Held, allowing the appeals, that where in a criminal trial the prosecution tendered in evidence a confession statement signed by the defendant the prosecution was relying on the signature as the defendant’s acknowledgment of the statement as his own and that since it was well established that for such a confession to be admissible the prosecution had to show that it had been made voluntarily, a defendant’s allegation that his signature had been obtained by force or by a

APPEALS (No. 24 of 1980; No. 8 of 1981; No. 13 of 1981 and No. 9 of 1981) by special leave in forma pauperis by Seeraj Ajodha, Peter Chandree, Dennis Fletcher and Lincoln Noreiga from judgments of the Court of Appeal of Trinidad and Tobago. The defendant Ajodha was tried on an indictment charging him with murder, robbery and rape before McMillan J. and a jury of 12 in the High Court at San Fernando and convicted of murder on January 17, 1975. His appeal against that conviction was dismissed by the Court of Appeal (Sir Isaac Hyatali C.J., Phillips and Rees JJ.A) on July 18, 1977. The defendants Chandree, Fletcher and Noreiga were charged with murder and tried in the High Court at Port of Spain before Braithwaite J. and a jury of 12. They were all convicted of murder on May 17, 1976. Their appeal against conviction was dismissed by the Court of Appeal (Sir Isaac Hyatali C.J., Corbin and Scott JJ.A.) on July 15, 1977.

The facts are stated in the judgment.

At the conclusion of the arguments on March 5, 1981, their Lordships announced that the appeals would be allowed for reasons to be given at a later date.

Barbara Calvert Q.C. with Aditya-Kumar Sen for the defendant Ajodha, with Derek Zeitlin for the defendant Chandree, with Michael Burton for the defendant Fletcher and with D. John Dickson for the defendant Noreiga. A confession statement of which the defendant is not the author but which he has signed is a confession subject to the general rules relating to the admissibility of confession statements. A signature on a confession statement is an adoption of it and if the signature has been obtained by duress that goes directly to the voluntariness of the statement itself. In the instant cases there should have been a voir dire to determine the issue of admissibility. In each case the trial judge erred in that he delegated to the jury the function of deciding on admissibility. The issue of whether the defendant made a statement and of its admissibility was fundamental to the determination of guilt and the defendants’ convictions should be quashed.

A trial judge should hold a voir dire as soon as he appreciates from the nature of the defendant’s case that there is a challenge to admissibility. He may be alerted to the issue either by the nature of the defendant’s evidence or by the thrust of the cross-examination. The defendants do not contend for a position as extreme as that in Canada. It is accepted that counsel has a discretion whether to ask for a voir dire: such a request will depend on the circumstances of the case. In the instant cases no discretion was exercised because all those taking part

in the trials assumed that it was established law that in the circumstances a defendant could not challenge the admissibility of the statements and that any objection would be overruled. Assuming that a challenge to admissibility is open to a defendant, in a case where the only evidence against him is a non-voluntary confession, it is likely that defence counsel will be in dereliction of his duty if he raises no objection. It is conceded that there may arise circumstances where the holding of a voir dire would not be in a defendant’s interests.

If a defendant alleges that he was forced to sign a confession statement that raises the issue of voluntariness. It is wrong in law to distinguish between a statement made by the defendant but extracted by duress, undue influence or other inducement and a statement which the defendant has not made but which he has been forced to sign by one of those methods. By signing a statement the signor is regarded as adopting it and the same rules should apply as to its actual making. A forced adoption automatically raises admissibility which must be considered by the trial judge: it cannot be regarded merely as an issue of non est factum. The prosecution has to show affirmatively both that a confession statement was voluntary and that it was made by the defendant: see Reg. v. Roberts [1954] 2 Q.B. 329. But see also Reg. v. Robson [1972] 1 W.L.R 651, 654 which is not correct. The courts of Trinidad and Tobago have misunderstood the nature of the issue of voluntariness where there is a signature. For the general law as to admissibility see Reg. v. Thompson [1893] 2 Q.B. 12; Ibrahim v. The King [1914] A.C. 599 and Director of Public Prosecutions v. Ping Lin[1976] A.C. 574. It is established law that where a trial judge is deciding whether a confession is voluntary he is deciding a question of fact. Similarly where he considers whether a signature is voluntary. Where he decides that even though a statement may be true, it was forced on the defendant, the statement is not admissible. The judge is not concerned with the truth of the contents but only with whether it is the defendant’s statement, i.e. whether it was forcibly adopted by him or was voluntary. It is conceded that there is little difference between that and a totally forged statement. But nevertheless the issue of a forced signature is not one for the jury. The rationale for a distinction is that a confession statement is of exceptional weight: the prosecution relies on the signature on a confession statement as an authentication and witnessing by the defendant that he made it. Different rules apply to oral conversations. In the case of a written statement there should be no distinction between an issue of total fabrication coupled with forced adoption and an issue of whether a statement was made under duress: in both cases it is a fundamental principle that there is a right to a voir dire: see Wong Kam-ming v. The Queen [1980] A.C. 247, 263.

[LORD KEITH(£ KINKEL. This point was not taken at the trial. If counsel did not challenge admissibility and ask for a voir dire ought he to be allowed to rely on the course that he took as a ground of appeal?]

If at the trial it appeared to be settled law that a point could not be taken a failure to take it should not prevent an appeal. In the instant case the point was raised in the Court of Appeal. Judicial opinion in

common law countries has been divided as to the law on the point in issue here. For the position in Fiji, see Ragho Prasad v. The Queen [1981] 1 W.L.R. 469. Before 1975 in Trinidad and Tobago it was settled law that the question of whether a defendant had been forced to sign a statement was an issue for the jury: see Reg. v. Charles (1961) 3 W.I.R. 534 and Reg. v. Farley (1961) 4 W.I.R. 63. Subsequently the position in the West Indies changed and the defendants rely on State v. Plowell (1976) 24 W.I.R. 215; Reg. v. Glenroy Watson (1975) 24 W.I.R. 367 and State v. Gobin (1976) 23 W.I.R. 256, 278 where Haynes C. encapsulates the defendants’ submission.

If it appears to the trial judge that the issue of voluntariness is raised in any form the defendant is entitled to a ruling on voluntariness. The judge should send the jury out and ask counsel if the defence takes issue on admissibility. There is no case exactly in point but Reg. v. Campbell Watson [1980] 1 W.L.R. 991 is of assistance. See also Paul v. The State(unreported) June 26, 1980, Court of Appeal of Trinidad and Tobago. For the position in East Africa see Mwangi s/o Njeroge v. The Queen (1954) 21 E.A.C.A. 377.

Even if the defendants are wrong and an allegation that a defendant was forced to sign a confession statement does not go to voluntariness the trial judge has a discretion to rule out admissible evidence where its prejudicial effect outweighs its probative value. On the facts of the instant cases that should have been done. Where a trial judge is alerted to the question of admissibility he should exercise such discretion even though not specifically requested to do so by counsel. The defendants rely on Callis v. Gunn [1964] 1 Q.B. 495, 501; see also Reg. v. Middleton [1975] Q.B. 191, 197, 198 and Reg. v. Sang [1980] A.C. 402, 431, 434, 437, 439-440, 456.

The question of the admissibility of a confession statement must be considered strictly in accordance with law. The prosecution has to prove that a statement was voluntary. If the signature is involuntary the whole statement is tainted and if wrongly admitted for the jury to consider must affect the fairness of the trial. That is because on the voir dire the judge only rules on whether the statement or signature was voluntary whereas the jury is concerned with whether the contents are true as well.

For the statutory provisions as to the array of jurors see section 16 of the Jury Ordinance. It is contrary to the intention of the legislature for a lesser charge to be tried with one for murder: see Gransaul v. The Queen (unreported) April 9, 1979, P.C. It is conceded that the mere fact that another charge was tried with the murder charge does not render the conviction of murder a nullity but the conviction ought to be quashed where evidence has been admitted on the lesser charge which was inadmissible or prejudicial on the murder charge. In the case of the defendant Ajodha the evidence admitted on the charge of rape and robbery confused the jury: the joinder of counts led automatically to prejudice.

Burton following for the defendant Fletcher. This was a joint venture. The prosecution must show that it was the intention of each defendant or that it was the common design to kill or cause grievous bodily harm. The trial judge ought to have left the issue of manslaughter to the jury.

Since this is a capital case the Judicial Committee ought to consider the point: see Ong Ah Chuan v. Public Prosecutor [1981] A.C. 648.

[LORD KEITH OF KINKEL. The issue is not sufficiently alive to warrant a hearing before their Lordships.]

It is the duty of the trial judge to inquire whether it is necessary to hold a voir dire. A fraud or a trick has the same vitiating effect as a threat. If a person signs a statement under a mistake, the statement is not voluntary. Any such question as to the obtaining of a signature raises an issue of voluntariness to be considered by the judge. In the instant case the prosecution had to show that the statement written by another was adopted by the defendant and made his own by his signature and it failed to do so. Even if the issue was a combination of the questions as to whether the statement had been made at all and whether it had been induced by a trick the trial judge ought to have ruled on whether the trick induced the statement: see Reg. v. Glenroy Watson, 24 W.I.R. 367, 380. If contrary to the defendant’s submissions the issue was not one of voluntariness the judge should have considered excluding the statement in the exercise of his discretion: see Callis v. Gunn[1964] 1 Q.B. 495; Reg. v. Song [1980] A.C. 402 and Reg. v. Middleton [1975] Q.B. 191. Where there is scope for a trial judge to exercise his discretion to exclude evidence and he needs assistance in deciding on its exercise a voir dire is appropriate: see Reg. v. Roberts(1970) 114 S.J. 413 and Reg. v. Stewart (1972) 56 Cr.App.R. 272.

Stuart McKinnon Q.C., Jonathan Harvie and Lionel Jones (senior state counsel, Trinidad and Tobago) for the state. The courts of Trinidad and Tobago are administered according to the law of England subject to the local legislation. The Judicial Committee is concerned with English law for the time being in force (see section 7 of the Criminal Procedure Act and section 2 of the Evidence Act, chapters 12:02 and 7:02 of the Laws of the Republic of Trinidad and Tobago 1980) and it is not looking at a group of local courts developing their own law on evidence and admissibility. The state agrees with much contained in the defendants’ submissions but those propositions can only apply where an objection to admissibility has been taken at the trial. It is well established that a trial judge must be satisfied that a confession is voluntary but that does not mean that it is necessary or desirable that in every case or in the majority of cases there should be a voir dire. Whether or not an allegation that a signature was forced raises an issue of voluntariness depends on the circumstances of the case. In England if the defence objects to the admission of a statement in the form “I was forced to sign” the judge would determine (in the absence of the jury) whether authorship was the sole issue or whether voluntariness was raised as well. The issue of voluntariness arises if the defendant has by his signature been forced to adopt the statement as true, correct and his own. The defence can also object and ask for a voir dire to determine whether in his discretion the trial judge would be right to exclude the statement even though the primary question is one of authorship, i.e. whether there was any confession at all, and therefore primarily one for the jury.

If a defendant objects to the admission of a confession statement on the ground that he was forced to sign that raises an issue of voluntariness

-examination of prosecution witnesses defence counsel puts to a witness that the defendant was forced to sign that does not raise the issue: that is not evidence but merely a denial of the prosecution’s allegations. As to whether where an issue of voluntariness emerges in the course of the trial the judge ought to ask the defendant whether he is challenging the admissibility of the confession statement and impose a voir dire, it must be borne in mind that the defence may not want a voir dire. Difficulties would also arise if a trial judge were bound to alert the defence to the raising of the issue of voluntariness and of the necessity of holding a voir dire: the question would then arise whether the omission of such a warning would amount to a mistrial.

In the instant cases there was no objection at the trial to the admission of the confession statements. On the state of the authorities the point could have been raised and the defendants should have raised it if they wanted a voir dire. It is conceded that the trial judge was bound by the decisions in Herrera v. The Queen (1966) 11 W.I.R. 1 and Williams v. Ramdeo (1966) 10 W.I.R. 397. For the development of the present position in the West Indies, see Reg. v. Charles, 3 W.I.R. 534; Reg. v. Farley, 4 W.I.R. 63; Williams v. Ramdeo, 10 W.I.R. 397; Herrera v. The Queen, 11 W.I.R. 1; State v. Fowler (1970) 16 W.I.R. 452; Harper v. The State (1970) 16 W.I.R. 353; State v. Ramsingh (1973) 20 W.I.R. 138 and State v. Gobin, 23 W.I.R. 256. Those cases are almost solely concerned with the nature of the objection taken. In so far as the Trinidad and Tobago authorities relate to a defendant’s being forced to sign a confession statement not of his own making, the state cannot support them. Duress and fraud in such circumstances cannot be distinguished. The concession is confined to the area of confession statements. It is not necessary for the state to concede that the same would apply to a trick. But in the instant case if there had been evidence of a trick there could have been a voir dire and the trial judge in the exercise of his discretion would have been entitled to exclude the statement. If a trick raises only the issue of authorship that issue should be considered by the jury. It is necessary to bear in mind that the rules regarding the admissibility of confession statements are anomalous and governed by considerations of policy: see Ibrahim v. The King [1914] A.C. 599. That is reflected in State v. Gobin, 23 W.I.R. 256 and Director of Public Prosecutions v. Ping Lin [1976] A.C. 574. The reason behind the rule is that it is the fairest way of testing voluntariness.

It is not the law in the West Indies that there should always be a voir dire where a confession statement is tendered. That would lead to practical difficulties in the conduct of the trial. It is not always in a defendant’s interest that there should be a voir dire. It is not accepted that there should always be a voir dire when the issue of voluntariness emerges in the course of the trial. Such a situation begs the question whether confession has been opened to the jury. Under present prevailing practice that situation would not normally arise. Reg. v. Glenroy Watson, 24 W.I.R. 367, is a long way from laying down a general principle. If the defence wishes for a voir dire a formal objection to admissibility should be taken at the trial. That is the law and practice

in Trinidad and Tobago. If the defendant is not represented the trial judge must in his discretion decide whether a voir dire is appropriate to ensure a fair trial. But that does not mean that the trial judge has a duty to order a voir dire so that a trial is invalid if he does not. It would impose an intolerable burden on trial judges to direct that whenever a point as to voluntariness arises (even by way of cross-examination) they have a duty to hold a voir dire. There is no authority for a proposition that there should be some procedure whereby a trial judge should ask some question of counsel in the absence of the jury to draw attention to a possible issue of admissibility. But it is conceded that if there is an explicit challenge to admissibility the trial judge must rule on it: although he need not necessarily hold a voir dire before doing so.

In the instant cases it was arguable that the signatures amounted to an adoption of the statements and the allegations of duress and a trick raised the issue of voluntariness. It was open to the defendants’ counsel to object to the admissibility of the statements. The law in Trinidad and Tobago was not settled beyond argument. For the position in 1966 see Williams v. Ramdeo, 10 W.I.R. 397 and Herrera v. The Queen, 11 W.I.R. 1, and compare those cases with the decisions of the Court of Appeal of Guyana in Harper v. The State, 16 W.I.R. 353, 354, 358 and State v. Fowler, 16 W.I.R. 452, 456, 458, 460-462, 466, 471, 475. It is clear that the Guyana decisions only diverge from the position in Trinidad and Tobago on the proper interpretation to be placed on an objection and on the notion that a defendant’s denial of having made any confession at all may raise an issue for the jury but need not necessarily do so if the defendant goes on to say how the statement came into existence. For a further attempt by the Court of Appeal of Guyana to settle the law see State v. Ramsingh, 20 W.I.R. 138, 144, 147, 153-155, 162-163, 168, 177, 180, 182, 188. It is conceded that the trial judges in Trinidad and Tobago were bound by the decisions of the Trinidad and Tobago Court of Appeal and that Guyana is a separate jurisdiction but in the instant cases counsel could have taken the point by properly analysing the objections on the basis of the defendants’ adoption of the statements.

Where a defendant is represented and no objection is taken to admissibility of a confession statement a trial judge should assume that counsel has deliberately taken the decision not to object. If counsel then asks questions in cross-examination which make it clear that the defendant disputes the voluntariness of the statement it is for counsel to decide (when the time comes for the statement to be put in evidence) whether to object. It is not for the trial judge to do so. Questions asked in cross-examination do not amount to evidence sufficient to raise the issue. If a defendant makes a statement from the dock challenging voluntariness a trial judge must ensure that he is satisfied that the statement was voluntary: if there is compelling material which calls for the judge to decide on voluntariness he must send the jury out and consider the position. He might have to direct the jury to disregard the evidence of the confession statement or, if it was the only evidence against the defendant, direct an acquittal. Compelling material would be that which

statement was voluntarily made. For the trial judge’s continuing obligation to be satisfied as to voluntariness, see Reg. v. Campbell Watson [1980] 1 W.L.R. 991. Where a defendant is unrepresented any question of admissibility is to be dealt with under the trial judge’s inherent discretion to ensure a fair trial; there would be no practical difficulty in his explaining the position to the defendant and informing him of his rights.

The law is that a defendant challenging admissibility and desiring a voir dire must ask for one and there cannot be a doctrine entitling counsel not to ask for a voir dire in circumstances where it is bound to be impossible afterwards to determine whether he wanted one or not. Such a position would make the administration of justice impossible; it would enable a defendant to appeal on the issue if he could show that he might have wanted a voir dire. Even if at the time of the trial the state of the law was such that it seemed that any objection would be bound to fail the defendant must show that he demonstrated at that time that he wanted a voir dire. It is not the correct approach in circumstances such as those under consideration here for an appellate court to say that it must be satisfied that the defendant did not want a voir dire. The defendant should not be put in a position where a failure to ask for a voir dire is equivalent to his having had such a request repelled.

As to whether an order for a new trial would be appropriate were the Judicial Committee to allow the appeals: see Baksh v. The Queen [1958] A.C. 167; Holder v. The Queen [1980] A.C. 115 and Abbott v. The Queen [1977] A.C. 755.

Harvie following. If a defendant insists that he does not want a voir dire the trial judge has no power to order one: see Reg. v. Anderson (1929) 21 Cr.App.R. 178, 182. It is a fundamental principle that the jury should not be asked to leave the court save with the consent or at the request of the defendant. That is so whether or not the defendant is represented. The trial judge has no duty to inquire whether a voir dire is necessary unless a formal objection to admissibility is taken. But he may inquire of witnesses, counsel or the defendant as he sees fit to make sure that he knows how the case is being put. In doing so he may take into account the competence of counsel according to circumstances as they appear in the course of the trial.