Director of Public Prosecutions v Anglin
| Jurisdiction | Cayman Islands |
| Judge | (Chadwick, P., Mottley and Forte, JJ.A.) |
| Judgment Date | 06 November 2014 |
| Court | Court of Appeal (Cayman Islands) |
| Date | 06 November 2014 |
(Chadwick, P., Mottley and Forte, JJ.A.)
A. A. Radcliffe, Q.C. and Ms. E. Lees, Crown Counsel, for the D.P.P.;
J. Ryder, Q.C. and Ms. L. Organ for the respondent.
(1) Att. Gen. v. Miller, 2009 CILR 162, considered.
(2) R. v. B, [1990] 2 S.C.R. 57; (1990), 56 CCC (3d) 181, applied.
(3) R. v. Morin, [1988] 2 S.C.R. 345; (1988), 44 CCC (3d) 193, applied.
(4) R. v. Turnbull, [1977] Q.B. 224; [1976] 3 W.L.R. 445; [1976] 3 All E.R. 549; (1976), 63 Cr. App. R. 132, applied.
(5) Smith v. R., [2000] 1 W.L.R. 1644, considered.
(6) State v. Boyce, [2006] 2 A.C. 76; [2006] 2 W.L.R. 284; [2006] 2 Cr. App. R. 7; [2006] UKPC 1, applied.
Court of Appeal Law (2011 Revision), s.28: The relevant terms of this section are set out at para. 7.
Courts-Court of Appeal-jurisdiction-any error by trial court on issue which would be subject of direction to jury is ‘point of law’ under Court of Appeal Law (2011 Revision), s.28(1)-court therefore has jurisdiction to hear appeal on probative value of evidence
Evidence-identity-visual identification-Turnbull principle that supporting evidence only considered if quality of visual identification evidence ‘poor’ not applicable if visual identification evidence of no probative value
The respondent was charged in the Grand Court with murder, attempted murder, possession of an unlicensed firearm, possession of an imitation firearm with intent to commit an offence, and threatening violence with intent to alarm.
The respondent allegedly shot at a car, parked in a service station, in which A and D and their four-year-old son were sitting. The intended target was A, the child”s father. The bullet missed A, passed through the headrest of the driver”s seat, and killed the child, who was sitting immediately behind.
In the Grand Court, the Crown relied on the eyewitness accounts of A and D. It also relied on the identification evidence of C, the attendant at the service station, though this was inconclusive as C stated that the
gunman was wearing a mask. The Crown also relied on expert photographic video comparison, evidence of gunshot residue on the respondent”s clothing and the fact that the respondent changed his clothing shortly after the shooting. In addition, there was evidence that the respondent was seen in the driver”s seat of a grey Honda Accord shortly after the shooting. CCTV footage showed such a car leaving the scene of the shooting; only five such cars were on the Island and the location of the other four at the time of the shooting had been accounted for.
The Grand Court (Cooke, Ag. J.) ruled that the evidence of A and D was of no probative value. A”s evidence contained some ‘disturbing and unexplained inconsistencies’ when compared with evidence given by him at the preliminary enquiry and the CCTV evidence. In addition the ruling concluded that A was biased by ‘antecedent animosity’ towards the respondent. D”s evidence was inconsistent with C”s identification evidence and the CCTV footage, and was based on a ‘fleeting glance.’ As A and D”s evidence was therefore considered to be of no probative value, the court could not consider the supporting evidence adduced by the Crown and the respondent was acquitted.
On appeal, the Crown submitted that the court had erred in its conclusion that the identification evidence was of no probative value and by not considering the totality of the evidence. It should not have approached the matter in two stages-first considering the value of A and D”s evidence and then refusing to consider supporting evidence-but should have assessed the evidence in the round. The Crown further submitted that, according to the Turnbull guidelines, (i) there was a special need for caution before convicting where the case for the prosecution depends substantially on visual identification; (ii) it was necessary in such cases to examine closely the circumstances in which the identification came to be made; (iii) if the quality of the identification evidence were good then it might be safe to convict on that evidence alone; and (iv) if the quality of the identification evidence were poor it would not be safe to convict without other supporting evidence.
The Court of Appeal also considered whether it had jurisdiction to hear the appeal, in that it was unclear whether the trial court”s decision was being challenged as ‘erroneous in point of law,’ as required by s.28 of the Court of Appeal Law (2011 Revision).
Held, allowing the appeal:
(1) The Court of Appeal had jurisdiction to consider the appeal. The correct interpretation of the phrase ‘erroneous in point of law’ under s.28 was that any error by the court on an issue which would have been the subject of a direction to the jury, including whether evidence was capable of having probative value, rendered the court”s decision ‘erroneous in point of law’ (para. 11).
(2) The court had erred in law in its consideration of the evidence. It should have considered whether A”s evidence was capable of being supported by D”s evidence, and vice versa. It should not have disregarded
either A or D”s evidence once it had decided that their evidence was defective. It was an error to decide that their visual identification evidence was not probative without considering other identification evidence (paras. 45–48).
(3) On a true analysis of the court”s decision, it was not applying the Turnbull guidelines since it found A and D”s evidence to be of no probative value. According to Turnbull, where evidence was of ‘good’ quality this was sufficient to found a conviction, whereas supporting evidence should be considered if the evidence were deemed to be of ‘poor’ quality. Turnbull did not apply, however, where the evidence was of no probative value (paras. 42–44).
1 CHADWICK, P., delivering the judgment of the court: On the evening of February 15th, 2010, Jeremiah Barnes, who was then four years of age, was killed by a gunshot wound to the head. He was, at the time, sitting in the back seat of a car which had drawn into the Hell Service Station, West Bay. His parents, Andy Barnes and Dorlisa Barnes (then Dorlisa Ebanks), were sitting in the front seats of the car. It has been common ground in these proceedings that it may be inferred that the gunman intended to kill Andy Barnes.
2 The respondent to this appeal, Devon Anglin, was charged with the murder of Jeremiah Barnes. The indictment contained five counts, of which three related to the shooting on February 15th, 2010: Count 1: murder; Count 2: attempted murder (of Andy Barnes); and Count 3: possession of an unlicensed firearm. The two further counts-Count 4: possession of an imitation firearm with intent to commit an offence against Andy Barnes; and Count 5: threatening violence with intent to alarm Andy Barnes-related to an earlier incident said to have occurred on January 30th, 2010.
3 The respondent was tried in August 2011 before Cooke, Ag. J., sitting alone as a Judge of the Grand Court without a jury. On August 31st, 2011, the judge acquitted the respondent of the offences charged under each of the first three counts. He acquitted him, also, of the offences charged under Counts 4 and 5.
4 It will be necessary, in subsequent paragraphs of this judgment, to examine the reasons which led the judge to the conclusion that the respondent should be acquitted of the offences charged under Counts 1, 2 and 3. At this stage it is sufficient to note that he took the view that the sole issue was as to the identity of the gunman; that, on that issue, the evidence of Andy Barnes and Dorlisa Barnes as to visual identification was of no probative value; and that, accordingly, it was impermissible to consider the supporting, or corroborative, evidence on which the Crown relied.
5 The Director of Public Prosecutions appeals to this court, pursuant to s.28 of the Court of Appeal Law, against the judgment of the Grand Court in so far as that judgment acquitted the respondent on Counts 1, 2 and 3. There is no appeal from the judgment in relation to Counts 4 and 5.
The grounds of appeal
6 The grounds of appeal advanced on behalf of the Director in her notice of appeal filed on September 13th, 2011 were these:
‘. . . The decision of the learned trial judge is erroneous on points of law in that-
1. The learned trial judge misdirected himself by failing to consider the cumulative cogency of the evidence as to visual identification given that he disregarded and/or paid no attention to the evidence of Grant Fredericks, an expert in photographic video comparison.
2. The learned trial judge misdirected himself in concluding that the evidence of visual identification was worthless and of no probative value.
3. The learned trial judge failed to consider the totality of the evidence as to identification, visual and supporting evidence and misdirected himself as to identification principles when he, having approached the matter in two stages, concluded that the Crown had not adduced any visual identification evidence of any probative value which would permit him to go on to consider the supporting evidence.’
The jurisdiction of this court to entertain an appeal against an acquittal
7 Section 28 of the Court of Appeal Law (2011 Revision) is in these terms (so far as material):
‘(1) Where an accused person tried on indictment is-
(a) discharged or acquitted by a trial judge sitting alone or by a jury (where such a jury has been directed to do so by the trial judge) . . .
the Director of Public Prosecutions . . . may appeal to the Court of Appeal against the judgment of the Grand Court on any ground of appeal that the decision of the trial judge is erroneous on a point of law.
. . .
(3) Upon the hearing of an appeal brought by the Director of Public Prosecutions . . . under subsection (1), the Court of Appeal may allow the appeal if it...
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