Oliver, Lovell and Jones v The Queen

• Jurisdiction: Barbados
• Judge: Waterman, J.A.
• Judgment Date: 18 December 2007
• Neutral Citation: BB 2007 CA 26
• Docket Number: Criminal Appeal Nos. 21, 22 and 23 of 2004
• Court: Court of Appeal (Barbados)
• Date: 18 December 2007

Court of Appeal

Waterman, J.A.; Connell, J.A.; Moore, J.A.;

Criminal Appeal Nos. 21, 22 and 23 of 2004

Oliver, Lovell and Jones

and

The Queen

Appearances:

Mrs. Angella A. Mitchell-Gittens in association with Mr. Andrew Pilgrim for the appellant Oliver.

Appellant Lovell in person.

Mr. Albert Sealy for the appellant Jones.

Mr. Anthony Blackman in association with Mr. Elwood Watts for the respondent.

Criminal law - Aggravated burglary while armed with a gun — Sentenced to 15 years respectively — Appeal against conviction — Directions to jury — Alibi evidence — Rejected alibi direction — Trial judge failed to give adequate direction on defence of alibi — Identification evidence — Judge was required to direct jury that special circumstances applied to this case — Judge directed a flawed inference from the identification evidence — Appeal allowed — Conviction quashed.

Criminal practice and procedure - Indictment — S. 8(1) of the Criminal Law (Arrestable Offences) Act — Assisting an offender — Sentenced to 5 years imprisonment — Appeal against conviction — Defective indictment — Indictment failed to set out the particulars of the offence — Indictment was merely imperfect, not a nullity — Proviso applied — Appeal dismissed.

Waterman, J.A.

1 The appellants, Oliver and Lovell, were jointly charged with having committed the offence of aggravated burglary at CIBC Caribbean Bank Limited (‘the Bank’) on Fontabelle in the parish of St. Michael, on 16 December 1998, while armed with a gun, contrary to section 250) of the Theft Act, Cap. 155.

2 The appellant Jones was charged with assisting an offender contrary to section 8(1) of the Criminal Law (Arrestable Offences) Act, Cap. 125A. The particulars of the offence alleged that the appellant Jones on 16 December 1998 knowing or believing that Wayne Adrian Lovell had committed an arrestable offence did, without lawful authority or reasonable excuse, an act with intent to impede or prevent the apprehension or prosecution of the said Wayne Adrian Lovell.

3 The appellants pleaded not guilty. After a trial before Kentish, J., the appellants Oliver and Lovell were convicted by a majority verdict (7:2); while the appellant Jones, was convicted by a majority verdict with one dissent. They were sentenced as follows: Oliver to 15 years' imprisonment; Lovell to 10 years' imprisonment and Jones to 5 years' imprisonment.

4 The appellants have appealed against their convictions on a number of grounds.

EVIDENCE AT TRIAL

The robbery

5 Ms. Arlette Waterman, Manager of the Bank, testified that on 16 December 1998, she came out of her office to find customers of the Bank on the floor. She looked in the direction of the customer service desk and saw one of the customer service representatives being chased by a person behind her desk. She further testified that $28,493.20 Barbados currency, $720.00 EC currency, $560.00 US currency and £270.00 sterling were taken from the Bank. She also gave evidence that some of the decoy money used by the Bank in just such situations was also taken. During her testimony, she did not identify the appellants, Oliver and Lovell as the Bank robbers, stating that from her vantage point at the time of the robbery, she could not identify faces.

6 Constable Ronald Best testified to having taken photographs at the scene and not finding any forensic evidence placing Oliver or Lovell at the scene of the crime. In addition, no witness identified Oliver or Lovell as being in the Bank on the day in question, or seeing them come out of the Bank. Further, none of the weapons allegedly used was ever recovered.

The descriptions of the perpetrators

7 Roger Webster, a teller at the Bank, provided the following description of the three men whom he saw: one of the men had a 2-foot long collins or sword; another, a hunting knife with a 6-inch blade and the third a small, black handgun and he said “don't move”. He described the person with the knife as being of short build, relatively stocky with a low haircut and wearing a blue three-quarter pants and slippers. This person proceeded to the cash drawers and demanded that the tellers remove the cash and put it in a brown canvas bag.

8 He testified that the person with the gun, whom he described as being a short and stocky man having locks, but with his head covered, proceeded to the manager's station, as did the third man, also demanding money. He stated that this was not the first time that morning that he had seen the men as they had entered the Bank about an hour prior. At that time, two stood in the aisle, and the third went to a teller and transacted business. They were in the Bank about two or two and a half minutes in total. At no time did Webster see the appellants Oliver and Lovell in the Bank or pick them out at an identification parade.

9 Another witness for the prosecution gave evidence that the man with the gun was 5 feet 11 inches tall, of medium build, high brown complexion, round features, with a goat style beard, small nose and mouth and thin lips, wearing a black knitted hat, dark colour jeans and brown steel-tipped boots.

10 William Straughn described the individuals whom he saw on the day in question running across the car park at Goddard's Complex in Fontabelle as: one wearing short yellow pants and a tall black knitted cap and the second wearing a green, black and white shirt. He stated that he did not see their faces. He saw them from about 60 feet away.

The decoy money

11 Evidence was given at the trial by Ms. Waterman that each teller is issued decoy money at the start of every shift. This money is $375.00 in total in $5 notes with the serial number of each note being listed and stored in the Bank's safe. The decoy money is marked in such a way as to identify it as being part of the decoy bundle and as such it is not normally used in the daily transactions of the Bank. From the evidence, one of these notes was found in the wallet of the appellant Oliver and ten were found in the possession of a witness for the prosecution, Andre Trotman. It is important to note that the decoy bundles had not been verified against the list of serial numbers since 10 December 1998 at the latest. One of the lists had been prepared as early as 20 May 1998. Consequently, none of the witnesses for the prosecution could state with certainty that the bundles contained the notes as listed on the sheet, and that none had mistakenly been disbursed to the public prior to the robbery.

The prosecution's case against Oliver

12 Sergeant Wendley Carter gave evidence that on 16 December 1998 during the investigations he took the appellant Oliver's wallet from him and found a five dollar note with the serial number matching one of those on the list of decoy money held by the Bank. This note was further identified as being in Oliver's possession as Oliver wrote his name on the note when the officer was taking it from him. Oliver's explanation for his possession of the note was that it was part of the change from a ten dollar note returned to him when his son went to the grocery store for him.

13 During the course of the trial, no witness identified Oliver as being in or coming from the Bank, or being seen with any weapon.

14 The police searched the appellant Oliver's home during their investigations and no evidence was recovered therefrom.

15 Antonio Miller, a photographer at the Nation newspaper, gave evidence that on 16 December 1998, he saw two persons run from behind the Bank, across the front lawn of the Bank and onto Fontabelle Road towards Bridgetown. One person was seen from the back and was described as wearing a three-quarter khaki pants, the second person wearing a dark colour long pants, a green shirt and black hat, with his beard tied up in a knot. He stated that the person in the dark pants was the appellant Oliver whom he had known for between 15 to 17 years. He used to see Oliver often. He further recalled seeing him later that same day, but could not state whether he was wearing the same clothes.

16 He did confirm during his evidence that he did not see Oliver exit or rob the Bank. He stated that he saw the two persons to whom he referred in his evidence from a distance, at its closest, 12 feet and at its furthest, 25 feet. While there was nothing obstructing his view and it was broad daylight, he admitted that he was in a moving vehicle, travelling in the same direction as the people running and either looked back at the people or saw them from the side and characterised it, under cross-examination, as a fleeting glance.

Oliver's defence

17 Oliver elected to give sworn evidence when he was informed of his rights. Further, in his defence, he called three witnesses, Andrew Pilgrim, attorney-at-law; George McLawrence, his son; and June Oliver, his sister; all of whom were cross-examined by counsel for the prosecution. Oliver consistently denied his involvement in this matter stating that he is not guilty, and that he did not make the two statements attributed to him by the police, namely:

“No way, and my lawyer, Andrew Pilgrim tell me don't sign nothing and I done talk.”; and

“Sign? I never used to sign nothing before. My lawyer, Andrew Pilgrim tell me don't sign nothing in police custody.”

He said that the police were telling lies on him.

18 In addition, under oath Oliver said that he never went into or around the Bank; and that he did not rob the Bank. At the time the offence is alleged to have been committed he said he was elsewhere. Thus raising the defence of alibi.

19 Oliver testified that none of the employees of the Bank who gave evidence said that he was in the Bank at the time of the robbery. He said that he was not picked out in any identification parade. He stated that Antonio Miller was mistaken when he said that he saw him running up Kensington New Road on 16 December 1998 wearing a green shirt.

20 Oliver said...