R v Ebanks (KF)
| Jurisdiction | Cayman Islands |
| Judge | (Henderson, Ag. J.) |
| Judgment Date | 18 January 2001 |
| Date | 18 January 2001 |
| Court | Grand Court (Cayman Islands) |
(Henderson, Ag. J.)
S.W. Bulgin, Solicitor General, for the Crown;
P. St. J. Stevens for the first accused;
C.A. Kinch, Q.C. for the second accused.
(1) R. v. Bass, [1953] 1 Q.B. 680; [1953] 1 All E.R. 1064, observations of Byrne J. applied.
(2) R. v. GodinhoUNK(1912), 7 Cr. App. R. 12.
(3) R. v. PriestleyUNK(1966), 50 Cr. App. R. 183; [1966] Crim. L.R. 507, dicta of Sachs J. applied.
(4) R. v. Sang, [1980] A.C. 402; [1979] 2 All E.R. 1222; (1979), 69 Cr. App. R. 282.
Evidence Law (1995 Revision) (Law 13 of 1978, revised 1995), s.19:
‘The “Judges” Rules” whereby in England a suspected person is required to be cautioned in a certain manner before making a statement to the police at the time when he is charged or about to be charged with an offence shall have application in the Islands until replaced by Rules made by the Rules Committee of the Grand Court.’
s.28: ‘Nothing in this Law derogates from the power of a court in any criminal proceeding to disallow evidence otherwise admissible which, in the opinion of such court, would, if allowed, operate unfairly against an accused person.’
Police-interrogation of suspects-cautioning-no breach of Judges” Rules by failure to caution if accused remembers full caution given previously-oral confession admissible if made without inducement, even if under self-induced, erroneous belief that may not be recorded later and used in evidence
Evidence-confessions-voluntariness-confession involuntary and inad-mis-sible if results from oppression tending to sap free will-confession admissible despite unlawful police detention if accused apparently unaffected
Police-interrogation of suspects-notes of interview-police officer”s record of oral confession made after interview admissible even if not verbatim-not wrong for interviewing officers to confer in drafting statements from memory
The accused were charged with murder.
The first accused was arrested in respect of an offence of theft and held without charge for three days to enable the police to investigate other offences. Whilst in custody he became a suspect in the present case and was detained for a further 10 days for investigations. He was questioned twice about the murder. On the first occasion he was given a full caution and was shown a statement made by the second accused implicating him in the murder. He refused to comment in response to the statement or questions put to him by the officers.
A week later he was interviewed again. He began by refusing to answer questions and was reminded that he did not have to say anything. He was then again given the statement to read. He spoke to the officers about his past and his religious beliefs, but said again that he did not wish to answer questions, that he risked being jailed if he made a statement, and that the second accused was responsible for the killing. He sought assurances that the officers were not tape-recording the interview and refused several requests to allow them to write down what he was saying. He then stated that the first accused had lied in his statement and gave his own account of the circumstances of the killing.
Afterwards, the officers wrote down their recollections of what had been said. The first accused was charged and pleaded not guilty to
murder. He applied to have the officers” statements excluded on the basis that they had not reminded him at the relevant time that anything he said could be used against him in court. The court held two separate voir dires to test the admissibility of the evidence.
The accused submitted that (a) the statements were inadmissible, since they had been obtained (i) involuntarily as a result of an inducement by a person in authority, namely the officers” showing him the first accused”s statement and misrepresenting his rights, (ii) in breach of the Judges” Rules on police cautioning, and (iii) as a result of oppression in the form of unlawful detention; and (b) even if admissible, they should be excluded under s.28 of the Evidence Law, since they would operate unfairly against him.
The Crown submitted in reply that (a) the evidence in the statements had been given voluntarily and free of any threat, promise or inducement; (b) the accused had been fully cautioned a week before and reminded of his right to remain silent on the day of his confession; (c) there had been no oppression, and the accused”s misunderstanding of the effect of making an informal statement did not affect the admissibility of the evidence; and (d) the statements should not be excluded under s.28, since they had not been unfairly obtained.
Held, ordering that the statements be admitted:
(1) The Crown had shown beyond a reasonable doubt that the statements were not the product of any threat, promise, or inducement by the police, as persons in authority, to the accused. He had spoken to the officers voluntarily, in full knowledge of what he was saying and re-membering and understanding the content of the caution he had been given at the previous interview. He clearly had not wished his statement to be put in writing, believing erroneously that it could not be used against him if not recorded simultaneously-but that belief was his own and had not resulted from anything said by the police. Although it would have been appropriate to caution him fully at the second interview, no such further caution was required under the Judges” Rules until the police intended to charge him...
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Ebanks (KF) v R
...appellant”s signature. The statement was ruled admissible in a voir dire at which the first appellant did not give evidence (reported at 2001 CILR 24). He elected not to give evidence at his trial. The court convicted both appellants of murder. The trial judge (Henderson, Ag. J.) found that......