Cleare v The Attorney General and others

An appellate court should ordinarily respect concurrent findings of fact, given the trial judge’s advantage in assessing witnesses. That restraint does not protect findings reached through a structural error. A judge must consider relevant medical or expert evidence when assessing credibility if it may corroborate the witness’s account. Artificially separating that evidence from the credibility assessment is an error of law or principle. Where the omitted evidence might have affected the conclusion, the case should be reheard. A rehearing is unnecessary only where the appellate court is satisfied that proper consideration of the evidence could not have produced a different result.

The appeal arose from claims following the appellant’s arrest and detention by Bahamian police. The trial judge dismissed claims that two officers had assaulted him, finding that the allegations were fabricated. The judge reached that conclusion before considering medical evidence relied on by the appellant, and later regarded that evidence as of little value. The Court of Appeal dismissed the appeal against those findings. The Privy Council considered whether the sequencing of the evidence constituted an error requiring appellate intervention and whether the medical evidence could have affected the credibility findings. The separate claim concerning unlawful detention was not in issue.

1. Disposition. The Board allowed the appeal and advised that the claims of assault be reheard by another judge of the Supreme Court.
2. Appellate restraint. Concurrent findings of pure fact are ordinarily not disturbed because the trial judge has an inherent advantage in assessing evidence. That principle does not prevent intervention where the trial judge’s reasons show that the advantage was not properly used or that the evidence was not tested against the available independent material: Central Bank of Ecuador v Conticorp SA [2015] UKPC 11; Thomas v Thomas [1947] AC 484.
3. Structural error. A judge must consider relevant medical or expert evidence at the stage of reaching conclusions about credibility where that evidence may corroborate the witness’s account. Artificially separating the medical evidence from the other evidence, rejecting the witness, and only then considering the medical evidence constituted the type of structural failing identified in Armagas Ltd v Mundogas SA (The “Ocean Frost”) [1985] 1 Lloyds Rep 1, Mibanga v Secretary of State for the Home Department [2005] EWCA Civ 367 and Jakto Transport Ltd v Hall [2005] EWCA Civ 1327.
4. Application. The trial judge rejected the appellant’s evidence before considering the medical evidence said to corroborate it. The later consideration of that evidence was also unsatisfactory. The unchallenged evidence of Dr McDowell concerning the nature, timing and likely causes of the brain and neck injuries was of substantial significance. It might have led the judge to reach a different conclusion.
5. Rehearing threshold. After a structural error, a rehearing is required unless the appellate court is satisfied that proper consideration of the omitted evidence could not have led the judge to do otherwise than reject the claim.
6. A judge deciding whether injuries resulted from alleged assaults need not determine how they otherwise occurred if the allegation is rejected. It may nevertheless be helpful to consider plausible alternative explanations.

1. Privy Council: Allowed the appeal from the Court of Appeal of the Commonwealth of the Bahamas and directed that the assault claims be reheard by another judge of the Supreme Court.
2. Court of Appeal of the Commonwealth of the Bahamas: On 14 March 2013, dismissed the appeal against the trial judge’s dismissal of the assault claims.
3. Supreme Court of the Bahamas: On 23 June 2011, dismissed the claims that the appellant had been assaulted by police officers.