Ebanks (KF) v R
| Jurisdiction | Cayman Islands |
| Judge | (Zacca, P., Rowe and Taylor, JJ.A.) |
| Judgment Date | 12 April 2002 |
| Date | 12 April 2002 |
| Court | Court of Appeal (Cayman Islands) |
(Zacca, P., Rowe and Taylor, JJ.A.)
D.S. Schofield for the first appellant;
C.A. Kinch, Q.C. and M. Thompson for the second appellant;
S.W. Bulgin, Solicitor General, and Ms. M. Smith Andalcio for the Crown.
(1) Boodram v. State, [2001] 4 LRC 647, considered.
(2) Broadhurst v. R., [1964] A.C. 441; [1964] 1 All E.R. 111, referred to.
(3) R. v. BevanUNK(1993), 98 Cr. App. R. 354; 157 J.P. 1121, dicta of Watkins, L.J. applied.
(4) R. v. Burge, [1996] 1 Cr. App. R. 163; (1995), 139 Sol. Jo. (L.B.) 99, applied.
(5) R. v. Clinton, [1993] 1 W.L.R. 1181; [1993] 2 All E.R. 998, applied.
(6) R. v. Dehar, [1969] N.Z.L.R. 763, dicta of Turner J. applied.
(7) R. v. Goodway, [1993] 4 All E.R. 894; (1993), 98 Cr. App. R. 11, applied.
(8) R. v. Hill, [1996] Crim. L.R. 419, considered.
(9) R. v. House, [1994] Crim. L.R. 682, applied.
(10) R. v. Lucas, [1981] Q.B. 720; [1981] 2 All E.R. 1008, applied.
(11) R. v. Tucker, [1994] Crim. L.R. 683, applied.
Evidence-corroboration-lies as corroboration-judge/jury to be satisfied that lies deliberate and material, and not prompted by innocent motive-jury direction required if (i) Crown relies on accused”s lies to support other evidence of guilt, (ii) lies referred to as possible corroboration in summing-up, (iii) jury likely to treat lies as corroborative, or (iv) accused relies on alibi-unnecessary if rejecting lies leads inevitably to conviction
Attorneys-at-Law-obligations towards client-advice in criminal cases-accused”s decision alone whether to give evidence at trial, on advice from counsel-good practice to record decision not to testify, indicating that made freely and on advice-exceptionally, irrational advice or defiance of client”s instructions may render conviction unsafe
The appellants were charged in the Grand Court with murder, and elected to be tried by a judge alone.
The appellants were arrested for stabbing a taxi driver. When interviewed by the police the second appellant confessed to robbing the victim, whom he knew, and alleged that the first appellant had unexpectedly produced a knife and stabbed the victim in the chest. He had then assisted the first appellant in disposing of the victim”s body, his taxi, and their own blood-stained clothing. He took the police to where the knife and the clothing were hidden. His bloody fingerprints were found close by and more fingerprints were found in the taxi.
At his trial, he gave evidence that the victim was a drug dealer whom he had gone to meet alone for the purpose of receiving some cocaine for sale to others. The victim had demanded payment first for an earlier consignment which had been lost, and had threatened him with a knife. He claimed that during the ensuing fight he had seized the knife and killed the victim in self-defence, before disposing of the evidence. He denied any involvement by the first appellant, and accounted for his earlier allegation with the explanation that he had believed him to be responsible for the theft of the earlier consignment of cocaine and had wanted to get him into trouble. He had withdrawn the allegation when he learned that the first appellant was not responsible.
The first appellant was also interviewed and shown the second appellant”s statement containing allegations against him. Having stipulated that the interview should not be simultaneously recorded in writing or tape recorded, he confessed to robbing the driver together with the second appellant. The latter had demanded payment from the victim for a ‘deal’ and then, to prevent him from identifying them to the police, stabbed him to death with a knife that the first appellant had brought along and handed to him. They had then disposed of the body together. The interviewing officers subsequently wrote down the content of his statement but did not obtain the appellant”s signature. The statement was ruled admissible in a voir dire at which the first appellant did not give evidence (reported at 2001 CILR 24). He elected not to give evidence at his trial.
The court convicted both appellants of murder. The trial judge (Henderson, Ag. J.) found that the second appellant had been lying when he claimed to have acted alone and in self-defence or by reason of provocation. He found the story about the drug money implausible, and concluded that the appellants had simply robbed and killed a taxi driver. Since the first appellant had admitted knowing that the second appellant would use the knife on the victim, they had acted together in killing him.
On appeal, the first appellant submitted that (a) his counsel had refused to present his instructed defence that the interviewing officers had fabricated his alleged statement to the police, and prevented him from giving evidence to this effect both at the voir dire determining the admissibility of that evidence and at his trial; and (b) accordingly, he had not received a fair trial and his conviction was unsafe.
The second appellant submitted that the court had erred in convicting him since (a) the trial judge failed to consider the truth of his original statement that the first appellant had used a knife unexpectedly so that he personally was guilty only of robbery and being an accessory after the fact; and (b) the judge had failed properly to consider why he had lied at his trial, since the judge had (i) failed to satisfy himself that there was no innocent reason for the lie, such as the protection of the co-accused, (ii) selected part of the account as truth for no justifiable reason, (iii) wrongly treated the contents of the first appellant”s confession as evidence against the second appellant, (iv) disregarded his contribution to the police
investigation and his confession to robbery and being an accessory after the fact, and (v) relied on a version of the facts not supported by the Crown.
Held, dismissing the appeal:
(1) The court was satisfied that the first appellant had made an informed decision not to give evidence and that the ramifications of that decision had been fully explained to him by his counsel. Without calling him as a witness, it would have been improper for his counsel to allege that the two police officers had fabricated his confession, and consequently he had been advised, and had agreed, simply to put the Crown to proof of its case. The decision whether or not to give evidence was ultimately one for the accused on the advice of his counsel. According to good practice, counsel should record and require the accused to sign the record of his decision indicating that the decision had been taken freely and on advice. In an exceptional case, a conviction might be declared unsafe or unsatisfactory if defence counsel had defied the accused”s instructions or if he had advised him without taking proper instructions or against all reason and good sense, resulting in a potential miscarriage of justice. That was not the case here. The first appellant”s appeal would be dismissed (paras. 57–64).
(2) A direction on the significance of lies as evidence would be required in a trial by jury (a) if an accused”s lies were relied on by the Crown (e.g. as corroboration or as support for identification evidence); (b) if the judge considered it necessary to instruct the jury to look for support or corroboration in evidence including the accused”s lies; (c) if the judge envisaged that the jury might do so unprompted; or (d) if the accused relied on an alibi. The trial judge should direct the jury (or himself if sitting alone) that to be treated as evidence of guilt, the lie must be deliberate and relate to a material issue and the judge/jury must be satisfied that there was no innocent motive for it, since guilt was not the only reason why an accused might lie. The direction was not required in every case in which an accused gave evidence, nor if his lies were relied on by the Crown merely to challenge his credibility, but only if there was a danger that they would be regarded as probative of guilt. It was also unnecessary if, as here, the rejection of his explanation would lead inevitably to the logical conclusion that he was guilty as charged (paras. 29–36; para. 42).
(3) The trial judge had concluded that the second appellant lied about the central facts of the case and had stated in detail why he rejected that account, highlighting the other evidence-including forensic evidence, the appellant”s demeanour in court, and the fact that he had not previously raised the version of events on which he now relied-tending to disprove the assertion that he had acted alone and in self-defence. The judge had been best placed to assess the second appellant”s credibility and had not
relied on any part of the first appellant”s confession in convicting him, but rather on his own admission that he had wielded the knife. He had been at liberty to reject those parts of the second appellant”s evidence which he found to be untrue and had not done so unreasonably. This appeal, too, would be dismissed (paras. 37–42; paras. 44–45).
1 ROWE, J.A., delivering the judgment of the court: When this matter came on for trial before Henderson, Ag. J. on January 8th, 2001, Mr. Kinch, Q.C., who represented the appellant Powell, and Mr. Stevens, who then represented the appellant Ebanks, announced to the court that their clients had elected to be tried on the charge of murder by a judge sitting without a jury, pursuant to s.127 of the Criminal Procedure Code (1995 Revision). The trial judge inquired of each of the accused if they wished to be tried by judge alone and each replied in the affirmative. The trial therefore proceeded by judge alone. On January 26th, 2001, both appellants were convicted of murder and were sentenced to life imprisonment.
2 Curtis Seymour, a taxi driver, was stabbed to death in his taxi during the early morning of January 18th, 2000. His body was discarded beside a...
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