Japhet Bennet v The Queen
| Jurisdiction | Caribbean States |
| Judge | Jacob, J. |
| Judgment Date | 17 October 2018 |
| Court | Caribbean Court of Justice |
| Docket Number | Suit No.: CCJ Appeal No. BZCR2017/005, BZ Civil Appeal No. 8 of 2013 |
| Date | 17 October 2018 |
Caribbean Court of Justice
Wit, J.CCJ, Hayton, J.CCJ, Anderson, J.CCJ, Rajnauth-Lee, J.CCJ, Barrow, J.CCJ
Suit No.: CCJ Appeal No. BZCR2017/005, BZ Civil Appeal No. 8 of 2013
Mr. Anthony Sylvestre for the Applicant
Ms Cheryl-Lyn Vidal, SC and Ms. Shanice Lovell for the Respondent
Evidence - Admissibility — Hearsay evidence — Admissibility of previous inconsistent statement as proof of content stated therein.
Section 73A of the Evidence Act, Cap. 95. of Belize allows for a previous inconsistent statement which a witness admits to making or which was proven to be a statement made by the witness to be admissible as evidence of any matter mentioned in the statement.
Mr. Ellis Meighan Sr. (“the deceased”) was shot and killed on the night of 13 September 2009 at the corner of Banak Street and Central American Boulevard, Belize City. Two days later, Marlon Middleton (“Middleton”), brother-in-law of the deceased, gave a statement to the police. He stated that he was riding his bicycle along American Boulevard when he heard gunshots. He began “speeding up” towards Banak Street because his sister lived on that street and the shots came from that general area. He noticed a body lying on the ground at the corner of Banak Street and Central American Boulevard. He was “about 40 feet or more” away from the body. He said that he saw a man, whom he described as a ‘medium built’ male of ‘brown complexion’, about 5 feet 8 inches tall, wearing a red shirt and a light coloured fitted cap, standing about two feet from the body with a black handgun which resembled a 9mm pistol in his right hand. He could see the man's face because the area was well illuminated by a big lamp post. He recognised the man as Japhet Bennett, the Applicant, whom he had known for about 4 months and had last seen him a week before the shooting. Bennett rode off from the scene of the crime onto Partridge Street on a bicycle in the company of another male person who was also on a bicycle.
Bennett was detained and charged on 26 October 2009. At trial, when the Prosecution called Middleton to give evidence, he denied material parts of his statement. He admitted that he was going to his sister's house on the night in question and that he heard gunshots and noticed a body on the ground at the corner of Banak Street and Central American Boulevard, but, apart from the body, he said he observed ‘nothing else’. Through the evidence of Assistant Superintendent Suzette Anderson and Justice of the Peace Ms Grace Flowers, the Prosecution proved that Middleton had made the statement wherein he identified Bennett at the scene of the crime. Middleton was ruled a hostile witness and both the Prosecution and the Defence cross-examined him in connection with the statement. Middleton maintained that he only saw the deceased's body lying on the ground. He denied all identification evidence linking Bennett to the crime.
Lucas J. admitted the statement into evidence pursuant to section 73A of the Evidence Act without any objection from counsel for Bennett. He also ruled that parts of the statement where Middleton had said that he knew Bennett because his nephews, Ellis and Tyrone Meighan, often had problems with Bennett, should be excluded. Assistant Superintendent Anderson, being the recorder of the statement, was recalled and allowed to read the statement (save for the excepted part) aloud to the jury.
A Crime Scene technician testified that he went to the scene and saw the body and recovered two suspected 9 mm spent shells. Corporal Manuel Espat, the officer in charge of the investigation, testified that he interviewed persons in the area and obtained no useful information. The widow of the deceased also gave evidence, but she only spoke of identifying the body for the post mortem examination. She was not asked anything about the night of the killing. No evidence – other than the previous inconsistent statement of Middleton – linking Bennett to the crime was adduced.
Counsel for Bennett made a no case submission, but Lucas J. refused to withdraw the case from the jury, holding that the evidence in the case was direct and circumstantial. He said it was circumstantial because in the written statement, Middleton did not witness the actual shooting of the deceased by the accused. He found that it was not a “speculation” if the jury were to accept Middleton's previous statement that Bennett was the one seen with a handgun in his hand two (2) feet from the deceased shortly after he had heard gunshots in the vicinity. He found that this was good circumstantial evidence falling within the dicta of Ellis Taibo v. The Queen. (1996) 48 W.I.R. 74
Bennett made an unsworn statement from the dock saying that he was not present at the scene of the crime, and that he did not know why he would have any intention to kill the deceased. The jury however found him guilty of murder.
In his appeal before the Court of Appeal, Bennett argued that (a) Middleton's statement should not have been admitted because it was highly prejudicial and could not be challenged by cross-examination or, alternatively, that the no case submission should have been upheld by the trial judge as the identification evidence was nothing more than a fleeting glance. The Court of Appeal did not agree with his submissions and dismissed his appeal against the conviction. Bennett therefore appealed to the C.C.J.
The C.C.J., by a majority decision, allowed Bennett's appeal. In its judgment the majority (Justices Wit, Hayton and Anderson) noted that while s 73A of the Evidence Act provides that a previous inconsistent statement may be admissible as an exception to the traditional rule on hearsay, the fact that the statement was admissible does not necessarily mean that the judge must always admit it. During a trial, particularly a jury trial, the judge in Belize has basically two opportunities to evaluate and assess the necessity and reliability of the hearsay evidence, and to decide whether it should be left to the jury. The first occasion occurs when the hearsay evidence is introduced, and the judge must decide whether, at that stage, to admit it. In Belize, no statutory provisions exist that limit or qualify the circumstances under which a previous inconsistent statement, or more generally admissible hearsay evidence, can be admitted. Nevertheless, pursuant to s 6(2) of the Belize Constitution, the judge has an overriding (common law) discretion to exclude the statement if its prejudicial effect outweighs its This summary is not intended to be a substitute for the reasons of the Caribbean Court of Justice or to be used in any later consideration of the Court's reasons. probative value or if it is considered by the judge to be unfair to the defendant in the sense of putting him at an unfair disadvantage of depriving him unfairly of the ability to defend himself. [See Morrison J.A. in Vincent Tillett Sr v. The Queen Criminal Appeal No. 21 of 2013, [41].]
If on this first occasion, the judge, exceptionally, is clear in his mind that the hearsay evidence cannot in reason safely ever be held to be reliable, the judge must exclude it and, where the prosecution's case, wholly or substantially rests on that evidence, the judge should stop the trial and direct the jury to acquit the accused. If, however, there is at least a reasonable possibility that eventually, depending on how the trial unfolds, sufficient evidential material will emerge given which the hearsay evidence could in the end safely be held to be reliable, the judge should in principle admit the evidence.
The evidence having been admitted, the second occasion occurs when at the close of the prosecution's case when a no case submission is made, and the judge must decide whether to uphold that submission. So far as the power to stop the case upon a no case submission is concerned, the second limb of the Galbraith [1981] 2 ALL E.R. 1060 test allows the judge great room to achieve procedural fairness and to safeguard a sufficient level of verdict accuracy. At this stage the test is whether the evidence thus far produced could safely be held to be reliable. This is what in the Canadian terminology [See R v. B (KG) [1993] 1 S.C.R. 740] could be called the “threshold reliability” (although it is there applied to the admissibility issue). If that test is met, the judge will leave the evidence for the jury, after having given them the necessary directions, to consider its “ultimate reliability.” If it is not met, the judge should conclude that the evidence is inherently so weak that the jury, even if properly directed, could not properly or reasonably convict upon it, in which case the judge will uphold the submission and direct the jury to acquit the accused.
When deciding whether the hearsay evidence can safely be held to be reliable, the judge must ask himself if the jury has sufficient tools to test and assess the hearsay evidence. That requirement can be established “by showing that there are adequate substitutes for testing the evidence which provide a satisfactory basis for the trier of fact to rationally evaluate the truth and accuracy of the hearsay statement” (“procedural reliability”). This can also, although it would seem to a lesser extent, be established when there are sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy (“substantive reliability”). Whether this is the case may depend on the circumstances in which the statement was made and on evidence (if any) that corroborates or conflicts with the statement. [ R v. Bradshaw [2017] 1 SCR 865, R v. Khelawon [2006] 2 S.C.R. 787] Another factor may be whether or not the maker of the statement had any reason to misrepresent the matter stated or whether the statement was made spontaneously, or against his or her own...
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