R v Labrador et Al

• Jurisdiction: British Virgin Islands
• Judge: Benjamin, J.
• Judgment Date: 03 May 2001
• Neutral Citation: VG 2001 HC 7
• Docket Number: Criminal Case No. 16 of 2000
• Court: High Court (British Virgin Islands)
• Date: 03 May 2001

High Court

Benjamin, J.

Criminal Case No. 16 of 2000

R

and

Labrador et al

Appearances:

Mr. Theodore Guerra, Senior counsel, Mr. T. Williams, Senior Crown counsel, Mr. D. Abdnego with him, for the Crown.

Ms. D. Penn, Q.C., Miss A. Penn and Miss B. Stephenson with her, watching interests of the deceased's family.

Mr. Richard Hector, Q.C., Mr. H. St. Clair-Douglas with him, for No. 1 accused.

Mr. J.S. Archibald, Q.C., Mr. O. Ramjeet and Ms. M. Matthew with him, for No. 2 accused.

Mr. P. Dennis, Ms. N. McDavid with him, for No. 3 accused.

Mr. J.S. Archibald, Q.C., Mr. O. Ramjet and Ms. M. Matthew with him, for No. 4 accused.

Criminal procedure - No case submission — Accused persons charged with murder — Pleaded not guilty — Prosecution case based on circumstantial evidence and words of accused — Whether cases met at least minimum threshold for leaving them to jury — R v. Galbraith [1981] 2 All E.R. 1960 considered — Position of accused relative to alternative verdict of being accessories after the fact within meaning of sec. 318(1) of Criminal Code — 1st accused called upon to lead defence to charge of murder — No case submission accepted on behalf of i other accused, and jury directed to return formal verdict of not guilty of murder — Said three accused not called upon to lead defence to alternative verdict of accessory after the fact since no adequate warning received.

Benjamin, J.

1 On September 27, 2000, the Attorney General preferred certain indictments against the 4 accused. Under consideration is the Indictment laid in Criminal Case No. 16 of 2000 charging the said 4 accused persons with the murder of Lois McMillen on or about January 14, 2000 at West End, Tortola. Each accused entered a plea of not guilty in October 2000 but the trial did not commence until April 2, 2001 when the accused were placed in the charge of the jury empanelled to try the Indictment for murder.

2 The opening address by Senior Crown counsel on behalf of the Crown presented the case to the jury in the following terms:

“On the 14th of January last year, Lois McMillen lost her life. She was forced in the late hours of that night, that Friday night, to flee from her motor vehicle in the West End area just a few hundred yards away from the West End Police Station.

There was a struggle; she was met (“menaced”) and cut with a knife. She suffered a beating and then she was violently drowned. Next morning, the police went to the Zebra House in Belmont, Tortola, a house occupied by these accused men. They had been with her on previous occasions in that vicinity. When the police went to the house, they saw wet and sandy shoes. You shall hear that the sand under one of those pairs of shoes matches the said sand at the place where the body of Miss McMillen was found. They were asked to explain why their shoes were wet and sandy and Mr. George and Mr. Spicer said they were wet and sandy because we were walking along the beach at Cane Garden Bay by Quitos.

You shall hear that there was no sand under those shoes from Cane Garden Bay. And from Mr. Spicer's shoe was found the sand from the scene where this crime was committed.

You shall also hear from witnesses about things said by these accused men whilst in custody… These men were in the area at the same time, about the same time when this woman lost her life… This case is based first of all on circumstantial evidence… We also in the case will be bringing evidence of words said by the men which we are saying shows their involvement in the crime…

I ask you to look particularly at the evidence coming from the stand regarding tests made on items taken from the accused men.

And particularly to match that against what is said to the police as to where they were at the time of this girl's killing.”

3 This represented from the lips of the Crown, the case to be presented against the 4 accused.

4 Thereafter, evidence was adduced through the testimonies of twenty-one (21) witnesses and numerous exhibits. In addition, acceding to the formal request of Prosecuting counsel to which request counsel for the defence offered no demur, the court inclusive of the members of the jury together with the 4 accused and their respective counsel visited the locus in quo and other places of interest highlighted in the evidence. The Crown's case included the tendering of a statement made under caution to the Police by each of the accused persons, the said statements being admitted without objection. On the 15th hearing day of the trial, the Crown closed its case.

5 Submissions of no case to answer were then heard in the absence of the jury in respect of each accused over a period of six hearing days.

6 The purport of setting out the foregoing matters at length is two-fold. Firstly, it will serve to avoid repeating same as they relate to the submissions made, and secondly, it serves to provide skeletal material for the assumption for the purposes of this ruling that the prosecution has crossed the hurdle of proving that the crime of murder has been committed. The focus of the submissions was whether it was all the accused or any or each of them committed the offence charged.

7 It was common ground on both sides and indeed this Court wholly agrees that the proper judicial approach to a submission of “no case to answer” is to be found in the test propounded by Lord Lane, C.J. in R. v. Galbraith [1981] 2 All E.R. 1060 at p. 1062 e:

“How then should the judge approach a submission of ‘no case’? (1) If there is no evidence 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 a 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….”

8 In so stating, the learned Chief Justice, after reviewing the earliest cases of R. v. Mansfield [1978] 1 All E.R. 134 and R. v. Barker (1977) 65 Cr. App. Rep. 287 rejected the approach that the trial judge should direct an acquittal if he formed the view that conviction by the jury would be unsafe or unsatisfactory (language drawn from section 4(1)(a) of the Criminal Appeal Act, 1968).

9 The principles in Galbraith have been applied by the Judicial Committee of Her Majesty's Privy Council in Daley v. R. [1994] 1 A.C. 11 and Taibo v. R. (1996) 48 W.I.R. 74, cases heard on appeal from the courts of Appeal of Jamaica and Belize respectively. In the case of Daley the Board grappled with the issue of whether the quality of the identification evidence was so poor and insufficient as not to found a conviction, and in so doing reconciled the principles enunciated in Turnbull [1977] Q.B. 224 with those in Galbraith finding no conflict between the two cases. By way of explanation Lord Mustill in giving the advice of the Board said (at p. 29 D-F):–

“A reading of the judgment in R. v. Galbraith as a whole shows the practice which the court was primarily concerned to proscribe was one whereby a judge who considered the prosecution evidence as unworthy of credit would make sure that the jury did not have an opportunity to give effect to a different opinion. By following this practice the judge was doing something which, as Lord Widgery, C.J. had put it, (in R. v. Barker (ibid., p. 288)), was not his job. By contrast, in the kind of identification case dealt with by R. v. Turnbull the case is withdrawn from the jury not because the judge considers that the witness is lying, but because the evidence even if taken to be honest has a base which is so slender that it is unreliable and therefore not sufficient to found a conviction: and indeed, as R. v. Turnbull itself emphasized, the fact that an honest witness may be mistaken on identification is a particular source of risk. When assessing the “quality” of the evidence, under the Turnbull doctrine, the jury is protected from acting upon the type of evidence which, even if believed, experience has shown to be a possible source of injustice. Reading the two cases in this way, their Lordships see no conflict between them.”

10 Further, earlier in the advice at p. 126G, the learned Law Lord acknowledged and condoned the consistent application of the principles in Galbraith by the courts in Jamaica.

11 In Taibo, the Privy Council was called upon to review a prosecution based upon circumstantial evidence and in so doing applied Galbraith. Lord Mustill conceded that there were serious though not fatal weaknesses in the case for the prosecution which he assessed to be: “thin and perhaps very thin”; however, given that if the evidence of certain witnesses was accepted by the jury as “truthful and reliable, there was material on which a jury could, without irrationality, be satisfied of guilt.” (see p. 83 f-j.) Invoking Galbraith, it was opined that it was the judge's duty to allow the trial to proceed.

12 For completeness, it is useful to set out the position in Guyana which has been judicially stated to be the same as in England dating back to 1897. After a review of the local cases and of Galbraith and after referring to a number of Commonwealth authorities, Massiah, C. issued the following dictum in the case of The State v. Alvin Mitchell ...