Francis v The Queen
| Jurisdiction | Barbados |
| Judge | Simmons, C.J. |
| Judgment Date | 28 February 2008 |
| Neutral Citation | BB 2008 CA 2 |
| Docket Number | Criminal Appeal No. 10 of 2005 |
| Court | Court of Appeal (Barbados) |
| Date | 28 February 2008 |
Court of Appeal
Simmons, C.J.; Williams, J.A.; Connell, J.A.
Criminal Appeal No. 10 of 2005
Mr. Tariq Khan and Mr. Bryan Weekes for the appellant.
Mr. Alliston Seale for the respondent.
Criminal Law - Appeal against conviction — Theft — Whether accused was prejudiced by being brought into the Courtroom in handcuffs — No prejudice found since handcuffs were removed before accused entered the docks.
The appellant (Francis) was jointly charged with another man Junior Quimby (Quimby) for the theft of Rhonica Hinds' motor car on 3 December 2001. Quimby was also separately charged with handling the motor car, knowing or believing it to have been stolen. Both men, who were unrepresented, were convicted before Greenidge, J. and a jury on 7 February 2005 and sentenced on 11 March 2005 to the following terms of imprisonment: Francis — 6 years; Quimby — 7 years.
On 27 November 2006 we dismissed Quimby's appeal against conviction but allowed his appeal against sentence, reducing the term to 4 years. Thereafter, we heard argument from counsel on a preliminary point taken on behalf of Francis and we gave our written reasons on 30 March 2007. Subsequently, we heard Francis' substantive appeal on a large number of grounds. This is our decision on the substantive appeal. It raises many issues in the law of evidence requiring, for the first time in this jurisdiction, consideration of particular aspects of the Evidence Act, Cap.121.
On 2 December 2001, Rhonica Hinds' motor car, a green Suzuki Fronte, was stolen from her residence at Mangrove, St. Peter. The car was later found at Rock Dundo, St. Peter, on 21 March 2002. It had been stripped of essential components e.g. engine, lights, seats, pedals, tyres, steering wheel, grill. The windshield was intact. Ms. Hinds identified the shell by a little sticker which she had affixed to the windshield. When Ms. Hinds was shown the shell, the sticker was in the same position where she had placed it. On 3 September 2002 she again identified the car at the District ‘E’ police station by comparing its engine and chassis numbers with certain insurance documents. The chassis and engine numbers matched those on the documents. Lennox Hinkson, Ms. Hinds' brother, also identified the car from special markings.
Sgt. 131 Frederick Catwell gave evidence for the prosecution. He went to Francis' residence at Black Bess, St. Peter on 4 April 2002 along with other police officers and, after the usual introductory remarks, invited Francis to go to the District ‘E’ police station for continuation of the investigations into the theft of the car. Francis accompanied them. During his evidence in chief, Sgt. Catwell said that Francis told him under caution:
“Truthfully speaking, I is who take up the car but I had all intentions of carrying it back. I get frighten and I give it to a mechanic named B.” (name edited).
This statement was recorded in Sgt. Catwell's official police notebook from which he refreshed his memory.
According to Sgt. Catwell, a written statement was recorded in the presence of P.C. 1394 Boyce. But Boyce was not called as a witness. He gave no evidence at the preliminary inquiry and counsel for the prosecution, Mr. Alliston Seale, said that Boyce had not provided a statement for the police file. It appears from the record that Boyce was on leave from the Royal Barbados Police Force but may have been in the island. Mr. Seale told the trial judge that he had instructed that Boyce be summoned for court but he had not turned up. The trial judge considered it unsatisfactory that Boyce was not available to give evidence immediately after Sgt. Catwell and adjourned the trial until the next day. When the trial resumed, P.C. Boyce was still absent. Mr. Seale, quite properly, closed the case for the prosecution on the voir dire after Sgt. Catwell had been cross-examined by Francis.
When Sgt. Catwell purported to give evidence about a written statement taken from Francis, a voir dire was held. In his evidence on the voir dire, Francis alleged that a prepared statement had been placed before him by the police and he was beaten to sign it. He told the trial judge that he had been “in karaoke drinking the whole night” on the date of the theft. Greenidge, J. ruled that the statement was admissible. It was in these terms:
“I can't remember the time and day it was but I remember that I was in Black Bess and I did want to get in Weston. I went home and get a metal hanger. I went back up by the girl Tasha house. She car was park by the house. I use the hanger to pick the lock by the driver side door. After I get inside the car I use a small knife I had to cut the ignition wires. I touch the wires and bridge start the car. I drove off the car and went down Carlton and then I went in the Garden, St. James. I drive about the car for about twenty minutes. I was going to carry back the car after I finish with it. When I get in Reid Gap, I see a mechanic fellow I know as ‘B’. He ask me if the car was mine. I tell he no, that it belong to a girl but I was carrying it back. He tell me to give he the car that he would take all the responsibility for it if the police hold he with it. I give ‘B’ the car. After I give ‘B’ the car I didn't know what he did with it. About two weeks ago a fellow was checking to get an axle to build a boat trailer. ‘B’ tell me that to check up by ‘Biggard’ in Rock Dundo that there got a Suzuki 800 up there. I went up there about a week after and I see the car up there. I realise that it was the same car cause it was the same colour. The car was completely strip. I didn't bother to take off the axle.”
When the main trial resumed, Sgt. Catwell testified that, after Francis had given his written statement on 4 April 2002, he went on duty to Rock Dundo, St. James, with Francis, Quimby and police officers. There, Francis said, “That look like the car. It strip but I didn't take off the parts.” When Quimby gave evidence, he said that he saw Francis with Hinds' car. He (Quimby) agreed to work on it and took it from Francis. During Quimby's evidence there was an altercation between the two accused in the presence of the jury. Francis called Quimby a liar.
Francis elected to give sworn evidence. He reiterated his evidence given on the voir dire that on 2 December 2001 he was in a karaoke session until 3.00 a.m. in a bar at Bakers. He went home drunk. He denied giving a statement to Sgt. Catwell voluntarily and alleged police brutality. He named persons who were supposed to be with him at karaoke and said that he had given Sgt. Catwell the names of six witnesses in support of an alibi.
At the trial Francis called witnesses. Clovis Ward said that he had never attended karaoke in Bakers. Ernest Hinds did not recall seeing Francis at karaoke on 2 December 2001. On the other hand, Ryan Thomas, a fellow prisoner who had been speaking with Francis on the day before he gave evidence, recalled seeing Francis at karaoke.
A large number of grounds of appeal was filed on behalf of Francis. Ground 3 is in fact divided into 14 sub-grounds. We deal with the arguments on these sub-grounds below.
It was contended that the trial judge erred in law in failing to order that handcuffs on the appellant Francis be removed prior to the commencement of the trial. Mr. Tariq Khan submitted that Francis was in custody at the time of his trial and was mechanically restrained on being brought into the courtroom. The jury and potential jurors would have seen him in handcuffs. In these circumstances, counsel argued that Francis' right to a fair trial was prejudiced. Counsel referred to a Practice Direction titled “Mechanical Restraints on Prisoners when in Court to answer Charges” issued in 1993 by the then Chief Justice, Sir Denys Williams. Sir Denys set out 6 Rules for guidance as follows:
“1. Judges and magistrates are responsible for dispensing justice in the Courts in which they preside.
2. The permission of the judge or, as the case may be, the magistrate, will therefore be required for the retention on a prisoner of any mechanical restraint when he or she is in court (a) waiting for his or her case to be called (b) actually answering a charge or (c) awaiting his or her removal after a case is adjourned or concluded.
3. Where permission is sought for the retention of any mechanical restraint on a prisoner during trial, the judge or magistrate may require any gaoler to give evidence on oath as to the need therefor and may inquire into the need therefor when a dispute arises as to such need.
Where the prisoner is being tried before a jury, the Judge should hold any such inquiry in the absence of the jury and, if some restraint is retained, the Judge should warn the jury against allowing the fact of the prisoner's restraint to influence them in reaching a verdict on the charge before them.
4. Judges and magistrates should value the opinion of the gaoler as to the need for any mechanical restraint to be retained on any prisoner and should be wary of ordering the removal of any restraint against the wishes of the gaoler.
5. Mechanical restraints are appropriate where the gaoler fears that a prisoner will attempt to escape or be violent but no such restraint must be used unless it is necessary for safe custody and greater restraint than is necessary must not be used.
6. Those escorting mechanically restrained prisoners must ensure at all times that Court proceedings are not disturbed or disrupted by noise or in any other way.”
It was common ground between counsel and, indeed, a matter of which this Court takes judicial notice, that all prisoners on remand are led through the precincts of the Supreme Court in handcuffs. As we...
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