Anglin v R

• Jurisdiction: Cayman Islands
• Judge: (Chadwick, P., Campbell and Mottley, JJ.A.)
• Judgment Date: 19 February 2013
• Court: Court of Appeal (Cayman Islands)
• Date: 19 February 2013

Court of Appeal

(Chadwick, P., Campbell and Mottley, JJ.A.)

ANGLIN

and

R.

D. Lovell-Pank, Q.C. and Ms. L. Organ for the appellant;

D. Perry, Q.C. and Ms. E. Lees for the Crown.

Cases cited:

(1) Al-Khawaja v. United KingdomHRC(2011), 54 EHRR 23; 32 BHRC 1; [2012] 2 Costs LO 139; [2012] Crim. L.R. 375, followed.

(2) Att.-Gen.”s Reference (No. 3 of 1994), [1998] A.C. 245; [1997] 3 W.L.R. 421; [1997] 3 All E.R. 936; [1998] 1 Cr. App. R. 91, applied.

(3) Grant v. R., [2007] 1 A.C. 1; [2006] 2 W.L.R. 835; (2006), 20 BHRC 243; [2006] UKPC 2, followed.

(4) R. v. Bola, Northampton Crown Ct., June 18th, 2003, unreported, distinguished.

(5) R. v. Bush, 2010 (2) CILR 242, distinguished.

(6) R. v. Davis, [2008] 1 A.C. 1128; [2008] 3 W.L.R. 125; [2008] 3 All E.R. 461; [2008] 2 Cr. App. R. 33; [2008] UKHL 36, referred to.

(7) R. v. Horncastle, [2010] 2 A.C. 373; [2010] 2 W.L.R. 47; [2010] 2 All E.R. 359; [2010] Cr. App. R. 17, considered.

(8) R. v. LatimerELR(1886), 17 Q.B.D. 359, applied.

(9) R. v. Mayers, [2009] 1 W.L.R. 1915; [2009] 2 All E.R. 145; [2009] 1 Cr. App. R. 30; [2008] EWCA Crim 2989, applied.

Legislation construed:

Criminal Evidence (Witness Anonymity) Law 2010, s.14:

‘(1) When deciding whether the conditions in section 13 are met in the case of an application for a witness anonymity order, the court shall have regard to-

(a) the considerations mentioned in subsection (2); and

(b) such other matters as the court considers relevant.

(2) The considerations referred to in subsection (1) are-

(a) the general right of a defendant in criminal proceedings to know the identity of a witness in the proceedings;

(b) the extent to which the credibility of the witness concerned would be a relevant factor when the weight of his evidence comes to be assessed;

(c) whether evidence given by the witness might be the sole or decisive evidence implicating the defendant;

(d) whether the witness”s evidence could be properly tested, whether on grounds of credibility or otherwise, without his identity being disclosed;

(e) whether there is any reason to believe that the witness-

(i) has a tendency to be dishonest; or

(ii) has any motive to be dishonest in the circumstances of the case,

having regard, in particular, to any previous convictions of

the witness and to any relationship between the witness and the defendant or any associates of the defendant; and

(f) whether it would be reasonably practicable to protect the witness”s identity by any means other than by making a witness anonymity order specifying the measures that are under consideration by the court.’

Criminal Law-murder-attempt-transferred malice-intention to kill primary victim may be transferred to actus reus of attempted murder of secondary victim, even if no actual intention to kill secondary victim-if primary victim killed, accused guilty of both murder and attempted murder

Criminal Procedure-fair trial-opportunity to challenge evidence-accused to have effective opportunity to challenge evidence including reliability and truthfulness of witness-reliability of anonymous witness may be tested in cross-examination-not possible to test credibility of anonymous witness but fair trial still possible if court making anonymity order properly considers witness credible and reviews decision to make order throughout trial-entitled to make order despite inconsistencies in evidence if only go to reliability, not credibility, of witness

The appellant was charged in the Grand Court with murder, attempted murder and possession of an unlicensed firearm.

The appellant and the victims were in a club when, having fought with him earlier that night, the appellant allegedly shot the deceased three times from close range. One of the bullets passed through the deceased and hit the second victim in the abdomen, although it did not kill him. The incident was observed by two witnesses, B and E, but their evidence contained contradictory elements, including evidence about the door through which the shooter left the club and whether he was holding a gun at that time. B”s evidence also contradicted the CCTV footage as to the location of the deceased leading up to the shooting.

The Grand Court (Quin, J.) granted an anonymity order (in proceedings noted at 2011 (2) CILR N [6]) in relation to B and E, on the grounds that it was in the interests of justice that they testify, that they would have refused to do so without anonymity and that anonymity was necessary to protect their safety. The appellant was tried before the Grand Court (Smellie, C.J., sitting alone) and found guilty as charged.

On appeal, the appellant submitted that (a) the witness anonymity order should not have been granted and that, as it meant that he was unable to cross-examine the witnesses properly, and in light of the inconsistencies in their evidence, he had not received a fair trial; and (b) his conviction for attempted murder was wrong in law as the fact that the shooter was intending to kill the deceased did not mean that he also had the requisite intention or recklessness as to the second victim”s shooting.

The Crown submitted in reply that (a) any inconsistencies in the evidence were, at their highest, issues with reliability rather than credibility; there was no question that the witnesses were deliberately lying and so the inability to cross-examine the witnesses on their identities did not affect the appellant”s case; and (b) the doctrine of transferred malice made the appellant liable for attempting to kill the second victim, even though the deceased had been his target.

Held, dismissing the appeal:

(1) Despite the contradictions in the witnesses” evidence, the Grand Court had been entitled to find that the appellant had fired the shots and this conclusion had been reached after a fair trial. When it granted the anonymity order, and throughout the trial, the Grand Court had properly kept all of the relevant considerations in mind-including, inter alia, the credibility of the witness; that B”s evidence, although corroborated in part, was the only evidence that identified the appellant by name; and whether the anonymity measures would be consistent with a fair trial-and there was no reason to differ from its conclusion that the order should be made. An underlying principle of a fair trial was that the defendant had an effective opportunity to challenge the evidence against him, including the reliability and truthfulness of witnesses. Although the credibility of the anonymous witnesses could not be tested in a cross-examination, it was possible to test their reliability and the appellant had been able to do so. Further, the Grand Court had-based on undisclosed evidence and knowing of the contradictions in the witnesses” evidence-rightly concluded that the witnesses were credible and that there was nothing to suggest that they had any reason to give false evidence, and it had reviewed this decision throughout the trial. As there was no reason to differ from these conclusions, the fact that the appellant had been unable to challenge them did not affect the fairness of the trial (para. 31; paras. 35–38; paras. 41–45).

(2) Under the doctrine of transferred malice, the appellant”s intention to kill the deceased was transferred to the second victim. This doctrine transferred the mens rea in respect of the intended victim (the deceased)

and combined it with the actus reus of the actual victim (the second victim). The appellant would therefore be deemed to have the mens rea to kill the second victim, notwithstanding that he had only been aiming for the deceased, and was guilty of attempted murder (paras. 51–52).

1 CAMPBELL, J.A., delivering the judgment of the court: At around 1.30 a.m. on September 10th, 2009, three shots were discharged at close range in the Next Level Night Club (‘the club’) on West Bay Road in George Town, Grand Cayman. Carlo Webster, a patron of the club, was killed and a friend who was with him, Christopher Solomon, was wounded.

2 There were around 300 people in the club at the time. One of them, the appellant Devon Jermaine Anglin, was subsequently arrested and charged with the murder of Carlo Webster, the attempted murder of Christopher Solomon and possession of an unlicensed firearm.

3 He elected to be tried by judge alone, and, following a trial before Smellie, C.J., he was convicted of all three offences on January 20th, 2012 and sentenced to imprisonment for life. At the trial, the evidence was admitted of two witnesses whose identities were not disclosed to the appellant, under the provisions of the Criminal Evidence (Witness Anonymity) Law 2010.

4 The appellant, with the leave of the court, appealed against his convictions and advanced four grounds on which his appeal should be allowed: first, the poor quality of the identification evidence against him; secondly, that the application by the prosecution for witness anonymity orders ought not to have been granted; thirdly, that the trial judge was wrong when he refused to discharge the orders after he had heard all the evidence; and fourthly, that the conviction for attempted murder was wrong in law.

5 On December 7th, 2012, shortly after the conclusion of the oral hearing of the appeal, the court dismissed the appeal for the reasons that are now given.

The facts

6 It is not...