R v EF

• Jurisdiction: Caribbean States
• Judge: ‘Morley J’
• Judgment Date: 12 February 2024
• Judgment citation (vLex): [2024] ECSC J0212-5
• Docket Number: CASE SKNHCR 2023/0061
• Court: Eastern Caribbean Supreme Court
• Year: 2024

Rex

and

EF

CASE SKNHCR 2023/0061

IN THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

APPEARANCES

Ms Azuree Liburd and Ms Shantrice Dorsett, assisted by Mr Teshaun Vasquez, for the Crown.

Mr Craig Tuckett for the defendant.

RULING

On admissibility of identification by cctv and purported admission

‘Morley J’

1 EF aged 49 said also known as D 1, is being tried for burglary, called on St Kitts housebreaking and larceny contrary to s28(a) Larceny Act Cap 4.16, of domestic premises at White House Gardens on 12.04.20, stealing goods to the value of $9770.64ec. There has been much argument on the admissibility of evidence, lasting three days 06-08.02.24, in what has been a poorly prepared case. This is my ruling on the defence application the relevant evidence should not be admitted.

2 During the early days of covid lockdown, cctv at the home premises of Shaiela Wilkinson on the night captured an African-Caribbean male with black headcover and what resembles

a covid mask tampering with the camera. A colour still shows about one-third of the face, from just above the eyebrows to over the nose cartilage. A one-inch span of forehead, eyebrows, brown eyes, nosebridge, a lock of hair to the left side, and left side of face and ear, with left sideburn becoming a beard are visible; the mouth, chin, neck, shape of beard, full forehead, hairline, and headhair are not. The general body size and shape of the burglar were also apparent on screen

• a. The cctv was circulated on social media and someone identified EF to Wilkinson, whom she reported, and he was arrested on 14.04.20.

• b. By a statement dated 20.04.21, OIC Anita Norford purported to record an admission by EF on 01.05.20: ‘I'm not going to give a statement, a guilty.’

• c. The defence application is neither the admission nor cctv should be admitted before the jury.

3 The case has been pre-trial before the court on six occasions: 30.11, 08, 15, 22.12.23, 19.01 and 05.02.24, with the identification evidence discussed as problematic during the last four. A jury was then sworn on 06.02.24, though sent away pending outcome of legal argument.

4 In his background, EF has previous convictions of weight, notably:

• a. In 1995, 30 months prison for burglary; and

• b. In 1999, concurrently, for unlawful carnal knowledge 20 years, wounding with intent 1 year, rape 15 years, and inflicting grievous bodily harm 15 years.

5 As the case evolved before the High Court, it was apparent there were identification challenges which ought to have been spotted long ago.

• a. On 15.12.23, the Crown realized they did not have the cctv to exhibit, and of course which needed to be disclosed on dvd.

• b. On 22.12.23, the cctv was reviewed by the court, with the extent of the masking now clear, begging how would evidence be offered to show the burglar was EF.

• c. On 19.01.24, the Crown had hoped to put forward OIC Norford to say she could positively identify EF from the cctv, having been told by Wilkinson being informed by a non-witness it was him, being hearsay, which as part of case management had then been discussed would not be allowed as leading Norford to make the identification of a person she had already been told was on the cctv.

• d. On 05.02.24, the Crown suggested they would try to find an officer who knows EF well, coincidentally and without notice to view the cctv and see if recognition might arise, though this begged how will it be established if the officer knew EF without tipping off who it was desired identified, leading to the court deciding to list the case next day for trial, knowing there was no admissible identification evidence, despite the case originating almost four years earlier.

• e. On 06.02.24, after the jury sworn, the Crown was emphatic there was no other evidence than the cctv, and so:

  • i. the Crown asked to put into evidence two police mugshots of EF from 2016 and 2017, for comparison with a still from the cctv, where in the mugshots he then had a beard, though had no photos from when arrested on 14.04.20, nor anyone to attest to when the mugshots were taken, or where, or technically of who, which would be late evidence in any event as the jury was sworn that day and the evidence only then being offered, yet neither provenanced nor the subject of formal notice, while there was no thought as to how mugshots may prejudice the jury as to previous offending, so the photos were ruled not allowed on 07.02.24; and

  • ii. the Crown argued in any event it would suffice to ask the jury to look from the cctv and still to EF 25ft away in the dock, from their different seats, and make a comparison of his unmasked unbearded face, thereby to create their own dock identification, about which the court expressed unease.

• f. Also further on 07.02.24, midway through more argument on dock identification, one of the three crown counsel realized there appeared to be an admission on p16 of the bundle, as above, not seen before, despite trial preparation by three and a jury sworn, so the Crown case shifted to being he admitted the offence and the cctv looks like him, meaning there was mutually supportive evidence of cctv and an admission, so the case was no longer an invitation to convict on sureness of dock identification alone.

6 At this point, the court became embroiled in the admission and OIC Norford was called on 07.02.24 on a voir dire as to its reliability under s84 Evidence Act Cap 3.12.

• a. In her statement of 20.04.21, she had typed:

  On 12 April 2020, I visited White House Gardens where …the complainant wrote her own statement and handed it to me. One suspect EF was named. On 14 April 2020, I saw and spoke with EF…From the looks of him I identified him to be the same person that was on the video surveillance…On 1/5/220 EF was taken into police custody….I told him I was making inquiries into a report that was made…by Sheila Wilkinson where she alleged that you were seen on her premises and her house was broken into. I cautioned him and told him of his rights to have his lawyer, a friend or a family member present before he say anything. He replied ‘Officer, this is the first time that any police ever tell me what you telling me. I am not going to give you any statement, a guilty. Me aint even know how to get down there. I did not meditate’. He was then placed back in this cell. I later charged him for another offence. I continued my investigation and he was bailed. On 1 ^st May 2020 I took the accused into police custody…I told him I was making investigation into a report …he broke into Wilkinson's house. I cautioned him and told him of his right to have his lawyer, a friend or family member present before he said anything…He replied, ‘I have nothing to say to you, talk to my sister or my lawyer…’ Later that same day, I arrested and formally charged and cautioned the accused on a warrant on the first instance for the present charge.

• b. Counsel Tuckett admitted EF had said ‘I'm not going to give you any statement a guilty’, emphasizing there was no comma, meaning the sentence was a denial, not an admission, which the officer had reversed by putting in the comma, thereby mischievously isolating the expression ‘a guilty’ from the earlier clause.

• c. In evidence on 07.02.24, OIC Norford said:

  • i. In chief, the admission was on 14.04.20, changing the date from 01.05.20, and the ‘other’ charge was breaching covid curfew;

  • ii. Under cross-examination, being an officer since 1996, she agreed the conversation had become an interview, though not audio recorded, while alone, not following usual procedures, she had stopped it when she realized he was talking without a lawyer, at the time he was angry and stubborn as a mule, he ‘hates’ her, the meaning of the admission had not been reversed by her inserting a comma, as he had meant to make an admission, and she could be trusted as to her word, though EF had not been asked to sign any note; and

  • iii. To the judge —

    • 1. She denied talking to Counsel Dorsett earlier in the morning about the admission, (which Counsel Dorsett had reported to the court had occurred);

    • 2. She reversed the dates again, so the admission was on 01.05.20;

    • 3. The meeting on 14.04.20 was just her identifying EF from the cctv;

    • 4. She had made notes of the admission in a notebook still at the station;

    • 5. The admission had arisen while talking about breaching curfew;

    • 6. The breach of curfew was said to him by being at the burgled premises;

    • 7. The effect of 5 and 6, to the mind of OIC Norford, had therefore been he was saying he was guilty of being in breach of the curfew by being on the burgled premises, meaning he was admitting to be being the burglar;

    • 8. She agreed in her statement she had not mentioned anything about curfew breach; and

    • 9. When typing the seeming interview in the statement on 20.04.21 she had just typed how she ‘remembered in my mind how he was talking’.

• d. Two pages of handwritten notes by OIC Norford from a 2020 diary were then later during 07.02.24 produced as pictures on email, showing:

  • i. On the page with 09.04.20 in the top left, at the bottom in blue ink, ‘Friday 1 ^st May 2020, D EF was taken into custody, he stated that he has nothing to say, he’; and

  • ii. On the next page with 13.04.20 in the top left, in the top left in black ink, ‘On 1/ 5/2020, D tell me he guilty, don't know how he get down there, didn't meditate. D.’

• e. On 08.02.24, expecting further information on the voir dire from OIC Norford as to when the notes were written, she was absent from court, having reported illness to Counsel Liburd and she was going to the doctor, which led to Counsel Liburd, with court encouragement, sending texts to Norford asking on what date were the notes made, to which she texted ‘can't say’, and then asked what period of time passed between the conversation and the notes being written, she texted ‘not the same day’, but...