The King v Vernel Jospeh

• Jurisdiction: St Lucia
• Judge: Taylor-Alexander J
• Judgment Date: 19 September 2025
• Judgment citation (vLex): [2025] ECSC J0919-1
• Docket Number: CASE NO. SLUCRD2022/0057D,0058D,0059A,0060A,0061A,0062A,0063A,0064A,0065A,0066A,0067A
• Court: High Court (Saint Lucia)

The King

and

Vernel Joseph

Defendant

[2025] ECSC J0919-1

Before:

The Hon. Mde. V. Georgis Taylor-Alexander High Court Judge

CASE NO. SLUCRD2022/0057D,0058D,0059A,0060A,0061A,0062A,0063A,0064A,0065A,0066A,0067A

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

(CRIMINAL)

Appearances:

Mr. Colin Foster for the Defendant

Mr. Linton Robinson for the Crown

The Defendant present

Taylor-Alexander J

1 By application filed on the 11 ^th of November 2024. The Applicant, who has been charged with multiple acts of sexual misconduct against Rebecca Railton and others, challenges the admissibility of a number of pieces of evidence on which the Crown intends to rely in the forthcoming trial.

2 Having considered the application and supporting affidavit filed by the Defendant/Applicant, and having heard oral submissions from both parties, I reserved my ruling on the admissibility of the challenged evidence. I now deliver the ruling.

3 The evidence challenged by the Defendant/Applicant comprises: (i) the identification evidence, including the procedure employed in the conduct of the identification parade; (ii) the propriety of the non-intimate samples taken from the Defendant/Applicant; and (iii) the chain of custody in relation to the intimate samples obtained from the complainant, Rebecca Railton. The Applicant contends that this material is inadmissible on the grounds that the identification parade was conducted in breach of established procedure; that the samples taken from the Defendant/Applicant were improperly obtained; and that the samples taken from the complainant were improperly stored and inadequately documented. It is further argued that, in these circumstances, the evidence is prejudicial rather than probative. The Crown, for its part, maintains that the evidence was lawfully obtained, properly preserved, and is both relevant and admissible.

4 The Defendant/Applicant's challenges can be summarised as follows:-

• 1. The Visual Identification Evidence:

  • (i) A Voir Dire ought to have been held at or before the Sufficiency Hearing to determine the admissibility of the identification evidence, pursuant to section 100 of the Evidence Act Cap 4.15 of the Revised Laws of St. Lucia ( Evidence Act).

  • (ii) The conduct of the identification parade fell below the requirements of Standing Order 47 making the evidence on the parade a nullity.

  • (iii) The inconsistent evidence of what transpired at the identification procedure, makes the evidence inherently unreliable and unsafe.

• 2. DNA Evidence:-

  • (i) The failure to disclose the results of the DNA evidence at the Sufficiency Hearing is a material irregularity and makes the DNA evidence inadmissible.

  • (ii) The Crown is incapable of satisfying chain of custody in relation to the DNA evidence, and the DNA having been tested by an expert who has not been gazetted constitutes a material irregularity.

  • (iii) There is no evidence to disprove that the sexual assault kit in the custody of PC Holder from the 7 ^th March 2022 to the 7 ^th of June 2022 was not tampered with.

  • (iv) The Evidence Submission Form of the forensic laboratory does not state that when it was received, the package containing the sexual assault kit, had the signature of the doctor and the signature of the victim.

  • (v) The Evidence Submission Form was altered on the 6 ^th of November 2024, interfering with evidence of the original chain of custody.

• 3. Disclosure as Regards Germarley Emanus

  The Defendant/Applicant seeks the witness statement, report or notes of Steven Edward, Social Worker and Police Officer who were present during the taking of the evidence of Germarley Emanus, a co accused, now witness for the Crown. He also requests that the Crown disclosue why Germarley was arrested. He also requests the witness statement of Shervin Longville, and any other evidence of persons arrested in connection with these offences, and any pocket book notes or station diary entries in relation to such, including where such was held identification procedures conducted.

Visual Identification Evidence Holding a Voir Dire at the Sufficiency Hearing

5 The Defendant/Applicant further contends that a Voir Dire ought to have been conducted at or before the Sufficiency Hearing to determine the admissibility of the identification evidence pursuant to section 100 of the Evidence Act. It is submitted that the failure to do so rendered the committal of the Defendant defective, particularly given that the Crown's case rests inextricably upon the identification evidence. The Applicant argues that such evidence can only be relied upon where it satisfies the admissibility criteria set out in section 100(1) and (2) of the Act.

6 The Defendant/Applicant submits that there is no evidence that a Voir Dire was conducted, or that any special consideration was given to the identification evidence at the Sufficiency Hearing, prior to a determination of its admissibility. On this basis, he contends that the identification evidence of Rebecca Railton is a nullity, it not having been assessed pursuant to the litmus test of section 100 of the Evidence Act.

7 The Crown in opposition submits that the function of the Court at the Sufficiency Hearing is limited. Its purpose is to examine the evidence upon which the Crown intends to rely, in order to determine whether such evidence discloses a prima facie case. It is not the role of the Sufficiency Hearing court to adjudicate upon admissibility questions through a Voir Dire. The Crown submits that it would be both unprecedented and impractical for the Court to embark upon a Voir Dire at that stage, particularly in circumstances where the evidence is prima facie admissible under section 100(1)(a)(i) of the Act. In any event, no application was made before the Court at the Sufficiency Hearing for such an enquiry.

Analysis

8 At paragraph F1.46 of Blackstone's Criminal Practice 2022, the authors observe that a hearing on a voir dire is not normally required to determine the admissibility of evidence arising from an identification parade, or, it is submitted, any other identification procedure. This position finds support in the decision of the Court of Appeal in In Walshe1 Boreham J giving the judgment of the Court of Appeal at [87] expressed similar sentiments:

“Those representing the applicant drew some close analogy between the admissibility of evidence of an identification parade and the admissibility of a voluntary statement. But those are very different matters. As soon as a statement is challenged, the law places on the Crown the burden of showing that it is admissible by proving that it was voluntarily made. That is a separate and different matter. Here there was no burden on the Crown to prove the admissibility of the evidence relating to the identification parade and what flowed from it. It was clearly admissible evidence and should have been admitted. Its quality is, of course, another matter to be considered by the jury.”

9 In Fleming2, concerning the law of the UK prior to 1987, an appellant had argued that identification evidence was inadmissible on the ground inter alia that the identification at the police station was obtained in circumstances which contravened Home Office circular No 109 of 1978. It was submitted that the result was that the probative value of the evidence was minimal compared to its prejudicial effect so that it would be unfair for the evidence to be admitted. The Court of Appeal disagreed. It held that it was unnecessary to hold a trial within a trial for this purpose. Lord Woolf LJ, at pages 36–

37, stated that, in the normal course, the trial judge will determine whether to take the action referred to by the Lord Chief Justice in Turnbull3 either at the close of the prosecution's case or after all the evidence has been presented. There may, exceptionally, be cases where the position is sufficiently clear on the depositions to permit an earlier ruling. However, the trial judge should not resolve the matter by holding a preliminary trial before the evidence has been placed before the jury. It was further observed that, while the trial judge retains a residual discretion to exclude evidence which is strictly admissible if its probative value is outweighed by its prejudicial effect, this residual discretion does not justify holding trials within trials. Issues of this nature can be satisfactorily addressed by the judge reviewing the depositions together with any facts that are common ground between the prosecution and the defence

10 The authors of Blackstone's Criminal Practice commend the following matters as appropriate for a voir dire: the competence of a witness; the admissibility of a confession; the admissibility of a recording; the admissibility of a statement contained in a document produced by a computer; and the admissibility of a plea of guilty where the accused subsequently changes plea to not guilty.

11 The Sufficiency Hearing is not the proper stage for determining the admissibility of identification evidence. Rather, the Sufficiency Hearing constitutes a preliminary inquiry into whether there is sufficient evidence to put the accused on trial. The function of the court at the Sufficiency Hearing is to assess the merits of the Crown's case. In Kiam Sexius V The Attorney General of St. Lucia4 the Privy Council explained the obligation placed on a court conducting a Sufficiency Hearing:

“9. Since 2008 Preliminary Inquiries and Committal Proceedings in St Lucia have been replaced by Initial Hearings and Sufficiency Hearings. In the case of an indictable offence a Magistrate conducts the Initial Hearing and makes a Scheduling Order fixing dates for the Sufficiency Hearing and the engagement of counsel. The Judge conducts the Sufficiency Hearing and in the presence of the defendant and counsel and prosecuting counsel, reviews and evaluates the witness...