The Queen v Eron Collymore et al

SAINT LUCIA EASTERN CARIBBEAN SUPREME COURT IN THE HIGH COURT OF JUSTICE (CRIMINAL) CASE NO. SLUCRD2016/0661A, 0662A, 0663A, 0664A, 0665A, 066A, 0667A BETWEEN THE QUEEN and 1. ERON COLLYMORE 2. IRKIM BERNARD Defendants Appearances: Ms. Isa Cyril and Ms. Stacey-Anne St. Ville of Counsel for the Crown Mr. Leslie Mondesir of Counsel for the Defendant Eron Collymore The Defendant Irkim Bernard in person ------------------------------------------------------- 2020: January 29th; May 6th . ------------------------------------------------------- JUDGMENT ON VOIR DIRE Voir Dire – Challenge to identification evidence – Procedure for the conduct of Identification parades and voice identification – Standing Order 47 of the Police Act- Application of Best Practices P.A.C.E and the like – Bail pending trial.

[1]Taylor-Alexander J: The Defendants are charged in an indictment of multiple crimes arising out of the same facts and circumstances. These crimes are for Rape, Robbery, Kidnapping, and Indecent Assault. It is acknowledged by the parties that the Crown’s case relies wholly on identification evidence.

The Relevant Facts

[2]It is alleged that in the evening of Wednesday the 23rd day of March 2016, the Virtual Complainant was at a remote outdoor location on a moonlit night engaging in sexual intercourse with a male friend, when they was accosted by two unknown men, who were partially masked, and who brandished guns. She and her male friend were robbed of some of their belongings, her male friend was stripped to his boxers his hands and feet tied, placed in a fetal position in the trunk of his car, the Virtual Complainant was placed on the flooring of the back seat of her friend’s car, with her head facing down and the shorter of the two men sat with her, while the other male drove the car. They were driven to another remote location where they were further robbed of their cell phones, her tablet and US$50.00, they were threatened and she was raped by the shorter of the two men, while her male companion remain imprisoned in the trunk of his car. During the rape, the Virtual complainant lifted her dress so as not to see the shorter man raping her. The men then took her to an ATM machine where she was forced to withdraw US$500.00 from her account. The shorter of the two men untied his face at that time. The men then drove to another part of the island, making various stops along the way, during which time she remained in the back seat of the car with her head lowered and her male companion remained imprisoned in the trunk of the car. Finally, the men came out of the vehicle at Odsan and gave up the vehicle to her. She drove off and stop shortly after to free her male companion. When she got home after the incident it was 4:00 a.m. on the following day. The Virtual Complainant was in the company of the men for about four hours. She says the taller of the two men, kept taking off and replacing his face covering to cover his face just below the eyes. The Defendants who were charged with these offences have pleaded not guilty.

[3]As part of the police investigations visual and voice identification procedures were conducted and the Defendants were positively identified by Martha Lee Bicar.

[4]A trial commenced four (4) years after the alleged offences, and after a Jury was empaneled but before evidence was led, the Crown applied to adduce evidence of an identification parade held for the Defendant Irkim Bernard who is self-represented. The parade had in fact been conducted with the Defendant Irkim Bernard three months after the alleged incident, but it had had not been disclosed on the Defendant or the Co-Defendant. The Crown had also neglected to include the officer who conducted the identification procedure for Irkim Bernard as a witness of the Crown on the indictment.

[5]Irkim Bernard made no submissions in response to the Crown’s application, for late disclosure. I concluded that the evidence was admissible evidence, there having been compliance with Section 100. The prejudice to the Defendant was in the delay in service of the disclosure, which I was satisfied, could be remedied by giving the Defendant the opportunity to review the disclosure and advise himself. I directed disclosure of the evidence of the identification parade on Irkim Bernard and his Co-Defendant and adjourned the trial for one day in order to allow Irkim Bernard to become acquainted with the fresh disclosure, and to indicate whether this affected his Defence going forward.

[6]On the following day, and having himself reviewed the fresh disclosure, Counsel for the Co- Defendant Eron Collymore, made several oral submissions in the absence of the Jury. These were: (1) That the fresh evidence of the conduct of an identification parade, did not include a Notice of Description of suspect, such that the court must conclude that none was prepared. A failure to have obtained the Notice of Description compromises the evidence obtained as a result of the identification procedure. (2) That the conduct of the identification procedure was not in keeping with the Pace Code D, which provides for a very structured process, designed to safe guard the rights of the Defendant, and a failure to so employ results in a miscarriage of justice especially where the only evidence on which the Crown relies is identification evidence. (3) That the Voice Identification procedure was not in keeping with best practice, that it compromised the reliability of that evidence, and should be struck out. (4) The deliberation of these issues will result in the delay of the trial, and the Defendants who have now been on remand for three (3) years and four (4) months should be favorably considered for bail.

[7]The first two of the submissions made by Mr. Leslie Mondesir do not directly impact Eron Collymore, his client, the Co-Defendant, but I agree with Mr. Mondesir that a weakness in the treatment of evidence of Irkim Bernard would no doubt impact the Jury’s treatment of his client and consequently he felt compelled, to draw to the court attention, the procedural irregularities that impact the fairness of the trial. I want to commend Mr. Mondesir for his submissions and for his allegiance to the practitioner’s oath. I want to thank him for his for his pursuit of fairness for the Defendant Irkim Bernard, who I indicated earlier, is a pro se litigant.

[8]The case against the Defendants in this matter depends wholly on the correctness of the identification made by the Virtual Complainant. The circumstances of this case, namely, the time the incident occurred, that the perpetrators were unknown, that their faces were partially obscured, the deliberate efforts by the perpetrators to prevent the victims from seeing their faces; makes the quality of the identification evidence an issue. It is accepted that eye-witness identification, even when wholly honest, may lead to the conviction of the innocent. It is therefore important that alleged weaknesses in the evidence are exposed and tested before the case is put to the jury.

[9]Lord Devlin in a report in 1976 that looked at the issue of mistaken identity and the role of identification evidence in securing convictions, explained the challenges of witness identification: “We are satisfied that in cases which depend wholly or mainly on eyewitness evidence of identification, there is a special risk of wrong conviction. It arises because the value of such evidence is exceptionally difficult to assess; the witness who has sincerely convinced himself and whose sincerity carries conviction is not infrequently mistaken.”

[10]The holding of an identification procedure is designed to test the ability of a witness to identify a person seen on a previous occasion, and to provide safeguards against mistaken identity. The correctness of the procedure used is therefore important, although it is concomitantly accepted that only breaches in procedure, that result in unfairness, would result in the evidence being withdrawn. The following UK common law cases are instructive: — (i) Regina v Grannell (1990) Cr App. R. 149; [1990] CLY 1990, the Complainant had seen the Burglar/Defendant, noted his car number and later identified the car to the police. He identified the Defendant from a group identification, but the codes of practice were not followed. Though the Codes had been breached the court must look to see whether this leads to any unfairness, and in doing so the court of had a discretion to admit that evidence. The admission of the identification evidence could not be faulted in this case. See also Quinn [1995] 1 Cr App R 480; Hickin [1996] Crim LR 584 (ii) R v Popat [1998] 2 Crim App. R 208, CA, The Criminal App Court concluded that “where insufficient regard is had to fair identification practices and adducing reliable identification evidence, the discretion to exclude evidence is likely to be exercised and convictions will be liable to be treated as unsafe”. (my emphasis).

Identification Procedures in Saint Lucia

[11]Section 100 of the Evidence Act Cap 4.15, enacted with effect from 1st November 2005, renders identification evidence inadmissible, unless:— (a) Either— (i) an identification parade that included the Defendant was held before the identification was made, or (ii) it would not have been reasonable to have held an identification parade and sub-section (5) applies; and (b) The identification was made without the person who made it having been intentionally influenced to make it.

[12]The duty to hold an identification procedure applies equally under the Common Law where a dispute as to identity may reasonably be anticipated - R. v. Rutherford and Palmer, 98 Cr. App. R. 191, CA.

[13]Section 168 (b) of the Evidence Act provides for the relevant Minister to make Codes of Practice respecting: — (b) The detention, treatment, questioning and identification of persons by police officers; It is accepted that Codes of Practice have not been promulgated under the Act.

[14]Counsel Mr. Mondesir has suggested in his submissions that the standard to which the police should aspire in conducting identification procedures is that set out under The Police and Criminal Evidence Act 1984 (PACE), Code D, which was created to ensure fairness in identification procedures both to accused and victim alike.

[15]In Saint Lucia there had been a historic reliance on PACE Code D, which it would appear, was legitimized by section 948 of the repealed Criminal Code 1992. It provided: “Subject to the provisions of this Code or of any other Statute; the law of evidence administered in the Court shall be the same as the law of evidence in criminal causes and matters administered for the time being in the High Court of Justice, and the Courts of Assizes created by Commission of Oyer and Terminer and of Gaol Delivery, in England, so far as such practice and procedure are applicable to the circumstance of this State.” (my emphasis).

[16]I am doubtful whether correctly interpreted Section 948 permitted the reception of Code D into our law. The Codes of Practice A to H under PACE are operationalized by the Department of Justice of the England, to regulate the investigation and evidence gathering procedures of the police in England. Section 948 permitted only the law of evidence administered in the High Court of England “so far as such practice and procedure are applicable to the circumstance of this State”

[17]To have assumed that this provision facilitated the reception of Code D of PACE would be to elevate Code D from an operational and administrative direction or procedure to the status of law. If I am wrong, I am also satisfied that Code D was not a practice or procedure applicable to the circumstances of this state, there being in place before 1992, Standing Order Number. 47 of the Police Force of Saint Lucia, which adapted findings of a report of the Royal Commission on Police Powers 1929 set up by King George V. That Commission issued general powers and duties of Police in the investigation of Crime, which were adapted for use by the Commissioner of Police of Saint Lucia, for the information and guidance of all ranks of the Police Force. This Standing Order directed a procedure for holding of Identification Parades, identification by photographs, and to a limited extent voice identification.

Application of Standing Order No 47

[18]The Police Act Cap 14.01 was enacted and brought into effect on 1st October 1965 Part 12, section 59(2) and (3) provides: — “The Commissioner of Police may issue Standing Orders, not inconsistent with this Act or regulations made thereunder, for any of the following purposes that is to say— (a) The description and issue of accoutrements and badges of rank to be supplied to the Force; (b) The duties to be performed by police officers; (c) The training of the Force; (d) The management and good government of all police buildings, accommodation, stores and furniture; (e) The posting of all police officers and the duties to be performed by them; (f) The management of police canteens and recreation rooms; (g) The welfare of police officers; (h) Such other matters as may be necessary for preventing abuse or neglect of duty, for rendering the Force more efficient in the discharge of its duty, and for carrying out the objects of this Act. (My emphasis) (3) Every such standing order— (a) Shall be subject to the approval of the Governor General; and (b) Shall be brought to the notice of every police officer, but need not be published in the Gazette”

[19]Standing Order 47 was issued pursuant to that provision and I have construed it to have been lawfully issued by the Commissioner of Police pursuant to the power under Section 59(2). I have also concluded that these powers granted to the Commissioner of Police, allowed for that office to introduce measures that directed the manner in which evidence was gathered and tested by the police. In the circumstances, I have concluded that Section 948 of the former Criminal Code did not abrogate Standing Order 47 issued by the Commissioner of Police. It follows therefore that when the Criminal Code 1992 was repealed and replaced by Criminal Code 1994 and its subsequent amendments, Standing Order 47 remained alive and well and continued to be the procedure that regulates the police on the conduct of identification procedures, identified in the Standing Order.

[20]Based on that conclusion I now proceed to assess the viability of Mr. Mondesir’s submissions.

Notice of Description

[21]Mr. Mondesir submits that prior to conducting an identification parade for the Defendant Irkim Bernard, the police were under an obligation to obtain a “Notice of Description of Suspect” from the eye witness which was not done, and which compromised the parade which was eventually conducted. He buttressed his submission by reliance on Code D of PACE of which Section 3.1 provides: — ‘”A record shall be made of the description of the suspect as first given by the eye-witness. This record must: (a) Be made and kept in a form which enables details of that description to be accurately produced from it, in a visible and legible form, which can be given to the suspect or the suspect’s solicitor in accordance with this Code; and (b) Unless otherwise specified, be made before the eye-witness takes part in any identification procedures under paragraphs 3.5 to 3.10, 3.21, 3.23 or Annex E (Showing Photographs to Eye-Witnesses). A copy of the record shall where practicable, be given to the suspect or their solicitor before any procedures under paragraphs 3.5 to 3.10, 3.21 or 3.23 are carried out.”

[22]For Saint Lucia, the applicable provision is contained in S.O 47(1) which provides the rationale underpinning the need for a prior description of a suspect. It provides that in arranging for a personal identification every precaution should be taken— (a) To exclude any suspicion of unfairness or risk of erroneous identification through the witness’s attention being directed to the suspected person in particular, instead of indifferently to all persons paraded. (b) To make sure that the witness’s ability to recognize the accused has been fairly and adequately tested.

[23]S.O 47 does not go as far as PACE Code D in providing the mechanism by which this is achieved, and the methodology in Code D can be relied on as a useful best practice. Nevertheless, I am satisfied that in S.O 47, there is provision for ensuring that prior to an identification procedure a description of a suspect must be obtained.

[24]On the 24th of March 2016, two and a half months before an Identification Parade was conducted the witness Martha Lee Bicar, provided the Investigating Officer with the following description of the suspects whom she said had robbed, kidnapped Indecently assaulted and raped her. She described two suspects, one being shorter of the two about 5 feet 3 inches tall and light brown in complexion the other being about 5 feet 9 inches tall and darker in complexion, they are both slim but not the same height. The shorter had thick hair like an afro. The taller one had a piercing over his right eyebrow. The taller one had a long slim face and a tattoo on his left hand somewhere along his forearm between his wrist and elbow. It looked scattered. The shorter one had medium sized eyes. His face is round not too round, like her face, a little long but round, he had wide lips, a medium size nose. During the period of abduction, she stated that they frequently spoke, and their voices are recognizable. The shorter one sat with her in the back seat of the car. She stated that the suspects frequently argued with each other and would remove their facial covering every time they did.

[25]Her statement was taken before the identification parade, it was recorded and signed by the Virtual Complainant as being true and correct. That statement recorded the distance between the witness and the suspects at the time of initial sighting, and for how long she had them under observation, (ii) The quality of the observation (iii) She provided a general description of the suspects, their height, build, weight, hair colour, and gender. (iv) she described the quality of the lighting and different stages while the suspects remained with her (v) she described distinguishing marks and features.

[26]That statement would have been served on the Defendants albeit after the Identification parade. The PACE recommendation is that where practicable the notice of description is given to the Defendant before the identification procedure. The utility of that is clear. It ensures that a witness can offer a useful description of the accused and the Defendant too is satisfied of the consistency or lack thereof in the identification procedure. But I do not accept that a failure to provide the description to the suspect before the identification procedure to be fatal. I find this to be of minimal consequence and see no prejudice suffered by the Defendant in receiving the statement after the procedure. The Defendant is still able to challenges differences and distinctions in the identification made and is still able to question the correctness of the identification made. There has been no unfairness to the Defendant. S.O 47 (1) (a) and (b) have been complied with. The correctness of the Identification Parade (ID Parade)

[27]The material requirements of S.O 47, are that wherever practicable arrangements for an ID parade should be made by an officer other than the Officer in Charge (OIC) of the case, but the OIC can be present. The witness should be prevented from seeing the suspect before he is paraded with other persons; the accused should be placed among persons who are, as far as possible of the same age, height, general appearance and position in life. Wherever possible eight or more persons should be paraded with him; He should be allowed to select his place in the line and should be expressly asked if he has objection to the persons present or the arrangements made. If he desires to have his solicitor or friend present this should be allowed and he should be informed of this right; unauthorized persons should be excluded from the identification, and every circumstance connected with the parade should be recorded by the officer conducting it whether the accused or other person is identified.

[28]I have reviewed the procedure under PACE Code D Annex B and the Australian procedures and have found the provisions to be similar in terms. Where there are differences, I have appreciated the utility of the differences to afford further protection from prejudice to the accused. For example:— provision is made under PACE Code D for an identification parade to take place either in a normal room or one equipped with a screen permitting witnesses to see members of the identification parade without being seen (except that an identification parade involving a screen may take place only when the suspect’s solicitor, friend or appropriate adult is present or the identification parade is recorded on video); where screens are not used everything, in respect of it, shall take place in the presence and hearing of the suspect and any interpreter, solicitor, friend or appropriate adult who is present, or be recorded on video; Also before an identification parade takes place, the suspect or their solicitor shall be provided with details of the first description of the suspect by any witnesses who are attending the identification parade; ( I have dealt with this issue above at paragraphs 19 to 24); If the suspect has an unusual physical feature, e.g., a facial scar, tattoo or distinctive hairstyle or hair colour which cannot be replicated on other members of the identification parade, steps may be taken to conceal the location of that feature on the suspect and the other members of the identification parade if the suspect and their solicitor, or appropriate adult, agree. For example, by use of a plaster or a hat, so that all members of the identification parade resemble each other in general appearance. These Commonwealth best practices also provide that if the suspect has a reasonable objection to the arrangements or any of the participants, steps shall, if practicable, be taken to remove the grounds for objection. When it is not practicable to do so, the suspect shall be told why their objections cannot be met and the objection, the reason given for it and why it cannot be met, shall be recorded on forms provided for the purpose. Appropriate arrangements must be made to make sure, before witnesses attend the identification parade, they are not able to: (i) Communicate with each other about the case or overhear a witness who has already seen the identification parade; (ii) See any member of the identification parade; (iii) See, or be reminded of, any photograph or description of the suspect or be given any other indication as to the suspect's identity; or (iv) See the suspect before or after the identification parade. The person conducting a witness to an identification parade must not discuss with them the composition of the identification parade and, in particular, must not disclose whether a previous witness has made any identification.; A video recording must normally be taken of the identification parade. If that is impracticable, a colour photograph must be taken. A copy of the video recording or photograph shall be supplied, on request, to the suspect or their solicitor within a reasonable time.

[29]In his affidavit of Inspector Terry Bradley, who conducted the identification procedure, filed on the28th of January 2020 he states: — 3. On Thursday the 2nd of June 2016, I conducted an Identification Parade at the Vieux Fort Police Station involving the Defendant Irkim Leonce Bernard and witness Marthalee Yvonne Michelle Bicar in the presence of Justice of the Peace Ms. Billie Jn. Baptiste. This parade was done after a Notice of Description was served on the Defendant.1 4. During the parade, the defendant was positively identified by the witness. The defendant was informed of that and was cautioned, and he remained silent 5. The identification line-up was photographed by Woman Police Constable 585 Wilson of the Scenes of Crime Unit. After the identification parade, I caused a note to be made in the Vieux Fort Police Station Diary, and I subsequently completed all necessary identification parade forms. 6. During the parade I made contemporaneous notes, of what was transpiring in my handwriting to the back of the witness statement of witness Marthalee Yvonne Bicar which had been handed to me by Sergeant #670 Velma St.Catherine, and the contents which I used to prepare my notice of description. 7. Subsequent to that, I refreshed my memory from these handwritten notes and prepared a typed written statement dated10th June 2016. That same day or the following day, I delivered that typed written statement, signed by me along with the identification forms completed on the day of the parade to a police officer at the Vieux Fort Police Station for onward transmission to WPC Sabrina Mangal, who I found out was the investigating officer of that matter. I cannot now remember which police officer I handed it too, nor did I follow up as to whether Ms. Mangal had received it. 9. …….During a search of my files, I was able to retrieve an unsigned copy of my type written statement, and a copy of Marthalee Bicar’s statement, which I had written at the back of. The notes were intact and legible.

[30]The station diary notes which was exhibited to his affidavit confirms that an Identification parade was held on the 2nd of June 2016. The other exhibits included indicated that Irkim Bernard did not have a lawyer, that he was served with a Notice of Description and that a Justice of the Peace was called, that Irkim Bernard refused rations and that during the parade the witness asked that the persons position and position 7 and 8 say the words “just calm down”.

[31]The evidence of Nazilta Wilson was also served late on the Defendants in January 2020, at the commencement of the trial. This witness photographed the line-up, and the photographs showed a line-up of persons numbering 1 to 9.

[32]What is blatantly absent from the affidavit evidence, is the opportunity given to the Defendant to participate in the set-up of the parade. The positioning of the Defendant on the line-up; whether being unrepresented, he was allowed to participate in the positioning of the line-up; whether he had any concerns or objection that were addressed; or whether he had none. I have concluded that these procedural issues were not complied with, as I found that though Officer Bradley was not meticulous in a proper notation of the parade, he nevertheless provided evidence of all his scribbles that were made during the process of what in fact had transpired. I have therefore concluded that the conduct of the parade did not follow the procedural requirements of S.O 47.

Should the evidence of the Identification parade nevertheless be admitted?

[33]The administrative direction of the Commissioner of Police in S.O 47 notwithstanding, the court retains an inherent jurisdiction to determine the admissibility of the evidence by consideration of the fundamental issue of whether the admissibility of the identification would have an adverse effect on the intrinsic fairness of the proceedings.

[34]Both S.O 47 and other best practices to which I referred above have included the need to consult the Defendant on the line-up, or where he represented to consult his legal practitioner as a necessary requirement. The reason for that is obvious. It is easy the parade to be manipulate in a way that would lead a witness to identify a particular person. The participation of the Defendant in the set-up of the line-up helps to remove the likelihood of manipulation of the line-up or the suspicion of manipulation. It is also a safeguard against attempts to show the witness a potential suspect before a line-up. These conditions enhance the reliability of the evidence of the identification parade.

[35]This is a case where only corroborating evidence implicating this Defendant in the crimes under the indictment is the identification parade evidence. I have considered the quality of the evidence at the time of the offence; that the perpetrators were unknown; that it took place at night; that at times the Defendant’s face was obscured; that when it was not the efforts were to prevent the Defendants face from being seen by the witnesses; that the identification parade was conducted two and a half months after the event; that there are differences in the description given of the suspect prior to the parade and the suspect identified on the parade; That there was insufficient regard to the established procedure for the conduct of Identification parades which compromised its outcome; and the lack of proper note-taking at the time.

[36]Given the already challenging evidence surrounding the commission of the offence, it was incumbent on the police to take every precaution reasonably available to safeguard against any miscarriage of justice. In my view, if the identification evidence was to go to the jury, the Defendant who is unrepresented, would be in the position where he could not properly defend himself, or would be forced to take the stand and give evidence to do so.

[37]To admit the evidence concerning the identification process would result in unfairness and prejudice to Irkim Bernard. It is my finding therefore, that the evidence of the conduct of the identification parade is unreliable under section 138 of the Evidence Act, and it is incurable by proper directions to a jury. I therefore rule the evidence inadmissible.

Voice Identification

[38]Given my findings above, there is no need for me to further consider the admissibility of the voice identification, as this evidence flowed from the identification parade which I have ruled inadmissible.

[39]It nevertheless bears repeating the requirements of S.O 47 (8) as it concerns voice Identification. It provides: — “it may sometimes happen that a witness desires to see the prisoner with his hat off and there is no objection to all the persons paraded, being thereupon asked to wear or remove their hats. Sometimes again there may be something peculiar in the prisoner/s gait, or tone of voice and if the witness desires to see the prisoner walk or to hear him speak, there is no objection to the persons paraded being asked to walk individually or to speak. When such a request is made by a witness, the incident should be recorded. In this connection, the witness should first be asked whether he can first identify any person on the parade on the basis of his appearance and the reply should be noted. When the reply is to hear members speak the witness is to be reminded that the participants of the parade have been chosen on the basis of physical appearance only. Members of the parade may then be asked to comply with the witness’ request and full details of the incident, including the stages at which any identification was made should be recorded” Nowhere in the affidavit or notes of Officer Bradley was there evidence of compliance with this procedure.

[40]The Crown’s case against this Defendant leaned heavily on the admissibility of the identification parade, the Crown is therefore to advise on their ability to continue prosecution in the absence of this evidence. I also anticipate the Co- Defendant may wish to challenge the Crown’s ability to continue its prosecution of him should they withdraw the case against Irkim Bernard. I will deal with this issue once a proper and written application is filed and placed before me. V. GEORGIS TAYLOR-ALEXANDER HIGH COURT JUDGE BY THE COURT REGISTRAR Postscript: Section 168 (b) of the Evidence Act provides for the relevant Minister to make Codes of Practice respecting: — (a) The exercise by police officers of statutory powers of search of— (i) a person without first arresting him or her, or (ii) a vehicle without making an arrest; (b) The detention, treatment, questioning and identification of persons by police officers; (c) Searches of premises by Police Officers; and (d) The seizure of property found by Police Officers on persons or premises. I am mystified as to why codes of practice to regulate police powers of investigation would be promulgated under an Act to regulate the admission of evidence in a court of law, but this is beyond the remit of this judgment.

SAINT LUCIA EASTERN CARIBBEAN SUPREME COURT IN THE HIGH COURT OF JUSTICE (CRIMINAL) CASE NO. SLUCRD2016/0661A, 0662A, 0663A, 0664A, 0665A, 066A, 0667A BETWEEN THE QUEEN and ERON COLLYMORE IRKIM BERNARD Defendants Appearances: Ms. . Isa Cyril and Ms. Stacey-Anne St. Ville of Counsel for the Crown Mr. Leslie Mondesir of Counsel for the Defendant Eron Collymore The Defendant Irkim Bernard in person ——————————————————- 2020: January 29 th ; May 6 th . ——————————————————- JUDGMENT ON VOIR DIRE Voir Dire – Challenge to identification evidence – Procedure for the conduct of Identification parades and voice identification – Standing Order 47 of the Police Act- Application of Best Practices P.A.C.E and the like – Bail pending trial.

[1]Taylor-Alexander J: The Defendants are charged in an indictment of multiple crimes arising out of the same facts and circumstances. These crimes are for Rape, Robbery, Kidnapping, and Indecent Assault. It is acknowledged by the parties that the Crown’s case relies wholly on identification evidence. The Relevant Facts

[2]It is alleged that in The evening of Wednesday the 23 rd day of March 2016, the Virtual Complainant was at a remote outdoor location on a moonlit night engaging in sexual intercourse with a male friend, when they was accosted by two unknown men, who were partially masked, and who brandished guns. She and her male friend were robbed of some of their belongings, her male friend was stripped to his boxers his hands and feet tied, placed in a fetal position in the trunk of his car, the Virtual Complainant was placed on the flooring of the back seat of her friend’s car, with her head facing down and the shorter of the two men sat with her, while the other male drove the car. They were driven to another remote location where they were further robbed of their cell phones, her tablet and US$50.00, they were threatened and she was raped by the shorter of the two men, while her male companion remain imprisoned in the trunk of his car. During the rape, the Virtual complainant lifted her dress so as not to see the shorter man raping her. The men then took her to an ATM machine where she was forced to withdraw US$500.00 from her account. The shorter of the two men untied his face at that time. The men then drove to another part of the island, making various stops along the way, during which time she remained in the back seat of the car with her head lowered and her male companion remained imprisoned in the trunk of the car. Finally, the men came out of the vehicle at Odsan and gave up the vehicle to her. She drove off and stop shortly after to free her male companion. When she got home after the incident it was 4:00 a.m. on the following day. The Virtual Complainant was in the company of the men for about four hours. She says the taller of the two men, kept taking off and replacing his face covering to cover his face just below the eyes. The Defendants who were charged with these offences have pleaded not guilty.

[3]As part of the police investigations visual and voice identification procedures were conducted and the Defendants were positively identified by Martha Lee Bicar.

[4]A trial commenced four (4) years after the alleged offences, and after a Jury was empaneled but before evidence was led, the Crown applied to adduce evidence of an identification parade held for the Defendant Irkim Bernard who is self-represented. The parade had in fact been conducted with the Defendant Irkim Bernard three months after the alleged incident, but it had had not been disclosed on the Defendant or the Co-Defendant. The Crown had also neglected to include the officer who conducted the identification procedure for Irkim Bernard as a witness of the Crown on the indictment.

[5]Irkim Bernard made no submissions in response to the Crown’s application, for late disclosure. I concluded that the evidence was admissible evidence, there having been compliance with Section 100. The prejudice to the Defendant was in the delay in service of the disclosure, which I was satisfied, could be remedied by giving the Defendant the opportunity to review the disclosure and advise himself. I directed disclosure of the evidence of the identification parade on Irkim Bernard and his Co-Defendant and adjourned the trial for one day in order to allow Irkim Bernard to become acquainted with the fresh disclosure, and to indicate whether this affected his Defence going forward.

[6]On the following day, and having himself reviewed the fresh disclosure, Counsel for the Co-Defendant Eron Collymore, made several oral submissions in the absence of the Jury. These were: (1) That the fresh evidence of the conduct of an identification parade, did not include a Notice of Description of suspect, such that the court must conclude that none was prepared. A failure to have obtained the Notice of Description compromises the evidence obtained as a result of the identification procedure. (2) That the conduct of the identification procedure was not in keeping with the Pace Code D, which provides for a very structured process, designed to safe guard the rights of the Defendant, and a failure to so employ results in a miscarriage of justice especially where the only evidence on which the Crown relies is identification evidence. (3) That the Voice Identification procedure was not in keeping with best practice, that it compromised the reliability of that evidence, and should be struck out. (4) The deliberation of these issues will result in the delay of the trial, and the Defendants who have now been on remand for three (3) years and four (4) months should be favorably considered for bail.

[7]The first two of the submissions made by Mr. Leslie Mondesir do not directly impact Eron Collymore, his client, the Co-Defendant, but I agree with Mr. Mondesir that a weakness in the treatment of evidence of Irkim Bernard would no doubt impact the Jury’s treatment of his client and consequently he felt compelled, to draw to the court attention, the procedural irregularities that impact the fairness of the trial. I want to commend Mr. Mondesir for his submissions and for his allegiance to the practitioner’s oath. I want to thank him for his for his pursuit of fairness for the Defendant Irkim Bernard, who I indicated earlier, is a pro se litigant.

[8]The case against the Defendants in this matter depends wholly on the correctness of the identification made by the Virtual Complainant. The circumstances of this case, namely, the time the incident occurred, that the perpetrators were unknown, that their faces were partially obscured, the deliberate efforts by the perpetrators to prevent the victims from seeing their faces; makes the quality of the identification evidence an issue. It is accepted that eye-witness identification, even when wholly honest, may lead to the conviction of the innocent. It is therefore important that alleged weaknesses in the evidence are exposed and tested before the case is put to the jury.

[9]Lord Devlin in a report in 1976 that looked at the issue of mistaken identity and the role of identification evidence in securing convictions, explained the challenges of witness identification: “We are satisfied that in cases which depend wholly or mainly on eyewitness evidence of identification, there is a special risk of wrong conviction. It arises because the value of such evidence is exceptionally difficult to assess; the witness who has sincerely convinced himself and whose sincerity carries conviction is not infrequently mistaken.”

[10]The holding of an identification procedure is designed to test the ability of a witness to identify a person seen on a previous occasion, and to provide safeguards against mistaken identity. The correctness of the procedure used is therefore important, although it is concomitantly accepted that only breaches in procedure, that result in unfairness, would result in the evidence being withdrawn. The following UK common law cases are instructive: — (i) Regina v Grannell (1990) 90 Cr App. R. 149; [1990] CLY 808 1990, the Complainant had seen the Burglar/Defendant, noted his car number and later identified the car to the police. He identified the Defendant from a group identification, but the codes of practice were not followed. Though the Codes had been breached the court must look to see whether this leads to any unfairness, and in doing so the court of had a discretion to admit that evidence. The admission of the identification evidence could not be faulted in this case. See also Quinn [1995] 1 Cr App R 480; Hickin [1996] Crim LR 584 (ii) R v Popat [1998] 2 Crim App. R 208, CA, The Criminal App Court concluded that “ “where insufficient regard is had to fair identification practices and adducing reliable identification evidence, the discretion to exclude evidence is likely to be exercised and convictions will be liable to be treated as unsafe”. (my emphasis). Identification Procedures in Saint Lucia

[12]The duty to hold an Identification procedure applies equally under the Common Law where a dispute as to identity may reasonably be anticipated – R. v. Rutherford and Palmer , 98 Cr. App. R. 191, CA.

[11]Section 100 of the Evidence Act Cap 4.15, enacted with effect from 1 st November 2005, renders identification evidence inadmissible, unless:— (a) Either— an identification parade that included the Defendant was held before the identification was made, or it would not have been reasonable to have held an identification parade and sub-section (5) applies; and (b) The identification was made without the person who made it having been intentionally influenced to make it.

[13]Section 168 (b) of the Evidence Act provides for the relevant Minister to make Codes of Practice respecting: — (b) The detention, treatment, questioning and identification of persons by police officers; It is accepted that Codes of Practice have not been promulgated under the Act.

[14]Counsel Mr. Mondesir has suggested in his submissions that the standard to which the police should aspire in conducting identification procedures is that set out under The Police and Criminal Evidence Act 1984 (PACE), Code D, which was created to ensure fairness in identification procedures both to accused and victim alike.

[15]In Saint Lucia there had been a historic reliance on PACE Code D, which it would appear, was legitimized by section 948 of the repealed Criminal Code 1992. It provided: “Subject to the provisions of this Code or of any other Statute; the law of evidence administered in the Court shall be the same as the law of evidence in criminal causes and matters administered for the time being in the High Court of Justice, and the Courts of Assizes created by Commission of Oyer and Terminer and of Gaol Delivery, in England, so far as such practice and procedure are applicable to the circumstance of this State.” (my emphasis).

[16]I am doubtful whether correctly interpreted Section 948 permitted the reception of Code D into our law. The Codes of Practice A to H under PACE are operationalized by the Department of Justice of the England, to regulate the investigation and evidence gathering procedures of the police in England. Section 948 permitted only the law of evidence administered in the High Court of England “so far as such practice and procedure are applicable to the circumstance of this State”

[17]To have assumed that this provision facilitated the reception of Code D of PACE would be to elevate Code D from an operational and administrative direction or procedure to the status of law. If I am wrong, I am also satisfied that Code D was not a practice or procedure applicable to the circumstances of this state, there being in place before 1992, Standing Order Number. 47 of the Police Force of Saint Lucia, which adapted findings of a report of the Royal Commission on Police Powers 1929 set up by King George V. That Commission issued general powers and duties of Police in the investigation of Crime, which were adapted for use by the Commissioner of Police of Saint Lucia, for the information and guidance of all ranks of the Police Force. This Standing Order directed a procedure for holding of Identification Parades, identification by photographs, and to a limited extent voice identification. Application of Standing Order No 47

[20]Based on that conclusion I now proceed to assess the viability of Mr. Mondesir’s submissions. Notice of Description

[18]The Police Act Cap 14.01 was enacted and brought into effect on 1 st October 1965 Part 12, section 59(2) and (3) provides: — “The Commissioner of Police may issue Standing Orders, not inconsistent with this Act or regulations made thereunder, for any of the following purposes that is to say— (a) The description and issue of accoutrements and badges of rank to be supplied to the Force; (b) The duties to be performed by police officers; (c) The training of the Force; (d) The management and good government of all police buildings, accommodation, stores and furniture; (e) The posting of all police officers and the duties to be performed by them; (f) The management of police canteens and recreation rooms; (g) The welfare of police officers; (h) Such other matters as may be necessary for preventing abuse or neglect of duty, for rendering the Force more efficient in the discharge of its duty, and for carrying out the objects of this Act. (My emphasis) (3) Every such standing order— (a) Shall be subject to the approval of the Governor General; and (b) Shall be brought to the notice of every police officer, but need not be published in the Gazette”

[19]Standing Order 47 was issued pursuant to that provision and I have construed it to have been lawfully issued by the Commissioner of Police pursuant to the power under Section 59(2). I have also concluded that these powers granted to the Commissioner of Police, allowed for that office to introduce measures that directed the manner in which evidence was gathered and tested by the police. In the circumstances, I have concluded that Section 948 of the former Criminal Code did not abrogate Standing Order 47 issued by the Commissioner of Police. It follows therefore that when the Criminal Code 1992 was repealed and replaced by Criminal Code 1994 and its subsequent amendments, Standing Order 47 remained alive and well and continued to be the procedure that regulates the police on the conduct of identification procedures, identified in the Standing Order.

[24]On the 24 th of March 2016, two and a half months before an Identification Parade was conducted the witness Martha Lee Bicar, provided the Investigating Officer with the following Description of the suspects whom she said had robbed, kidnapped Indecently assaulted and raped her. She described two suspects, one being shorter of the two about 5 feet 3 inches tall and light brown in complexion the other being about 5 feet 9 inches tall and darker in complexion, they are both slim but not the same height. The shorter had thick hair like an afro. The taller one had a piercing over his right eyebrow. The taller one had a long slim face and a tattoo on his left hand somewhere along his forearm between his wrist and elbow. It looked scattered. The shorter one had medium sized eyes. His face is round not too round, like her face, a little long but round, he had wide lips, a medium size nose. During the period of abduction, she stated that they frequently spoke, and their voices are recognizable. The shorter one sat with her in the back seat of the car. She stated that the suspects frequently argued with each other and would remove their facial covering every time they did.

[21]Mr. Mondesir submits that prior to conducting an identification parade for the Defendant Irkim Bernard, the police were under an obligation to obtain a “Notice of Description of Suspect” from the eye witness which was not done, and which compromised the parade which was eventually conducted. He buttressed his submission by reliance on Code D of PACE of which Section 3.1 provides: — ‘”A record shall be made of the description of the suspect as first given by the eye-witness. This record must: Be made and kept in a form which enables details of that description to be accurately produced from it, in a visible and legible form, which can be given to the suspect or the suspect ’s solicitor in accordance with this Code; and Unless otherwise specified, be made before the eye-witness takes part in any identification procedures under paragraphs 3.5 to 3.10, 3.21, 3.23 or Annex E (Showing Photographs to Eye-Witnesses). A copy of the record shall where practicable, be given to the suspect or their solicitor before any procedures under paragraphs 3.5 to 3.10, 3.21 or 3.23 are carried out.”

[22]For Saint Lucia, the applicable provision is contained in S.O 47(1) which provides the rationale underpinning the need for a prior description of a suspect. It provides that in arranging for a personal identification every precaution should be taken— To exclude any suspicion of unfairness or risk of erroneous identification through the witness’s attention being directed to the suspected person in particular, instead of indifferently to all persons paraded. To make sure that the witness’s ability to recognize the accused has been fairly and adequately tested.

[23]S.O 47 does not go as far as PACE Code D in providing the mechanism by which this is achieved, and the methodology in Code D can be relied on as a useful best practice. Nevertheless, I am satisfied that in S.O 47, there is provision for ensuring that prior to an identification procedure a description of a suspect must be obtained.

[25]Her statement was taken before the identification parade, it was recorded and signed by the Virtual Complainant as being true and correct. That statement recorded the distance between the witness and the suspects at the time of initial sighting, and for how long she had them under observation, (ii) The quality of the observation (iii) She provided a general description of the suspects, their height, build, weight, hair colour, and gender. (iv) she described the quality of the lighting and different stages while the suspects remained with her (v) she described distinguishing marks and features.

[26]That statement would have been served on the Defendants albeit after the Identification parade. The PACE recommendation is that where practicable the notice of description is given to the Defendant before the identification procedure. The utility of that is clear. It ensures that a witness can offer a useful description of the accused and the Defendant too is satisfied of the consistency or lack thereof in the identification procedure. But I do not accept that a failure to provide the description to the suspect before the identification procedure to be fatal. I find this to be of minimal consequence and see no prejudice suffered by the Defendant in receiving the statement after the procedure. The Defendant is still able to challenges differences and distinctions in the identification made and is still able to question the correctness of the identification made. There has been no unfairness to the Defendant. S.O 47 (1) (a) and (b) have been complied with. The correctness of the Identification Parade (ID Parade)

[27]The material requirements of S.O 47, are that wherever practicable arrangements for an ID parade should be made by an officer other than the Officer in Charge (OIC) of the case, but the OIC can be present. The witness should be prevented from seeing the suspect before he is paraded with other persons; the accused should be placed among persons who are, as far as possible of the same age, height, general appearance and position in life. Wherever possible eight or more persons should be paraded with him; He should be allowed to select his place in the line and should be expressly asked if he has objection to the persons present or the arrangements made. If he desires to have his solicitor or friend present this should be allowed and he should be informed of this right; unauthorized persons should be excluded from the identification, and every circumstance connected with the parade should be recorded by the officer conducting it whether the accused or other person is identified.

[28]I have reviewed the procedure under PACE Code D Annex B and the Australian procedures and have found the provisions to be similar in terms. Where there are differences, I have appreciated the utility of the differences to afford further protection from prejudice to the accused. For example:— provision is made under PACE Code D for an identification parade to take place either in a normal room or one equipped with a screen permitting witnesses to see members of the identification parade without being seen (except that an identification parade involving a screen may take place only when the suspect’s solicitor, friend or appropriate adult is present or the identification parade is recorded on video); where screens are not used everything, in respect of it, shall take place in the presence and hearing of the suspect and any interpreter, solicitor, friend or appropriate adult who is present, or be recorded on video; Also before an identification parade takes place, the suspect or their solicitor shall be provided with details of the first description of the suspect by any witnesses who are attending the identification parade; ( I have dealt with this issue above at paragraphs 19 to 24); If the suspect has an unusual physical feature, e.g., a facial scar, tattoo or distinctive hairstyle or hair colour which cannot be replicated on other members of the identification parade, steps may be taken to conceal the location of that feature on the suspect and the other members of the identification parade if the suspect and their solicitor, or appropriate adult, agree. For example, by use of a plaster or a hat, so that all members of the identification parade resemble each other in general appearance. These Commonwealth best practices also provide that if the suspect has a reasonable objection to the arrangements or any of the participants, steps shall, if practicable, be taken to remove the grounds for objection. When it is not practicable to do so, the suspect shall be told why their objections cannot be met and the objection, the reason given for it and why it cannot be met, shall be recorded on forms provided for the purpose. Appropriate arrangements must be made to make sure, before witnesses attend the identification parade, they are not able to: Communicate with each other about the case or overhear a witness who has already seen the identification parade; See any member of the identification parade; See, or be reminded of, any photograph or description of the suspect or be given any other indication as to the suspect’s identity; or See the suspect before or after the identification parade. The person conducting a witness to an identification parade must not discuss with them the composition of the identification parade and, in particular, must not disclose whether a previous witness has made any identification.; A video recording must normally be taken of the identification parade. If that is impracticable, a colour photograph must be taken. A copy of the video recording or photograph shall be supplied, on request, to the suspect or their solicitor within a reasonable time.

[29]In his affidavit of Inspector Terry Bradley, who conducted the identification procedure, filed on the28th of January 2020 he states: — On Thursday the 2 nd of June 2016, I conducted an Identification Parade at the Vieux Fort Police Station involving the Defendant Irkim Leonce Bernard and witness Marthalee Yvonne Michelle Bicar in the presence of Justice of the Peace Ms. Billie Jn. Baptiste. This parade was done after a Notice of Description was served on the defendant

[30]The station diary notes which was exhibited to his affidavit confirms that an Identification parade was held on the 2 nd of June 2016. The other exhibits included indicated that Irkim Bernard did not have a lawyer, that he was served with a Notice of Description and that a Justice of the Peace was called, that Irkim Bernard refused rations and that during the parade the witness asked that the persons position and position 7 and 8 say the words “just calm down”.

[31]The evidence of Nazilta Wilson was also served late on the Defendants in January 2020, at the commencement of the trial. This witness photographed the line-up, and the photographs showed a line-up of persons numbering 1 to 9.

[32]What is blatantly absent from the affidavit evidence, is the opportunity given to the Defendant to participate in the set-up of the parade. The positioning of the Defendant on the line-up; whether being unrepresented, he was allowed to participate in the positioning of the line-up; whether he had any concerns or objection that were addressed; or whether he had none. I have concluded that these procedural issues were not complied with, as I found that though Officer Bradley was not meticulous in a proper notation of the parade, he nevertheless provided evidence of all his scribbles that were made during the process of what in fact had transpired. I have therefore concluded that the conduct of the parade did not follow the procedural requirements of S.O 47. Should the evidence of the Identification parade nevertheless be admitted?

[36]Given the already challenging evidence surrounding the commission of the offence, it was incumbent on the police to take every precaution reasonably available to safeguard against any miscarriage of justice. In my view, if the Identification evidence was to go to the jury, the Defendant who is unrepresented, would be in the position where he could not properly defend himself, or would be forced to take the stand and give evidence to do so.

[33]The administrative direction of the Commissioner of Police in S.O 47 notwithstanding, the court retains an inherent jurisdiction to determine the admissibility of the evidence by consideration of the fundamental issue of whether the admissibility of the identification would have an adverse effect on the intrinsic fairness of the proceedings.

[34]Both S.O 47 and other best practices to which I referred above have included the need to consult the Defendant on the line-up, or where he represented to consult his legal practitioner as a necessary requirement. The reason for that is obvious. It is easy the parade to be manipulate in a way that would lead a witness to identify a particular person. The participation of the Defendant in the set-up of the line-up helps to remove the likelihood of manipulation of the line-up or the suspicion of manipulation. It is also a safeguard against attempts to show the witness a potential suspect before a line-up. These conditions enhance the reliability of the evidence of the identification parade.

[35]This is a case where only corroborating evidence implicating this Defendant in the crimes under the indictment is the identification parade evidence. I have considered the quality of the evidence at the time of the offence; that the perpetrators were unknown; that it took place at night; that at times the Defendant’s face was obscured; that when it was not the efforts were to prevent the Defendants face from being seen by the witnesses; that the identification parade was conducted two and a half months after the event; that there are differences in the description given of the suspect prior to the parade and the suspect identified on the parade; That there was insufficient regard to the established procedure for the conduct of Identification parades which compromised its outcome; and the lack of proper note-taking at the time.

[37]To admit the evidence concerning the identification process would result in unfairness and prejudice to Irkim Bernard. It is my finding therefore, that the evidence of the conduct of the identification parade is unreliable under section 138 of the Evidence Act, and it is incurable by proper directions to a jury. I therefore rule the evidence inadmissible. Voice Identification

[38]Given my findings above, there is no need for me to further consider the admissibility of the voice identification, as this evidence flowed from the identification parade which I have ruled inadmissible.

[39]It nevertheless bears repeating the requirements of S.O 47 (8) as it concerns voice Identification. It provides: — “it may sometimes happen that a witness desires to see the prisoner with his hat off and there is no objection to all the persons paraded, being thereupon asked to wear or remove their hats. Sometimes again there may be something peculiar in the prisoner/s gait, or tone of voice and if the witness desires to see the prisoner walk or to hear him speak, there is no objection to the persons paraded being asked to walk individually or to speak. When such a request is made by a witness, the incident should be recorded. In this connection, the witness should first be asked whether he can first identify any person on the parade on the basis of his appearance and the reply should be noted. When the reply is to hear members speak the witness is to be reminded that the participants of the parade have been chosen on the basis of physical appearance only. Members of the parade may then be asked to comply with the witness’ request and full details of the incident, including the stages at which any identification was made should be recorded” Nowhere in the affidavit or notes of Officer Bradley was there evidence of compliance with this procedure.

[40]The Crown’s case against this Defendant leaned heavily on the admissibility of the identification parade, the Crown is therefore to advise on their ability to continue prosecution in the absence of this evidence. I also anticipate the Co- Defendant may wish to challenge the Crown’s ability to continue its prosecution of him should they withdraw the case against Irkim Bernard. I will deal with this issue once a proper and written application is filed and placed before me. GEORGIS TAYLOR-ALEXANDER HIGH COURT JUDGE BY THE COURT REGISTRAR Postscript: Section 168 (b) of the Evidence Act provides for the relevant Minister to make Codes of Practice respecting: — (a) The exercise by police officers of statutory powers of search of— (i) a person without first arresting him or her, or (ii) a vehicle without making an arrest; (b) The detention, treatment, questioning and identification of persons by police officers; (c) Searches of premises by Police Officers; and (d) The seizure of property found by Police Officers on persons or premises. I am mystified as to why codes of practice to regulate police powers of investigation would be promulgated under an Act to regulate the admission of evidence in a court of law, but this is beyond the remit of this judgment.

[1]During the parade, the defendant was positively identified by the witness. The defendant was informed of that and was cautioned, and he remained silent The identification line-up was photographed by Woman Police Constable 585 Wilson of the Scenes of Crime Unit. After the identification parade, I caused a note to be made in the Vieux Fort Police Station Diary, and I subsequently completed all necessary identification parade forms. During the parade I made contemporaneous notes, of what was transpiring in my handwriting to the back of the witness statement of witness Marthalee Yvonne Bicar which had been handed to me by Sergeant #670 Velma St.Catherine, and the contents which I used to prepare my notice of description. Subsequent to that, I refreshed my memory from these handwritten notes and prepared a typed written statement dated10th June 2016. That same day or the following day, I delivered that typed written statement, signed by me along with the identification forms completed on the day of the parade to a police officer at the Vieux Fort Police Station for onward transmission to WPC Sabrina Mangal, who I found out was the investigating officer of that matter. I cannot now remember which police officer I handed it too, nor did I follow up as to whether Ms. Mangal had received it. …….During a search of my files, I was able to retrieve an unsigned copy of my type written statement, and a copy of Marthalee Bicar’s statement, which I had written at the back of. The notes were intact and legible.

[1]The Defendant has not acknowledged service of this Notice of Description, nor has the Crown produced a copy of that document.