Attorney General Appellant v Michael Spicer Alexander Benedetto Respondent
| Jurisdiction | British Virgin Islands |
| Judge | Singh JA,Justice of Appeal,Chief Justice,Satrohan Singh,Dennis Byron,Albert Redhead |
| Judgment Date | 19 November 2001 |
| Judgment citation (vLex) | [2001] ECSC J1119-1 |
| Court | Court of Appeal (British Virgin Islands) |
| Docket Number | CRIMINAL APPEAL NO. 6 OF 2001 |
| Date | 19 November 2001 |
IN THE COURT OF APPEAL
The Hon. Sir Dennis Byron Chief Justice
The Hon. Mr. Satrohan Singh Justice of Appeal
The Hon. Mr. Albert Redhead Justice of Appeal
CRIMINAL APPEAL NO. 6 OF 2001
CRIMINAL APPEAL NO. 10 OF 2001
Mr. Terrence Williams, Senior Crown Counsel, Mr. David Abednego, Crown Counsel, with him for the Attorney General And THE QUEEN.
Mr. Sydney Bennett with Miss Michelle Matthew for Michael Spicer.
Mr Paul Dennis with Miss Nicole Mc David for Alexander Benedetto.
Mr. Edward Fitzgerald Q.C. of the British Bar for William Labrador,
Mr Hayden St. Clair Douglas and Mr. Terrence Neale with him.
On January 14, 2000, Lois McMillen [the deceased] lost her life. On September 27, 2000, Labrador, Spicer, Benedetto and George were indicted for the Murder of the said Lois McMillen. They went on trial before Benjamin J.
On May 3, 2001, Benjamin J at the trial of accused Labrador, Spicer, Benedetto and George, upheld a submission of no case to answer in favour of Spicer, Benedetto and George and he set them free. The learned judge overruled a similar submission made on behalf of Labrador and his case went to the jury.
On May 10 th 2001, the said jury of nine convicted William Labrador of the offence of the Murder of Lois McMillen. On that day Benjamin J sentenced him to imprisonment for life.
The case for the prosecution appeared to be, that on the night of January 14, 2000, Labrador, Spicer, Benedetto and George had a rendezvous with Lois McMillen, whom they all knew before, and with whom they were familiar. They kept the rendezvous. Something happened and Lois McMillen lost her life. She first had to flee her motor vehicle, and then she was violently drowned in the Sir Francis Drake Channel in the West End of Tortola. She was cut with a knife, beaten, and then drowned.
The case for the prosecution was based on circumstantial evidence and certain alleged confessions from Labrador and Benedetto. The defence of Labrador was a denial of the crime
The Attorney General has appealed from the decision of Benjamin J to free Spicer and Benedetto on the no case submission, and Labrador has appealed from his conviction. Because these appeals are embryonic of the same incident and of the same trial, in an effort at the avoidance of the obvious prolixity that will be necessitated in order to deal with all the issues raised, I will write a consolidated judgment.
I will first address the appeal of Labrador against his conviction.
The issues that arose for our determination of Labrador's appeal were concerned with: [ 1] Insufficiency and unreliability of the prosecution evidence. [2] Prosecutorial misconduct [3] Errors of the judge in his summing up. [4] Errors of the Judge in his handling of the jury's deliberations and verdict. [5] Non disclosure and [6] Additional evidence. I propose now to address the first issue.
Queen's Counsel Mr. Fitzgerald, addressing the issue of insufficiency and unreliability, submitted that Benjamin J wrongly rejected the appellant's submission of no case to answer. Further or in the alternative, he submitted, that the verdict of guilty reached at the end of the whole trial was unsafe and unsatisfactory.
Learned Counsel's submissions were premised on the fact, that the star witness Jeffrey Plante, was a " con man" with numerous convictions for dishonesty, that he had an interest to serve, in terms of obtaining preferential treatment in exchange for his evidence against the appellant, and, that in Hawaii, he was engaged in a similar exercise as this one when a person sharing a cell with him allegedly confessed to him. Counsel also submitted that there was no forensic or other evidence to link Labrador with the crime.
The proper and accepted judicial approach to a submission of no case to answer has been crystallized as follows: (1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case. (2) The difficulty arises where there is some evidence but it is of tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence. (a) Where the judge comes to the conclusion that the Crown's evidence taken at its highest, is such that a jury properly directed could not properly convict on it, it is his duty, on a submission being made, to stop the case. (b) Where however the Crown's evidence is such, that its strength or weakness depends on the view to be taken of a witness's reliability, or other matters which are generally speaking within the province of the jury, and, where on one possible view of the facts there is evidence on which a jury could properly come to a conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury …"A trial judge should not direct an acquittal if he formed the view that a conviction by the jury would be unsafe or unsatisfactory. Such a submission should not be upheld, because, the judge who considered the prosecution evidence as unworthy of credit, wanted to make sure that the jury did not have an opportunity to give effect to a different opinion. Following this practice the Judge could be doing something which was not his job. [ R -v- Galbraith [1981] 2 All ER 1060: See also ( Daley -v- R. 1994 JA C11 and Taibo -v- R [1996] 48 WIR 7.]
A case should not be withdrawn from the jury because the judge considered the witness to be lying. That is a function for the jury to perform. However, the submission is good, if the evidence, even if taken to be honest, has a base which is so slender that it is unreliable and therefore not sufficient to form a conviction R. -v- Turnbull [1977] Q.B 224. Even though the judge may be of the opinion, that the evidence of the prosecution was thin, or perhaps very thin, and that there were serious but not fatal weaknesses in the case, he ought to leave it to the jury, if he felt that if the evidence of certain witnesses were to be accepted by the jury as being truthful and reliable, there would be material on which a jury could without irrationality be satisfied of guilt. [ Taibo -v- R. [1996] 48 WIR 74.] Taibo also suggested that in a case where the prosecution evidence is weak and confusing, the essential task of the judge was to scrutinize the evidence with some care for the benefit of the jury during his summing up.
In The State -v- Alvin Mitchell [1984] 39 WIR 185Chancellor Massiah of Guyana at p190 said:
"A distillation of the principles stated in those authorities, stripped of whatever philosophical or esoteric content some may conceive them to possess, yields the following. A trial judge ought to send the case to the jury where in his opinion there is sufficient evidence upon which a reasonable jury, properly directed, might convict. I emphasize on the word "might" and on its subjective character. The trial judge ought, on the other hand, to withdraw the case, if the evidence is so unsatisfactory or unsound (established through cross-examination or otherwise) that no reasonable jury could convict on it, or the evidence even if all is believed is so weak, tenuous or insufficient, that it cannot yield a lawful conviction."
It is common ground that the Crown's case against Labrador, stood or fell on the reliability of the witness Plante. It was also an accepted fact that he was a confidence trickster, a person with numerous convictions for dishonesty, a man who was married ten times, and a person who might have had an interest to serve. He was also one, who allegedly did on Labrador, a repeat performance of what he did to another cell mate in Hawaii some 6 years ago.
I would accept, that these "degrees" behind Plante's name, would prima facie alert a tryer of fact to approach his evidence with extreme caution. However, I do not agree that such credibility disqualifications without more, would be enough to satisfy a no case submission.
A notorious criminal, or even a "pathological liar", as Mr. Fitzgerald described Plante, could still at times be truthful. It is therefore necessary to scrutinize his evidence in order to determine its character, its alleged weaknesses, vagueness or inconsistencies, in order to determine this issue, always remembering, that credibility was for the jury.
Jeffrey Plante, a U.S. citizen, and a well documented criminal, testified as to a confession made to him by Labrador whilst they were both in the prison cell in Tortola.
This is what Plante said:-
"About two days or two days anyway before Good Friday, we were both Roman Catholics, Mr. Labrador had kind of left the religion and was trying to get back in. And I had a lot of Catholic Bibles and prayer books and I was doing some Lenten praying in the evening, and Mr. Labrador asked me did I think God would forgive him if he had anything to do with killing someone. And I told him that I was uncomfortable with that and he ought to talk to Father Peters who was the priest there in Road Town with Saint Williams Church. At that point, I asked him directly did he have anything to do with killing Lois McMillen and he answered me yes. And I asked him why. And he said that it was over money and that she was no good. And I asked him how, how did it happen. And he said that they were driving from West End and they were arguing, the argument got heated and she tried to pull into the Police Station and he prevented that and that one thing led to another, it got out of control and that he dragged her into the water and...
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