The Director of Public Prosecutions Appellant v Devon Anglin Respondent
| Jurisdiction | Cayman Islands |
| Judge | Chadwick P,Sir John Chadwick, President,Mottley JA |
| Judgment Date | 06 November 2014 |
| Court | Court of Appeal (Cayman Islands) |
| Docket Number | CICA (Crim.) No.17 /2011 |
| Date | 06 November 2014 |
The Rt Hon Sir John Chadwick, President
The Hon Elliott Mottley, Justice of Appeal
The Hon Ian Forte, Justice of Appeal
Mr Andrew Radcliffe QC and Ms Elizabeth Lees appeared for the Director of Public Prosecutions
Mr John Ryder QC and Ms Lucy Organ instructed by Samson & McGrath appeared for the Respondent, Devon Anglin
This is the judgment of the Court.
On the evening of 15 February 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.
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 15 February 2010: (1) murder, (2) attempted murder (of Andy Barnes), and (3) possession of an unlicensed firearm. The two further counts — (4) possession of an imitation firearm with intent commit an offence against Andy Barnes and (5) threatening violence with intent to alarm Andy Barnes — related to an earlier incident said to have occurred on 30 January 2010.
The Respondent was tried in August 2011 before Justice Cooke, sitting alone as a Judge of the Grand Court without a jury. On 31 August 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).
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.
The Director of Public Prosecutions appeals to this Court, pursuant to section 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 advanced on behalf of the Director in her Notice of Appeal filed on 13 September 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.’
Section 28 of the Court of Appeal Law is in these terms (so far as material):
‘28(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) …; or
(b) …,
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.
(2) …
(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 appears that the discharge or acquittal of the accused should be set aside on a ground of a wrong decision of law and, in any other case, shall dismiss the appeal.
(4) Where the court allows an appeal under subsection (1), it shall set aside the discharge or acquittal of the accused person and remit the case to the court of original jurisdiction to be retried.’
This appeal was listed for hearing in July 2012. Junior counsel for the Respondent sought an adjournment on the basis that an unforeseen overrun of a trial in which Mr Ryder QC was engaged in the United Kingdom would make it difficult or impossible for him to appear in this Court on the date fixed. The Court took the view that, before adjourning the appeal for substantive argument on the merits, it should hear argument on the question whether — in the light of its earlier decision in Attorney General v Miller [2009 CILR 162], following the decision of the Judicial Committee of the Privy Council in Justis Raham Smith v The Queen [2000] 1 WLR 1644 (an appeal from Bermuda) — this was an appeal which could properly be brought under section 28(1) of the Court of Appeal Law on the grounds advanced.
After hearing argument on that point on 30 July 2012 — the Court was satisfied that it should not refuse to entertain the appeal, in limine, on jurisdictional grounds; but should proceed to a full hearing on the merits. It took the view that it would be better placed to determine the issue whether this was, on a true analysis, an appeal which fell within section 28(1) of the Court of Appeal Law after the arguments on the grounds advanced in the Director's Notice of Appeal had been fully developed in argument.
In reaching that conclusion the Court accepted that its earlier decision in Attorney General v Miller had been overtaken by the change in the law of the Cayman Islands effected by section 2 of the Court of Appeal (Amendment) Law 2010. Before that change — and as the law stood in 2009 (when Miller was decided) — section 28(1) of the Court of Appeal Law (2006 Revision) had restricted an appeal by the Crown (in the person of the Attorney General) from an acquittal by a trial judge sitting alone to cases in which the ground of appeal involved ‘a question of law alone’. That, also, was the only ground upon which such an appeal could be brought under section 17(2) of the Court of Appeal Act 1984 in the legislation of Bermuda — the section under consideration in Justis Smith— at the time when the appeals in that case were before Court of Appeal in Bermuda and Privy Council. The change effected by the Court of Appeal (Amendment) Law 2010 — and subsequently incorporated in the Court of Appeal Law (2011 Revision) — was to replace the words ‘any ground of appeal which involves a question of law alone’ in section 28(1) with the words ‘any ground of appeal that the decision of the trial judge is erroneous on a point of law’. The omission by the legislature of the word ‘alone’— on which the Privy Council placed reliance in reaching its conclusion in Justis Smith(ibid, page 1652D-G) that no appeal lay under section 17(2) of the Bermudan Act on a question of mixed law and fact — is of obvious significance in this context.
This Court is satisfied that the correct approach to the phrase ‘erroneous in point of law’ in section 28(1) of the Court of Appeal Law (following the amendment made in 2010) is found in the decision of the Privy Council in The State v Brad Boyce [2006] UKPC 1 (an appeal from Trinidad and Tobago). The phrase connotes any error by the judge on an issue which (had he been directing a jury) would have been the subject of such direction. It will include questions as to whether evidence of visual identification is capable of having any probative value and the extent to which visual identification evidence of limited probative value is capable of being supported by other evidence.
The appeal was, again, listed for hearing in November 2012 and in April 2013; and, again, those hearing dates had to be vacated in order to accommodate the commitments of the Respondent's leading counsel. In the event, the substantive hearing came on in July 2013.
The facts found by the judge in relation to the events on 15 February 2010 — against which there can be no appeal by the Crown unless, in making those findings, the judge adopted an approach which can be said to have been erroneous in law — may be summarized as follows:
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(1) Devon Anglin and Andy Barnes had been friends. They had lived in the same district in West Bay. About three years before the shooting on 15 February 2010, Andy Barnes had moved to live on Miss Daisy Lane. That move (as the judge found) ‘seemed to have been the genesis of the estrangement between these two very good friends’.
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(2) At about 8.00pm on the evening of 15 February 2010 a Chevrolet Malibu motor car driven by Andy Barnes pulled into the Hell Service Station, West Bay. The vehicle being left-hand drive, Andy Barnes was in the left-hand front seat. His son Jeremiah was immediately behind him; on the left of the back seat. The right-hand front (or passenger) seat was occupied by Dorlisa Ebanks (Jeremiah's mother). Behind her, on the back, right-hand, seat was her other son.
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(3) Andy Barnes...
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