Clarke and others v The State (Trinidad and Tobago)

At common law, a trial judge has a discretion to control cross-examination of a witness as to credit. The discretion requires consideration of the proposed question’s likely effect on credibility, the foundation for alleged misconduct, fairness to the witness and the risk of satellite issues. A narrowly confined inquiry should be permitted where a central witness’s prior statement provides a solid and material basis for showing fabrication, even if wider questioning could risk self-incrimination.

An appellate court may intervene where the ruling is wrong in principle. Under section 44(1) of the Supreme Court of Judicature Act, a conviction may be upheld despite an error only where no substantial miscarriage of justice occurred.

Three appellants were convicted of manslaughter after a kidnapping in which the victim was later assaulted and buried alive. The prosecution case depended substantially on Roderique, who had previously given and retracted an elaborate account that he had been kidnapped by Nigel Allen.

Narine J permitted cross-examination about the existence and retraction of that statement but excluded its contents. The Court of Appeal of Trinidad and Tobago dismissed the appeals on 28 July 2011 in Cr App Nos 28–30 of 2009. The Privy Council granted permission on whether the restriction was lawful and, if not, whether it caused a miscarriage of justice.

The appeals were allowed in part. McGillvery’s conviction appeal was allowed. Clarke’s and Martin’s conviction appeals were dismissed.

1. At common law, the trial judge has a discretion over cross-examination concerning a witness’s credit. Relevant considerations include whether the proposed imputation would seriously affect the jury’s assessment of credibility, whether the alleged misconduct has a solid foundation, fairness to the witness, and the danger of distracting the jury from the real issues. The appellate court should not interfere unless the ruling is clearly wrong or wrong in principle. These principles were stated in R v Edwards [1991] 1 WLR 207, Hobbs v Tinling & Co [1929] 2 KB 1, R v Sweet-Escott (1971) 55 Cr App R 316 and Persad and Jairam v The State [2001] UKPC 2.
2. Narine J’s restriction was wrong in principle. The jury knew that Roderique had made and retracted a statement, but not that it contained a detailed fabricated account of his own kidnapping. That content was highly material to his credibility and could have shown him to be capable of inventing an elaborate lie. A limited examination could have addressed the alleged lie without entering into the wider facts of the Allen murder or creating a risk of self-incrimination.
3. Under section 44(1) of the Supreme Court of Judicature Act, the essential question was whether the jury would still have been bound to convict if Roderique’s evidence were left entirely out of account. McGillvery’s conviction could not be sustained on that basis.
4. In Clarke’s and Martin’s cases, independent evidence and their own interview accounts established participation in a violent kidnapping. The manslaughter test stated in R v Jogee [2017] AC 387 was clearly met, so no substantial miscarriage of justice had occurred.

The Board invited the prosecution to state whether it sought a retrial in McGillvery’s case. It declined to hear the proposed appeals against sentence because permission had not been granted.

• Privy Council: allowed McGillvery’s conviction appeal and dismissed Clarke’s and Martin’s conviction appeals.
• Court of Appeal of the Republic of Trinidad and Tobago: dismissed the appellants’ appeals against conviction on 28 July 2011 in Cr App Nos 28–30 of 2009.