Beacher v R

• Jurisdiction: Cayman Islands
• Judge: (Henderson, J.)
• Judgment Date: 22 March 2007
• Court: Grand Court (Cayman Islands)
• Date: 22 March 2007

Grand Court

(Henderson, J.)

BEACHER

and

R.

A. Akiwumi for the appellant;

T.N. Ward, Crown Counsel and Ms. M. Smith for the Crown.

Cases cited:

(1) Benedetto v. R., [2003] 1 W.L.R. 1545; [2003] UKPC 27, considered.

(2) Doherty, In re, [2001] NIQB 41, considered.

(3) Jahree v. Mauritius (State), [2005] 1 W.L.R. 1952; [2005] UKPC 7, applied.

(4) R. v. Hersey, [1998] Crim. L.R. 281, followed.

(5) R. v. Mills, [1997] 2 Cr. App. R. 206; [1997] Crim. L.R. 603, followed.

(6) R. v. RobbUNK(1993), 93 Cr. App. R. 161; [1991] Crim. L.R. 539, followed.

(7) Robinson v. R., [1985] A.C. 956; [1985] 2 All E.R. 594; [1985] Crim. L.R. 448; (1985), 32 W.I.R. 330, applied.

Criminal Procedure-fair trial-right to legal representation-right to own choice of attorney not absolute-if appellant unreasonably rejects legal aid attorneys (e.g. dismisses five without obvious cause), court may refuse to grant legal aid for further attorney-not improper denial of right to legal representation

Evidence-identity-voice recognition-identification of voice on recording need not be by qualified voice analyst-recognition possible by lay witness familiar with voice-circumstances of identification and method of reaching conclusion go to weight

The appellant was charged in the Magistrate”s Court with being concerned in the importation and possession of cocaine with intent to supply.

A drug courier was arrested by Customs officers entering the Cayman Islands from Jamaica carrying significant amounts of cocaine, and agreed to cooperate with their investigation. The courier claimed to have been recruited in Jamaica by two drug suppliers, who had given him an envelope on which was written the telephone number of the purchaser of the drugs in Grand Cayman. The officers discovered that the number on the envelope was incorrect, and persuaded the courier to call the Jamaican suppliers for the correct information, which they gave him along with the name of the appellant. A Customs officer telephoned the number, recording the conversation, and arranged a meeting with the appellant to hand over the drugs. At the meeting, the appellant was arrested.

Before the trial took place, it was adjourned six times, the principal reason being the appellant”s failure to retain an attorney. He was provided with at least five different legal aid attorneys. Despite having been warned by the magistrate that she would be unwilling to transfer the legal aid certificate again, the appellant dismissed the fifth attorney before the trial, and he briefly represented himself before requesting an adjournment to retain the services of counsel. On the scheduled date, a sixth attorney appeared for the appellant, but stated that she would be unable to represent him unless funding were provided. The magistrate refused to extend legal aid further and, although he had previously assured the court he had the means to secure an attorney privately, the appellant represented himself for the remainder of the trial.

At the trial, a witness testified to recognizing the appellant”s voice on the recording of his conversation with the Customs officer, and the courier gave evidence implicating the appellant, who was convicted and sentenced to 15 years” imprisonment. Shortly before his return to Jamaica, the courier swore an affidavit asserting that the evidence he had given at the trial was untrue, and that the appellant”s telephone number had been invented by the Customs officers.

The appellant appealed against his conviction, submitting that (a) he had been denied his right to the assistance of counsel as the magistrate refused to transfer the legal aid certificate to the sixth attorney, who was otherwise willing to act for him, thereby forcing him to represent himself; (b) the prosecution had been unable to produce the envelope the courier was carrying on which the appellant”s phone number had been written, and refused to supply the telephone records of the Customs officer who had called the appellant to arrange a meeting to sell him drugs, and so the evidence against him was incomplete; (c) the prosecution had relied upon the courier”s statement that the suppliers in Jamaica had given him the appellant”s number, which was hearsay evidence that ought not to have been admitted; (d) the witness who had identified the appellant”s voice on the recording of his phone conversation with the Customs officer was not a qualified voice analyst and so his evidence should not have been admitted; (e) the Judges” Rules had been contravened during the arrest of the courier, and therefore his evidence ought not to have been admitted; (f) the courier, who had provided much of the evidence at the trial, had sworn that it was untrue and that the telephone number had been invented and, as that evidence had been discredited, the case ought to be reconsidered; and (g) the magistrate had erred in failing to conduct a voir dire with respect to the veracity and authenticity of some of the Crown evidence.

The Crown submitted in reply that (a) since the appellant had dismissed five attorneys and been warned that the magistrate would not be willing to transfer the legal aid certificate again, her refusal to do so was not a violation of his right to legal representation, particularly as the appellant had previously assured the court that he had the financial ability to retain an attorney privately; (b) it is not clear what purpose the appellant believed would be served by the production of the envelope on which his number was incorrectly written or the Customs officer”s telephone records, as the case against him had not been built on the basis of his phone number, but on his meeting with the Customs officer in the belief that he would obtain drugs from him; (c) similarly, the fact that the evidence that his phone number had been given by the Jamaican suppliers was hearsay would not affect the prosecution”s case; (d) the recognition of a voice, like the recognition of a face, did not require an expert witness, and therefore the evidence had been correctly admitted; (e) the Judges” Rules were designed to protect those suspected of criminal offences, and although statements taken in contravention of the Rules would not have been admissible against the courier himself, there was no

such prohibition preventing the courier giving evidence against the appellant; (f) in light of the circumstances in which the courier withdrew his evidence, the recantation must be in doubt, particularly given the abundance of other independent evidence against the appellant; and (g) the defendant”s objections to the admissibility of the Crown evidence could be presented during the main trial, without the need for a voir dire, particularly as the trial was conducted without a jury.

Held, dismissing the appeal:

(1) The appellant had not been improperly denied the right to legal assistance by the magistrate”s refusal to transfer the legal aid certificate, as he had already dismissed five attorneys and had previously asserted that he could afford to secure an...