Dial & Anor v. The State (Trinidad and Tobago) [2005] UKPC 4

Judicial Committee of the Privy Council
Case No Privy Council Appeal No. 16 of 2004Venue FROM THE COURT OF APPEAL OF TRINIDAD AND TOBAGO
Between
Dial & AnorAppellantThe State (Trinidad and Tobago)Respondent
Before
Lord Bingham of CornhillLord SteynLord HuttonLord CarswellLord Brown of Eaton-under-HeywoodDate 14 February 2005
[1]:- Lord Bingham of Cornhill Lord Steyn Lord Hutton Lord Carswell Lord Brown of Eaton-under-Heywood [Majority Judgment delivered by Lord Brown of Eaton-under-Heywood ] On 21 January 1997, following a four-day trial before Volney J and a jury, the appellants Kelvin Dial (known as Peter) and Andrew Dottin (known as Maxwell) were convicted by the jury's unanimous verdict of the murder of Junior Baptiste (Junior). Junior had been shot seven times in the early hours of 20 February 1995 and had died in hospital early the following day. The shooting took place in the presence of Junior's elder brother, Shawn Baptiste (Shawn) and of Shawn's girlfriend Alicia Henry (Alicia) in Shawn's apartment in Laventille.[2]Shawn was far and away the most important prosecution witness: he alone gave evidence identifying the appellants, whom he knew as associates of Junior, as the killers. Both appellants denied any involvement in the killing; each gave evidence of having spent that night at home with his girlfriend. Besides their alibi defence, both appellants questioned the likelihood of their having committed such an offence unmasked in the presence of a witness who could identify them and who was then left alive. No motive has ever been suggested by the prosecution for this killing. Nor, however, has any motive ever been suggested for Shawn having falsely identified the appellants as his brother's killers.[3]In one part of his evidence at the trial (although not his evidence identifying the appellants as the killers) Shawn is now conclusively shown to have lied. Counsel's essential contention before the Board on this appeal is that because of this lie the Court of Appeal should properly have regarded the appellants' convictions as unsafe.[4]It may be noted at the outset that this is not the first time the Board has considered these convictions. Previous petitions to the Board for special leave to appeal against an earlier dismissal by the Court of Appeal of appeals against these convictions were dismissed on 28 April 1999. As will later appear, it was shortly after the dismissal of those petitions that both Shawn and Alicia sought to retract the incriminating evidence they gave at trial and it was pursuant to these retractions that the Court of Appeal became seised of a second appeal.[5]With that brief introduction their Lordships now turn to the facts of the case in somewhat greater detail although these will be simplified wherever possible.[6]The shooting took place at about 2.50 am on 20 February 1995. Not only was Junior shot seven times but Alicia too suffered three entry wounds to her leg and hip, quite possibly caused by three of the same bullets that had passed through Junior (who had fallen on top of her during the attack). At the end of the attack Shawn ran out of the apartment followed by both attackers. Almost immediately afterwards he returned and with the help of a neighbour took Junior and Alicia to hospital. At about 3 o'clock he made a brief report of the matter at the police station and was then taken back to his apartment by PC Pereira and other officers who at that stage secured, but did not search, the premises. At 4 am PC Pereira saw Junior in the casualty department in the presence of a doctor. On being asked who attacked him Junior replied:
"Maxwell and Peter shoot me"
. Junior was not in a condition to give a formal statement and died later of shock and haemorrhage. At about 6.45 am a record of the incident was made in the police station diary, an entry to which their Lordships will return.[7]On a search of Shawn's apartment at about 8 am PC Seepersad found a silver and black .44 revolver under a sheet on the sponge mattress near where Junior had been shot. The revolver contained one live .38 round and one spent 9mm round. PC Seepersad also found, within the mattress, four spent .38 bullets.[8]At 3 pm that day Shawn returned to the police station and gave a detailed statement to PC James, an officer with no previous involvement in the investigation. Shawn, then a 25 year old private security guard, described how, after he, Alicia and Junior had gone to bed, "the door was forced open and two men ran inside with guns in their hand". He said he recognised them as Maxwell and Peter whom he knew "from hanging out on Nelson Street, Port-of-Spain about a year now". (Later in the statement he said that he would be able to identify them "because I know them very well", a fact no longer in dispute). He described the shooting as follows:
"Maxwell had his gun pointed at me; all of a sudden I saw Peter started to shoot Junior and he fell on the bed next to my girlfriend. Maxwell then turned the gun away from me and also started to shoot Junior. Junior attempted to get up from the bed and Peter held him around his shoulder and shoot him in his neck. On seeing this I held onto Maxwell's hand that had the gun and we started to struggle. I saw the gun fall out of his hand. I ran out of the house..."
[9]He then said that whilst running away he was fired at. Later in the statement he said that during the subsequent search of his apartment "a police officer found the firearm to the foot of the bed where Maxwell and I had the struggle".[10]Three days later, on 23 February 1995, Alicia made a statement to the police which included the following description of the killing:
"I then saw one of the men pointing a gun at Shawn and kept him in the corner ... Junior then got up and was standing on the mattress behind me while I was still lying on the bed. The other man then turned on Junior pointing his gun at him and fired a shot at him. Junior then fell on the bed, he attempted to get up and the man held him around his shoulder; put the gun to his neck and shot him and he fell on the bed and both men began shooting at him; he was lying across the lower part of my legs so I was unable to move and I was shot on my right hip and upper right leg. Shawn then began to struggle with the man who kept him in the corner and shortly afterwards Shawn ran out of the house and both men ran out of the house behind him and I heard an explosion..."
The appellants were arrested on 24 February and formally identified by Shawn at the police station on 28 February when Shawn gave a further statement to that effect.[11]On 21 April 1995 Shawn and Alicia swore to the truth of their respective statements before a justice's clerk and on 14 August 1995, at the preliminary hearing before a magistrate, both gave evidence consistently with their statements.[12]The trial took place on 15, 17, 20 and 21 January 1997, the jury's verdict being returned some two and a half hours after the close of the judge's two and a quarter hour summing up which began the final day of the hearing.[13]Alicia gave evidence in line with her statement. This included the fact that both men had guns and both of them fired at Junior.[14]Shawn's evidence too was entirely consistent with his statements. Notwithstanding that PC Seepersad had earlier given evidence of finding the .44 gun under the sheet on the mattress, Shawn was quite emphatic in saying that this was the gun which the appellant Maxwell had been firing at Junior and which then fell from Maxwell's hand as they struggled and, indeed, he repeated what he had said in his statement about that gun being found by the police "at the foot of the bed around where Maxwell and I had the struggle".[15]Although defence counsel pointed to this discrepancy in the evidence, relatively little was made of it. Prosecuting counsel for his part reminded the jury that Shawn's scuffle with Maxwell had occurred close to the mattress and he poured scorn on the suggestion, implicit in defending counsel's addresses, that the .44 had not been used by the attackers but more likely belonged to Junior or Shawn himself. He made it plain that the State's case was indeed that the .44 had been one of the guns used in the attack before it had fallen from Maxwell's hand. (No one suggested that perhaps only one of the attackers had fired at Junior, unsurprisingly given the unchallenged expert evidence that 3 of the 4 spent .38 bullets found by PC Seepersad in the mattress had been fired from one firearm, the fourth from another.) Towards the end of prosecuting counsel's address to the jury appears this:
"Did Shawn Baptiste strike you as a man who was lying? Did he strike you as a man who had come here to point fingers at Maxwell and Peter mistakenly? ... The State has staked its flag of credibility in the evidence of Shawn Baptiste. The State's case will lie or stand according to what you make of Shawn Baptiste. If you discount him or are in any doubt about the identification that he is making, do your duty: set both accused free."
[16]The judge too stressed in his summing up the importance of Shawn's veracity in his identification of the accused:
"I cannot but emphasise the absolute necessity for you to closely consider the circumstances that, according to the evidence, allowed, depending on your view of the veracity of the witness, Shawn Baptiste, for the positive identification of the accused."
[17]The appellants' first appeal against their conviction was dismissed by the Court of Appeal (Hosein, Permanand and Jones JJA) on 16 October 1997. The grounds of appeal at that stage focussed on the judge's directions on identification and alibi and his refusal to give a joint enterprise direction. These matters also formed the basis of the appellants' original petition to the Board for special leave. There was added to them, however, by way of a supplementary petition dated 18 February 1999, fresh evidence in the form of a report from a ballistics expert, John Burns, dated 4 June 1998, strongly suggesting that the .44 revolver had not after all been used in the attack. The report stated in terms that "it is not possible to discharge .38 inch or 9mm ammunition from a .44 inch revolver other than by tampering with the ammunition" (as to which there was no sign whatever).[18]Mr Burns' report notwithstanding, both those petitions were dismissed by the Board on 28 April 1999. Following that, first Shawn and then Alicia swore affidavits, respectively on 9 July 1999 and 15 October 1999, retracting the evidence they had given at trial. On 26 October 1999 a further petition was presented to the Board, this one based on Shawn and Alicia's retraction of their evidence. On 25 November 1999, however, this further petition was withdrawn and application was instead made to the President under section 64 of the Supreme Court of Judicature Act seeking a reference of the case to the Court of Appeal for consideration of the fresh evidence.[19]The whole case was duly referred back to the Court of Appeal (Chief Justice de la Bastide, Hamel-Smith and Jones JJA) on 26 April 2001 and heard by the Court on 5 and 6 July 2001. Both Shawn and Alicia gave evidence before the Court with regard to the retraction of their trial evidence. The Court also heard evidence from Sergeant Carrington, the chief investigator in the case, and PC James. At the conclusion of the second day's hearing Chief Justice de la Bastide delivered an extempore judgment dismissing the appeal and affirming the convictions. It is from that decision, by special leave granted on 20 February 2003, that the appellants now appeal to the Board.[20]Their Lordships can deal comparatively briefly with the fresh evidence given by Shawn and Alicia, initially in their 1999 affidavits and then at the July 2001 hearing. This is because their retractions were found (save only for Shawn's evidence with regard to the .44 revolver) to be untrue, a conclusion which, as the appellants now concede, the Court of Appeal was amply entitled to reach.[21]It is convenient to summarise the evidence of each in turn. Shawn deposed to having lied at the trial when he said that he had recognised the appellants as the gunmen: the gunmen had in fact been masked and he had been unable to recognise them. He said that only one of the men had had a gun and that was an automatic. The .44 revolver found by the police had not been used in the attack but must have been brought into the apartment by Junior. He had made his original statement identifying the appellants as the killers because Sergeant Carrington had threatened that he would otherwise prosecute him for possessing an illegal firearm and for shooting Junior and Alicia himself. Besides these police threats, Shawn deposed to having been later threatened by unnamed individuals to give this false identification evidence. In his evidence on oath before the Court of Appeal Shawn said nothing about being threatened by the police with criminal charges but merely said that he had felt under pressure to make his statement. So far from being dictated to PC James the statement had in fact been invented by PC James and Sergeant Carrington together. Shawn gave various explanations for having given and then persisted in his false identification of the appellants as the killers, including that he believed from what he was told by the police and later by people on the street that they were in fact the killers and he did not want to disappoint his mother who expected him to do the right thing. As to the attack itself, he said that the second man did not have a gun and that he had told the police that he did not know how the .44 revolver had got there. He now assumed that it was Junior's because he had seen Junior with guns previously. As for threats, Shawn confirmed that prior to the trial he and his mother had both received threats from relatives of the appellants and had reported these to Sergeant Carrington (a fact which the Sergeant confirmed).[22]Alicia said in her affidavit (sworn in England) that her original statement had been made up for her and that having been told to read and rehearse it, she had done so and given her evidence at the trial even though she knew it contained untruths. Her evidence to the Court of Appeal was very different. She said that she would never have sworn her affidavit had she known that she would then have to testify in Trinidad. She then said that both her police statement and her trial evidence had been given voluntarily and were true. Whereas, however, she had earlier spoken of both men having guns and both shooting at Junior, in cross examination before the Court of Appeal she said "I don't know exactly, Sir, if the both of them had guns".[23]It is time to come to the Chief Justice's extempore judgment affirming these convictions for the second time, the decision now under appeal to the Board. Early in the judgment appears this:
"We have directed ourselves on the law in accordance with the judgment given by this Court in Mario Pedro v The State [Cr A No 61 of 1995], as we have been urged to do by counsel on both sides. In accordance with the principles enunciated in that judgment, we have to consider the fresh evidence which we have admitted and determine whether in the light of that evidence we have any doubt, any reasonable doubt as to the guilt of the appellants."
[24]The Chief Justice then gave detailed reasons for having "come clearly to the conclusion that the retraction of his evidence by Shawn Baptiste is not genuine". These included the differences between Shawn's affidavit evidence and his oral evidence before the Court of Appeal, his "extremely unlikely explanations for his falsely incriminating two men whom he himself was unable to identify", the fact that (as he had admitted) he had earlier been subject to "threats of what might happen to him if he gave evidence against the appellants", and the Court's acceptance of PC James' evidence (he being "of all the witnesses" the one the Court was "most impressed by") that he had had no prior connection with the investigation of this incident when he came to take Shawn's statement at about 3 o'clock on the day of the shooting. Accordingly, said the Chief Justice, the Court had "no doubt that that evidence represented the spontaneous account given by Shawn Baptiste of the incident a few hours after the incident occurred".[25]As already stated, the appellants now accept that the Court of Appeal was entitled to reject Shawn's retraction evidence, i.e. his evidence that he had not in fact been able to recognise the appellants as his brother's killers and so had falsely incriminated them. Counsel's criticism is not about that conclusion but is rather that the Court took insufficient account of Shawn's undoubted lies about the .44 revolver.[26]This argument focuses on a section of the Court of Appeal's judgment concerning three particular features of the fresh evidence which it was then being asserted went to support Shawn's retraction of his identification evidence: "1. Another matter which in accordance with the judgment in Mario Pedro we have to look at is whether there is any corroboration in the evidence of the new version which the witness, Shawn Baptiste, is offering to the Court. Counsel for the appellants suggested that there were three matters which provide such corroboration. One we can dispose of quickly, and that is the evidence of Alicia Henry. ... [S]he made it perfectly clear that what she said at all stages, both to the police and to the Court, was the truth, and in that sense she retracted her retraction. ... 2. The second matter which was relied upon by way of corroboration was the report of Mr Burns, a firearms' expert from England. His report establishes quite conclusively that the .44 revolver which was found later that morning in the room where the shooting took place was not used in the shooting. It contained in its chamber bullets which could not be fired from that gun. This, however, does not provide any corroboration of Shawn Baptiste having been induced by the police to lie in the account which he gave of the incident. The evidence of the policeman, PC Seepersad, who found the gun, was that it was found under the sheet on the mattress on which the deceased was lying when he was shot. Now, the link with the shooting was really made by Shawn Baptiste who in his evidence said that the gun was found not on the mattress under the sheet but on the floor, and moreover testified that in the struggle which he had with one of the intruders, the man's gun had fallen on the ground and he identified the gun as being probably the gun which the intruder had been holding. 3. That evidence of Shawn Baptiste is, in our view, clearly untrue, but there is a ready explanation of it which has nothing to do with his being pressured by the police; it is that he wanted to find an innocent explanation for the presence of the gun in his premises. So that there is no corroboration to be found there. 4. I would also mention, as I did in argument, that the introduction of the gun into evidence did not in any way assist the Prosecution's case. In fact, the evidence by Shawn Baptiste tending to suggest that it had been used in the course of the shooting would have damaged the Prosecution's case by casting doubt on the credibility of the case as a whole. 5. The last matter was the omission from the record made in the station diary of the report by officers who had been at the hospital that morning and who interviewed Shawn Baptiste, of any mention of Shawn Baptiste having identified the two men who shot his brother and his girlfriend. Now, that does indeed provide cause for concern as one would have thought that Shawn Baptiste would have taken the opportunity when speaking to the police, even although he would have been quite traumatised at the time, of telling them who the shooters were. One would also have expected that that was a matter of sufficient importance to find a place in the report of the officers and in the record made of that report by the sentry in the station diary." (Paragraph numbers have been added for convenience).[27]Paragraph 1 of that passage, with regard to Alicia, needs little comment. It is not now suggested that her further evidence to the Court materially advances the present appeal. True, as noted above, she modified her earlier evidence that both the attackers had guns and both fired at Junior, but in truth there was compelling expert evidence that two different .38 revolvers had been used in the attack – a conclusion also strongly suggested by the fact that at least seven rounds had been fired (the capacity of almost all .38 firearms being six rounds). As the Court of Appeal observed, moreover, the reason for Shawn and Alicia having modified their evidence to suggest that only one of the men had a gun and fired at Junior could easily be inferred: absent a joint enterprise direction it had been calculated to assist at least one of the appellants on the appeal.[28]It is convenient to turn next to paragraph 5 of the above passage from the Court of Appeal's judgment, dealing with the last of the three matters being urged to support Shawn's retraction, the police station diary entry made some four hours after the shooting. The Court of Appeal thought that matter ultimately unpersuasive having regard to Shawn's detailed statement given just a few hours later (spontaneously, as they found). Their Lordships share that view and note that the attackers' names had in any event already been recorded in the diary entry as having been given by Junior at 4 am. The contemporaneous records were unfortunately destroyed a short time before the appellants' original petitions were dismissed and before, therefore, any question of retraction evidence arose. It is simply not possible to say on the evidence now available just what Shawn had said when he made his first brief report at about 3 am.[29]Their Lordships come now to the .44 revolver, the all-important matter considered in paragraphs 2, 3 and 4 of the passage from the Court of Appeal's judgment quoted above. Each of these paragraphs is criticised. Paragraph 2 is criticised for recording Shawn as saying at trial only that the .44 was "probably" the gun used and dropped by the second attacker whereas his evidence had in fact been emphatic: this was certainly the gun used. The major criticisms, however, are directed at paragraphs 3 and 4. What is important, submit the appellants, is not whether or not Shawn's now proven lie about the .44 corroborates his retraction evidence but rather its effect upon his overall credibility, the question put to the jury as lying at the very heart of the case. So much, indeed, the Chief Justice seemed to have recognised when observing in paragraph 4 that Shawn's lie, had it been exposed to the jury, "would have damaged the prosecution's case by casting doubt on the credibility of the case as a whole". The Court of Appeal did not then, however, give effect to that observation and carry it through to a logical conclusion. It never engaged in a proper assessment of whether Shawn's original evidence could still be relied on. Least of all did it consider what impact the evidence of Shawn's lie would have had upon the jury at trial.[30]Had the Court done so, runs the appellants' argument, it would have been bound to conclude that the convictions could not safely be upheld. Having found that Shawn had lied about a crucial aspect of the case, convictions based solely upon his identification evidence could no longer stand. At the very least the fresh evidence, if given at the trial, might reasonably have affected the decision of the trial jury to convict. This last submission is based on Lord Bingham of Cornhill's speech in R v Pendleton [2002] 1 WLR 72 and it is there, and in the earlier case of Stafford v Director of Public Prosecutions [1974] AC 878, that the correct approach to fresh evidence is to be found.[31]In the Board's view the law is now clearly established and can be simply stated as follows. Where fresh evidence is adduced on a criminal appeal it is for the Court of Appeal, assuming always that it accepts it, to evaluate its importance in the context of the remainder of the evidence in the case. If the Court concludes that the fresh evidence raises no reasonable doubt as to the guilt of the accused it will dismiss the appeal. The primary question is for the Court itself and is not what effect the fresh evidence would have had on the mind of the jury. That said, if the Court regards the case as a difficult one, it may find it helpful to test its view "by asking whether the evidence, if given at the trial, might reasonably have affected the decision of the trial jury to convict" ( Pendleton at p83, para 19). The guiding principle nevertheless remains that stated by Viscount Dilhorne in Stafford (at p906) and affirmed by the House in Pendleton :
"While ... the Court of Appeal and this House may find it a convenient approach to consider what a jury might have done if they had heard the fresh evidence, the ultimate responsibility rests with them and them alone for deciding the question [whether or not the verdict is unsafe]."
[32]That is the principle correctly and consistently applied nowadays by the criminal division of the Court of Appeal in England — see, for example, R v Hakala [2002] EWCA Crim 730 , R v Hanratty [2002] EWCA Crim 1141 , and R v Ishtiaq Ahmed [2002] EWCA Crim 2781 . It was neatly expressed by

Judge LJ in Hakala, at para 11, thus:

"However the safety of the appellant's conviction is examined, the essential question, and ultimately the only question for this Court, is whether, in the light of the fresh evidence, the convictions are unsafe."
[33]In determining the appeal in the present case (in July 2001), the Court of Appeal in Trinidad and Tobago did not, of course, have the advantage of Lord Bingham's speech in Pendleton . Rather, as has been seen, the Court directed itself in accordance with Mario Pedro , the judgment in which was also given by the Chief Justice. In Mario Pedro , having discussed Stafford and pointed out that the legislation in England now provides for a single ground for quashing a conviction – namely that the Court finds the verdict "unsafe" – whereas the test in Trinidad and Tobago is rather "that on any ground there is a miscarriage of justice", the Chief

Justice said this:

"We reached the conclusion that there was no difference in substance between the two tests for determining whether a conviction should be quashed or not. Our reasoning was that in the final analysis both tests required the appellate court to consider whether there is a significant prospect that but for the irregularity, in cases in which one has occurred at the trial, or in the light of new evidence in cases in which leave to adduce such evidence is given, the jury might have acquitted the appellant of the offence of which they found him guilty. If there is such a prospect, then according to the English test the conviction would be regarded as unsafe, and applying the Trinidad and Tobago test a miscarriage of justice would have been established. Under both regimes the Court of Appeal has in an appeal in which it receives new evidence, to come to some view as to the credibility of that evidence and its impact on the issue of the appellant's guilt or innocence."
[34]In Mario Pedro , another case in which the State's main witness later retracted his evidence, the Court "reject[ed] as untrue virtually all of what he has said by way of explanation of why he lied (if he did lie), and why he has now changed his story", and considered that his original incriminating evidence "may very well be true". Nevertheless, the Court continued:
"... we are unable to say that we do not entertain some doubt about it. That doubt, whether it be described as reasonable or lurking is real, not fanciful. It is based on the support which the manifestly unreliable evidence of [the witness] before us derives from three sources which are independent of it."
The Court then considered those three independent sources of evidence and in the result quashed the conviction.[35]It is plain to their Lordships that, in the present case, the Court was following precisely the same approach in asking itself whether, despite having disbelieved Shawn's own retraction evidence, there were nevertheless features of the fresh evidence giving rise to a reasonable or lurking doubt as to whether Shawn might indeed, as he was now saying, have falsely claimed to recognise the appellants as the killers. Whereas, however, in Mario Pedro the Court was left with a reasonable doubt as to the appellant's guilt, here it was not.[36]The appellants have sought to argue that the question whether there was support for Shawn's retraction was a quite different question from whether his original identification evidence could any longer be relied upon in the light of his now proven lie about the .44 revolver. In effect the appellants invite the Board to put aside the disbelieved retraction evidence and to consider instead the effect of Mr Burns's evidence upon the issue of Shawn's credibility - or rather, as Sir Sydney Kentridge QC preferred to put it (conscious perhaps of the Board's earlier rejection of petitions expressly based on Mr Burns's evidence) to put aside Shawn's retraction evidence except for that part of it in which he now acknowledges having lied about the .44. In their Lordships' view, however, there is no real distinction between these two questions. Unless logically Shawn's lie about the .44 revolver gave rise to real doubt as to whether he could or could not identify the killers, the appeal had to fail. (And that clearly was how the appeal was argued below; it was never suggested to the Court of Appeal that the lie about the .44 was alone a sufficient basis for quashing these convictions.)[37]In their Lordships' view there is no reason to doubt that the Court properly considered the fresh evidence in accordance with its own self-direction: to "determine whether in the light of [it] we have any doubt, any reasonable doubt, as to the guilt of the appellants".[38]The real question for the Board, therefore, is whether the Court could reasonably conclude, on the facts, that Shawn's lie about the .44 did not render these convictions unsafe, testing that conclusion, if the case were thought near the borderline, by reference to how a jury might reasonably have been affected by it. In resolving this question, the Board reminds itself, its own role is a limited one. As Lord Hope put it in giving the Board's judgment in Stafford v The State [1999] 1 WLR 2026 , 2029:
"It has been said many times that it is not the function of the Judicial Committee to act as a second Court of Criminal Appeal. Save in exceptional circumstances, the Judicial Committee will not embark upon a rehearing of issues such as the weight which may properly be given to the evidence or the inferences which may properly be drawn from it. These are matters which will be left to the Court of Appeal. Its decision as to whether the evidence was sufficient to support the conviction will not normally be reviewed by this Board."
[39]The Court of Appeal in Trinidad and Tobago, it must furthermore be remembered, is much closer than their Lordships to the customs and habits of that State and the behaviour and reactions to be expected of its citizens. And that Court also saw and heard Shawn give his evidence and was thus better placed than the Board to gauge the relationship between his lie and the rest of his evidence and to do so, moreover, in the context of his otherwise unconvincing retraction. Why, indeed, it might have asked, was his retraction so unconvincing if, as the appellants now implicitly assert, it might realistically have been true?[40]With these considerations in mind the Board turns to consider the lie. Of course it was a serious one and, moreover, persisted in throughout a long period of time and sworn to on three occasions: before a Justice's Clerk, at the preliminary hearing and at trial. But so too was Shawn's identification of the appellants persisted in for a long time and this despite the threats to which he was subjected. The first critical question was whether, consistently with the truth of Shawn's central allegations – his account of two men firing at Junior and his identification of the men as these appellants – there was a sufficiently compelling explanation for the lie. The Court of Appeal considered that there was – to provide "an innocent explanation for the presence of the gun (Junior's .44) in his premises" – and it is difficult to quarrel with this conclusion. Indeed it seems to their Lordships almost impossible to conceive of any other explanation for this undoubted lie.[41]But, of course, not only was it necessary for the Court of Appeal to be satisfied that there was an innocent explanation for the lie. To uphold these convictions it needed to be satisfied too that the lying part of Shawn's evidence had not in fact advanced the prosecution's case at the trial. That was what was under consideration in paragraph 4 of the quoted passage from the Court's judgment. Properly understood, what the Court was there saying was this. The only part of Shawn's evidence which really mattered was that there were two armed attackers who both shot Junior and whom Shawn was able to recognise as the appellants. That case was not advanced one iota by Shawn's lie. The story about the .44 did nothing to incriminate either defendant. There was ample other evidence, both forensic and from Alicia, that each of the intruders had a gun and that both guns were fired. True it is that prosecuting counsel adopted Shawn's evidence about the .44 as part of the State's case at trial but not, their Lordships repeat, because in any way it made for a stronger case. In fact, as the Court observed, there were already apparent at trial certain weaknesses in Shawn's evidence about the .44 – notably as to where it was found and as to the discrepancy between its calibre and that of the spent bullets (albeit these weaknesses were not in the event fully recognised until Mr Burns's expert evidence had been obtained). In short, the prosecution case would if anything have been stronger, not weaker, without the lie.[42]Wherever fresh evidence establishes that a material prosecution witness has told a lie, the question arising for the Appeal Court's determination is whether that realistically places the appellant's guilt in reasonable doubt - whether, in other words, the verdict is now to be regarded as unsafe. That necessarily must depend upon all the evidence in the case. However barefaced the lie and however central to the prosecution case the witness who told it, the Court of Appeal is bound in law to address that question. Even in a case of capital murder it cannot be right to allow an appeal, without more, simply on the basis that the State's main witness has later been shown to have told an outright lie.[43]The Court is not in such circumstances exonerated from undertaking its analytical task. And if it remains sure of the appellant's guilt and upholds his conviction, the Court is not thereby to be regarded as having deprived the appellant of due process.[44]Of course the jury would have been very concerned had they learned of Shawn's lie about the .44 revolver. So too, one must suppose, was the Court of Appeal. But it was then necessary for the Court, as it would have been for the jury, to look logically at all the evidence in the case to decide whether, after all, that lie was so central to Shawn's identification of the appellants as to throw real doubt upon it. This is what the Court did. So long as it then remained satisfied of the essential integrity of Shawn's identification evidence, it was entitled, indeed bound, to regard the convictions as safe and to dismiss the appeal.[45]That was the Court's conclusion and it was one which in the Board's view it was plainly entitled to reach. Their Lordships accordingly dismiss this appeal. Dissenting judgment by Lord Steyn[46]In January 1997 two young men, Kelvin Dial and Andrew Dottin, stood trial at Assizes at the Port of Spain, charged with the murder of Junior Baptiste. The prosecution case was based on a single witness, Shawn Baptiste, who alone purported to identify the two accused as the men who shot the deceased. At the trial this witness persuaded the jury to believe that he was an entirely truthful witness. The jury accepted the evidence of Shawn Baptiste, rejected alibi defences of the two accused men and convicted both men of murder. The judge sentenced them to death.[47]In July 1999 Shawn Baptiste swore an affidavit to the effect that he had lied at trial when he said that he recognised the accused as the assailants. In 2001 the President referred the case to the Court of Appeal. In July 2001 the case was heard by the Court of Appeal. In oral evidence before the Court of Appeal Shawn Baptiste retracted his evidence identifying the two convicted men as the perpetrators of the murder. He said the gunmen had actually been masked. The Court of Appeal decided that the retraction by Shawn Baptiste of his evidence at trial was not genuine and dismissed the appeal.[48]At the trial Shawn Baptiste had told the jury that a .44 revolver had been used in the shooting. Expert evidence before the Court of Appeal conclusively demonstrated that this evidence about the .44 revolver was untrue. It was, therefore, established before the Court of Appeal that Shawn Baptiste misled the jury.[49]It is necessary to refer in outline to the extent of Shawn Baptiste's falsehoods. He lied about the .44 revolver and its use in the shooting to the police, to a magistrate and to the jury. He was adamant in seeking to deceive the jury. He said to them "Yes that is the gun. That is the gun. That is the gun".[50]It is important to approach the case on the issues and contextual scene actually placed before the jury. A critical issue before the jury was the truthfulness of Shawn Baptiste. In his closing address prosecuting counsel repeatedly told the jury that everything depended on the truthfulness of Shawn Baptiste. He ended by saying to the jury:
"But in this short matter, the State has staked its flag of credibility to the evidence of Shawn Baptiste. The State's case will lie or stand according to what you make of Shawn Baptiste. If you discount him or are in any doubt about the identification that he is making, do your duty; set both Accused free."
The judge also directed the jury that their view of the veracity of the witness, Shawn Baptiste was critical. That is how the jury would have approached the matter. And when the judge came to thank the jury after he had sentenced the two men he said: "I know the decision was always there, once you believed the witness, Shawn Baptiste".[51]The falsehoods of Shawn Baptiste did not relate to an unimportant or collateral matter. On the contrary, Sir Sydney Kentridge QC was able to show in a careful and balanced review of the transcript of the proceedings how prosecuting counsel positively relied on the seemingly hard evidence of the .44 revolver which was fired into the body of the deceased before the gun fell to the ground. The prosecution treated it as an important piece of evidence. In the summing up the judge invited the attention of the jury to what we now know was the false evidence of Shawn Baptiste. The judge said:
"... in relation to Accused No. 2, if you find that he was the Maxwell, this witness, Shawn Baptiste, is correct when he says that it was this Accused No. 2 who is the Maxwell who he saw who came into the room, who was next to him holding him guard with a gun, who he eventually had a fight or held on and had a struggle and that gun fell to the ground, but that gun was fired before, Members of the Jury, fired by Maxwell into the body of the deceased, if you find that that person sitting in the dock, Accused No. 2 is the man who was there that night, and you are satisfied to the extent that you feel sure, that there is no mistake here that that is in fact the man, and you find that that man also had malice aforethought and fired those things, then, Members of the Jury, once you feel sure this is no case of mistaken identity, your verdict once more will be guilty as charged."
If one concentrates on how the case was in fact put before the jury, as one must, it is clear that the jury would have regarded as important evidence what we now know to have been a perjured account.[52]In my view it is now appropriate to pose this question: what would the jury have made of the fact (if they had been informed of it, for example, by a retraction during re-examination at trial) that Shawn Baptiste had repeatedly lied about such an important issue viz the use of the .44 revolver in the shooting? Given the centrality of the veracity of Shawn Baptiste at trial, would it not have caused the jury concern? It is surely more likely than not that this matter would have troubled them. But it is enough to say that it might reasonably have given the jury cause to think again about accepting the evidence of Shawn Baptiste. This is reinforced by what happened at the end of the summing up. The record reveals the following exchanges: "THE COURT: Members of the Jury, the time has now come for you to consider your verdict. THE CLERK: Mr Foreman, please stand. Mr Foreman, have you all the other Members of the Jury arrived at a verdict in which you all agree in respect of Accused No. 1, Kelvin Dial, and Accused No. 2, Andrew Dottin, or do you wish to retire to consider you verdict ? THE FOREMAN: We wish to retire." [My emphasis] It is truly astonishing that section 26(2) of the Jury Act of Trinidad and Tobago apparently permitted the Court to suggest to the jury that they might not even wish to retire to consider their verdict in this particular case. Implicitly the suggestion was that there was really nothing to discuss, even in this capital case tried by a jury. If that was not putting undue pressure on the jury, it is difficult to know what could be. So much for due process at trial. In any event the jury did want to retire. They retired for more than two and a half hours before they brought in verdicts of guilty of murder.[53]It is now possible to examine the way in which the Court of Appeal approached the case. The judgment was delivered by M A de la Bastide CJ. It was an ex tempore judgment. The Chief

Justice said:

"I will explain briefly why we have reached the decision [to dismiss the appeal] and if, as is likely, there is an appeal to the Privy Council we will give full reasons in writing."
While delivering his reasons the Chief Justice changed his mind and what he said was transformed into the judgment of the Court. In my view it was substantively not a satisfactory judgment.[54]The Chief Justice explained that the Court concluded that the retraction was not genuine. The judgment creates the impression that in the view of the Chief Justice this finding was in itself decisive. The most important flaw in the analysis relates to the consideration of the false evidence of Shawn Baptiste. The Chief Justice referred to a report of Mr Burns, a firearms expert from England. The Chief Justice then observed:
"... His report establishes quite conclusively that the .44 revolver which was found later that morning in the room where the shooting took place was not used in the shooting. It contained in its chamber bullets which could not be fired from that gun. This, however, does not provide any corroboration of Shawn Baptiste having been induced by the police to lie in the account which he gave of the incident. The evidence of the policeman, PC Seepersad who found the gun, was that it was found under the sheet on the mattress on which the deceased was lying when he was shot. Now, the link with the shooting was really made by Shawn Baptiste who in his evidence said that the gun was found not on the mattress under the sheet but on the floor, and moreover testified that in the struggle which he had with one of the intruders, the man's gun had fallen on the ground and he identified the gun as being probably the gun which the intruder had been holding. That evidence by Shawn Baptiste is, in our view, clearly untrue, but there is a ready explanation of it which has nothing to do with his being pressured by the police; it is that he wanted to find an innocent explanation for the presence of the gun in his premises. So that there is no corroboration to be found there. I would also mention, as I did in argument, that the introduction of the gun into evidence did not in any way assist the Prosecution's case. In fact, the evidence by Shawn Baptiste tending to suggest that it had been used in the course of the shooting would have damaged the Prosecution's case by casting doubt on the credibility of the case as a whole."
Nowhere in these passages, or elsewhere in the judgment, does the Chief Justice pause to consider how the jury (or a reasonable person circumstanced as the jury were) would have viewed the potential impact of the lies of Shawn Baptiste on his overall truthfulness. That was an issue which the Court of Appeal as a matter of legal principle should have squarely faced. The Court of Appeal did not do so. It is a fundamental flaw in the judgment. In these circumstances it is not appropriate to defer to the Court of Appeal as the court who heard the new evidence.[55]The Court of Appeal cannot be blamed for not following the guidance in R v Pendleton [2002] 1 WLR 72 , at 83A-G, paras 18, 19. The Pendleton case post dates the Court of Appeal hearing. Insofar as the potential impact of the perjured evidence about the use of the .44 revolver in the shooting, there is however helpful guidance in Pendleton. Lord Bingham of Cornhill observed (at 83G, para 19): "... it will usually be wise for the Court of Appeal, in a case of any difficulty, to test their own provisional view by asking whether the evidence, if given at the trial, might reasonably have affected the decision of the trial jury to convict. If it might, the conviction must be thought to be unsafe." [My emphasis] The Court of Appeal did not adopt this approach. Moreover, the Court of Appeal failed to engage in a proper assessment of whether the original evidence could still be relied on.[56]A closer look at their reasons reinforces the view that the Court of Appeal's approach to the perjured evidence was flawed. First, the Court of Appeal discussed the topic by asking whether it afforded "corroboration" for the new version of Shawn Baptiste's evidence. It is common ground that it was wrong to analyse the case in terms of corroboration. But let me substitute the words "confirmation or support". The existence of support for new evidence is, undoubtedly, a relevant factor. But it is not a sine qua non on an appeal involving new evidence. Nowhere in his judgment does the Chief Justice make clear that confirmation or support of the new evidence is not a requirement. On the contrary, the Chief Justice appeared to treat "corroboration" as an indispensable requirement. That was an error of law going to the heart of the jurisdiction in question. It is difficult to justify deference to a Chief Justice who approached this case in such a flawed way.[57]Secondly, the Court of Appeal approached the matter on the basis that Shawn Baptiste had identified the gun as "being probably the gun which the intruder had been holding". That is a mischaracterisation of Shawn Baptiste's evidence. He insisted that the .44 revolver was undoubtedly used in the killing. The Court of Appeal misdirected itself on the facts to the detriment of the case advanced on the appeal. This misdirection tended to dilute the clear cut nature of the perjury.[58]Thirdly, the Chief Justice said that Shawn Baptiste "wanted to find an innocent explanation for the gun in his premises". This is, however, an unfair inference since it had no basis in the original evidence or in the evidence before the Court of Appeal. Moreover, Shawn Baptiste was not cross-examined or questioned on the point. We will never know what his answer would have been if he had been asked about the point. If the point was to have been relied on by the prosecution or the Court of Appeal on the appeal, it should have been put to the witness. That is what elementary fairness demanded. A man should surely never be hanged on less than full due process.[59]Fourthly, the Chief Justice said that the reference to the .44 revolver "did not in any way assist the prosecution's case". The Chief Justice was wrong, at trial it was regarded as a telling point against the accused. In any event, what matters is how events were placed before the jury. The transcripts show that the prosecutor and the judge treated the evidence about the use of the .44 revolver as important evidence in favour of the prosecution at the trial. Again, the Chief Justice misdirected himself about the evidence.[60]There is a further factor which must be taken into account. The Chief

Justice dealt with it as follows:

"The last matter was the omission from the record made in the station diary of the report by officers who had been at the hospital that morning and who interviewed Shawn Baptiste, of any mention of Shawn Baptiste having identified the two men who shot his brother and his girlfriend. Now, that does indeed provide cause for concern as one would have thought that Shawn Baptiste would have taken the opportunity when speaking to the police, even though he would have been quite traumatised at the time, of telling them who the shooters were. One would also have expected that that was a matter of sufficient importance to find a place in the report of the officers and in the record made of that report by the sentry in the station diary. On the other hand, one must put this in the context of Shawn Baptiste having come to the station a few hours later, that is, at 3 o'clock the same day, and having identified these men in a statement which we have no doubt was voluntarily given by him on his own initiative, to PC James. In our view, in these circumstances, the omission in the station diary does not provide any support for Shawn Baptiste's present claim that he was somehow induced or pressured into falsely stating that he recognised the intruders as the appellants. It is a matter that might have been used at the trial to test the veracity of his evidence, but we have no doubt that the evidence represented the spontaneous account given by Shawn Baptiste of the incident a few hours after the incident occurred."
This is an extraordinary position. The men were well known to Shawn Baptiste. If he had recognised them as the perpetrators of the shooting, one would have expected Shawn Baptiste to identify them when the police interviewed him at the hospital. He did not do so. It is true that some hours later after further police questioning Shawn Baptiste did identify these men. But in his evidence to the Court of Appeal he said that the men had worn masks and that police had persuaded him to say that he recognised the men. Even in Trinidad the phenomenon of police persuading witnesses to say more than they can conscientiously say is not unknown. At the very least the Station Diary tends to support the new version, the perpetrators being masked men. In my view the Chief Justice was far too dismissive about the fact that Shawn Baptiste did not immediately identify the men. That negative view was only sustainable on the basis of an intuitive view that the police evidence must be correct. Contrary to the view of the Chief Justice I would hold that the Station Diary tended to support the new evidence of Shawn Baptiste.[61]I have not lost sight of the fact that, in the context of the Station Diary the Chief Justice placed considerable reliance on the fact that a committee of the Privy Council (Lords Hutton, Hobhouse of Woodborough and Millett) refused leave to appeal in respect of a petition which raised this particular point. At that stage this point may have stood on its own. I do not know why the committee refused leave to appeal. In accordance with the usual practice even in death sentence cases the Privy Council gave no reasons. I am not convinced that ultimate decisions without reasons, resulting in hanging men, are in 2005 still compatible with the constitutional responsibilities of the Privy Council.[62]There is another dimension of this case which the Chief Justice did not address. No motive has ever been suggested for the accused, who knew the deceased and his family, to mount the attack. The prosecution argued before the Privy Council that this factor is neutralised by the fact that there was no motive for Shawn Baptiste to have falsely accused the two men. That is not entirely unrealistic. At least on the new evidence before the Court of Appeal there was a reason for Shawn Baptiste falsely to incriminate the appellants. That, of course, would involve police wrongdoing. It would be innocent to believe that this idea must be rejected out of hand.[63]If I understand the majority judgment correctly, it places reliance in paragraphs 6 and 28 on the proposition that the names of the two accused as the assailants had been given by the victim within hours of the attack. If this point is relevant, it is of considerable weight. Possibly in this case the prosecution might have had a trump card in such a dying declaration by the victim identifying the assailants. If so, there is the remarkable fact that the prosecution did not attempt to lead this "evidence" at trial where it could have been tested. Not only was it not introduced or relied upon at trial, but this "evidence" was not relied on by the Court of Appeal or adduced before it. It was simply not part of the evidence in the case at any stage. Why was this evidence never adduced? One does not know the answer to this question. What one does know is that initially Shawn Baptiste did not identify the attackers. And one knows that Shawn Baptiste's subsequent identification of the assailants followed a further police interview. A police officer would have had to be called to testify to a dying declaration by the victim. Given the prosecution's decision not to rely on such a statement, it would be quite wrong to assume that such evidence was available. The reliance on this factor in the majority judgment is unjustified and a failure of due process.[64]It is always important for a judge to bear in mind what Justice Learned Hand in his famous address during the Second World War, in Central Park, New York City, called the spirit of liberty. He said that the spirit of liberty is the spirit which is not too sure that it is right. The need for such an approach is immeasurably increased where the issue at stake is killing a man by the cruel and barbaric punishment of the death penalty. This spirit is not evident in the judgment of the Chief Justice. Instead his judgment is expressed in certainties and absolutes with some questionable and speculative assumptions in favour of the state.[65]I feel compelled to dissent in this case. Dissenting judgment by Lord Hutton[66]I am unable to agree with the majority judgment that these appeals should be dismissed. The facts of the case and the issues which have arisen on these appeals have been fully set out in the judgment of the majority and in the dissenting judgment of Lord Steyn and therefore I can state quite briefly the reasons why I would have allowed the appeals.[67]The identification of the appellants as the two gunmen was based solely on the evidence of Shawn Baptiste; there was no other evidence which gave any support to his identification. Therefore the issue of the guilt or innocence of the appellant depended entirely on whether Shawn Baptiste was truthful in his evidence at the trial when he stated that he recognised the two gunmen who shot his brother as the appellants.[68]At the hearing of the second appeal before the Court of Appeal Shawn Baptiste retracted the evidence which he had given at the trial and said that the gunmen had been masked and that he had been unable to recognise them. There was also fresh evidence before the Court of Appeal from a firearms expert which clearly established that the .44 revolver found in the room, which Shawn Baptiste maintained at the trial had been fired at his brother, could not have been fired in the attack.[69]In its judgment the Court of Appeal came to the clear conclusion that the retraction of his evidence by Shawn Baptiste was not genuine. But the Court of Appeal also said that the evidence of Shawn Baptiste that the .44 revolver was used in the shooting and dropped onto the floor in the course of his struggle with one of the gunmen was "clearly untrue".[70]In its judgment delivered by the Chief

Justice the Court of Appeal stated:

"The second matter which was relied upon by way of corroboration was the report of Mr Burns, a firearms' expert from England. His report establishes quite conclusively that the .44 revolver which was found later that morning in the room where the shooting took place was not used in the shooting. It contained in its chamber bullets which could not be fired from that gun. This, however, does not provide any corroboration of Shawn Baptiste having been induced by the police to lie in the account which he gave of the incident. The evidence of the policeman, PC Seepersad, who found the gun, was that it was found under the sheet on the mattress on which the deceased was lying when he was shot. Now, the link with the shooting was really made by Shawn Baptiste who in his evidence said that the gun was found not on the mattress under the sheet but on the floor, and moreover testified that in the struggle which he had with one of the intruders, the man's gun had fallen on the ground and he identified the gun as being probably the gun which the intruder had been holding. That evidence of Shawn Baptiste is, in our view, clearly untrue, but there is a ready explanation of it which has nothing to do with his being pressured by the police; it is that he wanted to find an innocent explanation for the presence of the gun in his premises. So that there is no corroboration to be found there. I would also mention, as I did in argument, that the introduction of the gun into evidence did not in any way assist the Prosecution's case. In fact, the evidence by Shawn Baptiste tending to suggest that it had been used in the course of the shooting would have damaged the Prosecution's case by casting doubt on the credibility of the case as a whole."
However, having stated that the untrue evidence about the firing of the .44 revolver would have cast doubt on the credibility of the prosecution's case as a whole, the Court of Appeal failed to go on to consider whether the doubt thereby cast should have caused it to conclude that there was a reasonable doubt as to the guilt of the appellants. As Lord Steyn observes in paragraph 54 of his judgment, the Court of Appeal's judgment gives the impression that the finding that Shawn Baptiste's retraction was not genuine was in itself decisive. This appears from the following passage towards the commencement of the judgment:
"we have to consider the fresh evidence which we have admitted and determine whether in the light of that evidence we have any doubt, any reasonable doubt, as to the guilt of the appellants. Having considered that evidence, we have come clearly to the conclusion that the retraction of his evidence by Shawn Baptiste is not genuine."
Therefore I am in agreement with Lord Steyn that the judgment of the Court of Appeal was seriously flawed because it failed to face squarely the issue as to the impact of Shawn Baptiste's lies about the .44 revolver on the truthfulness of his identification of the appellants.[71]I consider that there is little weight in the point made by the Court of Appeal that the evidence of Shawn Baptiste about the .44 revolver did not in any way assist the prosecution's case. The significance of that false evidence, even though it was not evidence which related directly to his identification of the appellants, is that it demonstrates that Shawn Baptiste was prepared to lie about part of the attack in which his brother was murdered in the course of his evidence and therefore, as the Court of Appeal observed, it casts doubt on the credibility of the prosecution's case as a whole. I think it is not improbable, as the Court of Appeal suggests, that Shawn Baptiste lied about the .44 revolver because he did not want the police to know that he or his brother had a revolver in his apartment, but that explanation, if it be correct, does not alter the fact that Shawn Baptiste was prepared to give false evidence to the jury as to what happened in the attack.[72]I recognise that as the Court of Appeal considered that Shawn Baptiste's retraction was unconvincing and held that it was not genuine, there is some force in the argument that this rejection of his retraction supports the correctness of his identification evidence at the trial. However in my opinion this argument is not decisive, and I consider that a witness could give false evidence at trial and yet give unconvincing reasons to the Court of Appeal as to why he wished to retract that evidence after the trial. In my opinion the fresh evidence from the firearms expert that the .44 revolver could not have been fired in the attack, leading to the clear conclusion that Shawn Baptiste lied about the gun at the trial, stands separate and distinct from the unconvincing nature of the evidence given by Shawn Baptiste to the Court of Appeal as to why he retracted his evidence, and did not receive from that Court the separate and careful consideration which it required.[73]Therefore, because of this error by the Court of Appeal, I consider that the approach of the Board to these appeals is not governed by the principle stated in Stafford v The State [1999] 1 WLR 2026 at 2029, and it is the duty of the Board itself to consider the question whether the convictions should be held to be safe.[74]In R v Pendleton, at para 19, [2002] 1 WLR 72 the House of Lords affirmed that the guiding principle is that stated by Viscount Dilhorne in Stafford v Director of Public Prosecutions [1974] AC 878 at 906:
"While … the Court of Appeal and this House may find it a convenient approach to consider what a jury might have done if they had heard the fresh evidence, the ultimate responsibility rests with them and them alone for deciding the question [whether or not the verdict is unsafe]."
In R v Pendleton, at para 19, Lord Bingham of Cornhill stated:
"The Court of Appeal can make its assessment of the fresh evidence it has heard, but save in a clear case it is at a disadvantage in seeking to relate that evidence to the rest of the evidence which the jury heard. For these reasons it will usually be wise for the Court of Appeal, in a case of any difficulty, to test their own provisional view by asking whether the evidence, if given at the trial, might reasonably have affected the decision of the trial jury to convict. If it might, the conviction must be thought to be unsafe."
[75]In some cases where the defendant is convicted, proof that a crucial witness as to identification told lies in the course of the trial need not lead to the quashing of the conviction on appeal and the Court of Appeal may be satisfied that the conviction remains safe. But whether or not the conviction should be set aside, when it is shown that a witness has lied, will depend on the special facts of the individual case and, in my opinion, cannot be decided by asking whether the lies were central to the identification of the defendant. In the present case the convictions of the appellants for murder depended entirely on the truthfulness of Shawn Baptiste's identification evidence and it has now been established that Shawn Baptiste told deliberate lies about part of the attack in which his brother was murdered. In my respectful opinion an appellate court cannot be satisfied of the essential integrity of Shawn Baptiste's identification evidence unless it also considers the impact of his lies on the credibility of that evidence. Therefore, if I ask myself whether the evidence that Shawn Baptiste lied might reasonably have affected the decision of the trial jury to convict, or if I ask myself whether I, as a member of the appellate court, have a reasonable doubt as to the guilt of the appellants, I am compelled to answer in the affirmative. Therefore I would have allowed these appeals.[76]I would refer to two matters in conclusion. I was a member of the committee of the Privy Council which dismissed an earlier petition by the appellants for special leave to appeal which made reference to the fresh evidence of the firearms expert in relation to the .44 revolver. It is my recollection that on the hearing of that petition there was little, if any, argument directed to the point whether the firearms expert's evidence, viewed in isolation, affected the credibility of Shawn Baptist's identification evidence. The second matter relates to the absence of any mention in the entry in the police station diary of Shawn Baptiste having identified the two men who shot his brother. The omission of this identification is a reason for concern but, in my opinion, if it stood alone and apart from the evidence of the firearms expert in relation to the .44 revolver, it would be a point of only limited weight.

Cited in 44 later judgments

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