Henry v R
| Jurisdiction | Cayman Islands |
| Judge | (Chadwick, P., Forte and Mottley, JJ.A.) |
| Judgment Date | 15 April 2011 |
| Court | Court of Appeal (Cayman Islands) |
| Date | 15 April 2011 |
(Chadwick, P., Forte and Mottley, JJ.A.)
I. Bourne, Q.C. and B.J. Tonner for the first appellant;
R. Fortune, Q.C. and Ms. N. Moore for the second appellant;
Ms. C.M. Richards, Q.C., Solicitor General, for the Crown.
(1) Balson v. StateUNK(2005), 65 W.I.R. 128; [2005] 4 LRC 147; [2005] UKPC 2, dicta of Lord Brown of Eaton-under-Heywood applied.
(2) Bhola v. StateUNK(2006), 68 W.I.R. 449; [2006] 4 LRC 268; [2006] UKPC 9, considered.
(3) Brown v. R., [2006] 1 A.C. 1; [2005] 2 W.L.R. 1558; [2005] UKPC 18, considered.
(4) R. v. Aziz, [1996] A.C. 41; [1995] 3 W.L.R. 53; [1995] 3 All E.R. 149, dicta of Lord Steyn applied.
(5) R. v. Challenger, [1994] Crim. L.R. 202, applied.
(6) R. v. Dehar, [1969] N.Z.L.R. 763, considered.
(7) R. v. Goodway, [1993] 4 All E.R. 894; (1993), 98 Cr. App. R. 11, dicta of Lord Taylor, C.J. referred to.
(8) R. v. Lucas, [1981] Q.B. 720; [1981] 3 W.L.R. 120; [1981] 2 All E.R. 1008; (1981), 73 Cr. App. R. 159, dicta of Lord Lane, C.J. referred to.
(9) R. v. O”Flaherty, [2004] 2 Cr. App. R. 20; [2004] Crim. L.R. 751; [2004] EWCA Crim 526, applied.
(10) R. v. Powell, [1999] 1 A.C. 1; [1997] 3 W.L.R. 959; [1997] 4 All E.R. 545; [1998] 1 Cr. App. R. 261; [1998] Crim. L.R. 48, applied.
(11) R. v. Richens, [1993] 4 All E.R. 877; (1992), 98 Cr. App. R. 43; [1993] Crim. L.R. 384, referred to.
(12) R. v. Sharp, [1988] 1 W.L.R. 7; [1988] 1 All E.R. 65; (1987), 86 Cr. App. R. 274, referred to.
(13) R. v. Teasdale, [1993] 4 All E.R. 290; (1994), 99 Cr. App. R. 80, distinguished.
(14) R. v. Thompson, [1977] N.I. 74, dicta of Lowry, L.C.J. applied.
(15) R. v. Vye, [1993] 1 W.L.R. 471; [1993] 3 All E.R. 241, dicta of Lord Taylor, C.J. referred to.
(16) R. v. Whittaker (D.), 2010 (1) CILR 29, referred to.
(17) Singh v. State, [2006] 1 W.L.R. 146; [2005] 4 All E.R. 781; [2006] 2 LRC 409; (2005), 68 W.I.R. 424; [2005] UKPC 35, applied.
(18) Teeluck v. State, [2005] 1 W.L.R. 2421; [2005] 2 Cr. App. R. 378; [2005] 4 LRC 259; [2005] UKPC 14, referred to.
Criminal Law-murder-joint enterprise-accused guilty if continues to participate in joint enterprise realizing that other party might in course of enterprise kill with intent to kill or cause grievous bodily harm-not guilty if other party goes beyond enterprise, forming intention to kill using weapon and committing act of type not foreseen as probable-will not avoid guilt merely because other party uses different but equally dangerous weapon
Criminal Law-murder-joint enterprise-accused guilty if fails to withdraw from joint enterprise once realizes that other party intends to kill in course of enterprise-court to consider subsequent conduct, e.g. encouragement by presence and behaviour, remorse and intention to profit
The appellants were charged in the Grand Court with murder.
A woman was forcibly attacked by two men close to her car. She was violently restrained and driven to an isolated area where she was raped by both men, robbed of her possessions-including a debit card and two cell phones-and eventually killed and her body burnt in her car. Early the following morning, the second appellant, Ricketts, made attempts to use
her debit card at an ATM. Half an hour after the last attempt, one of her cell phones was located at a site eight miles away from the ATM. It was later found in the possession of the first appellant, Henry, who was subsequently arrested. The police searched his apartment, where they found a computer belonging to the deceased. He initially claimed that he had recently purchased the cell phone and computer, but, in a cautioned statement, admitted to having stolen them, and to having been involved in the abduction and rape of the deceased. However, he denied responsibility for her death, which he attributed to Ricketts, who had been with him throughout the incident. Ricketts was arrested on suspicion of murder. The police searched his apartment, where they found the other of the deceased”s cell phones. The day after his arrest, he was interviewed under caution. The transcript of the interview, which he signed, recorded that he gave responses which amounted to admitting to having killed the deceased, and that there had been regular breaks in the interview. Ricketts claimed that the interview had been fabricated, and sought to prevent it from being admitted as evidence.
The Grand Court (Smellie, C.J.) ruled (in proceedings noted at 2011 (1) CILR N [7]) that the cautioned interview with Ricketts was admissible, since (a) he had been warned in advance about the interview, and had been provided with refreshment breaks throughout; (b) he had signed the record of the interview without any threat of force; (c) he provided contradictory evidence as to why he had signed the record; (d) having seen him testify, he was not easily intimidated; and (e) the record of the interview was not consistent with its having been fabricated by the police.
The Grand Court (Smellie, C.J., sitting without a jury) subsequently convicted both appellants of murder, holding that (a) Henry”s initial lies about how he had obtained the deceased”s cell phone and computer were evidence of his capacity for fabricating exculpatory information; (b) Henry was, from the start, party to a joint enterprise with Ricketts in which he was aware that serious bodily harm would probably be inflicted on the deceased; (c) once it became apparent that Ricketts intended to kill the deceased, Henry did not withdraw from their joint enterprise, but rather continued to provide at least tacit encouragement to Ricketts by his behaviour and presence, without any sense of remorse and with an intention to profit from the crime; and (d) although there were unexplained aspects of the case, including how the cell phone came to be eight miles away from the ATM half an hour after Ricketts attempted to withdraw money from it, the evidence in favour of conviction was overwhelming. Although neither appellant had a previous conviction, the judge did not direct himself to consider their good character in arriving at his verdict. Nor did he give himself a Lucas direction in relation to Henry”s lies.
Appeal of Henry
Henry appealed against his conviction, submitting that (a) the judge therefore erred in failing to give a Lucas direction in relation to the lies he
initially told the police about how he had obtained the cell phone and computer; (b) the judge further erred in failing to give a direction that his previous good character was relevant to his propensity to offend; (c) the judge incorrectly applied the principles of joint enterprise; and (d) the judge was wrong to conclude that he was criminally responsible for the murder of the deceased, as he withdrew from the joint enterprise after Ricketts expressed intention to kill the deceased.
The Crown submitted in reply that (a) a Lucas direction had not been necessary as the lies Henry initially told the police were not relied on as corroboration, but rather as evidence of his capacity to lie; (b) since he had already admitted charges of abduction, robbery and rape, it would have been inappropriate for the judge to give a good character direction; (c) the judge correctly applied the law in finding that he had embarked on a joint enterprise in which he was aware that really serious bodily harm would be inflicted on the deceased; and (d) the judge was right to infer from his subsequent conduct that he did not withdraw from the joint enterprise after Ricketts expressed intention to kill the deceased.
Appeal of Ricketts
Ricketts appealed against his conviction, submitting that (a) the fact that the cell phone was eight miles away from the ATM within half an hour of the attempted withdrawal suggested that someone else must have been involved with the killing; (b) the judge was wrong to admit as evidence the cautioned interview containing the admission of guilt, as it had been fabricated by the police and he had never admitted the killing; (c) the frequent breaks in the interview gave the police the opportunity to fabricate a plausible admission by him; (d) the length of the written record was not consistent with the length of the interview; and (e) the judge erred in failing to give himself the appropriate good character direction.
The Crown submitted in reply that (a) the cell phone evidence was not inconsistent with Ricketts having been involved with the killing; (b) although there were some unexplained aspects of the case, the judge was right to hold that the evidence supported a conclusion of guilt; (c) the judge was correct to conclude that the cautioned interview was genuine and admissible; (d) there was no evidence that the police used the breaks in the interview to fabricate a plausible admission; (e) the fact that Ricketts had signed the record of the interview contradicted his claim that it was incomplete; and (f) a good character direction would not have altered the outcome of the trial, since the evidence of Ricketts” guilt was overwhelming.
Held, dismissing the appeals:
Appeal of Henry
(1) Henry”s appeal on the ground that the judge had failed to give a Lucas direction would not be allowed. It would only be necessary to give a jury a Lucas direction-i.e. a reminder that people sometimes lie not out
of guilt but e.g. to bolster a just cause, out of shame, or wishing to conceal disgraceful behaviour-if lies were relied on by the prosecution in proof of its case, or if the absence of such a direction might result in the jury using evidence of lies to convict the accused. If, as here, the trial was by judge alone, the judge needed to indicate by words in his judgment that he was aware of and correctly applied the principle. Neither the prosecution nor the judge had relied on Henry”s lies as support for the conclusion that he was guilty. Rather, the judge treated the lies as evidence of his capacity to lie and...
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