McLaughlin-Martinez v R

• Jurisdiction: Cayman Islands
• Judge: (Chadwick, P., Mottley and Campbell, JJ.A.)
• Judgment Date: 07 December 2012
• Date: 07 December 2012
• Court: Court of Appeal (Cayman Islands)

Court of Appeal

(Chadwick, P., Mottley and Campbell, JJ.A.)

McLAUGHLIN-MARTINEZ

and

R.

N. Dean, Q.C. and N. Hoffman for the appellant;

A. Radcliffe, Q.C. and Ms. T. Hutchison, Senior Crown Council, for the Crown.

Cases cited:

(1) Jenkins v. R., (2004), 211 A.L.R. 116; [2004] HCA 57, applied.

(2) R. v. AndersonUNK(1966), 10 W.I.R. 24, applied.

(3) R. v. B. (M.T.), [2000] Crim. L.R. 181, applied.

(4) R. v. JohnsonUNK(1963), 5 W.I.R. 396, applied.

(5) R. v. Makanjuola, [1995] 1 W.L.R. 1348; [1995] 3 All E.R. 730; [1995] 2 Cr. App. R. 469, considered.

Legislation construed:

Evidence Law (2007 Revision), s.41(1):

‘Any requirement whereby, at a trial on indictment, it is obligatory for the court to give a warning about convicting the accused on the uncorroborated evidence of a person merely because that person is-

(a) an alleged accomplice of the accused . . .

is hereby abrogated.’

Evidence-corroboration-accomplices-judge may warn against relying on uncorroborated evidence-warning should identify important uncorroborated evidence and what evidence could support it-identification of relevant evidence in summing-up to be sufficiently proximate in time to ensure warning effective-judge to hear argument before closing speeches as to evidence capable of supporting uncorroborated evidence-if none, judge should explicitly inform jury

The appellant was charged in the Grand Court with murder.

The appellant was arrested with an accomplice on suspicion of committing murder. The accomplice pleaded guilty to being an accessory after the fact and claimed that the appellant was solely responsible for the murder, although this was uncorroborated.

The appellant was convicted of murder in the Grand Court (Henderson, J. and a jury). On appeal, the Court of Appeal (Chadwick, P., Mottley and Conteh, JJ.A., in proceedings noted at 2010 (2) CILR N [4]) held that the verdict was unsafe because the jury had been misdirected. It remitted the case for retrial by the Grand Court (Quin, J. and a jury).

At the retrial, the judge gave a summing-up which identified evidence capable of supporting the uncorroborated evidence. He also exercised his discretion to warn the jury that it was dangerous to accept the uncorroborated evidence without finding other evidence which supported its important aspects. However, he did not identify these important aspects or what evidence could support them. The appellant was convicted as charged.

On appeal, the appellant submitted that (a) the verdict was unsafe in that the judge had failed to give a full warning to the jury about the danger of convicting on uncorroborated evidence; (b) the judge should have identified the important aspects of the uncorroborated evidence and indicated what, if any, evidence could support them; and (c) even if the summing-up had done this, it had not been sufficiently proximate in time to the warning so as to prevent the jury from misdirecting itself.

The Crown submitted in reply that the judge”s earlier identification of the supportive evidence during the summing-up satisfied the legal requirements.

The court also considered how the judge should have determined what should have been included with the warning.

Held, allowing the appeal:

Although the judge had appropriately exercised his discretion as to when to give a warning to the jury, he had not given the jury the necessary information to go with it. He ought to have included information as to what could be regarded as the important aspects of the uncorroborated evidence and which evidence would have been capable of supporting these. His earlier summing-up of the evidence did not satisfy this requirement as it had not been sufficiently proximate in time to the warning. The judge should have explicitly told the jury if there was nothing capable of...