Carlton Junior Hall v The Queen
| Jurisdiction | Barbados |
| Judge | Mr. Justice Andrew D. Burgess,Madam Justice Kaye C. Goodridge,Madam Justice Margaret A. Reifer |
| Judgment Date | 23 January 2019 |
| Neutral Citation | BB 2019 CA 1 |
| Docket Number | Criminal Appeal No. 3 of 2016 |
| Court | Court of Appeal (Barbados) |
| Date | 23 January 2019 |
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
The Hon. Mr. Justice Andrew D. Burgess, the Hon. Madam Justice Kaye C. Goodridge, Justices of Appeal and the Hon. Madam Justice Margaret A. Reifer Justice of Appeal (Acting)
Criminal Appeal No. 3 of 2016
Mr. Andrew Pilgrim QC, in association with Ms. Kamisha Benjamin and Ms. Rashida Edwards for the Appellant
Mr. Anthony Blackman in association with Mr. Oliver Thomas for the Respondent
In this appeal, the appellant has raised a narrow point of law surrounding identification evidence. It touches and concerns the construction, import and breadth of section 102 of the Evidence Act Cap. 121 (the Act). In that regard, this Court is invited to do one of two things: first, to reverse itself and declare that DPP's Reference Criminal Appeal No. 1 of 2001, B'dos [unreported] decision of 26 February 2002 (DPP's Reference) was wrongly decided; or second, to find that the circumstances of this case are distinguishable and ultimately not governed by the principles of law enunciated in that case.
The facts relevant in the consideration of this appeal are sparse and simple.
The appellant was convicted by a jury of his peers on 2 March 2016 of the offence of murder by shooting. He had entered a plea of not guilty to the charge. The victim was Adrian Wilkinson who the appellant was found to have murdered on 14 August 2011.
He was sentenced to death in accordance with section 2 of the Offences Against the Person Act, Cap. 141 (Cap 141).
The Crown's case against the appellant was the identification evidence of Julian Benn, a friend of the deceased, who was present at the time of the shooting.
The defence of the appellant at trial was that it was a case of mistaken identity. Thus, the crux of this case was the quality of the identification evidence, viewed in the context of section 102 (section 102).
When this appeal first came on for hearing, counsel for the appellant took the view that the then pending decision of the CCJ, Dwayne Severin v The Queen CCJ Appeal No. BBCR 2017/003 (Dwayne Severin) central to this matter and that this case should therefore be adjourned to await its outcome. However, as it turned out, the CCJ delivered its decision in Dwayne Severin on 25 January 2018 and we were therefore able to review the CCJ ruling in the case and assess its relevance, if any, to this appeal. In the final analysis, counsel for the appellant submitted that it could be distinguished from this case.
The appellant filed one ground of appeal, namely, that the conviction was unsafe and/or unsatisfactory for the following reason:
“1. The learned trial judge erred when she failed to uphold the No Case Submission made by counsel for the Appellant. The case should have been withdrawn from the jury for the following reasons:
a. The case for the Crown was based solely on identification evidence and there were no special circumstances as required by section 102 of the Evidence Act Cap 121 to support the identification evidence. As such the case should have been withdrawn from the jury under section 102(4) of the Evidence Act; and
b. The identification evidence of the Crown's principal witness was tenuous and did not reach the standard of beyond reasonable doubt. Moreover the identification evidence conflicted with the forensic evidence adduced by the Crown.”
We consider it useful to begin by examining section 102, DPP's Reference and Dwayne Severin.
Section 102 makes provision for the directions which a trial judge should give to a jury and the circumstances in which an accused person should be acquitted by a trial court:
“102. (1) Where identification evidence has been admitted, the Judge shall inform the jury that there is a special need for caution before accepting identification evidence and of the reasons for the need for caution, both generally and in the circumstances of the case.
(2) In particular, the Judge shall warn the jury that it should not find, on the basis of the identification evidence, that the accused was a person by whom the relevant offence was committed unless
(a) there are, in relation to the identification, special circumstances that tend to support the identification; or
(b) there is substantial evidence, not being identification evidence that tend to prove the guilt of the accused and the jury accepts that evidence.
(3) Special circumstances include
(a) the accused being known to the person who made the identification; and
(b) the identification having been made on the basis of a characteristic that is unusual.
(4) Where
(a) it is not reasonably open to find the accused guilty except on the basis of identification evidence;
(b) there are no special circumstances of the kind mentioned in paragraph (2) (a); and
(c) there is no evidence of the kind mentioned in paragraph (2) (b)
the Judge shall direct that the accused be acquitted.”
Section 136(2) makes further provision that the judge
“(a) warn the jury that identification evidence may be unreliable;
(b) inform the jury of matters which may cause the evidence to be unreliable; and
(c) warn the jury of the need for caution in determining whether to accept the identification evidence and the weight to be given to it.”
The import of this case is best summarised by Simmons CJ, at para [3] of the judgment in the following words:
“[3] This Reference raises important questions of law about the conduct of criminal trials. It touches and concerns the perennial problem of identification evidence, the right of a trial judge to withdraw a case from the jury, an interpretation of certain sections of the Barbados Evidence Act (“the Act”) and the status of those sections having regard to the guidelines issued in the leading case of R v Turnbull [1977] 1 QB 224.”
It is impossible to resist stating that this appears to summarise precisely the issues in this appeal.
In DPP's Reference, Simmons CJ determined at para [29] that the Act was
“not exhaustive of the law and, in our opinion, is not a codification of the law of evidence in Barbados”. The core issue in the case was therefore whether section 102 is to be read as totally excluding the operation of the guidelines in R v Turnbull [1977] 1 QB 224 (the Turnbull guidelines), or whether, conversely, section 102 is to be read in conjunction with those guidelines. The answer to this question, as expressed by this Court, was that the statutory framework given in section 102 for warning and directing the jury has gaps, and that those gaps must be filled by the application of common law principles.
Stated differently, in Barbados the statute law of identification evidence is to be applied together with the common law principles.
We note in passing and in contrast with Barbados’ section 102 that, section 112 of the St. Kitts Evidence Act 2011–30 in that part of the Act dealing with identification evidence and under the rubric “Directions to jury”, codifies the common law principles. That section enumerates, from subsection (a) to (h), a comprehensive check-list of the common law/ Turnbull principles to be applied by the trial judge in warning and directing the jury.
In DPP's Reference, the Court examined the meaning and import of section 102. It made the observation that section 102 and the Act generally were modelled on the Report of the Australian Law Commission. However, ironically, when the Australian Evidence Act was passed, this section was not adopted and there is therefore no persuasive Australian authority on the construction of section 102.
DPP's Reference has been recognised in the region as strong authority. In interpreting section 102 of the St. Lucia Evidence Act 2002, which is in pari materia with section 102 of Cap. 121, Rawlins JA (as he then was) in the OECS Court of Appeal in the cases of Urban St. Brice v The Queen (Criminal Appeal No. 4 of 2006 (St. Lucia) and Gerald Joseph v The Queen, St. Lucia Civil Appeal No. 2 of 2006 (15th January 2007) drew upon the assessment of the provision by Simmons CJ.
In DPP's Reference, this Court observed at para [31] that the Act enacts “that the jury should not identify the accused as the person committing the offence unless one of two factors is present. First, there must be special circumstances tending to support the identification or alternatively, there must be other substantial evidence, not being identification evidence, tending to prove the guilt of the accused.”
The second factor is easily dismissed as it is fact sensitive, being purely a question as to what evidence exists other than the identification evidence.
The real challenge in the construction of section 102 relates to the first factor namely, the determination of what constitutes “special circumstances” in the context of identification evidence. This was the core issue in the case that provoked the DPP's Reference, and the fundamental challenge of the present appeal.
Of significance to the Court was the fact that there was a notable departure from the wording of the Australian Law Commission Report by our legislature in the passing of the Act, which eschewed the use of the phrase “exceptional circumstances” in favour of “special circumstances”.
Widgery CJ in Turnbull rationalised avoiding the use of the specific term “exceptional circumstances” as an attempt to avoid a build-up of case law as to what circumstances could properly be described as exceptional and what could not. He stated:
“Case law of this kind is likely to be a fetter on the administration of justice when so much depends upon the quality of the evidence in each case. Quality is what matters in...
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