Mills and Gomes V R
Mills and Gomes V R
them to run up a number of steps, then into Rose Hill, by which time he had
got ahead of Vincent who was by then running slowly and staggering. They
had been drinking together at a club in Picadilly Street earlier that night. On
Rose Hill, Alexander ran down some more steps and then into a yard where
he hid, while Vincent followed some little while later and ran into a yard a
short distance away from his own place of refuge. The men were in hot
pursuit of Vincent and they caught up with him in the gallery of a house into
which he ran after entering the yard. There they inflicted on him such severe
wounds as resulted in his death on 20 August 1961.
The principal challenge to Alexanders evidence went to his recognition
and identification of the prisoners. He maintained that he had recognised
them when the attack began with the throwing of stones and bottles at the
corner of St Paul and Picadilly Streets, that he again recognised them as he
looked back in the course of his flight and their pursuit at Lodge Place, that
he recognised them yet again among those who entered the yard hot on the
heels of Vincent, that he recognised them once more pelting blows at
Vincent in the yard and that he also recognised the voice of the appellant
Mills denouncing Vincent as the wounds were being inflicted. But in crossexamination he was referred to his evidence at the preliminary inquiry and
he is recorded as saying in answer to counsel for the appellant Mills:
I remember giving evidence at the preliminary inquiry. I do not
remember saying that at Lodge Place I did not recognise anybody. I do
not remember if I said that when they ran into the yard I did not
recognise anyone. I would not doubt it as I could have made a mistake.
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Later, he added in answer to further questions:
It would be important for me to say whether or not I recognised
someone. I realised at the preliminary inquiry that that would be
important. If I had said at the preliminary inquiry I did not recognise
them that would be a lie. I did recognise the three accused. It is true.
The next day, he was cross-examined by counsel for the appellant Gomes
and was made aware that he would be confronted with his deposition. He
then said:
I remember yesterday I was questioned about what I had said at the
preliminary inquiry. I did say at the preliminary inquiry I ran into one
yard and Vincent into another. I said that the man and them ran into the
yard. I said that as they ran into the yard I did not recognise any of the
men. I said here yesterday that I recognised the three accused when they
ran into the yard. That is the opposite of what I said at the preliminary
inquiry. At the preliminary inquiry I said I saw the men pelting blows. I
did not say I saw the three accused pelting blows.
On such evidence it was right and proper for the learned judge who
presided at the trial to direct the jury as he did that:
Where a witness makes two conflicting statements on oatheach
statement on oath-one diametrically opposed to the other, unless you get
a satisfactory explanation of the contradiction, it is your duty to
completely discard the evidence of the witness and certainly to disregard
it.
In so saying, he adopted the direction which was given and approved in R v
Harris ((1927), 20 Cr App Rep 144, CCA, 14 Digest (Repl) 337, 3281). But
in view of certain arguments addressed to us, we ought perhaps to add that
Harris case prescribed no rule of law. It simply provides guidance to a
judge as to the nature of the direction which he ought justly to give to a jury
in the circumstances mentioned. However, the learned judge having given
what everyone agrees was a right and proper direction as regards
Alexanders evidence in the present case, he went on to crode it so
completely and in such a manner as, in effect, we think, to cause a
miscarriage of justice. Thus, having referred to the divergence between
Alexanders evidence at the trial and what he swore at the preliminary
inquiry, he said to the jury:
His explanation for that is that he made a mistake... and it would be
for you to say whether in the particular circumstances of this incident,
and whether having regard to the type of individual Alexander is, you
are satisfied that it is a possible and reasonable explanation for why he
was saying at the preliminary inquiry that he did not recognise them and
why he was saying here he was able to do so. He gave evidence at the
preliminary inquiry some months after the incident, and I think it is only
reasonable to assume that you know how preliminary inquiries are
conducted. The witness is sworn, questions are directed to him by the
prosecutor to bring out his version of how the incident took place, and it
is possible for a witness in those circumstances to give an answer which
he did not intend exactly as it appears. And it may just be possible that,
when Alexander tells you here that when he said at the preliminary
inquiry that he did not recognise anyone he made a mistake, that may be
a true and honest explanation.... But, as I say, it is a matter for you to
decide whether it is a matter of substance and whether there is no
reasonable explanation for that difference, because if-and I must repeat
this-if a witness gives two diametrically opposed statements on oath and
there is no explanation, then you should completely discard the evidence
of that witness.
It is manifest that the learned judge was putting to the jury that it is
common experience for answers to be given at a preliminary inquiry and to
be recorded quite differently, and that in any event it may be a perfectly true
and
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honest explanation that he had made a mistake. The inconsistency here
was vital. There was no room for possible error in recording what
Alexander had actually said about recognising or not recognising any of the
person who had attacked Vincent and himself. And it was very misleading
for the jury to be told, with all the authority of a judge having a long
experience in such matters, that an error of the kind was a possible
explanation to account for what was a very serious contradiction on perhaps
the most essential issue in the case. Moreover, the witness had never put
forward as his explanation that any such error may have been made in
recording his evidence. Nor did he say that he had made a mistake. What
he did say was that he could have made a mistake, but at that time he was
obviously hedging. When he was brought face to face with reality, he
unreservedly admitted that he was swearing at the trial the very opposite of
what he had sworn at the preliminary inquiry and, in effect, stated that his
evidence at the inquiry was a lie. In our judgment, it is impossible to escape
the conclusion that such a direction would in all probability result in a
miscarriage of justice.
But the learned judge did not stop at putting forward explanations which
were totally unjustified. He went much further and indulged in a plain
attempt to rehabilitate Alexander. We adopt the language of Lord Parker CJ
in R v Blackley ((1963), CCA, 18th March, reported as an Appendix to this
case, p 423, post)* when he said:
there is no harm in a judge expressing in fairly forceful language, if
you like, what is in his mind so long as he leaves it absolutely to the jury
to make up their mind about it. That view has been expressed more than
once, but it was never intended to be a licence to judges ... to deliver a
complete prosecution speech, telling the jury what they suggest the jury
ought to do, what evidence they ought to find reliable, and then seek to
cover themselves by saying: Of course, it is for you members of the
jury.
As in that case, the summing-up in this goes far beyond what is permissible,
and we will quote two or three extracts to illustrate what we have in mind.
In dealing with Alexanders evidence and the criticisms by defence counsel
that it was not the sort of evidence upon which the jury could in conscience
rely, the learned judge said:
ask yourselves, is the story of Alexander and Johnson, and more so of
Alexander, so fantastic and unreliable? I venture to suggest that it is not,
but it is of course a matter for your consideration and in the final
analysis it is for you to say how it appeals to you. I suggest that if you
approach it in this manner you will see that it is not so fantastic... Let
us examine all the details of that afternoon and let us see if we do not
find that there is support for a great deal of what Alexander has said.
Leave alone for the time being what you think of Johnson.
Thereafter Johnson was not again mentioned, so vigorously did the learned
judge go on to advocate the acceptance of Alexander as a witness of truth.
In the course of that advocacy, as he referred to incident after incident, he
made use of language such as follows:
It is in that setting that Alexander and Vincent came along Picadilly
Street and, as Alexander said, he saw the group of men under the caf
and in that group he recognised the three accused. Is there any reason to
say that Alexander is lying when he said so? Each of the accused has
denied in his statement that he was in the group, and the result of that
would be that each of the accused is saying that Alexander is lying. But
does that necessarily mean Alexander is lying? Because each of the
accused in his statement
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has placed himself in the approximate vicinity of that area on that
afternoon. So is it that Alexander is lying when he said these three
accused were there?