[1] Lorne Parsons [2] Clinton Hamm [3] Selenna Varlack Appellants v The Queen Respondent
| Jurisdiction | British Virgin Islands |
| Judge | BARROW, J.A.,Justice of Appeal,Chief Justice [Ag.],Denys Barrow, SC,Brian Alleyne, SC,Hugh A. Rawlins |
| Judgment Date | 13 February 2007 |
| Judgment citation (vLex) | [2007] ECSC J0213-1 |
| Docket Number | CRIMINAL APPEALS NOS. 2, 3 & 4 OF 2006 |
| Court | Court of Appeal (British Virgin Islands) |
| Date | 13 February 2007 |
IN THE COURT OF APPEAL
The Hon. Mr. Brian Alleyne, SC Chief Justice [Ag.]
The Hon. Mr. Denys Barrow, SC Justice of Appeal
The Hon. Mr. Hugh A. Rawlins Justice of Appeal
CRIMINAL APPEALS NOS. 2, 3 & 4 OF 2006
Dr. Henry Browne and Ms. Benedicta Samuels Richardson for the Appellant Parsons
Mr. Hayden St. Clair Douglas and Mr. Kevon Swan for the appellant Hamm
Mr. Richard Rowe and Ms. Anthea Smith for the appellant Varlack
The Director of Public Prosecutions, Mr. Terrence Williams, and Ms. Tiffany Scatliffe for the Crown
On Monday 30 th August 2004, around 7:30 in the morning, the lifeless body of Tristan Todman Industrious was found in his motor vehicle on a turn-off from an isolated, unpaved, dead-end mountain road on Nottingham Estate near East End. The deceased had been shot seven times. His body was "hanging" from the open right front or passenger door. Empty shells were found in close proximity to the car and in different locations inside the car. When the investigating police officer checked the key was in the ignition in the on position and the engine of the car was warm.
Selenna Varlack, with whom the deceased had ceased cohabiting less than two weeks before, was the last person to report seeing him alive. She said he had left her home, from which the road leading to the murder location could be seen, about 11:30 on the night of Sunday 29 th August. The prosecution relied on a neighbour's testimony to say the deceased left Varlack's home around10:00 that night.
On Saturday, 4 th September 2004, shortly after midnight, a party of police officers who had seen a boat coming in from sea caught up with the boat being towed on a trailer by a jeep. Mario Pemberton was driving the jeep and Lorne Parsons sat in the passenger seat. An illegal entrant was found hiding in the boat. The jeep was registered in the name of Parsons' mother and the boat belonged to Parsons. The police searched the jeep and found an Uzi semi-automatic 9 mm pistol under the passenger seat on which Parsons had been sitting. The police took the three men and the jeep and boat to the police station and on a further search found a 9mm Kel-tec pistol in the captain's seat of the boat. Cellular telephones were taken from each of the three men. An expert witness testified that the Uzi was the weapon used to kill the deceased.
Parsons testified at the trial and denied any knowledge of the Uzi or the other firearm. He denied being on the scene of the homicide and any involvement or knowledge of the occurrence.
On the Sunday night, the 29 th August, a man who lived on the road beyond the turn-off on which the car and body were found saw a green Toyota Tercel or Corolla motorcar on the road when he was going home. The car was stationary with its hood up. The man testified he thought someone was in need of assistance and so he slowed and looked with a view to rendering assistance but he saw no one in or around the car. So he went along. The time was about 11:30 p.m.
The police contacted all owners of green Toyota Tercel and Corolla motorcars in Tortola and these persons gave evidence at the trial. Each owner, except one, accounted for his or her car that night and testified that his or her car was not on the Nottingham Estate road that night. The exception was the owner of a driving school who owned a green Toyota Tercel that he used in the course of the driving school business. He testified that three persons had the use of that car. Two of them were he and a female driving instructor who worked with him. They both testified that they did not use the car that night. The third person that had the use of the car was Clinton Hamm, who was also a driving instructor. The owner and the female instructor testified that the person who had the car that night was Clinton Hamm.
The owner and the instructor also testified that the car had a problem. It would often overheat and when that happened it would have to be parked with the hood raised and allowed to cool down before water was poured into the radiator.
Although counsel for Hamm tested the reliability of the evidence of the identification of the car in the trial, counsel has not taken issue with that evidence on appeal
When the police questioned Hamm he gave a statement in which he denied that he was in possession of the driving school's car at the material time. He also told the police that on the Sunday night he had been at home, in the company of a friend, working on a car. The friend stated he had not been with Hamm that night. Hamm did not testify at the trial.
The prosecution adduced evidence of telephone calls made and received by the three accused to link them to each other and to the deceased in the days and in the hours before the murder. The prosecution's expert was able to place the general area in which the caller and the person called were located by identifying the location of the telephone relay stations that processed the telephone calls. In a period of some five months before 25 th August 2004 there were sixteen telephone calls between Parsons' mobile or home telephone and Hamm's mobile or home telephone. On 25 th August 2004 there were three calls by Varlack from a neighbour's telephone to Hamm's mobile telephone, and one call from Parsons' home telephone to Varlack's neighbour's telephone. These calls were all within the space of 6 minutes. On the following day there was one call from Parsons' home telephone to Hamm's home telephone.
On 28 th August 2004, in less than an hour beginning at 7:15 in the morning, Varlack called Hamm three times and Hamm called Varlack five times. That evening Hamm called the deceased at the latter's home and later Parsons called Hamm.
On 29 th August 2004, the last day the deceased was seen alive, in the morning Hamm made three calls, two to the work place and the third to the home of the deceased. Varlack called three times to the deceased's home telephone, apparently reaching him once.
That evening, at 8:49 Varlack telephoned from the neighbour's home and spoke with Hamm on his mobile phone. At 9:31 the deceased made his final telephone call: it was to Hamm's mobile. Three minutes later Hamm used his mobile telephone, from an East End location, and spoke with Parsons on his mobile telephone. Five minutes later Hamm again telephoned Parsons on his mobile. Twenty minutes after that call (at 9:58) Varlack, from another neighbour's telephone, called Hamm on his mobile. Hamm was still in the area of East End. Less than a minute after that, Hamm telephoned Parsons, who was in the Road Town area of Tortola, on his mobile. Five minutes later, at 10:04, Hamm telephoned Varlack at the same neighbour's home. The final call that night was at 10:57 when Hamm called the telephone company's balance check number.
The following morning, the morning that the body was discovered, Hamm telephoned for Varlack twice and in the afternoon Varlack telephoned Hamm. On the next day, 31 st August 2004, Hamm and Varlack each telephoned the other a number of times, Parsons and Hamm each telephoned the other a number of times and Parsons telephoned Varlack twice. On 1 st September 2004, after the police interviewed Varlack, Parsons telephoned Hamm twice and Varlack telephoned Hamm twice.
At 4:11:33 and at 4:11:37 in the morning of 2 nd September 2004, after the Uzi firearm was recovered from Parsons' mother's jeep, Varlack telephoned Hamm.
At the conclusion of their investigations the police charged Parsons, Pemberton, Hamm and Varlack with the murder of Tristan Todman Industrious. The police also charged Parsons and Pemberton with possession of the two firearms, the Uzi from under the seat of the jeep and the pistol from the captain's seat of the boat. Pemberton was acquitted on all charges and the other three were convicted of murder. Parsons was also convicted of unlawful possession of the firearms.
At the close of the prosecution's case counsel for each accused made a submission of no case to answer on the murder charge. The trial judge upheld the submission in respect of Pemberton and rejected the submissions in respect of the other three. Each appellant complained that the judge erred in law in rejecting the submissions because the evidence was all circumstantial and was not sufficient to enable a reasonable jury to safely return a verdict of guilty. The law is that if a submission of no case to answer was wrongly rejected, even if later evidence proved the guilt of the accused, the conviction must nonetheless be quashed because the trial is unfair. The unfairness lies in the fact that the accused was entitled, in law, to a verdict of acquittal at the point when the submission was made and the wrongful denial to him of that verdict cannot be cured by subsequent evidence of his guilt: see R v Smith. 1 It is therefore necessary to consider the submission in relation to each appellant.
The submission on behalf of Parsons was essentially that "before the jury could properly convict Parsons they had to be sure that he personally had been present and participated in the attack on the deceased. But there is no evidence of this nor is there any evidence from which such an inference could be drawn." 2 This submission rested upon another submission on behalf of Parsons, which was that the finding of the murder weapon in his mother's jeep in which he was travelling did not equate to possession by him of the murder weapon. Parson's case was that the weapon could have been placed in the vehicle at any time, including when he had gone off in his boat on the trip from which the police saw him returning. He testified that the jeep had...
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