Walton v R

• Jurisdiction: Cayman Islands
• Judge: (Georges, Kerr and Henry, JJ. A.)
• Judgment Date: 27 March 1991
• Court: Court of Appeal (Cayman Islands)
• Date: 27 March 1991

Court of Appeal

(Georges, Kerr and Henry, JJ. A.)

WALTON

and

R., BONNER v. R

H. Hamilton, Q.C. for the first appellant;

D. Harrison for the second appellant;

A.S. Smellie, Solicitor General, for the Crown.

Cases cited:

(1) Beckford v. R., [1988] A.C. 130; [1987] 3 All E.R. 425; (1987), 85 Cr. App. R. 378, distinguished.

(2) D.P.P. v. Merriman, [1973] A.C. 584; [1972] 3 All E.R. 42; (1972), 56 Cr. App. R. 766.

(3) R. v. DruryUNK(1971), 56 Cr. App. R. 104; followed.

(4) R. v. DuncanUNK(1981), 73 Cr. App. R. 359, dicta of Lord Lane, C.J. applied.

(5) R. v. Durante, [1972] 1 W.L.R. 1612; [1972] 3 All E.R. 962; (1972), 56 Cr. App. R. 708, followed.

(6) R. v. Sharp, [1988] 1 W.L.R. 7; [1988] 1 All E.R. 65; (1988), 86 Cr. App. R. 274, dicta of Lord Havers applied.

(7) R. v. TaylorUNK(1977), 15 J.L.R. 247; 25 W.I.R. 486, followed.

Criminal Procedure-co-accused-inconsistent verdicts-verdicts to be compatible with evidence in respect of each co-accused without inconsistency-if verdicts inconsistent, appellate court entitled to interfere

Evidence-admissions-mixed statement-jury to consider whole statement in relation to total evidence on actions of accused-to be directed that incriminating parts likely to be true but less weight to be given to excuses

The appellants were charged in the Grand Court with offences arising from their alleged participation in a bank robbery.

The appellants and another man were jointly charged and tried on an indictment containing three counts, namely (a) that they conspired with others to rob the bank; (b) that the second appellant participated in the actual robbery and that the first appellant and the third accused aided and abetted, counselled or procured the commission of the crime; and (c) in the case of the second appellant, with possession of a firearm with intent to rob the bank. They all pleaded not guilty and declined to give evidence.

The evidence of the conspiracy, the planning and robbing of the bank and the involvement of the three participants rested in the main on the evidence of an accomplice who had already pleaded guilty to a separate indictment and who at various stages subsequent to his arrest had made different and inconsistent statements regarding his own involvement.

The prosecution set out to establish that the first appellant”s involvement was such that he could have been alternatively charged as a principal offender but it only led evidence to establish that the third

accused had counselled or procured the commission of the crime. Evidence from various other witnesses was also led to show that the second appellant had actively and knowingly participated in the robbery. He put in evidence a mixed statement in which he admitted involvement but claimed that he believed at the time that he was taking part in a security drill. He sought support for the genuineness of his defence from the evidence of bank tellers who said that at first they believed the hold-up to be a joke. He did not elaborate on the basis for his own belief nor did he challenge the evidence, independent of that of the principal witness, which implicated him.

The jury acquitted the third accused on all counts, found the first appellant guilty on the first count but not guilty on the second and the second appellant guilty on all three counts.

On appeal, the first appellant submitted, inter alia, that the verdict was unreasonable and his conviction should be set aside because the acquittal of the third accused indicated a total rejection by the jury of the evidence of the main prosecution witness and, since their defences were the same, it was inconsistent that one of them should have been acquitted and the other convicted.

The second appellant submitted that he had not been given a fair trial because the trial judge had failed properly to direct the jury (a) on statements in evidence which contained both exculpatory and inculpatory parts; (b) on the proper approach to evaluating evidence which sought to establish that an accused had acted on a mistaken view of the facts; and (c) in that he had charged that even if they disbelieved the evidence of the principal witness they might nevertheless convict.

Held, dismissing the appeals against conviction:

(1) Since the averments as they related to each accused referred to their different roles in the robbery, the jury was entitled to assess the evidence in relation to each individually and to acquit or convict without risk of inconsistency. Accordingly, the jury would only have been required to consider evidence about the actual robbery in relation to the first appellant and not the third accused whose active participation in the robbery had never been alleged. His acquittal was therefore entirely consistent with the first appellant”s conviction as the evidence led in relation to each would have been different. In any event there was no general rule that the Court of Appeal was obliged to quash a conviction merely because a jury had returned inconsistent verdicts on counts in an indictment. To justify interference, it had to be established that the verdicts were so violently at odds with each other that no reasonable jury which had properly applied itself to the facts of the case could have arrived at that conclusion. The conviction of the first appellant would therefore stand as there was neither inconsistency nor such incompatibility between that verdict and the acquittal of the third accused as to merit interference (page 286, line 15 – page 287, line 8; page 287, line 37 – page 288, line 4).

(2) In its treatment of a mixed statement the court should put the

whole statement before the jury with the direction that the incriminating parts were likely to be true whereas the excuses and explanations would not carry the same weight. The second appellant”s admission that he actively participated in the robbery but at the time believed that he was taking part in a security drill was a defence to be considered by the jury not simply in the context of the evidence of the main prosecution witness but rather in relation to the totality of evidence about the appellant”s actions before, during and after the robbery, including his own admissions. Sufficient unchallenged facts had been presented to support the jury”s rejection of his having had such a belief. Moreover, he could not rely on the non-belief of other persons to support his defence because belief was personal to the believer and other persons could have no knowledge of the facts and circumstances on which his belief was based. His appeal would therefore be dismissed (page 289, line 25 – page 290, line 3; page 291, lines 7–15; page 291, line 19 – page 292, line 3).

KERR, J.A., delivering the judgment of the court: In the
30	Grand Court at George Town before Schofield, J. and a jury, the
appellants were jointly charged and tried with one Nick Romano
Smith on an indictment containing three counts. The first, with
conspiracy to commit robbery in that they together with Roy
Faulkner and Orville Clive Burton conspired on diverse days
35	between August 1st and 23rd, 1989, to rob the Cayman National
Bank, George Town. Secondly, that the appellant, Bonner,
together with the said Faulkner and Burton on August 23rd,
1989, robbed the bank of money-CI$175,106 and US$14,492-
and that the appellant, Walton, and the accused, Smith, aided
40	and abetted, counselled or procured the commission of the said
offence. And thirdly, that the appellant, Bonner, at the time of

the robbery, was in possession of a firearm with intent to rob the
bank contrary to s.18(6) of the Firearms Law.
The jury acquitted Smith on all counts, found the appellant
Walton guilty on the first count but not guilty on the second and
5	the appellant Bonner guilty on all three counts. Walton was
sentenced to 5 years” imprisonment and Bonner on Count 1 to 5
years” imprisonment; on Count 2 to 11 years” imprisonment and
on Count 3 to 3 years” imprisonment, all sentences to run
concurrently. We dismissed the appeals against convictions but
10	allowed Walton”s appeal against sentence by varying the sentence
to 3 years” imprisonment. Herein are our reasons for so doing.
At the time of the trial Faulkner and Burton, named in the
indictment as co-conspirators, having pleaded guilty to a separate
indictment, were serving terms of imprisonment for their part in
15	the conspiracy and robbery of the bank and on the trial of the
appellants were witnesses for the prosecution. The evidence as to
the conspiracy, the planning and robbing of the bank and the
involvement of the appellants rested in the main on the evidence
of Faulkner. He prefaced his evidence of the facts with the
20	explanation that he decided to testify because his family who
supported him thought he should tell the truth as well as on his
own discretion.
He is a motor mechanic and at the material time was working at
his father”s garage adjoining his home at Smith Lane, George
25	Town. His evidence was to the effect that a month before the
robbery, the appellant Walton came to him there with the idea of
robbing the bank. He knew Walton as an employee of the bank.
Although he told Walton he was not interested, Walton returned
the following day with a plan of the bank showing the entry and
30	exit to the bank, the route to the banking area, and an internal
staircase to the second floor where there were rest rooms in which
there could be hidden guns and clothes for disguise. Walton
advised that the best time for the robbery was on a Monday at
3.00 p.m. when the bank would have most money and the head
35	teller in the course of balancing would have the money on the
floor beside her. After discussion, Walton burned the plan.
As no firm agreement had

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