Allen Baptiste Yan Edwards v The Commissioner of Police the Director of Public Prosecutions
| Jurisdiction | British Virgin Islands |
| Judge | Floyd J |
| Judgment Date | 11 January 2021 |
| Judgment citation (vLex) | [2021] ECSC J0111-2 |
| Docket Number | CRIMINAL CASE NO. 40 of 2011 BVICV2020/0231 |
| Court | High Court (British Virgin Islands) |
| Date | 11 January 2021 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
CRIMINAL CASE NO. 40 of 2011
BVIHCV2020/0220
BVICV2020/0231
Mr. Patrick Thompson for the Applicant, Allen Baptiste
Mr. Sherfield P. Bowen for the Applicant, Yan Edwards
Mr. O'Neil St. A. Simpson, Principal Crown Counsel, for the Respondents
This is an application for bail brought for the first time by the Applicants, despite having been incarcerated for several years. The Applicant, Allen Baptiste, has been in custody on this charge since April 4, 2011 and the Applicant, Yan Edwards, has been in custody on this charge since March 17, 2011. That length of time is a factor for consideration.
The Applicants are charged with the murder of Keri Harrigan, which occurred on March 16, 2011. Mr. Harrigan was shot four times and died of his wounds. The charge of murder is of the utmost gravity. The use of a firearm in the commission of the offence serves only to increase the very serious nature of the allegations.
The case has had a long and tortured existence. Following their arrests, the Applicants began a trial in 2012 which was aborted. A second trial led to their conviction in February, 2013. That conviction was eventually appealed successfully in January, 2018. A third trial began in November, 2020 but was not completed, due to a mid trial ruling relating to a request for the disclosure of information pertaining to Crown witnesses involved in the Justice Protection Act program. Counsel for the prosecution appealed the ruling of the trial judge and the trial itself was therefore suspended before its completion. Following that development, this bail application was brought.
The current state of the case for the prosecution is somewhat difficult to confirm, having gone through three trials. It is essentially a circumstantial case. Justice of Appeal Thom reviewed the evidence from the trial in 2013 and concluded that “the evidence against the appellants although it was not exceptionally good was not tenuous.” Baptiste and Edwards v The Queen [2018] ECSC J0130-2 at para. 54. Learned Counsel for the Respondents readily admitted the appellate court's view of the evidence.
The Crown's case revolved around several witnesses who were friends with the Applicants. Allen Baptiste, Yan Edwards, Vaughan Cameron, Henito Penn, Keithroy Joseph, Deshon Richards, Allen Wheatly and Keri Harrigan were all known to each other. The general facts are as follows:
Edwards told Cameron and Baptiste that he was displeased with Harrigan. Edwards spoke of a package containing masks and other items that would allow him to deal with Harrigan. Baptiste agreed to assist with that. Later, at Wheatley's residence, Edwards, Baptiste, Penn and Cameron were present when a box was opened which contained a number of items, including several pounds of marijuana, three guns and some ammunition. Edwards was said to have waived one of the guns about and say he was going to give Harrigan “some of this.” Edwards took one gun and Penn took the other two guns. Penn hid the guns but apparently later could not locate them. Penn said that the plan to import the marijuana, guns and ammunition was his and Edwards'.
The next day, Cameron received a phone call from Edwards, whose voice he recognized. Edwards asked if he had seen “the girl” (an apparent reference to Harrigan). Minutes later, Cameron saw a vehicle belonging to Edwards' girlfriend pass by, being driven by Edwards and also containing Baptiste as the front passenger. Cameron then used Richards' phone to call Edwards. Cameron recognised Baptiste as the one who answered his call. Baptiste said they had seen “the girl” and if he heard shots, to stay put. Richards said he had earlier given his phone to Cameron. Cameron then heard three shots. He saw Harrigan down and covered in blood. Penn, who was elsewhere, also heard three shots. Penn said he saw a person dressed in black and wearing a black and white mask in the area both before and after the shots were fired. He could not identify that person. Joseph, who was with Harrigan, also saw a masked man with a gun in his hand and also heard three shots. He ran when he heard the shots but returned to see Harrigan down and bloodied. He could not identify the gunman. Richards heard the shots, then received a phone call from Edwards, although he had never spoken to him on the phone before.
Police experts identified the phone numbers used in these calls and the people to whom the numbers were associated. Post mortem examination confirmed Mr. Harrigan died from gunshot wounds. Spent cartridges found at the scene were confirmed as having come from the same firearm, although the type of gun could not be confirmed.
That was the extent of the evidence for the prosecution. However, in attempting to determine the strength of the Crown's case for the purpose of considering these bail applications, the court is hampered by the fact of the multiple trials. Learned Counsel for the Applicants advised that, for example, a DNA Report dated September 16, 2011 was disclosed for the first time during the trial in November, 2020. That report apparently confirms male DNA was found on the shell casings but it was not the DNA of either Applicant. The issues of voice identification from the phone calls and the visual identification of the occupants of the vehicle also remain to be considered.
Similarly, some of the evidence by way of witness testimony did not unfold as expected at the last trial and as perhaps it had at earlier trials. Learned Counsel, Mr. Thompson for the Applicant, Baptiste, described the Crown witnesses, Richards and Wheatley as either hostile or reluctant and the remaining witnesses, Penn and Cameron, as unpredictable. There are now gaps and inconsistencies with some of the evidence from Richards and Wheatley. Learned Counsel, Mr. Bowen, for the Applicant, Edwards, maintained this position, arguing that the changed evidence of Richards and Wheatley significantly and negatively impacted the anticipated evidence of the remaining Crown witnesses, especially Cameron. However, at this stage, we do not know how the remaining evidence for the Crown will unfold. It is for these reasons that assessing the strength of the Crown's case remains a difficult task. That is always the danger when a case endures multiple trials and take years to prosecute. Suffice to say that the case for the prosecution has not improved and quite likely has deteriorated since Thom JA made her observations in 2018.
Mr. Thompson, for the Applicant, Baptiste, submitted that his client was not a flight risk and that there was no evidence that he would interfere with any witnesses nor with public order. An affidavit of Allen Baptiste was provided. It indicated that he was a BVI Belonger, had a home in Tortola and had employment as a painter prior to his incarceration. His children and their mother had relocated to the United Kingdom and to the United States of America. There is no desire to join them but rather to simply communicate with them successfully. They are not a family unit and communication is difficult from prison.
Mr. Thompson submitted that the case for the Crown was not a strong one. Assertions in the police affidavit relating to the state of the evidence and the Applicant being a flight risk were disputed. Difficulties with the evidence over time, a lack of physical evidence, a lack of forensic evidence, including DNA evidence, and questionable identification evidence, was pointed out. Unsubstantiated claims by the prosecution of flight risk and interference with witnesses were referred to. The affidavit of the Applicant, Baptiste, readily admitted that he had generated a criminal record while incarcerated. A sentence of 12–18 months was imposed upon guilty pleas to charges of criminal damage and threatening language. The court was advised that Mr. Baptiste had friends and relatives willing to act as sureties, one of whom was a customs officer who owns real property.
Mr. Thompson asserted that the delay in dealing with this case was entirely attributable to the Crown. There was systemic delay relating to the overall prosecution of the charge and to the appellate stage. A lengthy delay was experienced in the production of transcripts for the appeal, a change in Crown Counsel assigned to the case delayed the prosecution, the impact of natural disasters such as Hurricane Irma and the COVID-19 pandemic, all delayed this case. In the face of such delay, Mr. Baptiste suffered extreme prejudice by remaining in custody. That prejudice was amplified by the fact that there was no recognized timeline for the hearing of the appeal and, therefore, for the continuation of the trial. Mr. Thompson went further and submitted that the delay in the prosecution of this case, which was likely to continue well into the future, was manifestly unjust, and would result, in his opinion, in an eventual permanent stay of the case as an abuse of process. To support that position, Mr. Thompson relied upon the case of Charles, Carter and Carter v. The State (1999) 54 WIR 455, a decision of the Privy Council. Although the court at paragraph 18 of that decision recognised that “it would be wrong to apply conditions and practices in England in this matter to cases in Trinidad and Tobago,” it went on to confirm at paragraph 20 that the complaint involved not only the ground of delay but a third trial following an inconclusive jury verdict and a quashed conviction. Parallels were therefore drawn with this case.
Mr. Bowen for the Applicant, Yan Edwards, focused much of his argument on the...
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