Jefferson v R

• Jurisdiction: Cayman Islands
• Judge: (Goldring, P., Field and Morrison, JJ.A.)
• Judgment Date: 14 September 2018
• Court: Court of Appeal (Cayman Islands)
• Date: 14 September 2018

JEFFERSON

and

R.

(Goldring, P., Field and Morrison, JJ.A.)

Court of Appeal (Cayman Islands)

Firearms — possession and use of firearms — definition — barrelled weapon is “firearm” for purposes of Firearms Law (2008 Revision), s.2(1) if can be adapted to discharge shot, bullet or other missile by minor repair — defective pistol requiring replacement firing pin “firearm”

Evidence — confessions — Judges’ Rules — significant breaches of Judges’ Rules where police officer fails to make contemporaneous record of alleged confession — appeal against conviction allowed if judge erroneously considered no breach of Rules — retrial ordered

Held, allowing the appeal, quashing the conviction and ordering a new trial:

(1) The first ground of appeal failed. The issue of whether the pistol was a lethal barrelled weapon within the meaning of s.2(1) of the Firearms Law (2008 Revision) was a question of fact. In such a case, the correct approach was for the judge to determine whether the device was capable of amounting to a firearm and then to leave to the jury the question whether it was actually a lethal weapon. A jury would be entitled to find that a device was a firearm within the statutory definition if only a minorrepair was required to render it capable of firing. The evidence of the expert witnesses clearly supported the view that the only thing which rendered the pistol inoperable at the time it was found in the appellant’s house was the firing pin. Both witnesses testified that this deficiency could be easily cured without the need for any expert or particularly technical intervention. None of the authorities to which the present court was referred supported the distinction for which the appellant contended between a minor repair achievable by the use of some part or implement already in the appellant’s possession and one which needed to be sourced from elsewhere. Both experts appeared to agree that with the insertion of a replacement firing pin the pistol would be capable of operating as a lethal barrelled weapon. The judge’s decision to leave to the jury the question whether they could be satisfied that the pistol was in fact a firearm could not be faulted. Nor could any complaint be made about the judge’s directions to the jury, in which he had been at pains to tell them that the final decision was theirs, having regard to all the evidence, including the expert evidence (paras. 41–44).

(2) The appellant was entitled to succeed on the second ground of appeal. Contrary to the judge’s conclusion, there were significant breaches of both the letter and the spirit of the Judges’ Rules as regards the appellant’s alleged confession. D.C. Daley made no contemporaneous note of the alleged confession at the time or shortly after it was allegedly made; he did not inform the logger of it at any time before he and others escorted the appellant to the police station; he did not record it in his notebook, either immediately on his return to the station or later that evening when he sought to update it; and he did not tell any of his colleagues about it until the following morning. Taken together, those breaches were significant and substantial, and were apt to give rise to the very mischief which the Rules were designed to avoid. Whether the alleged confession should have been admitted notwithstanding the breaches was a matter for the judge in the exercise of his discretion. The present court should not readily review the judge’s exercise of discretion unless it could be shown that his decision to admit the alleged confession was unreasonable. The judge’s principal focus was on the voluntariness of the alleged confession. Indeed, having concluded that it was voluntary, the judge went on to state categorically that there was no evidence of any breach of the Judges’ Rules. There was therefore no question that the judge did not consider any other factor relevant to the fairness of admitting the alleged confession. The present court considered that there were in fact significant breaches of the Rules which provided an ample basis upon which to review the judge’s exercise of his discretion and, if thought fit, to exercise its own discretion. The alleged confession, which the appellant denied making, was a significant piece of evidence. One of the objectives of the requirement in the Rules for the early recording of such a statement was to avoid or assist in resolving allegations of distortion or concoction. These safeguards had been wholly bypassed in the present case. The potential for prejudice to the appellant was inestimable. The appellant hadmade good his contention that it was unfair and dangerous to admit the alleged confession in evidence (paras. 59–65).

(3) The third ground of appeal failed. Whether taken individually or cumulatively, the appellant’s complaints regarding the judge’s summing-up did not indicate that the appellant’s right to a fair trial had been compromised or that the conviction was unsafe. In respect of the appellant’s four complaints, first, the judge’s remarks shortly after his summary of D.C. Daley’s evidence could be considered quite innocuous but could have been better placed so as to avoid any impression that they were a direct response to any perceived damage to D.C. Daley’s credibility. However, the court accepted that the structure of the summing-up was entirely within the judge’s discretion and the court would not be inclined to disturb the conviction on that basis alone. Of greater significance, perhaps, was the content of the judge’s remarks, suggesting that D.C. Daley was like any other witness rather than a police officer to whom the Judges’ Rules applied. The implication in the judge’s remarks that D.C. Daley’s failure to make a note of the alleged confession was understandable was unfortunate. Secondly, the judge’s remarks as to the different roles of counsel for the prosecution and for the defence could not be faulted. Thirdly, the judge’s directions were sufficient to alert the jury to the need to approach the evidence of both defence and prosecution witnesses in the same manner. The court agreed that in the interests of clarity the judge might have separated the point that the standard direction sought to make from his more general directions on inconsistencies, bias, demeanour, etc., but that was a matter for the judge and the court was not persuaded that the judge’s somewhat unusual approach rendered the summing-up as a whole unfair. Fourthly, in respect of the complaint that by giving detailed directions as to how to approach issues of credibility immediately before his review of the case for the defence, the judge gave the jury the impression that he favoured the case for the prosecution, again, the structure of the summing-up was a matter for the judge. In any event, the directions were sufficiently general to make it clear to the jury that they applied equally to witnesses for the prosecution and the defence. Thus, while some of the judge’s choices in organizing his summing-up were not ideal, they were essentially matters for him to determine. In the circumstances, there was no basis for the present court to interfere with the judge’s exercise of his discretion in respect of these matters (paras. 71–73; paras. 77–83).

(4) The appellant was entitled to succeed on the fourth ground of appeal. Generally, in relation to a defendant who was of good character, a trial judge should give a direction to the jury as to the relevance of good character to (i) his credibility, where he had testified or made pre-trial statements; and (ii) the likelihood of his having committed the offence charged, whether or not he had testified or given pre-trial answers. There was a distinction between a defendant with “absolute good character” and a defendant of “effective good character.” A defendant with absolute goodcharacter had no previous convictions or cautions recorded against him and no other reprehensible conduct alleged, admitted or proven. Such a defendant was entitled to both limbs of the good character direction. If a defendant had previous convictions or cautions which were old, minor or had no relevance to the charge, the judge must decide whether to treat him as a person of effective good character. If a judge decided to do so, he must give both limbs of the good character direction, modified as necessary to reflect the other matters and ensure that the jury was not misled. In the present case, it was not clear whether the judge had decided to treat the appellant as a person of effective good character. The appellant’s previous convictions were recorded, in the case of the latter two, only two years before the offences in the present case. On the other hand, the appellant’s previous convictions related to matters of a completely different kind, both in their nature and seriousness, from the offences of unlawful possession of a firearm and ammunition. The quality of the character evidence given in support of the appellant was impressive and strongly suggested that at the time of commission of the present offences the appellant had resumed the right path in life. The appellant having put his good character in issue by way of the character evidence given on his behalf, the judge should have given him the benefit of a good character direction, certainly as regards propensity, modified in whatever way the judge considered necessary to take into account the appellant’s circumstances (paras. 89–96).

Cases cited:

(1)Grace v. D.P.P. (1989), 153 J.P. 491, followed.

(2)Peart v. R., [2006] UKPC 5; [2006] 1 W.L.R. 970, applied.

(3)Practice Note (Judges’ Rules), [1964] 1 W.L.R. 152; [1964] 1 All E.R. 237, applied.

(4)R. v. Bewley, [2012] EWCA Crim 1457; [2013] 1 W.L.R. 137; [2013] 1 All E.R. 1; [2012] 2 Cr. App. R. 27, distinguished.

(5)R. v. Delaney (1989), 88 Cr. App. R. 338, considered.

(6)R. v. Heddell, [2016] EWCA Crim 443, considered.

(7)R. v. Hunter, [2015] EWCA Crim 631; [2015] 1 W.L.R. 5367...