Gill v The Queen
Jurisdiction | Barbados |
Judge | Waterman, C.J. |
Judgment Date | 24 March 2011 |
Neutral Citation | BB 2011 CA 5 |
Docket Number | Criminal Appeal No. 15 of 2007 |
Court | Court of Appeal (Barbados) |
Date | 24 March 2011 |
Court of Appeal
Waterman, C.J. (Ag.); Williams, J.A.; Moore, J.A.
Criminal Appeal No. 15 of 2007
Mr. Andrew Pilgrim for the appellant.
Miss Manila Renee for the respondent.
Evidence - Identification evidence — Appellant convicted of drug offences — Identification evidence not adequately treated in the summation by the judge — Interest of justice best served by order for a retrial.
Waterman, C.J. (AG.): The appellant and another man were jointly indicted for offences contrary to the Drug Abuse (Prevention and Control) Act, Cap. 131 (the Act). On the first count of the indictment, the appellant and his co-accused were charged with doing acts preparatory to drug trafficking contrary to section 18(2)(c) of the Act. On the second count, the appellant alone was charged with unlawful possession of a controlled drug contrary to section 6(2) of the Act
On 1 June 2007 the appellant was convicted of both offences. On 14 September 2007, he was sentenced by Blackman, J. to eight years' imprisonment for the offence of doing acts preparatory to drug trafficking and ten years' imprisonment for the offence of possession of a controlled drug. The sentences were to run concurrently from the date of conviction.
The prosecution's case was that the appellant was in possession of 368.3 kilos of cannabis at Needham's Point, St. Michael and that he intended to aid in the transport of the said cannabis.
The facts are that on 20 February 2001, at about 15 minutes past midnight two police officers, Constables Massiah and Leslie, were on patrol along Needham's Point, St. Michael, when they saw a motor van, MA 4156, parked in the area. The officers observed two men in the area and announced their presence. The men responded with gun shots and then escaped on foot. The motor van was subsequently taken to the Oistins Police Station and found to contain 26 bales of cannabis.
The evidence of Constables Massiah and Leslie was vital to the prosecution's case. Constable Massiah testified that on the night in question, the motor van MA 4156 caught his attention. As a result he drove the police vehicle towards the van. At about 15 metres away from the van he saw two men. He recognised one of these men to be the appellant and observed that he was carrying what appeared to be a gun. After Constable Leslie announced his presence, he heard two explosions and saw two flashes of fire coming from the side of the van where the appellant was. He discharged several rounds into the area where the men were. Constable Leslie then went in pursuit of the men while he contacted operations control for assistance. The men got away on foot. When Constable Leslie returned to the scene they examined the van and saw that it contained a number of bales which he suspected to be cannabis. It was revealed during cross-examination that Constable Massiah had the appellant under observation for about five to seven seconds. He stated that the area was lit by the headlamps of the vehicle and a handheld spotlight.
Constable Leslie's evidence of the events was similar to that of Constable Massiah, who also recognised the appellant as one of the two men on the scene at Needham's Point. He further added that at that time, he would have known the appellant for seven years. This was the only evidence against the appellant.
The appellant gave an unsworn statement from the dock. He stated that on 20 February 2001, he was at home and had never been to Needham's Point. He never asked his co-accused to borrow his van to move any herb, neither did he tell him “if the van get hold” to report it stolen. He knew nothing about any drugs.
This ground alleges that “the learned trial judge erred in law when he failed to declare a mistrial after a member of the jury alleged that the appellant had made a motion resembling a gun shooting at her and the same was ‘dealt with’ in chambers”.
In support of this ground, counsel for the appellant referred the Court to page 109 of the record where the judge stated as follows:
“…a matter has been drawn to my attention and I think I should probably adjourn the Court and see counsel in chambers.
Mr. Foreman and members of the jury, stay where you are, I will get back to you. The caution is in effect.
I will see counsel in chambers as I rise.”
The Court was then adjourned for a period of 10 minutes.
Counsel further sought to rely on the affidavit evidence of defence counsel at the trial, Mr. Holder, and of the appellant and the appellant's co-accused. It must be noted that the affidavit evidence of the appellant and his co-accused as to what occurred in chambers was based on what was told to them by defence counsel. Further, the judge swore an affidavit to the effect that he could not recall dealing with the matter of a threat to a member of the jury in Chambers. As such, the only evidence before the Court as to what took place in Chambers is essentially that of Mr. Holder. His affidavit, however, does not disclose the details of what occurred in Chambers nor does it contain the details of the exchange between counsel and the judge.
This ground, therefore, raises some degree of difficulty for the Court as there is no evidence on the face of the record disclosing that the judge dealt with any issue of a threat being made to a jury member in his Chambers, or further, that he wrongly exercised his discretion in dealing with such threat.
In R. v. Agricultural Land Tribunal [1960] 1 W.L.R. 911, a tenant applied for certiorari to quash a decision of a tribunal on the ground that they had taken into consideration matters which they were not entitled to take into consideration. There was nothing on the face of the order or in any part of the record to show that they had done this. In a decision by Lord Parker, C.J. the Queen's Bench Division held that unless the error of law appeared on the face of the record, it was impossible to go behind it and look at affidavit evidence. Accordingly, the application was refused.
In the present matter there is nothing on the record to guide the Court as to the manner in which the matter was dealt. The Court cannot assume that the judge dealt with the issue in Chambers, and further, that he dealt with it improperly.
In any event, a judge is not obligated to declare a mistrial where a member of the jury has been threatened or otherwise tampered with. The judge must first determine whether the jury has been biased. The test for bias was laid down by the House of Lords in R. v. Gough [1993] 2 All E.R. 724 and modification of the test was approved by the House in Porter v. Magill [2004] 1 All E.R. 465 where Lord Hope of Craighead at paragraph [102] endorsed the following modification:
“The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased.”
Further, in It v. Blackwell [1995] 2 Cr. App. R. 625 at page 633, the (English) Court of Appeal per Morland, J. set out the proper approach of the judge where the Court was of the view that the jury may have been tampered with. He stated:
“If there is any realistic suspicion that the jury or one or more members of it may have been approached or tampered with or pressurised, it is the duty of the judge to investigate the matter and probably, depending on the circumstances, the investigation will include questioning of individual jurors or even the jury as a whole.”
It is clear therefore, that an allegation of bias does not mean that the judge must automatically declare a mistrial. The judge must first determine whether the suspicion is a realistic one, and if so, he must investigate the surrounding circumstances.
Since there is nothing on the face of the record showing that the judge dealt with the issue of bias to the jury and nothing to show that even if he did deal with the issue it was dealt with improperly, this ground cannot succeed.
This ground alleges that the judge erred in law when he failed to declare a mistrial after the Prosecution led evidence relating to firearm offences when the accused was not on trial for such offences.
Prosecution witnesses Massiah and Leslie both gave evidence to the effect that when they saw the appellant he had what appeared to be a gun in his hand and that when Constable Leslie shouted at him, “Marcus, this is the police,” he fired at them.
The contention is that this evidence was inadmissible, because it suggested that the appellant had committed firearm offences, when the appellant was not on trial for such offences.
This issue was addressed in Nelson (John Holmes) v. HM Advocate 1994 S.L.T. 389 where the appellant was charged with being concerned in the supplying of different controlled drugs to others. Evidence was given by a police officer that when the appellant was confronted, he ran into the toilets, got down on his hands and knees at the drain of a urinal and swallowed something. The appellant appealed on the ground that the evidence tended to show that the appellant committed the offence of intentionally obstructing a police officer in the execution of his powers and that this offence had not been charged in the indictment.
The High Court of Justiciary in Scotland expounded the principle that an accused must be given fair notice if evidence is to be led which could tend to prove that he had committed another crime, as proof of this would prejudice him in his defence to the charge brought against him in the indictment. At page 395 to 396 of the judgment the Lord Justice General (Hope) noted:
“As we...
To continue reading
Request your trial