| Crime — Evidence — Admissibility — Out of court statements made by defendant in joint trial — Circumstances in which admissible against co-defendant
Persad v State of Trinidad and Tobago
PC: Lord Bingham of Cornhill, Lord Rodger of Earlsferry, Lord Carswell, Lord Brown of Eaton-under-Heywood and Lord Mance : 23 July 2007
The exception to the rule that out of court statements made by one defendant were inadmissible against a co-defendant applied only in cases where the defendants were being tried for a joint offence for which they were jointly liable.
The Privy Council so held, allowing an appeal by the defendant, Kelvin Persaud, from a decision of the Court of Appeal of Trinidad and Tobago (Sharma C J, Nelson and Lucky JJA) on 26 July 2002 dismissing the defendant’s appeal against his conviction for buggery before Volney J and a jury at the Port of Spain Assizes on 5 April 2000.
LORD BROWN OF EATON-UNDER-HEYWOOD, delivering the decision of the Board, said that the defendant and two others, W and K, went with a gun and a cutlass to a house where they committed a robbery. One of them also raped a woman who was in the house and another buggered her. Although the men were masked the evidence was ample to identify them as the robbers but it threw no light on which of them had buggered the woman and which had raped her. All that the woman could say was that it was two different men. All three men were arrested and cautioned. The defendant remained silent. W and K made written statements. W confessed to both robberies and the rape. K said that the other two men went inside the house for about an hour and returned with cash, and that W then told him that they had had sex with the woman. Each of the three was charged with two aggravated robberies, rape and buggery. Each contested all four counts. W gave evidence that he had been beaten and forced to sign his confession. The defendant gave evidence that he had been on his own and had nothing to do with the offences. K did not give evidence but his counsel suggested that the police had procured his signature to a forced confession by prolonged torture. All three were convicted of the robberies. W was convicted of the rape and the defendant of buggery. On appeal the defendant submitted that there was no evidence admissible against him that he, as opposed to one of the other two, committed the buggery. The jury had been told that if they were sure as a result of W’s out of court statement that he was the rapist, and not therefore the bugger, and were sure that as a result of K’s out of court statement (coupled with other evidence suggesting that only two men actually entered the house) that K remained at all times outside the house and so could not have committed either of the sexual offences, then it would follow that the appellant must have committed the buggery and the jury could convict accordingly. Until R v Hayter [2005] 1 WLR 605 the universal rule was that out of court admissions were inadmissible against a co-defendant for all purposes and were only admissible against the maker himself by way of an exception to the hearsay rule. Hayter however now stood as authority for “a modest adjustment”, “a modification” of that rule. How far did that modification go? The first point was that the Hayter case concerned the joint trial of defendants “for a joint offence”, the offence of murder. In he present appeal by contrast, the three defendants, so far as the counts of rape and buggery were concerned, were not ultimately said to be jointly liable on those counts. Indeed the judge, having indicated to the jury the basis on which they could convict the defendant of buggery, directed that his two co-defendants must be acquitted of that offence. By contrast in the Hayter case there was no question of the co-defendant’s admission which led to his conviction on one count, of itself exonerating that defendant from possible conviction on another count. Clearly that was a distinction between the cases. A yet clearer difference emerged by reference to K’s statement. That, whilst obviously incriminating K in respect of the robbery counts, was purely exculpatory with regard to the sexual offending. To that extent it plainly tended to implicate the defendant and, as such, “ought strictly and for all purposes be excluded from the jury’s consideration of the case” against the defendant: the Hayter case, at para 85. The present appeal fell outside the Hayter principle. K’s statement should not have been regarded as evidence admissible against the defendant for any purpose.
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