Davis v R

• Jurisdiction: Cayman Islands
• Judge: (Zacca, P., Georges and Kerr, JJ.A.)
• Judgment Date: 09 August 1996
• Court: Court of Appeal (Cayman Islands)
• Date: 09 August 1996

Court of Appeal

(Zacca, P., Georges and Kerr, JJ.A.)

DAVIS, BUSH, SMITH and BROWN

and

R.

The appellants appeared in person.

I.F. Archie, Solicitor General, and Ms. L. Agard, Crown Counsel, for the Crown.

Cases cited:

(1) -Crosdale v. R., [1995] 2 All E.R. 497, distinguished.

(2) -D.P.P. v. Doot, [1973] A.C. 807; [1973] 1 All E.R. 940, dicta of Lord Pearson and Viscount Dilhorne applied.

(3) -R. v. Clinton, [1993] 1 W.L.R. 1181; [1993] 2 All E.R. 998; (1993), 97 Cr. App. R. 320, followed.

(4) -R. v. DuncanUNK(1981), 73 Cr. App. R. 359; [1981] Crim. L.R. _560.

(5) -R. v. Golder, [1960] 1 W.L.R. 1169; [1960] 3 All E.R. 457; (1960), 45 Cr. App. R. 5.

(6) -R. v. StoreyUNK(1968), 52 Cr. App. R. 334.

(7) -Verrier v. D.P.P., [1967] 2 A.C. 195; [1966] 3 All E.R. 568.

Legislation construed:

Penal Code (Law 12 of 1975), s.292: The relevant terms of this section are set out at page 139, lines 30–38.

Criminal Law-conspiracy-evidence-may be proved by inference from commission of substantive offence and subsequent events-no necessity for specific evidence of pre-existing agreement to act

Criminal Procedure-prosecution case-case to answer-judge”s reference to rejection of no-case submission not prejudicial if already raised by defence counsel and jurors reminded of their function as arbiters of fact

Evidence-witness-hostile witness-previous inconsistent statement-judge to warn jury of unreliability of both statements-no direction necessary if withdraws witness”s evidence entirely from jury

Criminal Procedure-defence-close of defence case-no prejudice to accused by judge”s refusal to re-open defence case to allow calling of further witnesses if accused”s request against competent and bona fide advice of counsel

Criminal Law-conspiracy-sentence-Penal Code, s.292 prescribes seven-year maximum unless other sentence prescribed for specific conspiracy within Code-intention to provide lesser punishment than for substantive offence

Criminal Law-degrees of complicity-accessory after fact-sentence-consecutive sentences for conspiracy and accessory after fact unjustified if accused”s involvement after crime merely carrying out role in conspiracy

The appellants were charged, with another, in the Grand Court with conspiracy to rob a bank, the first and third appellants with robbery and possession of unlicensed firearms and the second and fourth appellants with being accessories after the fact to robbery.

It was alleged that the fourth appellant, together with the fifth accused, had approached the first appellant in Jamaica and engaged him in a plan to rob the Grand Cayman Bank. The second and third appellants later became parties to the scheme which the first and third appellants carried out using unlicensed firearms. The fourth appellant allegedly assisted the

robbers by driving them and the second appellant in his car after their escape vehicle crashed, by sheltering the first appellant in a hotel room following the robbery, and accompanying the second appellant to the site where cash stolen from the bank was hidden.

Of the two prosecution witnesses who were to give evidence (in support of the conspiracy charges) of the recruitment of the first appellant in Jamaica, one failed to appear and the other retracted his statement. The trial judge (Smellie, J.), having given permission for him to be treated as a hostile witness and cross-examined as to his earlier statement, assessed his evidence as ‘negligible’ and withdrew it in its entirety from the jury in his summing-up.

The appellants submitted that there was no case to answer, arguing inter alia that the prosecution had produced insufficient evidence of the activities in Jamaica implicating the first and fourth appellants in conspiracy, and could not rely on the commission of the substantive offence of robbery and the appellants” subsequent actions to prove that the appellants had acted upon a common agreement to rob the bank. Smellie, J. ruled that the case in respect of the four appellants should continue.

Counsel for the second appellant alluded to the court”s rejection of his client”s submission in his closing speech, and the trial judge repeated this reference in his summing-up, reminding the jury that it was nevertheless for them to decide issues of guilt on the facts.

During the judge”s summing-up, the fourth appellant applied in person to re-open his case on the basis that, against the advice of his counsel, he wished to call witnesses, including himself, to support an alibi. The trial judge considered the relevant statements in the absence of the jury, and concluded that counsel”s advice was reasonable and appropriate. He declined to re-open the case for the defence.

The first, third and fourth appellants were convicted as charged and no verdict was returned on the charge of conspiracy against the second appellant. Smellie, J. in accordance with s.292 of the Penal Code, passed lesser sentences for conspiracy than for robbery, the two terms to be served concurrently where applicable. The fourth appellant received consecutive sentences for conspiracy and being an accessory after the fact.

On appeal against their convictions, the first and fourth appellants submitted, inter alia, that (a) the trial judge had wrongly rejected their submissions of no case to answer since the absence of credible evidence of the conception of the conspiracy in Jamaica meant that the mens rea of the offence was unproved and the Crown could not rely on an inference that the appellants intended to carry out an unlawful purpose from the mere fact that a robbery had taken place; together with the second appellant that (b) it was improper for the trial judge to have informed the jury of his rejection of the no-case submissions since this information may have been given undue significance by the jury and have prejudiced their verdicts; (c) the verdicts against them were unsafe and unsatisfactory because the trial judge had failed to impress upon the jury that they should regard the original statement of the hostile witness implicating the first and fourth appellants in the conspiracy as equally unreliable as his evidence to the contrary in court; and the fourth

appellant submitted that (d) the trial judge had wrongly refused to allow him to adduce evidence to support his alibi (which might have resulted in his acquittal) even though his counsel had disobeyed his instructions on the matter.

On appeal against the sentences passed, the first and third appellants submitted that (a) the trial judge had been correct in reading s.292 of the Penal Code as prescribing a maximum sentence of seven years” imprisonment for conspiracy ‘where no other punishment is provided’ and had properly passed lesser sentences for those offences than for robbery since the words of the section referred to other specific penalties for conspiracy offences within the Code and not to the greater penalty available for the substantive offence; and the fourth appellant submitted that (b) by imposing consecutive sentences for conspiracy and being an accessory after the fact, the court had punished him twice for substantially the same actions since he had been, by his conduct after the robbery, simply carrying out his role in the conspiracy to rob.

The Crown submitted in relation to the convictions that (a) the conspiracy could be inferred from the performance of the unlawful act of robbery since it must have required a common agreement which continued until the commission of the robbery; (b) the trial judge”s reference to the failure of submissions of no case to answer, accompanied as it was by a reminder to the jurors that they were the sole judges of fact, merely explained an earlier allusion by one of the defence counsel in his closing speech, and did not prejudice the trial of the appellants; (c) the judge”s instructions to the jury to disregard the evidence of the Crown”s hostile witness sufficed to remove any possibility that more weight might be placed on his previous statement than on the evidence he gave in court; (d) having reviewed the alibi evidence which the fourth appellant wished to have admitted at a late stage and which that appellant had earlier agreed not to adduce on the advice of his counsel, the trial judge did nothing to render the jury”s verdict unsafe in agreeing with counsel”s bona fide assessment of the situation and refusing to re-open the appellant”s case.

In relation to the sentences, the Crown submitted that (a) the proper sentence for the appellants convicted of conspiracy need not have been limited to a maximum term of seven years, since s.292 of the Penal Code, when properly construed, imposed such a maximum only where no other punishment was available for the substantive offence. The words ‘if no other punishment is provided’ would otherwise be otiose, which could not have been intended by the legislature; and (b) consecutive sentences had properly been passed on the fourth appellant for the two quite separate offences of conspiracy and being an accessory after the fact.

Held, dismissing the appeals against conviction of the first, second and fourth appellants:

(1) Evidence of the commission of the substantive offence of robbery and of the appellants” continued association and actions after the offence

sufficed to establish that there had been a conspiracy to rob, so that evidence showing a prior agreement between the appellants was not essential to make out a case to answer (page 129, line 40 – page 130, line 25).

(2) The trial judge”s reference to his rejection of the appellants” submissions of no case to answer did not render the verdicts of the jury unsafe or unsatisfactory since defence counsel had already mentioned this fact, and the judge had taken the opportunity to remind the jury of its role as the arbiter of fact (page 135, lines 4–20).

(3) The requirement that the judge should warn the jury of the unreliability of...