Andrew Milton Appellant v The Queen Respondent
| Jurisdiction | British Virgin Islands |
| Judge | Baptiste JA |
| Judgment Date | 12 November 2012 |
| Neutral Citation | VG 2012 CA 14,[2012] ECSC J1112-1 |
| Court | Court of Appeal (British Virgin Islands) |
| Docket Number | HCRAP 2009/006 |
| Date | 12 November 2012 |
IN THE COURT OF APPEAL
EASTERN CARIBBEAN SUPREME COURT
The Hon. Mr. Davidson Kelvin Baptiste Justice of Appeal
The Hon. Mr. Don Mitchell Justice of Appeal [Ag.]
The Hon. Mr. Justice Mario Michel Justice of Appeal [Ag.]
HCRAP 2009/006
HCRAP 2009/007
Mr. Patrick Thompson for the Appellants
Ms. Tiffany Scatliffe, Principal Crown Counsel and
Mr. Valston Graham, Senior Crown Counsel for the Respondent
Criminal appeal - Murder - Conspiracy to commit murder - Identification evidence - Accomplice warning - Whether trial judge's misdirection to the jury can result in trial being unfair and the conviction rendered unsafe and unsatisfactory
Andrew Milton and Dennis Campbell were tried and convicted of the murder of Dorcas Rhule and conspiracy to murder Keriann Ebanks. The prosecution's case was that Milton, upon his visit to Tortola, devised a plan to kill Keriann, his sister, as he held her responsible for the incarceration of both his uncle and his brother. At around that time, Campbell visited Tortola. Hubert "Ottis" McLeod, accompanied by Marlon Bailey, drove Milton to the airport to collect Campbell. On the journey back from the airport, Campbell was briefed of his plan and was invited to kill Keriann. Campbell, though initially opposed to the idea, changed his position after Keriann threatened to report both Milton and himself to the authorities for working illegally in Tortola. Dorcas, Keriann's roommate had to be killed to prevent any eyewitness to the murder.
The prosecution's prime witnesses were Keriann, Shawana Kay Wilson (Milton's girlfriend) and McLeod, an accomplice. The prosecution led evidence to the effect that on 3 rd October 2006 Shawana overheard a conversation between the appellants detailing their plan to kill Keriann and harm Dorcas. Later, the appellants and Marlon equipped with duct tape, glove and a black firearm set out for Keriann's house in a vehicle driven by McLeod. On arriving at the house, the appellants did not meet Keriann but Dorcas was at home. When Keriann arrived home she saw Dorcas alone on the balcony. When she entered the house Milton was there and he pointed a gun at her. At the same time someone rushed past Milton. She pivoted and ran to a neighbour's house. Dorcas was strangled, rendering her unconscious or dead, before being thrown from a balcony four storeys down to the ground.
Some of the evidence the prosecution relied on included but was not limited to evidence given by Shawana which told of the plan devised by the appellants to kill both Keriann and Dorcas, the identification evidence by Keriann of Milton and evidence given by McLeod who recounted the events of 3 rd October 2006 which involved his participation both before and after the incident.
Both Milton and Campbell elected not to give evidence. They were interviewed by the police and those statements were admitted into evidence. Milton told the police that he went to Keriann's apartment with Marlon on the day in question. He denied throwing Dorcas off the balcony and trying to murder Keriann. He said when he saw Keriann he went up to her and she started screaming murder and ran away. He then left the apartment and was going down the stairs when he saw Dorcas fall from the apartment. At trial, Milton brought a Dr. June Samuel to testify on his behalf who indicated that Shawana was diagnosed with psychosis.
Campbell's defence was one of alibi. He stated that he was not on the scene when the crime was committed but was under a tree for several hours awaiting the return of Milton.
The jury accepted the prosecution's case and found the appellants guilty of the murder of Dorcas and guilty of conspiracy to murder Keriann. The trial judge sentenced them both to life imprisonment for the murder of Dorcas with eligibility for parole after 35 years and 10 years imprisonment for conspiracy to murder Keriann to run concurrently with the sentence for murder. They appealed the conviction on various grounds which included that the trial judge had various misdirections and inadequate directions in (1) dealing with the evidence of an accomplice (2) dealing with identification evidence of Campbell (2) giving a Lucas direction when none was required (3) directing the jury on how to treat the DNA evidence (4) failure to give an unreliability warning pertaining to Shawana and McLeod. They appealed the sentence alleging that the trial judge imposed a sentence that was too severe in all the circumstances.
Held: dismissing the appellants' appeal against conviction and sentence and affirming the appellants' conviction and sentence, that:
1. The trial judge effectively indicated to the jury the factors which might indicate that McLeod may have had an improper motive which could have tainted his evidence and the risk and danger in acting on his evidence. The learned trial judge warned the jury of the danger of convicting the appellants on McLeod's evidence unless it was corroborated and informed the jury of the reasons for that. The trial judge clearly brought home to the jury that McLeod's evidence may be unreliable, the matters that may cause it to be unreliable and the need for caution in determining whether to accept the evidence.
Section 146 of the Evidence Act, 2006 applied; R v Makanjuola [1995] 1 WLR 1348 applied.
2. Given Shawana's medical diagnosis of psychosis, the trial judge ought to have warned the jury that her evidence may be unreliable, the matters which may make it unreliable and the need for caution in determining whether to accept her evidence and the weight to be given to it. However, failure to give such a warning does not inexorably lead to the conclusion that a resulting conviction is unsafe. The evidence presented by the prosecution was of a formidable nature. Shawana's evidence was supported in material particulars by the equally powerful evidence of Keriann and McLeod, whose evidence related to the formation of the plan to kill, the reasons for the plan and the execution of the plan. In the circumstances, the trial judge's failure to give an unreliability warning with respect to Shawana's evidence does not render the conviction unsafe.
Section 146 of the Evidence Act, 2006 applied.
3. Although, the learned judge should have made the jury aware of the inherent limitations of the DNA evidence and should have given them a sufficient explanation to enable a proper evaluation of that evidence, the circumstances of the case must be assessed. The significance of DNA evidence depends to a large extent on the other evidence in the case. In the present case, the DNA evidence did not stand alone. The prosecution relied on other strong evidence which linked the appellants with the crimes. In view of the strength of the prosecution's case a jury properly directed would inevitably have convicted the appellants.
4. Where there is a risk that a jury may use the rejection of an alibi as confirmatory of guilt then the Lucas direction should be given. Consequently, the trial judge cannot be faulted for giving such a direction.
R v Sean Gary Burge and R v David Graham Reginald Pegg [1996] 1 Cr App R 163 applied.
5. The learned trial judge erred in directing the jury on identification evidence in respect of Campbell as no eyewitness identified him at the scene of murder. Notwithstanding, there was other evidence against Campbell from which the jury could have properly rejected his alibi and which led to the strong inference that he was present at the scene of the crime. Given the formidable nature of the evidence against Campbell it cannot be said that his conviction was unsafe or unsatisfactory. In the circumstances of the case, Campbell was not deprived of a fair trial. A jury properly directed would have inevitably convicted Campbell.
6. A trial judge ought to consider all the material facts before concluding that a very lengthy finite term will not be a sufficiently severe penalty. Full regard must be had to the features of the individual case so that the sentence truly reflects the seriousness of the particular offence. The trial judge considered all the salient facts before determining a sentence and imposed a sentence that reflected the seriousness of the crime paying due regard to the aggravating factors. It therefore cannot be said that the sentence imposed was too severe in all the circumstances.
On 5 th October 2009, Andrew Milton and Dennis Campbell ("the appellants") were convicted of the murder of Dorcas Rhule and conspiracy to murder Keriann Ebanks. They were each sentenced to life imprisonment for the murder of Dorcas with eligibility for parole after 35 years and 10 years imprisonment for conspiracy to murder Keriann to run concurrently with the sentence for murder. The appellants have appealed their conviction and sentence alleging misdirections and inadequate directions on the part of the trial judge and complaining that the sentence is too severe.
Keriann and Dorcas were roommates. They lived at East End Tortola. Milton is Keriann's brother. Milton, who lived in Jamaica, visited Keriann in Tortola and resided with her for some time. Milton and Keriann paid a visit to Her Majesty's Prison in Tortola where their brother and uncle were incarcerated. This visit triggered the events which eventually led to the appellants' conviction. On the prosecution's case Milton devised the plan to kill Keriann because he held her responsible for the incarceration of their uncle and brother. Dorcas had to be killed to prevent any eyewitness to the murder. Milton enlisted the support of his friend Campbell, from Jamaica. Hubert "Ottis" McLeod, accompanied by Marlon Bailey, drove Milton to the airport to collect Campbell. During the journey from the airport...
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