Baptiste and Another v The Queen

• Jurisdiction: British Virgin Islands
• Judge: Thom JA
• Judgment Date: 30 January 2018
• Judgment citation (vLex): [2018] ECSC J0130-2
• Court: Court of Appeal (British Virgin Islands)
• Docket Number: BVIHCRAP2013/0003
• Date: 30 January 2018

EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Before:

The Hon. Mde. Louise Esther Blenman Justice of Appeal

The Hon. Mde. Gertel Thom Justice of Appeal

The Hon. Mr. Douglas Mendes Justice of Appeal [Ag.]

BVIHCRAP2013/0003

Consolidated with BVIHCRAP2013/0004

Between:

Allen Baptiste

Appellant

and

The Queen

Respondent

Yan Edwards

Appellant

and

The Queen

Respondent

Appearances:

Mr. Patrick Thompson for Allen Baptiste

Mr. Andrew Morrison with him, Ms. Ruthilia Maximea for Yan Edwards

Ms. Leslie-Ann Faulkner with her, Mr. Garcia Kirt Kelly for the Respondent in both appeals

High Court criminal appeal - Voice identification evidence - Direction to jury - Judge's failure to give direction pursuant to section 112 of Evidence Act of the Virgin Islands and in keeping with Turnbull guidelines - Whether judge's failure rendered conviction unsafe - Whether retrial should be ordered - Factors to be considered in ordering retrial

The appellants, Allen Baptiste (“Baptiste”) and Yan Edwards (“Edwards”) were convicted of the murder of Keri Harrigan (“Harrigan”) and were sentenced to life imprisonment with no eligibility for parole. They appealed their conviction and sentence on several grounds; the main ground being the judge's failure to give the warning required under section 112 of the Evidence Act of the Virgin Islands in relation to the voice identification evidence adduced by the Crown.

At trial, the Crown's case was based on circumstantial evidence with voice identification evidence at the core. While the witnesses for the Crown testified that they saw the gunman, they could not identify him. The visual identification was that shortly before Harrigan was killed, the appellants were seen driving in the area where he was killed in a maroon jeep which belonged to Edward's girlfriend and which he often drove. Cameron, a Crown witness and friend of the appellants, testified that although the tinted windows of the jeep were wound up, he was able to recognise the appellants as the jeep was being driven at a cruising speed. The visual identification was made during the early evening.

The voice recognition evidence came from very short telephone conversations. In relation to Baptiste, Cameron testified that after telephoning Edwards, he recognised the voice of the person who answered Edward's phone to be Baptiste's voice albeit the words spoken amounted to two short sentences. In relation to Edwards, Richards, a Crown witness who had never spoken to Edwards on the telephone testified that he recognised Edwards' voice from only a single word which was said over the telephone. Cameron had, on several occasions spoken to Edwards on the telephone. The day before Harrigan was killed the evidence was that Cameron spoke to Edwards on the phone. On the day of the incident, the words spoken by which he made the recognition were very brief. There was no evidence of the quality of the cellular transmission of any of the telephone calls.

The appellants submitted that it was incumbent on the learned judge to give a warning in accordance with the Turnbull guidelines and section 112 of the Evidence Act. They contended that the judge was required to direct the jury on the circumstances in which the voice recognition was made. The appellants asserted that the failure to give the requisite warning resulted in the summation being unbalanced and thus rendered the conviction unsafe.

The Crown conceded that the judge gave no direction in relation to voice recognition evidence. However, the Crown submitted that the failure to give the warning was not fatal in view of the other circumstantial evidence and the exceptionally high quality of the visual identification evidence of Cameron. The evidence being of a high quality, the jurors would not have arrived at any other conclusion.

This Court therefore had to determine whether the judge's failure to give a direction in relation to the voice recognition evidence as was required under section 112, rendered the conviction unsafe.

Held: allowing the appeal, quashing the conviction, setting aside the sentence and ordering a retrial of the case:

• 1. Section 112 of the Evidence Act of the Virgin Islands is in the same terms as the Turnbull guidelines and is applicable to both visual and voice identification. The definition of identification evidence in section 2 includes evidence of voice identification. Thus, when voice identification evidence is admitted, the judge is required to direct the jury on voice identification and in so doing the judge must address the factors outlined in the section. In directing the jury, the judge is not required to follow a specific formula. There may be instances where the evidence is such that some of the factors may be irrelevant. The judge's summation must be tailored based on the evidence adduced at the trial.

  Gerald Joseph v The Queen SLUHCRAP2006/0002 (delivered on 15th January 2007, unreported) followed.

• 2. In this case, the prejudicial effect of the voice recognition evidence was no doubt considerable. Having regard to the visual evidence, which cannot be classified as of an exceptionally good quality as was found in Freemantle v R and Karl Shand v R, and the nature and difficulties associated with voice identification evidence as pointed out in the case of R v Flynn and St. John, the omission of the learned judge to give the identification direction pursuant to section 112 invalidated the convictions.

  Freemantle v R [1994] 3 All ER 225 applied; Shand v R [1996] 1 WLR 67 applied; R v Flynn and St. John [2008] EWCA Crim 970 applied.

• 3. In determining whether a retrial should be ordered, the Court is required to make an assessment of how the interest of justice would be best served. In making that determination, the Court must consider both the defendant's interest and the public interest in convicting the guilty and maintaining confidence in the effectiveness of the criminal justice system. In so doing, the Court is required to consider several factors including whether the defendants could get a fair trial, the time that has elapsed since the commission of the offence and the likely time of the retrial, whether key witnesses for the defendants are no longer available, persons guilty of an offence should not escape because of an error in the summation of a judge, the serious nature of the offence, the prevalence of the offence in the society, and the strength of the prosecution's case. While the offence here was committed six years ago, there was no indication the appellants would be unable to get a fair trial or that the defence witnesses are no longer available. It is also notable that the offence is of a very serious nature. The evidence against the appellants although not exceptionally good was not tenuous. Thus, the interest of justice would be best served if a retrial is ordered.

  Sherfield Bowen v The Queen ANUHCRAP2005/0004 (delivered 20th June 2007, unreported) followed; Reid v The Queen (1978) 27 WIR 254 applied; Bowe v The Queen [1979] 2 All ER 904 applied.

Thom JA

1 The appellants, Allen Baptiste (“Baptiste”) and Yan Edwards (“Edwards”) were convicted of the murder of Keri Harrigan (“Harrigan”) and were sentenced to life imprisonment with no eligibility for parole. They appeal both their conviction and sentence.

Crown's Case

2 The case for the Crown was that the deceased, Harrigan, as well as the appellants, Baptiste and Edwards and the Crown's witnesses Vaughn “Larry” Cameron (“Cameron”), Henito Penn (“Penn”), Deshon Richards (“Richards”) and Keithroy Joseph (“Joseph”) were known to each other. They all frequented the Long Look area in the vicinity of the clinic, the chicken shop operated by a woman called “BA”, and the residence of Irvin Smith called “Basha”.

3 Baptiste, Edwards, Cameron and Penn were friends. They all knew Allen Wheatley (“Wheatley”) who lives in the East End District in a two-storey house. Edwards and Baptiste were regular visitors to his home. Several other young men who reside in the East End District also visited Wheatley's home regularly. Edwards was friends with Harrigan, while Harrigan and Joseph were friends.

4 On 15 ^th March 2011, at the request of Edwards, who was then a fire officer, Cameron visited the East End fire station. While there Edwards enquired of Cameron whether he had seen Harrigan, to which he responded he did not. Edwards then told Cameron that Harrigan was running his mouth a lot and that he was going to deal with him. Edwards then asked Cameron to collect his (Edwards) son from school along with some other children.

5 While Cameron was on his way to the school, he saw Baptiste walking towards the fire station. On his return to the fire station, he met Edwards and Baptiste. Edwards was speaking about a package which was to be delivered by DHL containing among other things two skeleton masks and that he would allow Baptiste to deal with Harrigan. Baptiste agreed to deal with Harrigan. Edwards then told Cameron that he (Cameron) had to get more serious.

6 Later that evening, Edwards telephoned Cameron and they agreed to meet at Wheatley's residence. When Cameron arrived at Wheatley's residence, Wheatley showed him to a room on the upper storey of the house where he met Edwards, Baptiste and Penn. They opened a box from which they took out a baby stroller, a beach chair, about 5lbs of marijuana, some old shoes, books, three guns - one silver and two black, some .45 ammunition, 9mm ammunition, AK-47 ammunition, and either . 357 or .38 ammunition. They all checked the guns to determine whether they were working. Edwards waived one of the guns in the air and said ‘I am going to give Keri some of these’. At the request of Edwards, Cameron went to Basha's residence and collected a scale to weigh the marijuana.

7 On leaving Wheatley's residence, Edwards took the .45 mm gun...