her father and now had a relationship with him;
(ii) She did not wish to see her father go to prison;
(iii) She wanted her daughter to have a relationship with her grandfather;
(iv) Her mother was ailing and in the event that she died, her father was the only other
person who would be able to take care of her three younger sisters; and
(v) She could not remember a lot of the incidents which would have occurred some time
ago.
53. Implicit in these reasons is that the VC clearly had evidence to give against the Appellant but did
not wish to do so on the aforementioned bases. Also inherent in her explanation was that her
father would have done something to her, on more than one occasion, which would have
required her forgiveness. In our view, the VC’s evidence cannot be characterised as “brief” and
“preliminary”, in contrast to the evidence of the witnesses in Muldoon.
54. We endorse the reasoning of the High Court of Singapore in the decision of Heah Lian Khin30 that
there is need for a flexible as opposed to a rigid, semantic interpretation of the phrase “previous
inconsistent or contradictory statement”. Thus, where a witness has provided a detailed account
of events in a previous statement but subsequently gives testimony which does not agree in
substance, spirit or form with the previous statement, the previous statement may constitute a
materially inconsistent statement. Accordingly, witnesses who have made a previous statement
and who at the trial remain silent and/or refuse to answer questions and/or assert that they
29
Ibid.
30
Heah Lian Khin (n. 15).
Page 24 of 107
cannot recall the events mentioned in the statement and refuse to refresh their memory, may
fall into the hostile category.
55. As a result of the foregoing, we are of the view that there is no distinction between a witness
who on oath states that he is reluctant to give evidence and a witness who departs from his
earlier proof of evidence or deposition in favour of the other side. In light of the VC’s reluctance
to give evidence and refusal to have her memory refreshed, she was being hostile to the interests
of the prosecution. Therefore, in those circumstances, it was reasonably open to the judge, who
exercises a wide discretion in such scenarios, to treat her as a hostile witness. The VC was
properly deemed a hostile witness by the judge.
[B] Whether the rule against self corroboration/narrative was breached as a result of the trial
judge admitting the VC’s statements to the police and her deposition and whether it was
necessary for the trial judge to warn the jury that the previous consistent statements could not
be relied upon to support the VC’s credibility and to support the truth of the contents of her
previous consistent statements.
56. It is accurate to state that the VC’s two statements to the police and her deposition, considered
independently of each other, constituted prior inconsistent statements. In respect of the VC’s
two statements to the police, having compared them with her deposition at the Magistrates’
Court, it is evident that imbedded within both sets of documents were assertions which were
materially similar. Although the VC’s assertions in her first statement were, in some aspects,
slightly more detailed than in her deposition, in our view, they were not necessary to paint a
complete picture of the incidents. Those additional details were also not required in order to
clarify important issues in the case. Therefore, the introduction of both the statements and the
deposition had the real potential to cause the jury to reason along a forbidden path, whereby an
artificial boost to the credibility of the witness could have been rendered. This is the very mischief
which the rule against narrative seeks to guard against. In such circumstances, it would have been
Page 25 of 107
for the prosecution to elect whether reliance was being placed on the VC’s statements or her
deposition or the judge could have exercised his discretion to admit one and not the other31. The
failure to do so constituted a material irregularity and would have impacted on the fairness of
the trial.
57. There is no gainsaying however that in some cases, it may be necessary to admit into evidence
both a witness’ statement to the police and deposition, even though they may be materially
similar in some aspects, in order to provide the jury with the full picture/context or to clarify
important issues. In such circumstances, it is imperative on the judge to give a cautionary
direction to the jury that would mitigate against the dangers against reasoning that the witness
had corroborated his/her own account by dint of the fact of repetition contained in the statement
and deposition and was therefore more likely to be credible. Such a warning would involve an
instruction to the jury that neither the statements nor the deposition, were, or could provide
corroboration or support for each other as to the material facts.32
We therefore find no merit in ground 2(a). There is merit in part of ground 1.
Ground 2(b): The procedure to treat the witness as hostile was not followed.
58. Mr. Khan submitted that assuming that there was a factual basis upon which the judge could
have exercised his discretion to treat the VC as a hostile witness, the application was premature.
He submitted that the judge erred in not ensuring that the proper procedure as set out in the
decisions in Shiffie Roberts v The State33 and Jashier Daniel v Roody Sookdeo Police Corporal
31
See Richard Brown v R Supreme Court Criminal Appeal No. 28/2003 (Jamaica) at paragraph 13. Although the
reasoning in this case concerned the admission of a first hand hearsay statement and deposition of a deceased
person, the principles are capable of being extended to the present scenario.
32
See Richard Brown v R at paragraph 24.
33
Cr. App. No. 1 of 2009.
Page 26 of 107
#1393534, was followed. He contended that this was a fatal flaw in the case, which resulted in an
unfair trial.
59. Mr. Busby submitted that the five procedural steps in treating a witness as hostile, which were
enunciated in the decision of Shiffie Roberts35, were in fact followed and therefore the
application to treat the witness as hostile was not premature. He also submitted that the
procedure for admitting previous inconsistent statements pursuant to section 15H (1) of the EAA,
as set out in Jashier Daniel, was followed.
60. Mr. Busby raised a further argument to the effect that this Court was not bound to follow the
decisions in Shiffie Roberts and Jashier Daniel in respect of the guidance surrounding the
treatment of hostile witnesses, because they were decided per incuriam. In relation to the
decision of Shiffie Roberts, the essence of his argument was that the procedure laid down in
respect of the consideration by the prosecution to explore the inconsistencies in the hostile
witness’ account and his reluctance to testify, was too rigid and did not take account of section
15H(1) of the EAA. That section allows for a previous inconsistent statement of a hostile witness
to be relied upon for the truth of its contents.
61. In relation to the decision of Jashier Daniel, Mr. Busby submitted that it was difficult to reconcile
why the court in effect stated that the procedure for admitting inconsistent statements was
governed by sections 6 and 7, rather than section 5 of the EAA. He submitted that sections 6 and
7 concern proof of the making of the previous inconsistent oral and written statements of a
witness as opposed to their admissibility. He further submitted that the court’s pronouncement
at paragraph 7 of Jashier Daniel, that, “the said inconsistent ‘statement’ in the narrow sense,
could be put to the witness as evidence that he had previously said something contradictory, as
34
Jashier Daniel (n. 9).
35
Shiffie Roberts (n. 33).
Page 27 of 107
evidence impugning his credibility, although it would not be evidence of the fact contained in the
previous statement”, was diametrically opposed to the impact of section 15H(1). Mr. Busby also
submitted that parts of the procedure set out in Jashier Daniel36 were uncomprehensive while
other parts were unclear and misleading.
[A] Whether the procedure as set out in the decision of Shiffie Roberts was observed.
62. In the decisions in Shiffie Roberts37 and Jashier Daniel this Court provided guidance on the
procedure to be followed in dealing with a hostile witness. The decision of Shiffie Roberts deals
with the procedure before the witness is deemed hostile, from the time that the witness first
shows signs of hostility, and the steps that must be followed before a judge can exercise his
discretion to deem the witness hostile. That case also sets out guidance on matters after the
witness has been deemed hostile, including the use that may be made of his previous statements.
63. In Shiffie Roberts, the Court laid down the following five-step procedure at paragraph 59,
(i) It is undesirable to proceed immediately on not getting the expected answer to

treat the witness as hostile except in cases where the witness displays an
excessive degree of hostility.
(ii) Where a prosecution witness gave evidence contrary to his statement, and failed
to give the evidence expected, the prosecution and the trial judge should
consider inviting him to refresh his memory from legitimate material such as his
statement or his depositions.
36
37
Page 28 of 107
(iii) If the witness did not allow his memory to be refreshed and did not give an
explanation of why he chose to give different evidence, the judge could then
consider whether he ought to be deemed as hostile.
(iv) It is the duty of the prosecution or any party inviting the jury to rely on such
evidence to explore the inconsistencies and reluctance to testify.
(v) Having decided to deem the witness as hostile, the witness could not only be
cross-examined but could be cross-examined on previous statements.
64. Upon perusing the Notes of Evidence, we make the following observations:
(i) Although the VC displayed an excessive degree of hostility, the prosecutor did
not immediately proceed to treat her as hostile;
(ii) The prosecutor made attempts to show the VC her statement for the purposes
of refreshing her memory38;
(iii) The VC did not allow her memory to be refreshed. At that stage, the
prosecution made an application to treat her as hostile and it was granted by
the trial judge39;
(iv) The prosecutor thereafter explored the reluctance of the witness to testify40;
and
(v) The witness was subsequently cross-examined on her previous statements41.
38
Notes of Evidence dated April 4, 2017 at page 41, lines 1-5.
39
Notes of Evidence dated April 4, 2017 at page 41, line 6 to page 42, line 7.
40
Notes of Evidence dated April 4, 2017 at page 42, lines 15 -21.
41
Notes of Evidence dated April 4, 2017 at page 42, lines 22-48.
Page 29 of 107
65. Based on the foregoing, contrary to what was submitted by Mr. Khan, the steps set out in the
decision of Shiffie Roberts42 were in fact meticulously followed. The prosecutor was not hasty in
making the application to treat the witness as hostile. It is evident from the Notes of Evidence
that she was mindful of the procedure to be followed and was careful to ensure compliance with
it (see the exchanges between the prosecutor and the VC at paragraphs 38 and 40 above).
66. We are of the view that the application to treat the witness as hostile was not made prematurely
and that the fairness of the trial in this regard was not compromised.
[C] Whether the issues in respect of the decision to treat the witness as hostile in Shiffie Roberts
v The State were decided per incuriam.
67. In the decision of Shiffie Roberts, the appellant was convicted of manslaughter. One of the eye-
witnesses to the offence, Angus Ifill, testified in his evidence-in-chief, to having seen the
appellant, who was one of four men, unmasked and beating the deceased on the ground with a
cutlass. At the trial, Ifill, on the second day of cross-examination, said that he could not identify
any of the men, as he had seen their backs and not their faces, as they were wearing masks. He
said that he did not see anyone chop the deceased and he did not recognise any of the men. He
said that during the incident, he ran away and did not observe anything. He testified that his
evidence-in-chief was not true and that at the time of the incident, he had run off and was in a
state of confusion. The prosecutor, in re-examination, made an application to treat the witness
as hostile. This application was granted by the trial judge.
68. Several grounds were advanced on appeal, the second of which concerned the evidence of Ifill.
The appellant submitted that the trial judge was wrong to allow Ifill to be treated as hostile after
being cross-examined. In addition, it was argued that the judge’s directions as to how the jury
should treat with his evidence, were inadequate.
42
Page 30 of 107
69. The Court of Appeal found that the judge had the absolute discretion to allow the witness to be
treated as hostile. In relying on the decision of R v Powell43, the Court of Appeal said that the
application to treat a witness as hostile could be made at any stage during the witness’ evidence,
including during re-examination. The court went on to say that there were “certain procedural
steps” that “must be observed” before a judge can exercise his discretion to deem a witness
hostile. In relying on the decision of R v Maw44, the court laid down the five-step procedure set
out at paragraph 63 above.
70. The court found that the stipulated procedure was not followed and that such failure by the judge
deprived her of sufficient information to make a reasoned decision about the hostility of the
witness. The court’s reasons for so concluding can be summarised as follows,
(i) The prosecutor was allowed forthwith to cross-examine the witness.

Although she showed the witness his statement, he was not probed about
the circumstances in which it was made, or whether he in fact made it and
could confirm its contents. The witness was not invited to refresh his
memory.
(ii) The prosecution did not seek to extract from the witness the reason for
choosing to give different evidence. The explanation given was not
thoroughly investigated by way of cross-examination in order to ascertain
the reasons for the witness’ departure from his evidence-in-chief.
(iii) There was no basis upon which the witness ought to have been treated as
hostile, although he deviated from his evidence-in-chief in material aspects.
43
[1985] Crim LR 592.
44
[1984] Crim LR 841.
Page 31 of 107
The Decision of R v Maw45
71. In the decision of R v Maw, the appellant was convicted of unlawful wounding. At the trial, the
prosecution witnesses failed to give evidence in accordance with the statements which they had
given to the police. Within twenty-four hours of the incident, the victim made a statement to the
police, in which he had said that it was the appellant who had kicked him and caused the injury.
In his evidence-in-chief, he said that he did not see who had assaulted him and that he did not
see anyone whom he had recognised at the time he was struck.
72. The prosecutor successfully applied to treat the witness as hostile. The earlier parts of the
examination-in-chief then continued with references to the statement that the victim had made
and his confirmation of certain matters in it as being true. The victim ultimately confirmed that
it was the appellant who had kicked and hit him and the evidence-in-chief ended on that basis.
73. In cross-examination, the victim reverted to the earlier part of his examination-in-chief, before
he was deemed hostile. The matter was reverted to in re-examination, which was conducted in
the manner of a cross-examination. During re-examination, he said that he was not sure what
the truth was.
74. On appeal, the court reviewed the position in relation to the procedure to be followed in treating
a witness as hostile. At page 8, Hobhouse LJ said,
“Before coming to consider the summing-up, it is useful to review the position which
arises in cases such as this, where a prosecution witness gives evidence which is
contrary to his statement, or fails to give the evidence expected of him. The first thing
that should be done by any prosecutor, and by the trial judge, is to consider the step
of inviting the witness to refresh his or her memory from material which it is
legitimate to use for that purpose.
45
Maw (n. 44).
Page 32 of 107
… There may be circumstances where the witness is displaying such an excessive
degree of hostility, or a animus, that that is the only appropriate course… If the
witness does not allow his memory to be refreshed, and does not give an
explanation of why he chooses to give different evidence, the judge can then go on
to consider whether that shows that he should be treated as hostile.
Having decided to treat a witness as hostile, then the witness can not only be cross-
examined, but he can be cross-examined on previous statements that he has
made…” [emphasis added]
75. At page 9, Hobhouse LJ discussed the effect and possible results of the witness being treated as
hostile,
“If the witness, as in this case, chooses to adopt and confirm some of the contents
of his prior statements, then, to that extent, what he says becomes part of his
evidence at the trial and, subject to the jury assessing his credibility and his
reliability, it is capable of being accepted. The evidence is what the witness says in
the witness box at the trial, not what he has said in the out-of-court statement….
…
If a witness has been treated as hostile, and has thereafter given evidence, it is
necessary for any jury to consider whether that witness is a witness should be
treated as creditworthy at all. Once a witness has been attacked in the way that is
involved in treating him as a hostile witness, questions of the creditworthiness of the
witness arise both for the judge and the jury, and the jury should be clearly directed
on that point.” [emphasis added]
Page 33 of 107
76. Hobhouse LJ went on to say the following at page 9,
“It should be the task of the prosecution (or other party) who is going to invite the
jury to rely upon the evidence of a witness who is being treated as hostile, to explore
the inconsistencies in the witness's evidence and the reluctance of the witness to
testify. This point was referred to in the case of Golder and in other cases. If there is
no explanation for the inconsistencies, then it is obvious that the evidence of that
witness is less satisfactory. If the witness can give an explanation for the
inconsistency, or his initial reluctance to testify, then it may be that that sets at rest
any anxieties there may be about his evidence and enables him to be treated as
fully creditworthy.” [emphasis added]
77. The decision of Shiffie Roberts46 was delivered on April 20, 2011. This was a relatively short while
after an amendment was made to the Evidence Act which introduced section 15H(1). This new
section took effect from January 25, 201047. Section 15H(1) notably transformed an aspect of the
law in relation to the testimony of hostile witnesses. That section provides that an inconsistent
statement made by a hostile witness and proved by section 5 of the EAA became admissible as
evidence of any matter stated in it. As such, the inconsistent statement was now admissible as
evidence of the truth of its contents. However, insofar as the appeal in Shiffie Roberts was
concerned, the position before the introduction of section 15H(1) would have applied. This
meant that the previous inconsistent statement of the hostile witness went only to the issue of
credibility and could not have been relied upon for the truth of its contents. The guidance in
Maw48 was given against that common law background.
78. After the coming into force of section 15H(1), there is now a considerable level of flexibility which
attaches to the prosecutor’s discretion in deciding whether, if at all, to explore the
46
47
See Legal Notice No. 10 of 2010.
48
Maw (n. 44).
Page 34 of 107
inconsistencies in the witness’ accounts and the reluctance to testify. As the previous statement
of the witness would now be evidence of its truth, technically, nothing is required from the
prosecutor in terms of endeavouring to persuade the witness to accept the truthfulness of the
prior account, as had been the position under the common law.
79. Prior to the introduction of section 15H(1), the purpose behind exploring the inconsistencies and
reluctance to testify was to potentially rehabilitate the creditworthiness of a hostile witness. With
the introduction of section 15H(1), where a witness has been deemed hostile, if the party who
has called the witness is mandated to explore the reasons for the deviation and the reluctance
to testify, there are attendant minefields. For example, there is a risk of potentially prejudicial
evidence being elicited which might then have the effect of fatally derailing the trial.
80. The practical reality remains however, that in some cases, it may be important to ascertain the
reason(s) for the deviation and the reluctance of the witness to testify as this would be relevant
to the weight that the jury may attach to that witness’ evidence. It is one thing to assert in
evidentiary law that the statement is evidence of its truth but it is not axiomatic that the tribunal
of fact is obligated to act upon it. The weight that is to be attached to the document may be
contingent upon several factors which may include, at times, any reasons given to account for
the deviation or reluctance to testify.
81. In our view, the decision of Shiffie Roberts49 in so far as it relates to the issue of hostile witnesses,
was not decided per incuriam. The decision was given soon after section 15H(1) of the EAA came
into force. It is quite common for the procedural implications flowing from newly proclaimed
legislation or amendments to existing ones (in this case, the Evidence Act), to take time to
emerge. Approximately a decade after the proclamation of section 15H(1) and having been made
aware of the procedural issues flowing therefrom and having had the benefit of very fulsome
arguments on the issue, we recognise the need for and take this opportunity to provide more
expanded, nuanced and flexible guidance on the matter. This guidance and the explained
procedure should be interpreted and applied in the more discretionary manner as described in
49
Page 35 of 107
our reasoning at paragraphs 78-80 above. It should be noted that this guidance is not exhaustive
and may be subject to further expansion as circumstances arise. This is because the very nature
of the law, particularly evidential and procedural law, is contextual and dynamic, and must allow
proper scope for appropriate evolution.
82. The procedure to be adopted in treating a witness as hostile is as follows,
(a) In situations where a witness does not provide expected responses to questions asked, it
may not always be desirable for the party who has called that witness to immediately
proceed with an application to deem the witness as hostile.
(b) There may be cases however where the witness displays an excessive degree of hostility,
in which case, proceeding immediately to treat the witness as hostile may be the only
appropriate course.
(c) In cases where a witness gives evidence which is contrary to his statement and/or
deposition and does not give the evidence which is expected, the party who has called
that witness and the trial judge should consider inviting him to refresh his memory from
the said statement and/or deposition. Where the witness refuses to refresh his memory
and does not give an explanation for the giving of different evidence, the trial judge may
consider whether he ought to be treated as hostile.
(d) If a witness is deemed hostile, he may be cross-examined on his testimony as well as the
matters in his previous statement(s) and/or deposition.
(e) An inconsistent statement made by a hostile witness and proved by section 5 of the
Evidence (Amendment) Act is admissible as evidence of any matter stated in it and is
admissible as evidence of the truth of its contents.
Page 36 of 107
(f) It is nevertheless open to the party calling a witness who is deemed hostile, if it is
considered appropriate, to explore the reason(s) for the inconsistencies in the witness’
testimony and the reluctance of the witness to testify.
[D] Whether the procedure as set out in the decision of Jashier Daniel v Roody Sookdeo Police
Corporal #1393550 was observed
83. In the decision of Jashier Daniel, the Court of Appeal attempted to provide some guidance on
the procedure for admitting previous inconsistent statements of hostile witnesses pursuant to
section 15H(1) of the Evidence Act. This procedure sets out as follows:
(a) [In the presence of the jury] It is put to the witness that the witness had previously
made a statement which differed materially from, or contradicted the one he was
making in the witness box.
(b) If the witness denies this, the witness is then asked to stand down from the witness
box.
(c) To prove that the witness made the statement, the person (police officer) who took
the statement goes into the witness box and proves to the Judge that the statement
was made (without revealing the contents of the statement).
(d) The witness is then asked to go back into the witness box and the statement is shown
to the witness for identification. The witness’s attention is drawn to the part of the
statement in which the contradiction or difference occurs.
50
Page 37 of 107
(e) If the witness agrees that there is a contradiction or difference between the part of
his statement and his evidence to the court, then that is the end of the matter in
relation to discrediting the witness’s credibility.
(f) If, however, the witness persists in denying the contradiction, then the statement is
read into evidence, that is, read to the fact-finders as proof of the fact that the witness
made a contradictory or different statement, to the evidence the witness offered
while in the witness-box.
(g) The jury is to be guided as to the weight to be attached to the statement if they accept
that a contradictory statement was made, and equally to disregard the alleged
previous statement completely, if they do not believe that it was made.
84. The Appellant complains that the above procedure was not followed and that the failure to do
so resulted in rendering the trial unfair and the conviction unsafe.
85. We agree with Mr. Busby’s submissions that the said procedure was strictly adhered to. The
witness was shown the previous inconsistent statement and asked about it but refused to answer
any of the questions. She was then asked to stand down from the witness box. The persons who
took her statements were called to the witness stand to prove that the statements were made,
without revealing the contents of the statements. The witness was then allowed to return to the
witness stand and her attention was drawn to the statement. She again refused to answer any of
the questions posed to her by the prosecutor and an application was made under section 15H to
have the statement read into evidence. The application was granted and the statements were
read into evidence. Finally, the trial judge gave the appropriate directions to the jury on how to
approach the said statements.
86. Since there was strict compliance with the existing procedure as set out by the Court of Appeal,
we are unable to find any merit in this ground of appeal.
Page 38 of 107
[E] Whether the decision of Jashier Daniel51 was decided per incuriam
87. Mr. Busby contended that the decision of Jashier Daniel was decided per incuriam. He grounded
his argument in part, on certain omissions in the suggested procedure as set out by the Court. He
submitted that,
(i) In providing guidance on the procedure for admitting previous inconsistent
statements of a hostile witness, the Court did not factor in the provisions of
section 5 of the EAA;
(ii) The procedure set out by the Court did not mention the circumstance where
the witness may admit that he has made the previous inconsistent statement
as provided for by section 15H of the EAA;
(iii) At paragraph (c) of the procedure, it is unclear what the words “without
revealing the contents of the statement” mean;
(iv) That the procedure does not include the step where the witness is asked which
of the accounts is true and paragraph (e) of the guidance is misleading insofar
as it indicates that if the witness accepts that there is a contradiction or
difference “that is the end of the matter in relation to discrediting the witness’
credibility”. However, it remains a matter for the tribunal of fact to decide
whether the statement is contradictory;
(v) In relation to the guidance at paragraph (f), that is, where the witness persists
in denying that he made a previous inconsistent statement, the statement is
read to the fact finders “as proof of the fact that the witness made a
contradictory or different statement”. By virtue of section 15H of the EAA
whether the witness accepts that he made a previous inconsistent statement
or denies that he has done so, once his statement is proved, by virtue of
sections 5, 6 or 7 of the EAA, the previous inconsistent statement may now be
relied upon for the truth of its contents.
51
Ibid.
Page 39 of 107
88. We do not agree with Mr. Busby that the decision of Jashier Daniel52 was decided per incuriam.
However we do find favour with the position that the procedure as set out requires a fair measure
of clarification and expansion and we are indeed grateful to counsel for having provided us with
full and detailed submissions on this issue. We therefore welcome the opportunity to revisit
Jashier Daniel, as we did in relation to Shiffie Roberts above, and to provide fuller and more
extensive guidance on the procedure to be followed after a witness has been deemed hostile by
the court.
89. The procedure to be followed after a witness has been deemed hostile is as follows:
(a) In the presence of the jury it is put to the witness that the witness has previously made a
statement which differs materially from, or contradicted the one he had made in the
witness box
(b) If the witness accepts that he had made the previous inconsistent statement, there is no
need to prove the statement through another witness and the statement becomes part
of the evidence replacing any earlier testimony.
(c) If the witness denies this, the witness is then asked to stand down from the witness box
and proof is then given that the witness did in fact make the statement.
(d) Before such proof is given the requirements of section 5 of the Evidence (Amendment)
Act must be complied with. The circumstances of the supposed statement, sufficient to
designate the particular occasion, shall be mentioned to the witness and he shall be asked
whether or not he made the statement.
(e) To prove that the witness made the statement, the person (police officer) who took the
statement goes into the witness box and proves to the judge that the statement was
52
Ibid.
Page 40 of 107
made without revealing the contents of the statement to the tribunal of fact (in a jury
trial).
(f) Before the previous inconsistent statement is admitted, an interrogation by the judge
under his/her common law power, whether or not the issue is raised by counsel for the
defence, is required in order to ascertain whether, in all the circumstances, it is fair to
admit the statement and that its prejudicial value is not in excess of its probative value.
The necessity for this exercise is explained subsequently in this judgment under ground
2[C], in particular, at paragraphs 124 to 134.
(g) The witness is then asked to return to the witness box and the statement is shown to the
witness and his attention is drawn to the part of the statement in which the contradiction
or difference occurs.
(h) If the witness agrees that there is a contradiction or difference between the part of his
statement and his evidence to the court, then that is the end of the matter in so far as
proof of the statement is concerned.
(i) The witness ought to be asked which of the statements is true. This does not mean that
it is true. It is still a matter for the tribunal of fact to decide.
(j) If, however, the witness persists in denying the contradiction, once the statement is
proved it is read into evidence to the tribunal of fact and it becomes part of the evidence
and may be relied upon by the tribunal of fact for the truth of its contents.
(k) The tribunal of fact is to be guided as to the weight to be attached to the statement if
they accept that a contradictory statement was made and to equally disregard the alleged
previous statement completely, if they do not believe that it was made.
Page 41 of 107
Ground 2[C] – Deciding not to admit the statement into evidence.
90. This ground was originally filed as Ground 6(a) of the Grounds of Appeal filed by the Appellant
on June 28, 2019.
91. In support of this ground, Mr. Khan relied on several cases including Japhet Bennet v The
Queen53. In Bennet, an appeal to the Caribbean Court of Justice (CCJ) from the Court of Appeal
of Belize, Barrow JCCJ found that the factors listed in section 114(2) of the CJA (UK) were a useful
checklist for a judge when considering the admissibility of a hearsay statement, even if there was
no statutory reference to such a checklist. Section 114(2) contains the factors that a judge must
consider when determining whether hearsay evidence should be admitted through the gateway
of section 114(1) (d), that is, ‘in the interests of justice’.
92. Mr. Khan submitted that although section 114(2) is not part of the statutory framework for the
admissibility of inconsistent statements in Trinidad and Tobago, the checklist ought to have been
used by the trial judge. Mr. Khan submitted that had the judge done so, he would not have
admitted the previous inconsistent statements of the VC, namely, the two statements to the
police dated October 31, 2009 and November 2, 2009 and her deposition.
93. Mr. Busby referred to the concession by Mr. Khan that the checklist was not part of the statutory
provision dealing with the admissibility of inconsistent statements. He pointed out that Mr. Khan
failed to provide an analysis of the manner in which the trial judge ought to have applied the
53
[2018] CCJ 29 (AJ).
Page 42 of 107
checklist. He further submitted that Mr. Khan ought to have demonstrated the prejudice suffered
by the Appellant because of the failure of the judge to apply the checklist.
94. In our jurisdiction, section 15H of the EAA deals with the admissibility of inconsistent statements
and it is identical in terms to section 119 of the CJA (UK). In Trinidad and Tobago, there is no
equivalent section to section 114(2) of the CJA (UK) which contains a list of factors that the court
must consider when deciding whether hearsay evidence should be admitted ‘in the interests of
justice’. Section 114(2) of the CJA (UK) states,
“2) In deciding whether a statement not made in oral evidence should be admitted
under subsection (1)(d), the court must have regard to the following factors (and
to any others it considers relevant)—
(a)how much probative value the statement has (assuming it to be true) in
relation to a matter in issue in the proceedings, or how valuable it is for the
understanding of other evidence in the case;
(b)what other evidence has been, or can be, given on the matter or
evidence mentioned in paragraph (a);
(c)how important the matter or evidence mentioned in paragraph (a) is in
the context of the case as a whole;
(d)the circumstances in which the statement was made;
(e)how reliable the maker of the statement appears to be;
(f)how reliable the evidence of the making of the statement appears to be;
(g)whether oral evidence of the matter stated can be given and, if not, why
it cannot;
(h)the amount of difficulty involved in challenging the statement;
(i)the extent to which that difficulty would be likely to prejudice the party
facing it.”
Page 43 of 107
95. The issue for consideration is whether it is necessary for a judge, when exercising the discretion
to admit a previous inconsistent statement pursuant to section 15H of the EAA to consider the
section 114(2) factors as stated above, although such factors are not part of the statutory
framework.
The Decision of Japhet Bennet v The Queen54
96. The appellant was convicted of murder. The primary evidence against the appellant was from a
witness who came forward two days after the murder and gave a statement to the police, in
which he identified Bennet as the assailant. The witness gave details, which included that he (the
witness) was riding his bicycle when he heard gunshots and noticed a body lying on the ground.
He was about forty feet or more away from the body. The witness identified the appellant as the
person that he saw standing approximately two feet from the body with a black handgun. The
witness had known Bennet for about four months before the incident and was able to recognise
him.
97. The witness gave evidence at the trial during which he stated that, apart from the body on the
ground, he did not see anything else on the day of the incident. The witness acknowledged the
previous statement he gave to the police but denied that he placed the signature that appeared
on the document.
98. The prosecution applied to treat the witness as hostile, pursuant to section 73A of the Evidence
Act of Belize. The witness was deemed hostile and leave was granted to the prosecution to cross-
examine the witness in connection with his previous statement to the police. The witness denied
that he told the police any details about a man holding a gun or that he recognised the assailant
as the appellant.
54
Ibid.
Page 44 of 107
99. The trial judge admitted the witness’ previous inconsistent statement into evidence pursuant to
section 73A of the Evidence Act of Belize and there was no objection by counsel for the appellant.
Apart from the witness’ previous statement, there was no other evidence linking the appellant
to the crime. The appellant made a submission of no case to answer but the trial judge dismissed
the application. The trial proceeded and the jury returned a unanimous verdict of guilty.
100. Bennet appealed to the Court of Appeal and argued that the witness’ previous inconsistent
statement should not have been admitted because it was highly prejudicial and could not be
challenged by cross-examination. Counsel for the appellant further submitted that the
submission of no case to answer should have been upheld because the identification was nothing
more than a fleeting glance. The Court of Appeal dismissed the appeal and the conviction was
upheld.
101. A further appeal was made to the CCJ. The appeal was allowed by a majority decision.
102. Barrow JCCJ, who formed part of the majority, delivered a separate judgement in which he stated
that the appellant did not receive a fair trial because the recanted hearsay statement was highly
unreliable and should not have been admitted into evidence. Barrow JCCJ agreed with the
decision of Ibrahim v R55 in which it was held that the factors listed in section 114(2) of the CJA
(UK) may be used as a checklist by the court when considering the reliability of a hearsay
statement. Barrow JCCJ opined at paragraph 132 of Bennet56,
“132. …This is a sound approach that merits adoption in other jurisdictions,

because the factors listed are evidently useful and reasonable considerations for
assessing reliability and are not so only because they were codified in legislation...”
55
[2012] EWCA Crim 837.
56
Japhet Bennet (n. 53).
Page 45 of 107
103. In determining whether the trial judge in Bennet57 ought to have admitted the previous
inconsistent statement of the witness, Barrow JCCJ applied the checklist as stated in section
114(2) of the CJA (UK) and concluded that the trial judge erred by admitting the statement into
evidence.
104. While the majority of the panel (Wit, Hayton and Anderson JJCCJ) agreed with Barrow JCCJ that
the appeal of Bennet should be allowed, they did not agree that the trial judge erred by admitting
the previous inconsistent statement. The majority (with the exception of Barrow JCCJ) were of
the view that it was only at the close of the prosecution case, that it became clear that no
evidential material had been produced that would have allowed the jury to properly assess the
reliability of the statement. In that regard, the majority found that the trial judge should have
upheld the submission of no case to answer and directed the jury to acquit the accused.
105. In Bennet, Rajnauth-Lee JCCJ delivered a dissenting decision and found, inter alia, that the
section 114(2) checklist ought not to be imported into the exercise of the discretion of a trial
judge in the determination of the admissibility of inconsistent statements. Rajnauth-Lee JCCJ
stated at paragraph 69 of the judgment,
“Having considered the legislative framework of the Evidence Act, I note the absence
of explicit statutory safeguards before a previous inconsistent statement can be
admitted under section 73A. Any consideration of the reliability of the previous
inconsistent statement would therefore form part of the trial judge’s exercise of his
discretion under the common law to refuse to admit the statement if its probative
value is outweighed by its prejudicial effect or if it would be unfair to the defendant
to admit the statement in that it would put the defendant at an unfair disadvantage
or deprive him unfairly of the ability to defend himself. An assessment of the
prejudicial and probative value of such a statement may no doubt include
consideration of the factors mentioned in section 114(2) of the CJA and set out at
57
Ibid.
Page 46 of 107
[32] above. For example, assuming the statement to be true, how much probative
value does it have in the trial; how important is the statement in the context of the
trial as a whole; the circumstances in which the statement was made; how reliable
is the maker of the statement. In addition, in the exercise of the judge’s discretion,
it would be useful for the judge to bear in mind the considerations expressed by the
minority in R v B (K.G) at [37] above. For example, the judge could consider whether
the statement had been made voluntarily by the witness and was not the result of
any undue pressure, threats or inducements; whether the statement was
voluntarily made in circumstances where the importance of telling the truth was
brought home to the witness; whether the statement was accurately recorded. I
agree with the position taken by Lamer CJ that it is not the duty of the trial judge to
“decide whether the prior inconsistent statement is true, or more reliable than the
present testimony, as that is a matter for the trier of fact. Any such concerns must be
dealt with by the trial judge in the directions given to the jury.” [emphasis added]
For clarity, the reference to the statement by Lamer CJ in the excerpt directly above, was taken
from the case of R v B (K.G.)58 which would be discussed in greater detail below.
106. The dicta of Rajnauth-Lee JCCJ as stated above, is in direct contrast to that of Barrow JCCJ, as it
relates to the need for trial judges to specifically consider the section 114(2) criteria when
determining the admissibility of a previous inconsistent statement. In order to resolve the
direction in which this Court will proceed on the matter, it is necessary to examine the position
of certain jurisdictions along with relevant case law that provide guidance on the issue.
58
3 [1993] 1 S.C.R. 740.
Page 47 of 107
The English Position
107. It is important to remember from the outset that the “interests of justice” gateway in the CJA
(UK) is viewed as a ‘safety valve’ which can be resorted to if the hearsay evidence that is sought
to be admitted does not qualify in any other available gateway. One would therefore understand
the need to state specific criteria that must be considered before allowing the admission of
hearsay evidence through the section 114(1)(d) gateway. This “interests of justice” gateway
provides a wide net that can be used to admit hearsay evidence and so, the stated criteria are an
express reminder to all judicial officers to proceed with great caution when unlocking this
gateway. The provision of statutory guidance prevents the opening of a hearsay ‘floodgate’ which
by the very nature of hearsay evidence must be tightly locked. The point is, that the “interest of
justice” gateway demands that it only be opened after proper scrutiny of the evidence, which is
sought to be admitted.
108. Although section 119 of the CJA (UK) does not provide any statutory guidelines with respect to
the admissibility of hearsay evidence through this gateway, it is obvious that the common law
rules of relevance and fairness to the accused must prevail. When it comes to the admissibility
of hearsay evidence the default position has always been that hearsay evidence is not admissible.
It therefore comes as no surprise that in the case of R v Riat59, Hughes LJ stated in paragraph 22
that,
“22. The non-exhaustive considerations listed in s114 (2) as directly applicable to an

application made under s114 (1)(d) are useful aides memoire for any judge considering
the admissibility of hearsay evidence, whether under that subsection or under s78 PACE,
or otherwise.” [emphasis added]
59
[2013] 1 All ER 349.
Page 48 of 107
109. The appreciation of the point made by Hughes LJ in the paragraph above, calls for a reference to
section 78 of PACE which states,
“Exclusion of unfair evidence.

(1)In any proceedings the court may refuse to allow evidence on which the
prosecution proposes to rely to be given if it appears to the court that, having
regard to all the circumstances, including the circumstances in which the evidence
was obtained, the admission of the evidence would have such an adverse effect on
the fairness of the proceedings that the court ought not to admit it.
(2)Nothing in this section shall prejudice any rule of law requiring a court to exclude
evidence.”
110. In Riat60, Hughes LJ further opined at paragraph 25,
“25. Whichever is the statutory power under consideration, it is clear that

hearsay must not simply be ‘nodded through’. A focussed decision must be made
whether it is to be admitted or not. This does not, for the reasons which we have
given at [4]-[5], above, involve a pre-condition that the hearsay be shown
independently to be accurate. But it does involve a careful assessment of (i) the
importance of the evidence to the case, (ii) the risks of unreliability and (iii) whether
the reliability of the absent witness can safely be tested and assessed. It follows
that considerations such as the circumstances of the making of the hearsay
statement, the interest or disinterest of the maker, the existence of supporting
evidence, what is known about the reliability of the maker and the means of testing
such reliability are all directly material at this point, as is any other relevant
circumstance." [emphasis added]
60
Ibid.
Page 49 of 107
111. Fulford LJ in the case of Muldoon61, already referred to in this judgment, although finding that
the trial judge erred in admitting the previous statement of the witness, commended the trial
judge for his application and careful analysis of the section 114(2) factors. Fulford LJ recognised
that the trial judge properly followed the approach as set out in Riat62, as well as the
consideration stated in section 78 of PACE.
The Canadian Position
112. In Bennet63, there was much discussion by both the majority and the minority about the Canadian
position as it relates to the admissibility of previous inconsistent statements. To that end, the
judges examined the Canadian Supreme Court case of R v B (K.G.)64, in which the court exercised
its inherent power to change the common law rule with respect to inconsistent statements and
allow such statements to be tendered for their truth. Lamer CJ opined at page 741, paragraphs
f-g,
“The history of the orthodox rule demonstrates that it has not enjoyed consistent or
unqualified support. Considering a change to the orthodox rule is not a matter better
left to Parliament; the rule itself is judge-made and lends itself to judicial reform, and
it is a natural and incremental progression in the development of the law of hearsay
in Canada by this Court.”
113. The majority in R v B (K.G) (comprising Lamer CJ and Sopinka, Gonthier, McLachlin and Iacobucci
JJ) were at pains to emphasise that because of the inherent dangers associated with hearsay
evidence, there was a need for the court to establish a rigorous framework to bind judges before
such evidence is admitted. The majority considered the appropriate approach to be as follows65,
61
Muldoon (n. 12).
62
Riat (n. 59).
63
64
R v B (K.G.) (n. 58).
65
Page 795, paragraphs i-j and page 796, paragraphs a-c.
Page 50 of 107
“Therefore, the requirement of reliability will be satisfied when the circumstances
in which the prior statement was made provide sufficient guarantees of its
trustworthiness with respect to the two hearsay dangers a reformed rule can
realistically address: if (i) the statement is made under oath or solemn affirmation
following a warning as to the existence of sanctions and the significance of the
oath or affirmation, (ii) the statement is videotaped in its entirety, and (iii) the
opposing party, whether the Crown or the defence, has a full opportunity to cross-
examine the witness respecting the statement, there will be sufficient
circumstantial guarantees of reliability to allow the jury to make substantive use
of the statement. Alternatively, other circumstantial guarantees of reliability may
suffice to render such statements substantively admissible, provided that the judge
is satisfied that the circumstances provide adequate assurances of reliability in
place of those which the hearsay rule traditionally requires”.
114. The majority also held that when a party seeks to rely on a prior inconsistent statement for the
truth of its contents, the trial judge must, on a voir dire, satisfy himself that the indicia of reliability
necessary to admit hearsay evidence of prior statements are present and genuine.
115. L'Heureux-Dubé and Cory JJ, in the minority decision agreed that it was the reliability of the
statement that should determine its admissibility. However, they were of the view that the
administration of the oath and the videotaping of the statement should not be considered
prerequisites. It was the view of the minority that a prior inconsistent statement should be
admitted for all purposes if66,
“Upon the voir dire the trial judge must be satisfied beyond a reasonable doubt that
the conditions for admitting the prior inconsistent statement have been fulfilled. I
would suggest that the conditions are these: (1) That the evidence contained in the
66
Page 827, paragraphs g-j and Page 828, paragraph a.
Page 51 of 107
prior statement is such that it would be admissible if given in court. (2) That the
statement has been made voluntarily by the witness and is not the result of any undue
pressure, threats or inducements. (3) That the statement was made in circumstances,
which viewed objectively would bring home to the witness the importance of telling
the truth. (4) That the statement is reliable in that it has been fully and accurately
transcribed or recorded. (5) That the statement was made in circumstances that the
witness would be liable to criminal prosecution for giving a deliberately false
statement.”
116. The golden thread that runs through both the English and Canadian positions is that the reliability
of prior inconsistent statements should be tested.
The Belizean Position
117. As stated above, the position of the CCJ in Bennet67 was that the section 114 factors should be
considered by a trial judge in their determination of the admissibility of a previous inconsistent
statement. However, before the decision of Bennet, there was the decision of Vincent Tillett Sr
v The Queen68 which is also instructive in this matter.
118. In Tillett, the Court of Appeal of Belize had the opportunity to examine the statutory framework
of section 73A of their Evidence Act, which as indicated earlier in this judgment, provides for the
admissibility of a previous inconsistent statement. The prosecution relied on two eye-witnesses
and an oral statement from the appellant in order to prove its case of murder. During the course
of the trial, the eye-witnesses were deemed hostile and pursuant to section 73A(b) of the
Evidence Act, their witness statements were tendered into evidence for their truth. Tillett was
convicted for murder and his grounds of appeal included challenges to the trial judge’s decision
to admit the previous inconsistent statements of the two eye-witnesses.
67
68
Crim App. No 21 of 2013 (Court of Appeal of Belize).
Page 52 of 107
119. The determination of this ground of appeal called for an interpretation of the relevant statutory
provisions of the Evidence Act of Belize, which deal with the admissibility of previous inconsistent
statements, which for our purposes, are practically identical to that of Trinidad and Tobago. The
main distinction between section 73A of the Belize Evidence Act and section 15H of the EAA is
that in Belize, the section applies only to a witness for the prosecution while section 15H applies
to any person giving evidence in a criminal trial. That distinction is therefore of no moment for
the purposes of this appeal.
120. Morrison JA, who delivered the judgment in Tillett69, made reference to an earlier case of Micka
Lee Williams v The Queen70, in which concerns were raised about section 105 of the Evidence of
Act of Belize. Section 105 deals with the admissibility of hearsay statements in which the maker
of the statement is, inter alia, dead, unfit to attend as a witness, outside of the jurisdiction or
cannot be found. The Court of Appeal of Belize in Micka Lee Williams was asked to rule on
whether the court remains vested with any residual power or discretion to exclude evidence on
the ground that its prejudicial effect outweighs its probative value, bearing in mind that section
105 does not expressly reserve such discretion to the court.
121. In Tillett, at paragraph 30, Morrison JA referred to the outcome in Micka Lee Williams on this
issue as follows,
“30. In answering this question in the affirmative, Mottley P, writing on behalf of the
court, pointed out, firstly, (at para 20), “that the subsection states that the statement
shall be ‘admissible’…[i]t does not state that the statement shall be ‘admitted’”.
Secondly, reference was made (at para 21) to the longstanding rule of the common
law that “a judge in a criminal trial has an overriding discretion to exclude evidence
if the prejudicial effect outweighs the probative value”; and to Lord Bingham’s
statement in Steven Grant v R [2006] UKPC 2 (at para 21(3)) that the discretion
extends to excluding evidence “which is judged to be unfair to the defendant in the
sense that it will put him at an unfair disadvantage or deprive him unfairly of the
69
Ibid.
70
Crim App No 16 of 2006 (Court of Appeal of Belize).
Page 53 of 107
ability to defend himself”. On this basis, the court concluded (at para 22) that,
although the Act did not contain an express provision to this effect, “the common
law right of the trial judge to exclude such evidence was not abolished”. [emphasis
added]
122. In the final analysis, Morrison JA stated at paragraph 41,
“41. This brings us back then to section 73A. As in section 105 of the Act, the
legislature has chosen the phrase “is admissible” to describe what use may be made
of a previous inconsistent statement which a witness for the prosecution admits
having made or which is proved to have been made by him. Unlike in section 125 of
the English Criminal Justice Act 2003, there is no provision further limiting or
qualifying the circumstances in which such a statement may be admissible. However,
we consider that, as this court held in relation to section 105 in Micka Lee Williams,
the admissibility of such a statement will nevertheless remain subject to the rule of
the common law that a judge in a criminal trial has an overriding discretion to
exclude it if its prejudicial effect outweighs its probative value, or if it is considered
by the judge to be unfair to the defendant in the sense of putting him at an unfair
disadvantage or depriving him unfairly of the ability to defend himself.” [emphasis
added]
123. Both the majority and minority in Bennet71 referenced the decision of Tillett72 with approval.
71
72
Tillett (n. 68).
Page 54 of 107
The position in Trinidad and Tobago
124. Unlike Canada but similar to Belize, the law with respect to previous inconsistent statements was
changed through the passage of legislation. This Court must look to section 15H itself and any
other relevant provisions, in order to determine what rules, if any, govern the admissibility of
such statements tendered for their truth.
125. It must be remembered that hearsay evidence by its very nature and the inherent risks associated
with hearsay, mandate that some level of scrutiny be performed before the gateway is opened
to allow such evidence into the trial. This Court is of the view that there must be a preliminary
assessment by the trial judge of any previous inconsistent statement before it is admitted for its
truth. Although the issue of reliability is ultimately a question to be determined by a finder of
fact, this Court is of the view that a trial judge should consider the circumstances in which a
previous inconsistent statement was obtained.
126. The absence of any statutory criteria that must be considered by the judge in the exercise of the
discretion does not bring the matter to an end. Having reviewed the authorities and in light of
the full discussion of the matter in Bennet73, we are of the view that the common law rules with
respect to the admissibility of evidence and the overall responsibility of the judge to ensure
fairness in the trial are sufficient to ensure that the matters contemplated in section 114(2) of
the CJA (UK) may be considered by the trial judge.
127. The steps as outlined in Jashier Daniel74 (as refined earlier in this decision) enable a trial judge to
make a determination about the authenticity as it relates to the taking of the statement. Evidence
relating to the certification of the statement by the witness, the lack of force, inducement or
pressure to obtain the statement, will assist a judge in the exercise of his discretion as it relates
73
74
Page 55 of 107
to reliability. Although the authorities of R v Horncastle75 and Al Khawaja v United Kingdom76
emphasise that the reliability of a hearsay statement is a matter to be determined by the fact
finder in each particular case, there is still an overriding duty on a trial judge to refuse to admit a
hearsay statement if there is evidence that significantly undermines its reliability.
128. The principle of fairness must govern the approach taken by a judge in determining the
admissibility of evidence. Without embarking on a discourse about the concept of indicia of
reliability as contemplated by the majority in R v B (K.G.)77, the fact remains that the judge, in
the assessment as to whether it is fair in all the circumstances to admit a previous inconsistent
statement, will no doubt consider the reliability of the statement.
129. There are several instances in law in which a judge must hear submissions in the absence of the
jury in order to determine whether such evidence has passed the requisite criteria for its
admissibility. This Court is of the view that in order to promote confidence and transparency in
the exercise of a judge’s discretion to admit hearsay evidence through any statutory gateway,
including section 15H, there should be a hearing during which submissions can be made and the
reasons for the judge’s decision recorded. This would ensure that hearsay evidence is not allowed
to ‘slip in’ without proper assessment and would protect the fairness of the trial. The step of a
hearing is critical in order to ensure that an inconsistent statement is not deemed to have
automatic entry through section 15H simply because a witness is deemed hostile.
130. At the trial, there was no objection by counsel for the defence to the admissibility of the previous
statement. This suggests that counsel may not have appreciated that the mere fact that a
previous statement is inconsistent with the testimony of a witness is insufficient in itself to open
the section 15H ‘gateway’. With that being said, the lack of objection by counsel for the defence
in any matter, does not relieve the trial judge from the duty to ensure that the previous
75
[2009] UKSC 14.
76
[2012] Crim LR 375.
77
R v B (K.G.) (n. 58).
Page 56 of 107
inconsistent statement has been the subject of a proper assessment, in the context of its
probative value and in relation to its prejudicial effect.
131. The admissibility of the statement should be fair in all the circumstances. The common law rules
which govern admissibility of evidence and the duty of the trial judge to ensure fairness to the
accused, which this Court finds to be sufficient in the consideration of the admissibility of hearsay
evidence pursuant to section 15H, should be addressed at the conclusion of the hearing.
132. During the debate on the Evidence Amendment Bill 200978, which contained the provision in
section 15H, concern was raised by several members of the Senate about the fairness and
inherent danger of the clause. The late Senator Dana Saroop Seetahal S.C. (as she then was) a
well-respected and published jurist assured her colleagues that this amendment which was a full
replica of section 119 of the CJA (UK) would be subject to the residual power of a judge to ensure
fairness. At page 652 of the Hansard record, Senator Seetahal S.C. is quoted as saying,
“…There is always a residual discretion in a trial judge to decide whether or not to

admit evidence. In England, it had been held that in the case of Coates, that the judge
had a residual discretion based on their PACE Act, but also we have it in the common
law to not admit the previous inconsistent statement if he thinks it is not right.”
[emphasis added]
133. The assurance by Senator Seetahal S.C. that the common law provides a safeguard similar to that
contemplated in section 78 of PACE, is consistent with the view of this Court that the common
law rules with respect to the admissibility of evidence and the overall responsibility of the judge
to ensure fairness in the trial are sufficient to ensure that the matters contemplated in section
114 of the CJA (UK) would inevitably be considered by the trial judge in the exercise of the
discretion to admit for its truth, a previous inconsistent statement of a hostile witness pursuant
to section 15H of the EAA.
78
Hansard dated October 27, 2009.
Page 57 of 107
134. Therefore, unlike the majority decision of the CCJ in Bennet79 which accepted the position of
Barrow J on the applicability of the section 114(2) factors, this Court is persuaded by the rationale
of Rajnauth-Lee JCCJ and also that of Morrison JCCJ in Tillett80.
135. There is no record by the trial judge of any consideration given to the factors stated in paragraph
109 above. Therefore, this Court ought now to conduct the exercise of determining whether the
statements to the police and the deposition ought to have been admitted.
136. The VC in this matter never indicated that she was subjected to force, oppression or coercion
when she gave her statements to the police. With respect to her deposition, evidence was led by
the prosecution to satisfy their authenticity. The evidence which was elicited in the trial with
respect to the manner in which the statements were obtained by the police and the testimony
of the VC both in the presence and absence of the jury in which she explained the reasons that
she no longer wanted to give evidence, are all matters which when considered collectively, could
have justified their admission.
137. With that being said, for the reasons given in paragraph 56 above, the trial judge erred by
admitting both the deposition and the statements. The only cure, having admitted all the
previous inconsistent evidence of the VC, was for the trial judge to warn the jury that the
statements and deposition could not provide corroboration or support for each other as to the
material facts. This failure on the part of the trial judge, while not affecting the admissibility of
either the statements or the deposition, is a flaw in the summation.
138. There is no merit in ground 2(c) as it pertains to the application of the section 114 factors when
considering the admissibility of previous inconsistent statements.
79
80
Tillett (n. 68).
Page 58 of 107
Conclusion on Ground 2
139. Based on the foregoing analysis and conclusions, we are of the view that ground 2 is without
merit.
Ground 3: The Learned Trial Judge erred in his directions on the Appellant’s out of court
statement in that (a) He failed to direct the jury that the out of court statement of the Appellant
that “that child lying on me” was evidence that could be relied on to raise reasonable doubt
and (b) He failed to direct the jury that the Appellant’s good character was relevant in
determining whether the said statement was true.
140. Mr. Khan submitted that a direction on how to treat the exculpatory statements of the Appellant
was of vital importance to a fair trial, especially in the circumstances of this case. The only real
avenue available for an acquittal was either by raising reasonable doubt in the cross-examination
of the VC or by raising reasonable doubt regarding the truth of the Appellant’s out of court
exculpatory statement that, “That child lying on me.” He submitted that the VC did not give
incriminating viva voce evidence against the Appellant at the trial and therefore there would have
been difficulties in challenging her evidence.
141. Mr. Khan also submitted that the judge failed to direct the jury that the Appellant’s good
character could be taken into account in their assessment of the credibility of the Appellant’s out
of court statement. He placed reliance on the decision of Clint Melville v The State81 in support
of this submission.
81
Cr. App. No. T10 of 2015.
Page 59 of 107
142. Mr. Busby submitted that the Appellant’s wholly exculpatory out of court statement was not an
admission but was evidence of his reaction upon being told of the allegations against him. It was
not evidence of the facts stated and accordingly, there was no obligation on the trial judge to
direct the jury that they could rely on this statement as a basis to raise reasonable doubt. He
relied on the decisions in R v Storey and Anwar82 and R v Donaldson83 in support of his
submissions.
143. Mr. Busby further submitted that in so far as Clint Melville84 is authority for the proposition that
a judge is required to give the credibility limb of a good character direction in respect of a wholly
exculpatory statement, it may have been decided per incuriam and should not be followed. He
submitted that there was no requirement for the judge to give any direction linking the
Appellant’s credibility to his wholly exculpatory statement.
Further Submissions
144. On February 23, 2021, the Court directed the parties to file further submissions on the question
of whether the credibility limb of the good character direction should be given in a case in which
an accused has made a pre-trial wholly exculpatory statement and has not given evidence in the
trial.
145. Mr. Singh submitted that the current state of the law regarding wholly exculpatory statements is
in need of restatement, to bring it in line with modern principles of law. He submitted that:
82
(1968) 52 Cr. App R. 334.
83
(1977) 64 Cr. App. R. 59.
84
Clint Melville (n. 81).
Page 60 of 107
(a) The rule itself cannot survive a critical and detailed analysis. The rule was based on an
assumption which offends the presumption of innocence. Baron Eyre in R v Hardy
(1794) 24 St. Tr. 1065 said, “The presumption upon which declarations are evidence is
that no man would declare anything against himself, unless it were true; but that very
many if he was in difficulty, or in the view to any difficulty, would make declarations
for himself. Those declarations, if offered as evidence would be offered, therefore upon
no ground which entitled them to credit. That is the general rule.” It was submitted
that this statement could not be supported in the context of modern notions of
fairness and in particular, the presumption of innocence. The entire rule was founded
on the false notion that in general, all guilty persons would protect their innocence
and only guilty persons would admit their guilt.
It was submitted that the express words of Baron Eyre in formulating the rule, made
it plain that it was based on a presumption that an accused person was guilty. This
rule only needs to be stated to demonstrate how violently it clashes with what is a
cornerstone principle of the rule of law. It was submitted that this fits squarely into
that category of “negative type default assumption” referred to by Jamadar JCCJ in R
v Halls85 at paragraph 172,
[172] This approach, which is well and truly established in the Caribbean
Commonwealth criminal law, recognises the value of character evidence as
addressing two root issues that are of particular relevance to the presumption
of innocence in a jury trial – credibility and propensity. In every dispute of fact,
credibility is a central question. And, for every allegation of criminal conduct,
propensity as the likelihood of committing the offence, is a relevant matter.
Also, the pragmatic reality is that the criminal accused have been found to
suffer the burden of negative default assumptions, that is, ‘...the jury will start
the trial by thinking that there is a reasonable chance that D is guilty – because
85
[2020] CCJ 1 (AJ).
Page 61 of 107
he must have been brought to trial for good reason, such as because he has
previous convictions.’ If this research is accepted, then, in fact, accused persons
may start trials with a presumption of guilt in the minds of the jurors. Therefore,
all information favourable to an accused in relation to both credibility and
propensity are reasonably to be considered relevant and desirable, if the
objective is for a fair and just assessment of the case against them. Where the
case is, in essence, a credibility contest, as in this case, a good character
direction may be doubly important.
Mr. Singh submitted that these observations are particularly apt to the instant case.
The presumption as formulated by Baron Eyre renders nugatory the twin concepts
of propensity and credibility in a criminal trial. It was submitted that Jamadar JCCJ
was correct to reason that the cornerstone of the criminal justice system is all about
credibility and propensity. Thus, a presumption which summarily renders the
credibility of a statement as nil, without it being considered by the body charged
with fact-finding, cannot be correct.
It was submitted that matters which affect and impinge on the credibility of a
witness is always left to the sole assessment of the jury. It is against this backdrop
that this presumption which forms the basis of the rule must be examined. As was
said by Jamadar JCCJ,
“All information favorable to an accused in relation to credibility and propensity are

reasonably to be considered relevant and desirable if the objective is for a fair and
just assessment of the case against them.”
(b) The rule was based on an arbitrary presumption and is discriminatory in that it places
accused persons in a distant adverse category.
Page 62 of 107
(c) The rule offends against the presumption of innocence. Mr. Singh referred to the first-
instance Canadian decision of R v Small86, where the issue raised for resolution of the
court was whether the rule against wholly exculpatory statements was consistent with
the presumption of innocence. The judge considered the history of the rule and closely
examined the policy and conceptual underpinning of it. He held that the rule offended
against the presumption of innocence and offended the right of an accused to make a full
answer and defence.
(d) The common law practice of admitting all statements of an accused person was well-
established in law.
(e) Those statements do carry some evidential value in law.
(f) Exculpatory statements on arrest are a well-established exception to the hearsay rule. In
Canada, in R v Humphrey87 the Court of Appeal of Ontario endorsed the principle that
where the statement was introduced by the prosecution, it was the duty of the jury to
consider the truthfulness of the statement. The court stated at paragraph 19,
“[19] The principle to which Ms. Cecchetto refers is one of long-standing. It is stated
succinctly by Griffiths J.A. at p. 51 of R. v. Lynch (1988), 30 O.A.C. 49 (Ont. C.A.):
The above direction [that the jury could only use the inculpatory portion of
the Appellant’s statement] would have been appropriate if the exculpatory
statements had been introduced by the Appellant as part of his defence, on
the ground that in those limited circumstances, the denials of knowledge of
the drugs by the Appellant were only admissible to rebut the suggestion of
recent fabrication. But, where as in this case the exculpatory statements
were introduced as part of the Crown’s case, the jury should have been
86
1998 ABCA 85.
87
(2003) 172 C.C.C. 3d 332 (Ont. C.A.).
Page 63 of 107
instructed that those statements became evidence for the accused as well as
against him and that it was open to the jury to consider those statements as
proof of the facts contained therein. The exception to the general rule
against self-serving statements is founded on the principle that where the
Crown introduces the statement, then it adopts that statement at least as
evidence in the Crown’s case.”
(g) The distinction between a confession and an exculpatory statement as a basis for
admission and exclusion, respectively, is arbitrary at best.
(h) The rule has not always been so strict and there are several authorities which were not
before the House of Lords in R v Aziz88, which show that pre-trial exculpatory statements
made by an accused are admissible.
(i) The validity of the rule has been questioned by several academic writers: see “The Rule
Against Admitting Exculpatory Statements of Accused persons: A Shiny Coin That Has
Lost Its Currency” by Christopher J. Nowlin, published in the New Criminal Law Review
and the Article by Brian A. Grosman, Vol. 6 of the Criminal Law Quarterly at page 27.
146. Mr. Singh submitted that a strict approach to the admission of hearsay evidence is no longer
justifiable. Rather the approach should be merit-based with the assurance of proportionate
safeguards. In the context of self-serving statements, the most effective safeguard is the power
and duty of the trial judge to give robust and adequate directions on the quality and probity of
the exculpatory statements.
147. In his further submissions, Mr. Busby reiterated his earlier submissions that the judge was not
required to give a direction linking the Appellant’s credibility in respect of his wholly exculpatory
statement on the basis of the well-settled common law principle that a wholly exculpatory
88
[1996] 1 AC 41.
Page 64 of 107
statement, if tendered, is not evidence of the truth of its contents, but of the reaction of the
accused.
148. He referred to the decision of R v Barbery89, where the court held that where an accused gives a
wholly exculpatory statement to the police and does not give evidence to that effect, the trial
judge is under no duty to remind the jury of that statement, as it was not before the court as
evidence as to the truth of its contents.
149. He also referred to the learning in Archbold Criminal Pleading, Evidence and Practice 2021 at
paragraph 4-485 where the authors said,
“The guidelines in Vye were approved by the House of Lords in Aziz [1996] 1 AC 41,
after explaining that the references to out of court statements relate only to mixed
statements (i.e. those that contain an admission of fact which is capable of adding
some degree of weight to the prosecution case on an issue relevant to guilt: Garrod
[1997] Crim.L.R. 445, CA) and not to statements that are wholly exculpatory”.
150. Mr. Busby referred to the decision of the Ontario Court of Appeal in R v Edgar90 where the
court said, in respect of an accused’s out of court exculpatory statement, at paragraph 48,
“48. In Evidence, 4th ed. (London: Butterworths, 1974), at p. 218, Sir Rupert Cross
explained the exception to the general exclusion of prior consistent statements in the
following terms:
Statements on arrest - Perhaps this exception would be better described as

"statements made by the accused to the police when taxed with
incriminating facts" for such statements are admissible whether or not there
is an arrest. If they are adverse to the accused they are, when voluntary,
89
(1975) 62 Cr App Rep 248.
90
[2010] ONCA 529.
Page 65 of 107
admissible against him as confessions. If neutral, or favourable to the
accused, they are admissible for the reason that,
"A statement made voluntarily by an accused person to the police is

evidence in the trial because of its vital relevance as showing the
reaction of the accused when first taxed with incriminating facts."
[Citation omitted, quoting Storey.]
This means that such a statement is not, like a confession, received as

evidence of the facts stated; accordingly a judge does not have to take those
facts into account on the accused's submission that there is no case to
answer. However, if the accused subsequently gives evidence of those facts,
his previous statement, made at a time before he had time to "think things
out", may be of the utmost importance as proof of consistency.”
151.The Court in Edgar91 later said at paragraph 72,
“72. I conclude, therefore, that it is open to a trial judge to admit an accused's

spontaneous out-of-court statements made upon arrest or when first confronted with
an accusation as an exception to the general rule excluding prior consistent
statements as evidence of the reaction of the accused to the accusation and as proof
of consistency, provided the accused takes the stand and exposes himself or herself
to cross-examination. As the English cases cited above hold, the statement of the
accused is not strictly evidence of the truth of what was said (subject to being
admissible under the principled approach to hearsay evidence) but is evidence of the
reaction of the accused, which is relevant to the credibility of the accused and as
circumstantial evidence that may have a bearing on guilt or innocence”. [emphasis
added]
91
Ibid.
Page 66 of 107
152. Mr. Busby submitted that, as a matter of common sense, it would make absolutely no sense to
instruct the jury that they should take the accused’s good character into account when
considering the truthfulness of a wholly exculpatory statement since such a statement is not
evidence of the truth of its contents.
[A] Whether the judge was required to direct the jury that the Appellant’s out of court
statement was evidence that could be relied upon to raise reasonable doubt.
153.The trial judge first referred to the Appellant’s out of court statement at page 11, lines 9 -17 of
his summation. In directing the jury on the right to silence, the judge said,
“Indeed, if you recall Officer Bachoo’s formal evidence that on 2nd November 2009,
on arriving at the home of the Accused along with [PA], his daughter and her mother.
And they met with the Accused and the Officer cautioned him and told him of the
report, and the Accused replied, “That child lying on me.” The caution itself says to
the Accused that he need not so say anything. To his credit, you may think he chose
to say something.”
154.The judge later referred to the Appellant’s out of court statement in his summation at page 44,
lines 22-33 in relation to the good character direction. The judge said,
“You will recall the evidence of PC Adesh Bachoo. His evidence was read to you as a
formal admission. He said that along with the VC, and her mother he went to the
home of Accused and when the VC’s allegation was put to the Accused he replied,
“That child lying on me.” This is evidence before you if you accept the statement; this
is evidence before you if you accept the formal evidence of PC Bachoo. And
Page 67 of 107
determining whether you accept as true what the Accused said in that reply, you
should take into account the positive features of his good character, as I’ve just
pointed out.”
155.It is trite that an accused’s statement to the police is not evidence of the truth of the facts therein,
but only his reaction to the police enquiries. On this issue, Widgery LJ in the decision of R v Storey
and Anwar92 said at pages 337-338:
“We think it right to recognise that a statement made by the accused to the police,
although it always forms evidence in the case against him, is not in itself evidence
of the truth of the facts stated. A statement made voluntarily by an accused person
to the police is evidence in the trial because of its vital relevance as showing the
reaction of the accused when first taxed with the incriminating facts. If, of course,
the accused admits the offence, then as a matter of shorthand one says that the
admission is proof of guilt, and, indeed, in the end it is. But if the accused makes a
statement which does not amount to an admission, the statement is not strictly
evidence of the truth of what was said, but is evidence of the reaction of the accused
which forms part of the general picture to be considered by the jury at the trial. ”
[emphasis added]
156.In the decision of R v Donaldson93, the court held that there is a clear distinction to be made
between statements of admission adduced by the prosecution as part of the case against an
accused and statements made entirely of a self-serving nature and sought to be relied upon by
an accused. In delivering the decision of the court, James LJ said at page 65,
“In our view there is a clear distinction to be made between statements of admission
adduced by the Crown as part of the case against the defendant and statements
92
Storey and Anwar (n. 82).
93
Donaldson (n. 83).
Page 68 of 107
entirely of a self-serving nature made and sought to be relied upon by a defendant.
When the Crown adduce a statement relied upon as an admission it is for the jury to
consider the whole statement including any passages that contain qualifications or
explanations favourable to the defendant, that bear upon the passages relied upon
by the prosecution as an admission, and it is for the jury to decide whether the
statement viewed as a whole constitutes an admission. To this extent the statement
may be said to be evidence of the facts stated therein. If the jury find that it is an
admission they may rely upon it as proof of the facts admitted. If the defendant elects
not to give evidence then in so far as the statement contains explanations or
qualifications favourable to the defendant the jury, in deciding what, if any, weight to
give to that part of the statement, should into account that it was not made on oath
and has not been tested by cross examination.
When the Crown adduce evidence in the form of a statement by the defendant
which is not relied on as an admission of the offence charged such a statement is
evidence in the trial in that it is evidence that the defendant made the statement
and of his reaction which is part of the general picture which the jury have to
consider but it is not evidence of the facts stated. ” [emphasis added]
157.In light of the foregoing authorities, it is pellucid that the Appellant’s statement was wholly
exculpatory and was therefore not evidence of the truth of what was said. Rather, it was evidence
of the Appellant’s reaction upon being told of the allegations against him. Thus, there was no
obligation on the trial judge to direct the jury that they could rely on his statement as a basis to
raise reasonable doubt.
Page 69 of 107
[B] The Appellant’s wholly exculpatory out of court statement and the trial judge’s good
character direction.
158.The judge at page 44 of his summation, after referring to the Appellant’s wholly exculpatory out
of court statement, “that girl lying on me”, said at lines 28 -33,
“This is evidence before you if you accept the statement; this is evidence before you if
you accept the formal evidence of PC Bachoo. And determining whether you accept
as true what the Accused said in that reply, you should take into account the
positive features of his good character, as I’ve just pointed out.” [emphasis added]
159.In the decision of the Court of Appeal in Clint Melville v The State94, the appellant was convicted
of the offence of sexual intercourse with a minor. The prosecution’s case was that on the day in
question, the appellant asked the victim to meet him under her uncle’s house, which she did.
When she arrived, the appellant had sexual intercourse with her. Upon being arrested, cautioned
and informed of his rights and privileges, the appellant said, “Officer, to tell you the truth, I had
no contact with her. I had no plans whatsoever. I did not rape that girl”. The appellant did not
give evidence at the trial, nor did he call any witnesses. The tenor of his defence was that of a
denial.
160.On appeal, it was argued that the trial judge failed to direct the jury to take the appellant’s good
character into account when assessing his credibility in relation to his wholly exculpatory
statement. The Court of Appeal found merit in this ground. At paragraphs 13-14, the Court said,
“13. This direction did not specifically refer to the appellant’s exculpatory statement.
In assessing whether they accepted the statement the jury was required to consider
the truth of its contents and therefore the defendant’s credibility relative to the
94
Page 70 of 107
statement was a relevant consideration for them. The judge ought to have specifically
linked the Appellant’s good character to his credibility in relation to the statement.
14. While we agree with the Respondent’s submission that the Appellant was entitled
to a full good character direction, we do not agree that that was all that was required
in this case. The judge’s direction instructed the jury to take the Appellant’s credibility
into account in assessing whether they accepted his defence of fabrication as put
through cross examination only. This deprived the Appellant of having his good
character taken into account on the jury’s assessment of the credibility of the pre -
trial exculpatory statement which was the only real evidence in support of his case
and which had remained consistent with the defence he had presented at trial even
seven years after it was recorded.”
161.In determining this issue, the Court in Clint Melville95 referred to and relied on the broad and
unqualified statement of Lord Taylor in R v Vye96 at page 245,
“In our judgment, when the defendant has not given evidence at trial but relies on
exculpatory statements made to the police or others, the judge should direct the
jury to have regard to the defendant's good character when considering the
credibility of those statements. He will, of course, be entitled to make observations
about the way the jury should approach such exculpatory statements in contrast to
evidence given on oath (see R v Duncan (1981) 73 Cr App R 359), but when the jury
is considering the truthfulness of any such statements, it would be logical for them
to take good character into account, just as they would in regard to a defendant's
evidence.” [emphasis added]
95
Ibid.
96
[1993] 3 All ER 241. Vye was endorsed in R v Hunter and Ors [2015] EWCA Crim 631.
Page 71 of 107
162.In the decision of R v Aziz97, Lord Steyn referred to the decision of R v Vye98 and said at page 51,
“In Vye the Court of Appeal was not directly concerned with a description of what is
meant by good character. On the assumption that a defendant is entitled to good
character directions the case is concerned with the scope of a judge's duties in regard
to directions to the jury. Having said this it is realistic to accept that Lord Taylor of
Gosforth C.J. had in mind not only the case of a defendant of positive good character
but the usual case of a defendant with no previous convictions. For convenience I
set out the three principles (two having been quoted earlier) as summarised by Lord
Taylor of Gosforth C.J. [1993] 1 W.L.R. 471, 479:
(1) A direction as to the relevance of his good character to a defendant's

credibility is to be given where he has testified or made pre-trial answers
or statements.
(2) A direction as to the relevance of his good character to the likelihood of
his having committed the offence charged is to be given, whether or not he
has testified, or made pre-trial answers or statements.
(3) Where defendant A of good character is jointly tried with defendant B of
bad character, (1) and (2) still apply." [emphasis added]
163.Lord Steyn continued at page 51,
“Except in one minor respect applicable to the case of Aziz, it will not be necessary to
consider the application of the third principle. It will, however, be necessary to
consider the scope of the first and second principles in some detail. Against this
background it is necessary to examine counsel's submissions.
97
Aziz (n. 88).
98
Vye (n. 96).
Page 72 of 107
(a) Wholly exculpatory statements
Counsel for the Crown submitted that Lord Taylor of Gosforth C.J. in effect ruled that
wholly exculpatory and self-serving statements by a defendant are admissible and
should be the subject of directions in accordance with Vye. The very passage in Vye
relied upon by counsel, at p. 476, contains an express reference to Duncan, 73 Cr.
App. R. 359. It is clear beyond any doubt that Vye is only concerned with mixed
statements. And the position remains that a wholly exculpatory statement is not
evidence of any fact asserted.” [emphasis added]
164.In R v Garrod99, Evans LJ, giving the judgment of the court, said,
“The learned judge drew a clear distinction between the Appellant who did not give
evidence and the other Appellants who did as regards the "credibility" limb of the direction,
which is required when a defendant who is of good character gives evidence at trial. Coupled
with that was a direction that what was said in interview was not evidence because it was
not given on oath.
The decision in R v Vye [1993] 3 All ER 241, 97 Cr App Rep 134 which was reported in April
1993 (before this trial) could be read as requiring the credibility direction to be given even
in such a case, ie. one where the defendant has given his version of events in an out of court
interview which the jury is required to assess.
In R v Aziz [1996] 1 AC 41, [1995] 3 All ER 149 the House of Lords held that such a direction
must be given not only when the defendant gives evidence at trial, but also when the
defendant's interviews, or other statements made outside court, are what is called "mixed",
meaning that they contain both admissions upon which the prosecution can rely as evidence
of guilt and exculpatory statements which support the defendant's denial, but which are
self-serving because they are made by the defendant himself.
99
[1997] Crim LR 445.
Page 73 of 107
The rationale of this rule, which has its predecessors in the decisions in Vye and in R v
Duncan 73 Cr App Rep 359, is that the whole of a mixed statement should be regarded as
evidence of the truth of what was said in it, at least for the purposes of the rule that the
good character direction should include the credibility limb.
However, the House of Lords also held in Aziz that such a direction is not required when
the statement is wholly exculpatory. In the speech of Lord Steyn, with which the other
members of the House of Lords agreed, there was first a quotation from the judgment in
Vye:
‘(1) A direction as to the relevance of his good character to a defendant's credibility is to be

given where he has testified or made pre-trial answers or statements. (2) A direction as to
the relevance of his good character to the likelihood of his having committed the offence
charged is to be given, whether or not he has testified, or made pre-trial answers or
statements....’” [emphasis added]
165.A central theme of the Appellant's submissions is that the rule of criminal evidence, that an out
of court, wholly exculpatory statement is not evidence of the truth of its contents, cannot survive
the evolved, contemporary, fair trial rights which are guaranteed to an accused. In our view, this
argument is flawed for two principal reasons.
166.The first is that any fair trial right as it pertains to the receipt of a good character direction and
the credibility limb of that direction is that the assessment of credibility cannot occur in a vacuum.
There must be an adequate underpinning. Such an underpinning would be any evidence given by
an accused. Such evidence, with the attendant nuances of demeanour and having been subject
to the forensic testing of cross-examination, is capable of being properly evaluated by the
tribunal. A credibility limb direction can be sensibly understood and applied against such a
backdrop. With respect to an out of court statement, these are words spoken and recorded in
Page 74 of 107
respect of which it is logically impossible to apply the credibility limb of the good character
direction since words reported out of court do not lend themselves to this manner of analysis.
167.The second is that in the given setting, the position is not that an accused altogether forfeits his
right to a good character direction. He is still entitled to the propensity limb direction. A level of
proportionality is thus achieved in an evidentially principled manner. The result is that an accused
would be the recipient of part of the good character direction but cannot legitimately complain,
if he does not give evidence, that he has lost any benefit to which he would have been, in the law
of criminal evidence, jurisprudentially due. The ongoing search for fairer modes of trial cannot
be deployed to justify the selective and arbitrary dismantling of principles of criminal evidence,
which are of well-established provenance.
168.Lord Taylor’s statement in Vye100, that a trial judge should direct the jury to have regard to an
accused’s good character when considering the credibility of exculpatory statements made to
the police or others, upon which an accused relies, although not explicitly stated, was made in
the context of a mixed statement. The appellant’s statement in Clint Melville101 was of a wholly
exculpatory nature and accordingly, it could not have been evidence of the fact asserted. It
would be incongruous for an accused’s good character to be factored into account in assessing
the credibility of his wholly exculpatory statement, which is not evidence of its truth. In this
regard, we are of the view that this issue in the decision of Clint Melville was decided per
incuriam and should no longer be followed.
169.Having regard to the reasoning in the decisions of Aziz102 and Garrod103, it is not open to this
Court to return to the line of reasoning taken in Clint Melville. Accordingly, there was no
requirement for the judge to direct the jury that the Appellant’s good character could be taken
into account in determining whether his wholly exculpatory out of court statement was true.
100
Vye (n. 96).
101
102
Aziz (n. 88).
103
Garrod (n. 99).
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170.In any event, the Appellant would have derived a benefit from the trial judge’s directions to the
jury that they could determine whether they accepted as true what the Appellant said in his reply
to the police and that they could factor his good character into account in so determining.
For these reasons, we find no merit in this ground of appeal.
Ground 4: The Learned Trial Judge erred by (a) raising the issue that there was not a sufficient
reason or motive proffered by the VC as to why she was reluctant to give the evidence and (b)
assessing the evidence of the VC based only on inconsistencies in her evidence.
Ground 4(a) – Motive to lie
171. Mr. Khan submitted that the judge erred when he raised the issue that there was not a sufficient
reason or motive proffered by the VC as to why she was reluctant to give evidence. He contended
that there was a real risk that the jury might have applied the logic that the absence of a reason
for refusing to give evidence bolstered a finding that the VC was speaking the truth in the
deposition and police statements.
172. Mr. Khan relied on Reed Richards v The State104 and Shiffie Roberts v The State105 and submitted
that by parity of reasoning regarding the law on ‘motive to lie’, the comments made by the judge
on the possible inferences that could be drawn from the refusal of the VC to give evidence about
the offences, were prejudicial to the Appellant.
104
Cr App No. 12 of 2008 .
105
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173. Mr. Khan also submitted that the judge erred by giving several possible explanations and/or
inferences and/or excuses as to why the VC refused to testify.
174. Mr. Busby averred that the judge was entitled to direct the jury to consider the truth of the
previous accounts of the VC, admitted pursuant to section 15H of the EAA. In conducting the
exercise as to which, if any, version of events was accurate, the jury was required to consider the
possible reason(s) advanced by the witness for changing her testimony. In the context of this
case, the change in testimony was not with respect to the alleged facts of the offence but her
refusal to give any evidence about the offences.
175. Further, Mr. Busby submitted that the principle of ‘motive to lie’ was not applicable to the instant
case.
176. This was a case in which the VC was deemed hostile and was asked by the prosecutor on several
occasions during her testimony, the reason for her not wanting to give evidence at the trial. The
reluctance of the witness to give evidence was dealt with by the trial judge at various instances
in the summation. The particular issue with which Mr. Khan finds fault is found at page 14, lines
2-16 of the summation, where it is stated,
“So here in this trial, [PA] refused to (give) evidence on any particulars in relation to
the five counts against the Accused. But in earlier police statements or any one of
them, and in the Depositions, she provided a somewhat detailed account of actions
by the Accused during the periods alleged in the counts, which form the basis of the
State’s case against the Accused.
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[PA], you may find has not proffered sufficient reason for this defence. A loss of
memory perhaps, due to the passage of time, for instance; nor that she alleges that
the content of the testimony in the Magistrates’ Court or her two prior statements are
untrue, or that they were forced from her, or she was threatened to give that
statement back then or testimony in the Magistrates’ Court if you like. But she did
state other reasons at different points in her testimony before you.” [emphasis added]
177. Further, the trial judge stated the following at page 14 lines 31-50 and page 15 lines 1-5,
“Further along in the testimony, the question was put to her, “Could you tell us why
you are saying you no longer what to pursue this matter?” And [PA] answered, “It
being a long space of time I really can't remember a lot of incidents, and I really
don’t want to proceed with this matter given a lot of personal reasons.” The
question to her was, “You said a lot of personal reasons, what are you talking about
when you say a lot of personal reasons?” she answered, “Seeing now that I have a
relationship with my dad still, I don’t want to -- wish to see him go to jail. “ Further
along in her testimony, the question was put to her, “You said you don’t wish to see
your dad go to jail. What your dad could go to jail for?” and she answered, “I don’t
have anything else I wish to say in this matter.” It continued, the question was put to
her, “Has anybody forced you, threatened you to say you don’t want to proceed any
further with this case?” And her answer, “No. This is my own opinion.” And Counsel
asked her, again, “What is your opinion, what are you talking about? Explain to us,
please. If nobody is forcing you or threatening you why are you taking this position.”
and she answered, “I just no longer want to give any more evidence, or say anything
in this case. I no longer wish for this case to proceed.” [emphasis added]
178.It appears to the Court that Mr. Khan erred in the crafting of the first part of this ground of appeal
because the judge did not suggest that there was “not a sufficient reason or motive proffered by
the VC as to why she was reluctant to give the evidence”. On the contrary, when one reads the
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sentence complained of by Mr. Khan, as highlighted in the citation above, in the context of that
part of the summation, it is clear that the judge was directing the jury to consider the reasons as
put forward by the VC in their determination of what parts of the evidence (including the
statements to the police and the deposition), if any, they would accept as true.
179.The reliance by Mr. Khan on the cases of Reed Richards106 and Shiffie Roberts107 to substantiate
this ground of appeal is therefore misplaced. We agree with Mr. Busby that it was incumbent on
the judge to highlight the reasons given by the VC for her not testifying about the offences that
occurred and for the jury to be directed about its impact on their fact-finding mission.
180.When a judge is giving a direction to the jury about the proper approach to be adopted in the
consideration of competing versions of accounts given by a hostile witness, care must necessarily
be taken to explain to the jury that it is for them to determine the impact of the testimony of the
witness on the previous inconsistent statements. In other words, it is for the jury to examine the
evidence given by the witness and any reason(s) for the departure or distancing from the earlier
accounts. This is borne out in the following specimen direction to the jury, which can be found in
the Crown Court Compendium, Part 1, August 2021 at paragraph 14-7,
“Although the {prosecution/defence} called W to give evidence, the evidence W gave

did not support their case. Because of this the {prosecution/defence) were allowed to
cross-examine W to show that W had previously said something that was different
from what W said in court. In effect, W has changed sides.
You should look at everything that W said when he/she gave evidence and remember
how W reacted when W was reminded of what he/she had said originally and the
reason/s W gave for changing his/her story.
Because W has given two different versions, you must look at all that W said with
caution.
106
Reed Richards (n. 104).
107
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If you are sure that one of the versions W gave is true, you can act on it. But if you are
not sure which, if either, version is true, you should not take account of anything that
W has said, either originally or in court.”
181. At the trial, the VC proffered four reasons for not wanting to pursue the matter - firstly, because
she could no longer remember the details of the incidents; secondly, for personal reasons;
thirdly, with the passage of time, she had developed a relationship with her father; and fourthly,
she did not want her father to go to jail. These were all matters that were correctly brought to
the attention of the jury.
182. In accordance with the specimen direction cited above at paragraph 180, the judge directed the
jury to consider the reasons given by the VC in her testimony for her refusal to give evidence
about the offences. The excerpts from the summation on this point are as follows,
“The virtual complainant did not give evidence of the allegations made against the
Accused in this court108.”
“Now, why has the witness adopted this position, has she forgotten what happened?
The facts are unclear now after so many years. Is it because she lied about the incident
on 2nd November 2009, again on 4th November 2009; and now does not want to
perpetuate the lie? And again, did she lie in giving her testimony at the Magistrates'
Court, where both in chief and cross-examination by the Defence Counsel, she
maintained that her father carried out the acts alleged. Why did she decline to testify
here? Did she no longer want to testify against her father, and if so, why? Whatever
the reason for not giving further evidence, does it change whether the earlier
accounts she gave were true or not? Why she declined to testify about the
occurrences for which the Accused is before you is a very important question in
108
Summation, page 20 lines 15-16.
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determining whether you accept the earlier accounts as true, so that you are sure
of it, or not, as the case might be.109” [emphasis added]
183. For the reasons above, we are of the view that there is no merit in this aspect of the ground of
appeal.
184. Mr. Khan further submitted that the judge erred when he gave several possible explanations for
the refusal of the VC to testify about the offences as such explanations were not part of the VC’s
testimony.
185. At page 18, lines 42-50 of the summation, the judge stated,
“The alleged incident here in these matters, incidents are sexual in nature you may
find, and most persons find it difficult to discuss sexual matters in public, even when
it occurs between consenting adults. [PA] both at the police station in 2009, and in
the Magistrate’s Court thereafter had to relate what she said occurred between
herself and the Accused, her father when she was at a tender age starting at age 15
years old. And now, in Court before myself, the judge, you the jurors, lawyers, whom
she does not know, she indicated that she did not wish to say anything further in the
matter.”
186.Further, at page 19, lines 4-16 the judge said,
“Some people might even feel great discomfort and embarrassment to say the words
or the word ‘vagina’ or ‘penis’, in a public place or even to hear others describe such
occurrences or use such terms in public and indeed, often times even in private. People
usually prefer to say such words in hush tones, even to substitute other words for
109
Summation, page 20 Lines 24-41.
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them rather to use the words that properly describe the body parts, the actions, or
processes. We will have to determine whether this factor affected the manner and
detail in which she might have answered questions on the previous occasions, in her
statements, and in Magistrates' Court; and whether it is a reason for her not
wishing to give further evidence here, in this trial. Indeed ,you have to consider this
along with all the other relevant considerations in determining whether this
affected the virtual complainant, that is [PA], in what and when she complained,
and to whom and why she didn’t want to give any evidence of the allegations in
court here before you.” [emphasis added]
187. Bearing in mind that the judge had rightly warned the jury very early in the summation that they
must not speculate, it was unfortunate that the judge himself, as evidenced in the excerpt quoted
above, guided the jury along that forbidden path. By not limiting the reasons that were actually
stated by the VC for her unwillingness to testify against her father, the judge encouraged the jury
to consider an explanation for her position that was not part of her testimony. In the excerpt
cited above, the issue of whether the VC might have been embarrassed to testify because of the
need to refer to the private parts of the human anatomy was put to the jury as a matter that
might have persuaded her not to testify at the trial.
188. The issue therefore is whether the judge, although leading the jury into the realm of speculation
(on this limited explanation about potential embarrassment), would have conveyed the essence
of the direction to the jury. This would have involved a consideration of the VC’s testimony, which
contained her explanations for her unwillingness to testify, followed by a determination as to
whether they would accept as true any, part or none of her previous accounts.
189. In the summation, after the judge had quoted the VC’s testimony as to her reasons for not
wanting to give evidence in the matter, the judge proceeded to give the following direction at
page 15, lines 6-12,
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“So, Members of the Jury you are to consider the evidence of all these factors along
with any observation you may have made, that the impact on what if any of the
evidence in this matter that you accept or reject. As with all witnesses, it’s a matter
for you to decide what if any of [PA’s] evidence you accept as honest and reliable.”
190. This Court is of the view that, despite this error on the part of the judge in putting forward an
explanation that was not part of the VC’s testimony, taking into consideration the judge’s
reference in the early part of the summation as to the evidence actually given by the VC about
her reasons for not testifying and his directions on the treatment of the explanations given, there
was no injustice to the Appellant.
There is accordingly no merit in this ground of appeal.
Ground 4(b) – Assessment of the VC’s evidence based on only inconsistencies in her evidence
191. Mr. Khan submitted that the trial judge erred by limiting the jury’s assessment of the truth of the
contents of the deposition and police statements by over-emphasising the issues of
inconsistencies in the accounts given.
192. Mr. Khan argued that the trial judge discussed the issue of inconsistencies of the VC’s accounts
at length which would have led to the real risk of the jury believing that they should limit the
assessment of the truthfulness of the statements on inconsistencies only.
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193. Mr. Busby rejected Mr. Khan’s submission and contended that it was simply incorrect to say that
the trial judge directed the jury’s attention to the inconsistencies of the VC as the sole means of
analysing the truthfulness of her accounts. Reference was made to various parts of the judge’s
summation in which the trial judge provided other means by which the jury could assess the truth
of the contents of the prior accounts of the VC.
194. This ground of appeal requires reference to the various parts of the summation in which the
judge directed the jury about the approach to be taken in the assessment of all the evidence in
the matter. The judge stated as follows,
“So, Members of the Jury you are to consider the evidence of all these factors along
with any observation you may have made, that the impact on what if any of the
evidence in this matter that you accept or reject. As with all witnesses, it’s a matter
for you to decide what if any of [PA] evidence you accept as honest and reliable110.”
“In relation to the police statements made by the witness, you will take into account
and it was, of course, wasn’t on oath, and would not necessarily carry the same
weight of sworn Magistrates' Court testimony; I’ve told you that it is a matter for you
whether or not you believe the evidence you’ve heard in this case. Remember in
addition, to the evidence of the Virtual Complainant there is other important evidence
from her mother, the police complainant, and other witnesses whether formal or not.
There are several ingredients of each offence the State has to satisfy you of, and I’ll
(tell) you of that in a minute. You will do that by having regard to the whole of the
110
Summation, page 15, lines 6-12.
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evidence and forming your own judgement about the witnesses, and deciding which
evidence is truthful and reliable, which is not. When I say the whole of the evidence,
remember firstly what is put to a witness by either Counsel is not evidence; it is the
answer that is the evidence111.”
“As you assess their credibility and reliability, it is important that you consider the
testimony carefully. So that what you must determine, is whether the witnesses
testifying in this trial, the witnesses were credible and reliable. And as you will
appreciate it, the most important witness in this matter is [PA], the VC, the victim. She
testified before you here as a young adult at the time of the incident it is alleged that
she was a 15 year old, high school girl. Credibility and reliability, what do those two
terms mean? Credibility means whether a witness was honest and believable, and
truthful, in other words, are they lying? Credibility. Reliability means when the witness
is accurate, mistaken, whether the witness after what may have been a traumatic
experience or after a long period of time is recalling the occurrence fully, recalling the
account; whether in the police statement or evidence in the Magistrates' Court
hearing in the same matter, whether they would have remembered the sequence of
events and so on. Reliability has more to do with memory than it does with deceit or
lies. In looking at credibility and reliability, look at the evidence carefully. Ask
yourselves is the evidence believable and reasonable or not. Consider how the witness
testified. Ask yourselves whether the testimony has a ring of truth. You should also
ask yourselves other questions, does the witness strike you as honest? Is there a
particular reason why this witness would not be telling the truth? You should also look
at whether their evidence is consistent or inconsistent; whether there are
contradictions or not in the witness’ account, account of other witnesses, or
inconsistencies or omissions in their earlier account in the Magistrates' Court or
statement to the police. This would apply particularly so to the Virtual Complainant
111
Summation, page 16, lines 2 to 19.
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and her mother; these are general things that you may look at in helping you to
determine whether a witness is reliable and credible. You are entitled also to consider
what we refer to as “demeanour”. Now, demeanour is not what we call the
cornerstone of credibility. When you are taking account of a witness’ demeanour, you
can take this into consideration, so that you do not place too much emphasis on
demeanour in assessing a witness’ credibility112”.
“Just to conclude, the matter of assessing a witness; all matters having to do with
credibility of witnesses, that is, whether or not you believe they’re speaking the truth,
how reliable the evidence of a witness is, or what weight should be attached to the
evidence of a witness. All these matters are matters for you because you are the sole
judges of the facts. Another question you will ask yourself in doing this assessment of
a witness is whether the witness is generally forgetting or refusing to answer the
questions as an excuse to avoid answering pertinent questions, or why possibly are
they are refusing to answer the questions113.”
“And here in this trial, you have not had the benefit of having her version of events
tested in cross examination, she having refused as it were to testify to the particulars
of the allegations, which is the case for the Accused. But he does not have to prove it,
he does not have to prove it, because remember, I told you it is the State that must
prove his guilt; he does not have to prove himself innocent or prove the State’s case
as incredible or unreliable114.”
“That a person is not guilty of Incest or as now in this case Attempted Incest, if that
person Norbert Aaron committed the offence under what we call restraint, duress or
fear. So he has a defence if he committed the offence under restraint, duress or fear,
the State’s evidence will have to show so that you are sure of it, that if he did attempt
112
Summation, page 16 lines 41-50 and page 17 lines 1-32.
113
114
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sexual intercourse with the VC, that he did not do so under restraint, duress or fear.
Now, what do these words mean? Well, there’s no special legal definition or meaning,
but the common understanding of them would suffice. So restraint suggests
restriction or freedom, prevented from moving; fear suggests an apprehension of
harm or punishment or consciousness of approaching danger of fear; duress suggests
the threat of harm made to compel someone to do something against their will or
judgement. If you were to find that he did commit the sexual act against his daughter
knowing that it is his daughter, but that he did so under restraint, fear or duress then
you cannot find him guilty115”.
195. The excerpts of the summation cited above reveal that the judge was alive to the careful
directions and explanations that the jury required in a case involving a hostile witness and
previous inconsistent statements. The judge was duty bound to highlight the reasons given by
the VC for her refusal to give evidence in the trial and the excerpts referring to that matter have
already been referenced in this judgment.
196. The judge correctly directed the jury about the general and specific approach that had to be
adopted in the assessment of the evidence. In a trial such as this, in which the case for the
prosecution stood or fell on the truth of the previous inconsistent statements, it was incumbent
on the judge to ensure that the jury fully understood the process to be followed in their
determination of all the evidence in the case.
197. To accuse the trial judge of placing too much emphasis on the directions he gave with respect to
the inconsistent statements and the evidence elicited in the trial, would be to underplay the
necessity of reminding the jury at all appropriate stages in the summation about the careful
approach that had to be adopted in assessing the evidence of a hostile witness.
There is therefore no merit in this ground of appeal.
115
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Ground 5: The Learned Trial Judge erred in law when dealing with the defence of the Appellant
by (a) failing to sum up the Defence case in a fair and balanced manner; (b) misdirecting the
jury by focussing on what was put by the Appellant; (c) misdirecting the jury by giving a laissez-
faire direction; and (d) misdirecting the jury on what is reasonable doubt. (sic)
Ground 5(a): Summation of defence case
198. Mr. Khan submitted that the trial judge spent very little time highlighting the case for the
Appellant and on each occasion that the defence was raised by the judge, it was juxtaposed with
the case for the prosecution.
199. Mr. Busby submitted that the judge was limited in what he could say about the case for the
defence because the Appellant did not give evidence, called no witnesses, barely cross-examined
the VC and counsel did not give a closing address. He submitted that the judge was fair and
balanced in his summation.
200. During the course of the summation the trial judge made the following statements,
“So these are all matters for you, and you would have observed that the Accused gave
no evidence in this matter. So they will rely, as they are entitled, on the evidence led
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by the State, for certain facts, and what they say in essence is really the fabrication of
the allegations by [PA]. And the Defence is entitled to have you consider that116.”
“You may find that even if you accept the evidence of [PA] there is still not much of
an issue on the question of consent, for it is the Defence’s case that the incidents did
not take place at all117.”
“The Defence version is that the incident simply did not happen and not that it
happened, but that he had her consent. That is their case, it didn’t happen at all. So
the Defence version as it was put to [PA], you might find and also suggest that her
account, of course, is a fabrication118.”
“The Defence is that the whole incident of each incident of those dates set out in the
indictment or in her evidence or indeed, any other date did not happen. It’s a
fabrication you may find that is being suggested. So the Defence case is not dealing
with consent at all, but denial119.”
“What’s the defence in this matter? Well, the defence in this case is that none of the
allegations made by [PA] against her father, Norbert Aaron, took place. The
allegations are untrue, essentially that’s the case. He did not give evidence or call
witnesses. This is his right, a right you cannot hold against him. What then can you
consider in his favour, in his defence so to speak, remembering that he does not have
to prove his defence or disprove the Prosecution’s case; it remains the burden of the
State to prove it’s case to you beyond a reasonable doubt 120.”
116
117
118
119
120
Summation, page 41, Lines 39-49.
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201. In dealing with the case for the defence, there may be times when a trial judge has to make
reference to the case for the prosecution in order to show the conflicting versions. The excerpts
above do not support the submission of the Appellant that the case for the defence was always
juxtaposed with the case for the prosecution. Further, when the case for the prosecution was in
fact referred to by the judge, it was placed in the context of the case for the defence, the latter
being that the VC had fabricated the allegations against the Appellant. In those circumstances,
there was therefore no undermining of the case for the defence nor any unfairness to the
Appellant.
There is no merit in this ground of appeal.
Ground 5(b) – Focusing on what was put
202. Mr. Khan initially submitted that considering the summation as a whole, the trial judge focussed
on the law of ‘putting’ the Appellant’s case to the witnesses which would have resulted in the
judge telling the jury that the Appellant provided no defence for them to consider, or that the
jury could and should only address their minds to what was put to the witnesses.
203. After the first hearing of the matter, this Court amplified this ground of appeal and requested
further submissions from counsel on whether a particular direction invited the jury to speculate
about the evidence that might have been elicited for their consideration if certain questions were
asked by counsel for the defence. The trial judge stated at page 42, lines 19-50 and page 43, lines
1-16,
“[PA] as you would recall took the oath before you, but refused to testify on matters
concerning the details of the allegations. She in that sense was never tested in cross-
examination, but you did have the opportunity to observe her before you when
questions were put to her by both Counsel for the State, and Defence. Further, I draw
to your attention that the evidence led by way of the police statement was not under
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oath nor was it subject to cross-examination back then. However, the evidence given
in the Magistrates' Court, if you accept it as her evidence was both under oath, and
subject to cross-examination by his Counsel at the time. The deposition that was read
to you was both evidence-in-chief elicited by the State, the Prosecutor in the
Magistrates' Court, and cross-examination elicited by the Defence Counsel in the
Magistrates' Court. You, of course, would not have had the advantage here of
observing the demeanour that the witness had in answering those questions back
then in the Magistrates' Court, nor have had the benefit of the responses to any new
questions that may have been put to her by Counsel Mr Deena, here in this trial had
he the opportunity to do so.
The Counsel for the Defence did not specify what those specific questions might
have been, but it was open to the Defence to put any relevant questions they chose
to the witness, whether or not, she answers to them. Indeed, Counsel did put his
essential case to the witness, denying her allegations against the Accused; you would
recall that. She answered none you may find. But all the same you ask yourself
whether there is any question that could have been asked by the Counsel, answers
to which would have assisted you. Even if you cannot come up with such a question
there is the prospect, even a slight prospect that there have been a question that
could have been asked perhaps, and answer provided that could have furthered the
interest of justice. This you may or may not have found to be to the disadvantage
of the Accused, and you are entitled to consider all of this in determining whether
to accept the VC's earlier accounts which were read into you, at all. And what
weight or if you accept it, if any to attach to those accounts. These are matters for
you, the Jury.
Just a reminder that you are not to ask your own questions, and answer them, and
use the answers as evidence; that is speculation. I merely point out that you may or
may not for that matter consider that there may have been questions that could
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have been asked and answered, and were not, thereby depriving the VC's evidence
of credibility, or more weight; and these are matters for you”. [emphasis added]
204. Mr. Khan submitted that although the trial judge directed the jury not to embark on speculation,
by asking them to form theories as to why defence counsel did not ask certain questions or what
questions could have been asked, the trial judge would have in effect led the jury to engage in
impermissible speculation.
205. Mr. Busby submitted that the impugned direction was part of a broader direction, which was
given in the context of what matters the jury might consider in the Appellant’s favour.
206. Mr. Busby submitted that the trial judge sought to convey two concepts to the jury. The first was
the disadvantage that the Appellant faced having regard to the fact that the VC’s account was
not tested in cross-examination. The second (the impugned direction) was that the jury should
not speculate or “bridge the gap” as to what questions might have been asked. Mr. Busby argued
that the trial judge’s task was made more difficult since the Appellant did not lead a positive
defence. He submitted however that no prejudice accrued to the Appellant as a result of the way
in which the trial judge directed the jury on his defence.
207. Mr. Busby sought to persuade this Court that the intention of the trial judge in this part of the
summation was to, first, highlight the disadvantage accrued to the Appellant by the VC not having
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her account tested in cross-examination; and second, remind the jury that they ought not to
speculate about questions that could have been asked to “bridge the gap.”
208. Unfortunately, although that might have been the intention of the judge, the message was not
made clear in the final portion of the relevant excerpt at paragraph 203. There were at least two
possible interpretations. The first possible interpretation was that there were questions that
defence counsel could not ask the VC because she refused to participate actively in the
proceedings and this was to the disadvantage of the Appellant because the VC’s credibility could
not have been tested in cross-examination. The second interpretation was that there were
questions that could have been asked and answered, but were not, and this was the fault of
defence counsel. Whatever the correct interpretation may be, even if there are a number of
other possible interpretations, this passage from the summation was on far too fundamental an
issue to be the subject of ambiguity or lack of clarity. There was a real risk that the jury would
not have appreciated the point being made by the judge about the extreme caution with which
they should assess the previous inconsistent statements of the VC before accepting them as true.
209. Although in his summation the judge reminded the jury that they were not to speculate, the
relevant excerpt at paragraph 203 shows that the judge appeared to instruct the jury to conduct
an exercise that would lead them directly into the realm of speculation. Whilst it might not have
been his intention, the judge’s suggestion to the jury that there might have been questions that
could have been asked that might have assisted them in the determination of the core matters
of the credibility and reliability of the VC, appeared to place blame on defence counsel and had
the potential to act to the detriment of the Appellant.
For the reasons stated above, this direction is fatal to the conviction. There is merit in this ground
of appeal.
Page 93 of 107
Ground 5(c) – The laissez faire direction
210. Mr. Khan submitted that the judge misdirected the jury by his “laissez-faire” direction, in the
summation when he told the jury “I suppose you can look at the Defence case or the version of
events as put to the Virtual Complainant by Defence Counsel has been put before you to assist
you in coming to the conclusion when looking at the State’s case, that the case for the State has
not been proved.121” [emphasis added]
211. Mr. Busby submitted that the judge was left with a task of using whatever material there was to
place a case for the Appellant before the jury for their consideration. The defence was a bare
denial, however the judge was limited in the material he could properly place before the jury that
constituted the case for the defence. He submitted that it was important to look at the judge’s
direction as a whole. Although Mr. Busby conceded that the judge’s use of the word “suppose”
might not have been the best choice, he contended that its use did not amount to a misdirection.
212. The direction in question must be considered in its entire context. In the summation, the trial
judge stated122,
“And here in this trial, you have not had the benefit of having her version of events
tested in cross examination, she having refused as it were to testify to the particulars
121
Summation, Page 21, lines 26-30
122
Summation, Page 21, lines 15 – 41.
Page 94 of 107
of the allegations, which is the case for the Accused. But he does not have to prove it,
he does not have to prove it, because remember, I told you it is the State that must
prove his guilt; he does not have to prove himself innocent or prove the State’s case
as incredible or unreliable. You still have to at all times look to the case for the Accused
-- sorry, to look to the Prosecution’s case to see whether they have proved the case
against the Accused. I suppose you can look at the Defence case or the version of
events as put to the Virtual Complainant by Defence Counsel (has been put before
you) to assist you in coming to the conclusion when looking at the State’s case, that
the case for the State has not been proved. But again, even if you do not accept what
the Defence has put to the Virtual Complainant, put before you, you still have to be
satisfied of the State’s case beyond a reasonable doubt. For it is only the State that
needs to prove a case here. You see it is possible for a Jury not to believe the case for
the Defence and at the same time not to believe the State’s case so that they are sure
of it. In such a case you will be duty bound to find the Accused not guilty. This is why
you must always look to the case for the State to satisfy you of the guilt of the
Accused.”
213. Although the use of the word “suppose” by the trial judge, might have been an unfortunate ‘slip
of the tongue’, this Court cannot turn a blind eye to the effect that it might have had on the jury
in its assessment of the case for the defence. By using the word “suppose” the jury might have
been lured into the false belief that it was optional as opposed to mandatory for them to consider
the case for the defence in their determination as to whether the prosecution had proven its
case. After the ‘slip’, the judge proceeded to explain in detail that even if the case for the defence
was not believed by the jury, it was still for the prosecution to prove its case beyond reason
doubt. Despite this further direction by the judge, the damage had already been done and
because the ‘injury’ was to a fundamental issue in the summation, the effect was fatal.
There is merit in this ground of appeal.
Page 95 of 107
Ground (d) – Definition of reasonable doubt
214. The judge stated the following at page 10, line 27-29 of the summation,
“Now, what is reasonable doubt, you may ask. Well, a reasonable doubt is not a far-
fetched doubt; it means that doubt is rooted in the evidence. It could stem from a
lack of evidence.” [emphasis added]
215. Mr. Khan argued that the above direction compounded the judge’s error of failing to direct the
jury that the Appellant’s exculpatory statements were evidence in the case and evidence which
they could rely upon to reach a verdict.
216. Mr. Khan submitted that the jury might have had the impression that the out of court statements
were not evidence in the case which they could have relied upon and therefore they were
incapable of raising doubt since such doubt was “rooted in evidence”.
217. Mr. Busby in effect submitted that Mr. Khan’s submissions were misleading as the ground was
premised on only two extracts from the judge’s summation. He listed several areas in which the
judge gave directions on reasonable doubt and the standard that must be met. He submitted that
no fault whatsoever could be found in the judge’s directions since they were correct statements
of law, which were delivered in a balanced manner for both sides.
Page 96 of 107
218. The Judicial Committee of the Privy Council (the Privy Council) in Henry Walters v R123 stated that
it was a matter of discretion for the judge to choose the most appropriate set of words to enable
the jury in question to understand that they must not return a verdict against an accused unless
sure of his guilt. The Board stated at pages 30-31,
“Their Lordships will deprecate any attempt to lay down some precise formula or to
draw fine distinctions between one set of words and another. It is the effect of the
summation as a whole that matters.”
219. The approach in Walters was adopted in the Court of Appeal decision of Pamponette v The
State124.
220. It is important to consider the judge’s direction, as a whole. The judge stated the following125,
“The State must satisfy you of what you have -- I’m sure you’ve heard before, beyond
a reasonable doubt with respect to the guilt of the Accused on all or any one or several
of the counts. This means that the State must satisfy you to the extent that you feel
sure of Accused’s guilt before you can find him guilty as charged. Now, what is
reasonable doubt, you may ask. Well, a reasonable doubt is not a far-fetched doubt;
it means that doubt is rooted in the evidence. It could stem from a lack of evidence. A
reasonable doubt, however, cannot be based on emotions, sympathy, or bias. If at the
end of the process of analysing the evidence you are not sure that the Accused is
guilty, it is your duty to find him not guilty. If at the end of the day on any one or
several of the counts you believe that the Accused is probably guilty -- or put in
another way, may be guilty or is likely to be guilty, that is not enough. If this is what
123
(1969) 2 AC 27 PC.
124
Cr. App. No. 12 of 2010.
125
Page 97 of 107
you have concluded, then you do the Accused no favour by finding him not guilty; it
would be his right, his entitlement.”
If, however, having analysed the evidence, you feel sure, you feel that the Accused is
guilty beyond a reasonable doubt on any one or several of the counts then equally, it
would be your duty to bring in a verdict of guilty against the Accused on that one or
that several, or all as the case may be that you may find him guilty of.” [emphasis
added]
221. The judge’s direction on ‘reasonable doubt’ was unassailable. The term was explained with clarity
and the consideration in respect of the jury having to be ‘sure’ about the case for the prosecution
in order to find the Appellant guilty was emphatically made by the judge.
There is therefore no merit in this ground of appeal.
The Direction on Inferences
222. This Court requested that the parties provide further submissions on whether the trial judge
erred in his direction on inferences, by imposing a burden on the Appellant to prove the defence
of fabrication.
223. The direction on inferences can be found at page 9, lines 22-43 of the summation and states as
follows,
“But the Defence will also ask you to draw several inferences including that the
Virtual Complainant fabricated the evidence. So these are matters for you. However,
remember that before you can draw an inference there must be in existence
evidence which you find to be true from which you can draw the inference. So with
respect to whether the Virtual Complainant fabricated, for instance, this case
Page 98 of 107
against the Accused, you have to ask yourself, on what facts are they asking you to
draw this conclusion. If there are no such facts upon which you can draw a common
sense conclusion then, perhaps you may think that you are being called upon to
speculate, a process of which you are not permitted to do. But these are truly matters
for you to decide whether on what facts exist, and what inferences you can draw;
whether for the State or for the Accused. Now, these are just examples I just used of
inferences that you have been asked to draw. I point it out for demonstration purposes
only, and not to draw your attention to it necessarily as a priority or even a possible
inference; that is your job. But you would realise for yourself that you’ve been asked
to draw several inferences, important inferences in this case.”
224. This Court also drew the attention of counsel to the case of R v Villaroman126. In that case, a
computer repair technician found child pornography on the accused’s laptop. The technician
informed the police of this and the accused was in turn charged with a number of child
pornography offences. The trial judge found that the circumstantial evidence against the accused
proved his guilt beyond reasonable doubt. The accused appealed the decision. The Court of
Appeal allowed the appeal and acquitted the accused on the basis that the trial judge misstated
the law with respect to circumstantial evidence. The State appealed to the Supreme Court of
Canada and the acquittal was set aside and the case was remitted to the Court of Appeal. One of
the questions before the court was whether an inference must be based on proven facts. The
court held that, when assessing circumstantial evidence, inferences consistent with innocence
do not have to arise from proven facts.
225. This Court invited submissions on the applicability of R v Villaroman as it related to the issue of
inferences.
126
[2016] 1 SCR 1000.
Page 99 of 107
226. Although Mr. Khan referred to the trial judge’s direction on inferences in his initial submissions,
the issue with the direction was not raised in the manner as contemplated by this Court.
227. In his further submissions, Mr. Khan submitted that the direction as cited in paragraph 223 above
shifted the burden on the Appellant, and/or suggested that the absence of evidence was
synonymous with the Appellant’s guilt. It was further submitted that the trial judge erred in the
direction on inferences and because of the flawed direction, the jury would not have known that
there were additional plausible theories other than guilt when faced with a gap in the evidence.
228. Mr. Khan relied on the decision of R v Villaroman127 and submitted that in assessing
circumstantial evidence, inferences consistent with innocence do not have to arise from proven
facts.
229. Mr. Busby submitted that in order to answer the Court’s question about whether the inference
direction had the impact of imposing a burden on the Appellant to prove the defence of
fabrication, it was necessary to determine which burden is applicable to that defence. In answer
to this question, he referred to the decision of R v Britzman128, which states, inter alia, that “a
defence to a criminal charge which suggests that prosecution witnesses have deliberately made
up false evidence in order to secure a conviction must involve imputations on the characters of
those witnesses”. Mr. Busby submitted that the defence of fabrication is a positive attack made
by the defence on the character of the prosecution witness and it carries with it the possibility of
the accused’s bad character becoming admissible pursuant to section 15N(g) of the EAA. He
127
Ibid.
128
[1983] 1 All ER 369.
Page 100 of 107

submitted that the defence of fabrication is not equivalent to a denial of guilt and does not form
part of the presumption of innocence.
230. Mr. Busby argued that the defence of fabrication could not be inferred from a lack of evidence
because an accused bears an evidential burden if he wishes the jury to consider this defence. He
submitted that an accused must first adduce a factual basis for the defence of fabrication. He
submitted that if one looked at the issue in this way, it was appropriate for the judge to alert the
jury to the fact that they should look for facts before they drew the conclusion that the defence
of fabrication was applicable.
231. Mr. Busby further submitted that the ‘inference direction’ did not have the impact of imposing a
burden on the Appellant to prove the defence of fabrication. Rather, an evidential burden was
placed on the Appellant. He submitted that in any event, the direction was not flawed because
the prejudice suffered was not fatal since the jury was never left in doubt as to where the burden
of proof lay. He submitted that the trial judge made it abundantly clear to the jury that no burden
was placed on the Appellant to prove his innocence and if they were left with reasonable doubt
as to his guilt, they must acquit him. As a result, the summation, when read as a whole, accrued
no prejudice to the Appellant.
232. With respect to the decision of R v Villaroman129, Mr. Busby submitted that the case was based
on circumstantial evidence unlike the present case which was based substantially on direct
evidence.
233. Mr. Busby submitted that the only ingredients that required the jury to draw inferences were
those of lack of consent (in respect of the counts for grievous sexual assault and indecent assault)
and on the attempted incest count, that the Appellant knew that the VC was, by blood relation,
his child. Mr. Busby argued that on the evidence in this case, it was impossible to draw any
inference other than that the VC did not consent to the grievous sexual and indecent assaults.
According to him, the impossibility of drawing that conclusion was superseded only by the
129
Villaroman (n. 126).
Page 101 of 107

impossibility of drawing the inference that the Appellant did not know that she was his daughter
by blood.
234. The case for the defence in this matter was one of fabrication and thus, there is no issue with Mr.
Busby’s contention, with respect to his reference to Britzman130, that the use of such a defence
involves imputations on the character of prosecution witnesses. The question as to whether such
imputations open gateway (g) of the bad character legislative framework for the prosecution to
seek to admit such evidence, is of no moment in this case, since the Appellant was of good
character, and the good character direction was given by the trial judge.
235. There is much academic debate about whether the evidential burden is a burden of proof at all.
However, that level of intellectual discussion is not relevant for the purpose of this ground.
Suffice it to say that the evidential burden is satisfied provided that there is some evidence at the
trial for a particular issue to become worthy of consideration by the jury.
236. In the summation at page 5, lines 27-33 the trial judge told the jury,
“…and you would have observed that the Accused gave no evidence in this matter. So
they will rely, as they are entitled, on the evidence led by the State, for certain facts,
and what they say in essence is really the fabrication of the allegations by [PA]. And
the Defence is entitled to have you consider that.”
237. Quite appropriately, the trial judge directed the jury very early in the summation that the case
for the defence was one of fabrication. The judge himself recognised that based on the questions
put to the VC (which of themselves were not evidence in the case); the issue of fabrication
130
Britzman (n. 128).
Page 102 of 107

became a live issue in the matter. In that regard, the cross examination of the VC by defence
counsel is instructive. Pages 118 and 119 of the Notes of Evidence state,
“CROSS EXAMINATION OF WITNESS [PA] BY MR DEENA

Q: Good afternoon ma’am
A: Good afternoon
Put: I am putting it to you ma’am that at no time in the month of April 2008
on the period of August 2009, September 2009, August 20 Accused had
ever had sexual intercourse of attempted to have sexual intercourse or
interfered sexually with you.
A: I have nothing to say your honour.
Q: A document was shown to you as document B namely a deposition from
the or your evidence that you gave to the Magistrate Court. Did you see
that document.
A: No comment sir.
Put I am putting it to you that with respect to that document and that at no
time did you ever mention that police gave the police a statement with
respect to this matter.
A: No comments sir.
Put: Documents A identified as A,B and C that was put forward to you on those
document it was written that the Accused suck your vagina, I am putting
to you that never happened.
A: Have no comments sir.
Put: Again documents A, B and C identified as such, those documents contains
a word that the Accused place his finger in your vagina, that never
happened.
A: I have no comment sir.
Page 103 of 107

Put: Documents A,B and C identified as such before this court, is written in those
documents that this Accused touched your breast I am putting it to you that
there never happened
A: Thank you very much ma’am that is all for my cross-examination”
238. Based on the cross-examination of the VC by defence counsel, it was obvious that the Appellant
was stating that the VC was lying about all the incidents. The only logical conclusion from that
line of cross-examination was that the VC had fabricated the allegations against the Appellant.
Fabrication was therefore a live issue in the matter and formed the bedrock of the case for the
defence. It was therefore incumbent upon the judge to ensure that nothing was done while giving
his directions to the jury, to inadvertently undermine the defence of fabrication.
239. When the judge was dealing with inferences, in the excerpt in paragraph 223 of this judgment,
the jury was directed that the defence was asking them to draw inferences which included that
the VC had fabricated the evidence against the Appellant. Having boxed the defence of
fabrication into the confines of an inference that had to be drawn from the evidence, the judge
directed the jury that the inference of fabrication could only be drawn from facts which they
found to be true. Further, if there were no such facts, then they would be speculating on the
issue of fabrication and such speculation was prohibited.
240. In Villaroman131, Cromwell J stated the following at paragraph 35,
“35. At one time, it was said that in circumstantial cases, ‘conclusions alternative to
the guilt of the accused must be rational conclusions based on inferences drawn from
proven facts’: see R. v. McIver, [1965] 2 O.R. 475 (C.A.), at p. 479, aff’d without
discussion of this point [1966] S.C.R. 254. However, that view is no longer accepted.
In assessing circumstantial evidence, inferences consistent with innocence do not
have to arise from proven facts: R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at para.
131
Villaroman (n. 126).
Page 104 of 107

58; see also R. v. Defaveri, 2014 BCCA 370, 361 B.C.A.C. 301, at para. 10; R. v. Bui,
2014 ONCA 614, 14 C.R. (7th) 149, at para. 28. Requiring proven facts to support
explanations other than guilt wrongly puts an obligation on an accused to prove
facts and is contrary to the rule that whether there is a reasonable doubt is assessed
by considering all of the evidence. The issue with respect to circumstantial evidence
is the range of reasonable inferences that can be drawn from it. If there are
reasonable inferences other than guilt, the Crown’s evidence does not meet the
standard of proof beyond a reasonable doubt.” [emphasis added]
241.In our view, Mr. Busby is correct in his submission that Villaroman132, was based on
circumstantial evidence whereas the present case was based on the direct evidence as given by
the VC in her previous inconsistent statements. According to the prosecution, the only
ingredients of the offences that were required to be inferred were that of lack of consent and
the blood relation of the VC to the Appellant. However, once the jury accepted the versions of
the previous inconsistent statements as being truthful, those ingredients would have been
satisfied and therefore no inferences would have had to be made in order for their proof.
242.The real challenge with the direction which has not been addressed by the prosecution is the
instruction by the trial judge that the defence of fabrication had to be founded on facts upon
which the defence was relying. The case of Villaroman emphasises that in the context of
inferences, an accused ought not to carry any burden to prove facts that would support
explanations other than guilt. In similar fashion, in this case, the Appellant ought not to be obliged
to prove facts from which the jury could infer that the VC had fabricated the case against him.
243.An analytical dissection of the excerpt of the summation referenced above, shows that the judge
directed the jury “to ask yourself, on what facts are they asking you to draw this conclusion.”
Having raised the question in this form, it was incumbent on the judge to go on to explain to the
132
Ibid.
Page 105 of 107

jury the matters that they could have considered. These matters would have included the
following:
(a) The refusal of the VC to testify and the impact of the reasons proffered by her for
so doing, on the credibility and the reliability of her previous accounts.
(b) The reaction and state of mind of the Appellant by his denial of any involvement in
the offences when he was confronted by the police officer.
(c) The questions put to the VC in cross-examination, which, although not evidence,
raised the defence of fabrication.
244. The failure by the judge to highlight any matters for the jury to consider in their determination
of the defence of fabrication, ran the real risk that the jury gave no consideration to the matter
and therefore dismissed, without proper analysis, the case for the defence.
245. It must be said that because the judge placed the defence of fabrication within the confines of
an ‘inference’, and then couched the direction in terms which conveyed that the Appellant had
a burden to prove facts to justify the ‘inference’, makes this aspect of the summation fatally
flawed , despite the valiant attempt by Mr. Busby to submit otherwise.
246. The treatment of the defence(s) of an accused in a trial has to be meticulously handled by the
judge because although the accused is presumed innocent and has no burden to prove his
innocence, this fundamental principle can be easily side-lined by a direction, as in this case, that
suggests otherwise. In our view, this direction by the judge was fatal to the conviction.
There is merit in this ground of appeal.
Ground 6(b) and Ground 7 were withdrawn by the Appellant during the hearing of the appeal.
Page 106 of 107

THE APPLICATION OF THE PROVISO
247. We have found merit in part of ground 1 and in ground 5(b). We have also found that the judge
erred in his directions on the defence of fabrication by not highlighting the relevant matters for
the jury to consider in their determination of that issue and in placing the defence of fabrication
within the confines of an ‘inference’ which would have conveyed that the Appellant had a burden
to prove facts to justify the ‘inference’. These errors affect the safety of the Appellant’s conviction
and we accordingly proceed to consider whether this case is a proper one for the application of
the proviso, pursuant to section 44(1) of the Supreme Court of Judicature Act Chapter 4:01.
248. In the decision of Stafford and Carter v The State133, the Privy Council stated that the criterion
for the application of the proviso is whether, if the jury had received the appropriate directions,
they would, without doubt, have convicted the Appellant on a consideration of the whole of the
admissible evidence, omitting from consideration evidence which clearly the jury did not believe.
249. In consideration of the material errors identified, together with the fact that the prosecution’s
main witness in this case was deemed hostile, we are of the view that this is not a proper case
for the application of the proviso. We are not satisfied that the jury, properly directed, would,
without doubt, have convicted the Appellant upon a consideration of the whole of the admissible
evidence.
DISPOSITION
250. The appeal is allowed. The Appellant’s conviction is quashed and his sentence is set aside.
We now invite submissions on the question of a retrial.
133
(1998) 53 WIR 417 (PC).
Page 107 of 107

Judgment - Norbert Aaron V The State

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Judgment - Norbert Aaron V The State

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THE REPUBLIC OF TRINIDAD AND TOBAGO

IN THE COURT OF APPEAL

Crim. App. No. S026 of 2017

DATE OF DELIVERY: May 31, 2022.

The Appellant has appealed his convictions.

THE CASE FOR THE RESPONDENT

On either Sunday 13 April, 2008 or Sunday 20 April, 2008

August 27, 2008

A day in September, 2009

The report and ensuing investigation

THE CASE FOR THE DEFENCE

The Appellant’s Submissions

The Respondent’s Submissions

The Appellant’s Submissions

The Respondent’s Submissions

The Decision of R v Muldoon

The Submissions on the decision of R v Muldoon14

The Law, Analysis and Conclusion

The Witness: A wooden house, part wooden, part concrete.

The Court: Yes we have SS1

The Court: You have it, just take a look at them.

The Witness: I do not wish to answer any questions your honour.

The Court: Yes Mrs. Dougdeen-Jaglal.

The Witness: I don't wish to answer anything else your honour.

The Witness: I don't wish to answer anything else your honour.

(sic) [emphasis added]

42. Section 15H(1) of the EAA stipulates that,

“…(2) In construing the phrase “previous inconsistent or contradictory statement”, a

67. As explained in Dasu v State of Maharashtra 1985 Cri LJ 1933 at [14]:

We therefore find no merit in ground 2(a). There is merit in part of ground 1.

The Appellant’s Submissions

The Respondent’s Submissions

The Law, Analysis and Conclusion

(i) It is undesirable to proceed immediately on not getting the expected answer to

(v) The witness was subsequently cross-examined on her previous statements41.

(i) The prosecutor was allowed forthwith to cross-examine the witness.

82. The procedure to be adopted in treating a witness as hostile is as follows,

The Appellant’s Submissions

The Respondent’s Submissions

The Law, Analysis and Conclusion

The Decision of Japhet Bennet v The Queen54

“132. …This is a sound approach that merits adoption in other jurisdictions,

“22. The non-exhaustive considerations listed in s114 (2) as directly applicable to an

“Exclusion of unfair evidence.

110. In Riat60, Hughes LJ further opined at paragraph 25,

“25. Whichever is the statutory power under consideration, it is clear that

The Canadian Position

The Belizean Position

122. In the final analysis, Morrison JA stated at paragraph 41,

“…There is always a residual discretion in a trial judge to decide whether or not to

The Appellant’s Submissions

“All information favorable to an accused in relation to credibility and propensity are

(e) Those statements do carry some evidential value in law.

Statements on arrest - Perhaps this exception would be better described as

"A statement made voluntarily by an accused person to the police is

This means that such a statement is not, like a confession, received as

151.The Court in Edgar91 later said at paragraph 72,

“72. I conclude, therefore, that it is open to a trial judge to admit an accused's

The Law, Analysis and Conclusion

(1) A direction as to the relevance of his good character to a defendant's

163.Lord Steyn continued at page 51,

‘(1) A direction as to the relevance of his good character to a defendant's credibility is to be