Carlton Junior Hall v The Queen
| Jurisdiction | Caribbean States |
| Judge | MR JUSTICE WINSTON ANDERSON, JCCJ,MR JUSTICE WIT, JCCJ,MME JUSTICE RAJNAUTH-LEE JCCJ,MR JUSTICE BARROW, JCCJ,MR JUSTICE JAMADAR, JCCJ |
| Judgment Date | 14 February 2020 |
| Court | Caribbean Court of Justice (Appellate Jurisdiction) |
| Docket Number | CCJ Appeal No. BBCR2019/001 |
| Date | 14 February 2020 |
IN THE CARIBBEAN COURT OF JUSTICE
Appellate Jurisdiction
the Honourables Mr Justice J Wit, JCCJ
Mr Justice W Anderson, JCCJ
Mme Justice M Rajnauth-Lee, JCCJ
Mr Justice D Barrow, JCCJ
Mr Justice P Jamadar, JCCJ
CCJ Appeal No. BBCR2019/001
BB Criminal Appeal No. 3 of 2016
Mr Andrew O G Pilgrim QC, Ms Rashida R Edwards and Ms Kamisha N Benjamin for the Appellant
Mr Anthony L Blackman and Mr Neville St. Elmo Watson for the Respondent
Identification evidence — quality of identification — multiple sightings — no case submission — direction to jury — corroboration — special circumstances required under Section 102 of Barbados Evidence Act — good character evidence — unsworn evidence — Section 95 of the Barbados Evidence Act — credibility and propensity — directions to jury — criminal investigation — criminal case management
On 2 March 2016, Mr. Carlton Junior Hall (‘the Appellant’) was convicted of the murder of Mr Adrian Wilkinson (‘the Deceased’) and, as mandated by the Offences Against the Person Act, was sentenced to death. The Appellant appealed both his conviction and sentence, but the appeal against sentence became superfluous following the decision of this Court in Nervais v The Queen 1 and Severin v The Queen 2 that the mandatory sentence of death for murder was unconstitutional. On 23 January 2019, the Court of Appeal dismissed his appeal against conviction and ordered that he be brought before the trial court for resentencing. The Appellant appealed to this Court, alleging that the identification evidence against him at trial was so weak and unreliable, and that his Counsel had erred so grievously in not raising his good character, resulting in the Trial Judge not giving the appropriate direction, that the
At trial, the case for the prosecution had hinged on the eyewitness evidence of Mr. Julian Benn, a friend of the deceased. Mr. Benn testified that he and the deceased were at a ‘session’ or ‘fete’ on 14 August 2011 in Speightstown, St. Peter, when the Appellant arrived with other persons in a red car. The Appellant came over to Mr. Benn's car and stood there for a few minutes but did not respond when Mr. Benn attempted to converse with him. Later in the evening, Mr. Benn saw the Appellant walk past him and the deceased and stand behind them.
Mr. Benn further testified that, when the last song was about to be played, he indicated to the deceased that they should leave. He proceeded to his car but realised that the deceased was not behind him. When he looked back, he saw the Appellant holding the deceased by the collar. He testified that the Appellant said, ‘my man, you hear what I tell you?’ and then shot the deceased in his stomach. According to Mr. Benn, he was able to see clearly as they were standing in the light, they were not far away, and nothing was blocking his view. He said that the incident lasted a few seconds and was ‘like a movie’.
On 18 August 2011, Mr Benn identified the Appellant, out of a line-up conducted by the police, as the person who had shot the deceased. The police recorded a statement from the Appellant, which he signed. According to the Appellant, he went alone to the fete in a blue taxi for which he paid a fare of $50; he did not see anyone at the fete that he knew; he did not talk with anyone; and, after the winner of the DJ Clash was announced, he left in a taxi. He said that he did not shoot anybody.
Mr. Benn was cross-examined about the amount of alcohol he had drunk that night; whether he had shared his drinks with others; whether he had told the police that someone named ‘Fitsy’ had been the shooter; and about other alleged inconsistencies in his testimony. At the close of the case for the prosecution, Counsel for the Appellant made the submission, pursuant to Section 102 of the Evidence Act, that there was no case to answer, because the identification evidence was unreliable and there were no special circumstances to bolster that evidence. The Trial Judge, Madame Justice Cornelius, rejected the submission and ruled that there was a case to answer.
The Appellant elected to make an unsworn statement from the dock. He stated that he had never seen the deceased man in his life and had no reason to harm him. He also said that everything that he had said to the police was true. Following closing addresses by counsel for the prosecution and for the defence, and a detailed summation of the case and evidence by the Trial Judge, the jury retired to consider their verdict. After seeking and receiving clarification on the distance from which Mr. Benn observed the shooting, the jury returned a unanimous verdict of guilty of murder.
In rejecting the Appellant's appeal, the Court of Appeal found that ‘[t]he quality of the evidence adduced by the Crown in this matter, was of such a standard as to constitute “special circumstances” within the meaning of Section 102(2)(a) and was properly placed before the Jury who were adequately warned’. That court reasoned that the observance of the Appellant by Mr. Benn on three separate occasions satisfied the statutory requirement that there be special circumstances to support the identification evidence.
Before this Court, the Appellant advanced four grounds of appeal. He alleged that the Trial Judge erred when she: (i) failed to withdraw the case from the jury on the basis that the identification evidence was unreliable; (ii) directed the jury that there were special circumstances supporting the identification when there were no such special circumstances; and (iii) misdirected the jury on the law with respect to the circumstantial evidence needed to corroborate the identification evidence. In his fourth ground of appeal, he alleged that his Counsel had failed to raise the issue of his good character.
The appeal was dismissed by this Court by a majority of 3–2. In delivering the majority judgment, Mr Justice Anderson, JCCJ, considered the provisions of Section 102 of the Evidence Act and the Turnbull Guidelines in light of DPP's Reference No. 1 of 2001 of the Barbados Court of Appeal and the decision of this Court in Severin v The Queen 3. The majority held that the nature and circumstances of the previous sightings of the Appellant by
Mr. Benn were such as to be regarded as special circumstances for the purposes of Section 102. As such, the Trial Judge could not be faulted for not withdrawing the case from the jury and directing an acquittal. The first ground of appeal thus failedThe majority acknowledged that, although the identification evidence had passed the threshold that warranted it being left to the jury, there was still a need to give the jury certain directions and warnings. 4 Accordingly, the directions and warnings given by the Trial Judge were examined. Those directions and warnings were found to be adequate and, indeed, exemplary, which meant that the second ground of appeal also failed.
The majority also found that there was no merit to the submissions that the Trial Judge misdirected the jury on the law relating to corroboration. First, corroboration of identification evidence was not needed for a conviction. 5 Second, the Trial Judge had not directed that the expert evidence corroborated the identification evidence. She had merely highlighted that the testimony of Mr Benn was consistent with the expert evidence that the deceased was shot from the front. This was relevant evidence, but it did not, by itself, confirm or prove that it was the Appellant who did the shooting. The third ground of appeal thus also failed.
The majority made general comments on the issue of good character before proceeding to consider the applicability of this Court's decision in August and Gabb v The Queen 6 that a good character direction as to credibility was not warranted where a defendant does not give sworn testimony. The majority found that since the Evidence Act of Barbados regarded an unsworn statement as evidence of approximately the same status as sworn evidence, there was a reasonable argument that a good character direction is required in Barbados whether an accused gave sworn or unsworn evidence. This was supported by the decision of the Barbados Court of Appeal in Re Nurse. 7 The majority was also of the view that the failure of an attorney to raise the good character of his client at trial would not normally deprive the accused of the entitlement to the good character direction.
The test as laid out in August and Gabb, is that the failure to give a good character direction, where such direction is warranted, will result in a conviction being overturned unless the jury would inevitably have returned the same verdict had the direction been given. The majority explained that this meant that the conviction must be overturned unless the appellate court was satisfied that the jury would have returned the same verdict had the direction been given. The Privy Council decision in Sealey & Anor v The State (Trinidad and Tobago) 8 was cited for the proposition that it was permissible to compare the relative strengths and weaknesses of the case put forward by the prosecution and the defence in deciding on the likely attitude of the jury. The majority found that, in the present case, the case for the prosecution was strong compared to that for the Appellant, who offered the most perfunctory and pro forma defence from the dock and called no witnesses to support that defence. The jury clearly found the testimony of the witness, Mr. Benn, to be compelling and disbelieved the Appellant. As such, even if the good character direction had been given, the jury would have still found the Appellant guilty...
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