Whittaker (D) v R

• Jurisdiction: Cayman Islands
• Judge: (Chadwick, P., Mottley and Vos, JJ.A.)
• Judgment Date: 08 December 2009
• Court: Court of Appeal (Cayman Islands)
• Date: 08 December 2009

Court of Appeal

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

D. WHITTAKER

and

R.

The appellant appeared in person;

Ms. C.M. Richards, Q.C., Solicitor General, for the Crown;

P.J. McGhee as amicus curiae.

Cases cited:

(1) Att. Gen.”s Ref. (No. 89 of 1999), [2000] 2 Cr. App. R. (S.) 382, referred to.

(2) R. v. Billam, [1986] 1 W.L.R. 349; [1986] 1 All E.R. 985; (1986), 82 Cr. App. R. 347; 8 Cr. App. R. (S.) 48; [1986] Crim. L.R. 347, referred to.

(3) R. v. Francis, [1982] Crim. L.R. 363, referred to.

(4) R. v. Gabbidon, [1997] 2 Cr. App. R. (S.) 19; [1997] Crim. L.R. 137, considered.

(5) R. v. KellyUNK(1992), 97 Cr. App. R. 245; [1993] Crim. L.R. 763, referred to.

(6) 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, referred to.

(7) R. v. Millberry, [2003] 1 W.L.R. 546; [2003] 2 All E.R. 939; [2003] 1 Cr. App. R. 25; [2003] 2 Cr. App. R. (S.) 31; [2003] Crim. L.R. 207; [2002] EWCA Crim 2891, referred to.

(8) R. v. O”DriscollUNK(1986), 8 Cr. App. R. (S.) 121; [1986] Crim. L.R. 701, considered.

(9) R. v. O”LearyUNK(1986), 82 Cr. App. R. 341, referred to.

(10) R. v. SpenceUNK(1983), 5 Cr. App. R. (S.) 413; [1984] Crim. L.R. 372, considered.

(11) R. v. Thompson, [1977] NI 74, dicta of Lowry, L.C.J. applied.

(12) R. v. Turnbull, [1977] Q.B. 224; [1976] 3 W.L.R. 445; [1976] 3 All E.R. 549; (1976), 63 Cr. App. R. 132; [1976] Crim. L.R. 565, referred to.

Legislation construed:

Grand Court Law (2006 Revision), s.6: The relevant terms of this section are set out at para. 21.

Legal Aid Law (1999 Revision), s.3: The relevant terms of this section are set out at para. 16.

s.5: The relevant terms of this section are set out at para. 17.

Penal Code (1995 Revision), s.231: The relevant terms of this section are set out at para. 42.

s.232(1): The relevant terms of this sub-section are set out at para. 36.

Criminal Law-burglary-aggravated burglary-to prove accused”s possession of offensive weapon or explosive at time of entering premises to commit burglary under Penal Code (1995 Revision), s.231(1)(a)-no power to substitute conviction of aggravated burglary based on offence under s.231(1)(a) for conviction using s.231(1)(b) (if possession of offensive weapon within premises) and vice versa

Legal Aid-assignment of counsel-Queen”s Counsel-no entitlement to Queen”s Counsel under Legal Aid Law-court to decide whether assigning Q.C. suitable having regard to nature and seriousness of offence and difficulty and complexity of case

Courts-Grand Court-Judge of Grand Court-qualifications-to satisfy Grand Court Law, s.6(2) requirement of 10 years” practice, not necessary to have practised privately throughout that time-period served as magistrate to be included

Criminal Procedure-judgment-contents-no obligation on judge sitting alone to set out explicitly every proposition of law and review every fact or argument-to set out conclusions with supporting reasoning

The appellant was charged in the Grand Court with aggravated burglary under s.232(1) of the Penal Code (1995 Revision), abduction, robbery and three counts of indecent assault.

It was alleged that the appellant entered the premises of the complainant as a trespasser with the intent to commit rape and in possession of a knife. He allegedly repeatedly indecently assaulted her by forcing her to perform oral sex, threatened to kill and rape her and stole her cell phone, cash and jewellery. He then forcibly compelled her to go with him in her car to another house and a public beach, where she was again forced repeatedly to perform oral sex. The prosecution case was based upon DNA evidence identifying the appellant and also upon identification by the complainant, though this had been made at night and the subsequent identity parade had also only contained two other persons of similar build, height, age and general appearance. He was convicted in the Grand Court (Ramsay-Hale, Ag. J., sitting without a jury) on all counts and sentenced concurrently to

three terms of 25 years” and three terms of 8 years” imprisonment. The appellant appealed against his convictions and sentences.

On appeal, the appellant submitted that his convictions should be quashed because (a) he had wrongly been denied representation by a Queen”s Counsel at his trial, to which he was entitled under the Legal Aid Law; (b) the judge was not qualified to be appointed to sit in the Grand Court; (c) the DNA evidence was not credible and had been planted; (d) the identification of the appellant by the complainant was unreliable since it had been made in difficult circumstances and the subsequent identification parade was also unfair; (e) the lower court had dealt with his alibi incorrectly; and (f) there was insufficient evidence to convict him of aggravated burglary because there was no evidence that he was actually in possession of a knife at the time he entered the house as a trespasser with the intent to commit rape and thus committing the offence of burglary under s.231(1)(a) of the Penal Code (1995 Revision). The appellant further submitted that the sentences of 25 years were manifestly excessive in relation to the counts of abduction and robbery.

The Crown conceded in reply that there was no direct evidence that the appellant was in possession of a knife when he entered the premises and committed the offence of burglary under s.231(1)(a) but a charge of aggravated burglary could instead be brought under s.231(1)(b) of the Penal Code in that an assault had been committed on the complainant and her jewellery and cash stolen after he had entered the premises as a trespasser, the appellant then being in possession of the knife. The Solicitor General further submitted that, given the appellant had previous convictions for rape and robbery and having regard to the circumstances of the offences, and in accordance with s.23 of the Penal Code (2005 Revision), a sentence of life imprisonment, or of at least at the higher end of the scale, would have been appropriate.

Held, dismissing the appeal against convictions for robbery, abduction and indecent assault but reducing the sentences for abduction and robbery; allowing the appeal against conviction for aggravated burglary:

(1) The appellant”s conviction for aggravated burglary would be quashed and a conviction for burglary simpliciter under s.231(1)(a) of the Penal Code (1995 Revision) would be substituted. To be convicted of aggravated burglary under s.232(1) it would need to be shown that the offender had in his possession a firearm, offensive weapon or explosive at the time of committing the offence under either s.231(1)(a) or (b). Here, the prosecution had failed to prove that the appellant had the knife at the time when he had entered the premises as a trespasser and he had the intent to commit rape. Further, even though the offence of aggravated burglary was committed when the appellant had stolen her possessions while in possession of a knife, since the indictment did not allege aggravated burglary based on an offence under s.231(1)(b) and the court did not have the power to substitute a conviction of aggravated burglary based on s.231(1)(a) for a conviction under s.231(1)(b), the appeal would

be allowed. The sentence of 25 years in respect of this offence was accordingly reduced to 12 years” imprisonment for burglary simpliciter (paras. 45–49; para. 55).

(2) The convictions in respect of the offences of indecent assault, abduction and robbery would be upheld. The lower court had been entitled to convict the appellant on the basis of the DNA evidence presented by the prosecution and there was nothing to suggest that the lower court had wrongly used the rejection of the appellant”s alibi to draw any inference of guilt against him. Further, the lower court had also correctly considered the Turnbull guidelines to be applied when directing a jury on the issue of identification. The judge had directed herself on the need for special caution because identification was made in difficult circumstances and she had closely examined the quality of each identification (acknowledging it was made by moonlight but concluding there was both sufficient light and time for accurate recognition) (para. 29; paras. 34–35; para. 52).

(3) Although when considering the complainant”s identification evidence the lower court judge had not explicitly warned herself of why there was a need for caution and of the problem that a mistaken witness could be a convincing witness, her omissions were irrelevant since a judge sitting alone with no jury to direct was under no obligation when giving judgment to state explicitly every proposition of law and review every fact or argument, but rather simply to set out his/her conclusions and supporting reasoning (para. 29; paras. 50–52).

(4) While identification parades ought to be conducted with persons of a similar, build, height, age and general appearance to the suspect-and this had not been fully complied with in this case-the lower court was again entitled to deem this shortcoming immaterial because of the greater importance of the DNA evidence (paras. 30–31).

(5) The rejection of appellant”s application to be assigned a Queen”s Counsel to represent him was within the discretion of the court. The Legal Aid Law provided, to those who qualified for free or subsidized aid under s.3 and were thus unable to afford to instruct a lawyer, for the assignment of counsel and not a right to be represented by a Queen”s Counsel. It was for the court to decide whether assigning a Queen”s Counsel would be suitable having regard to the particular matter, which would depend upon the nature and seriousness of the offence and the difficulty and complexity of the case-and in this case the court had been entitled to reject his application (para. 19).

(6) The judge had been qualified to sit in the Grand Court since s.6(2) of the Grand Court Law...