The Queen v Andreas Norford
| Jurisdiction | British Virgin Islands |
| Judge | FLOYD J |
| Judgment Date | 17 September 2021 |
| Neutral Citation | VG 2021 HC 075 |
| Docket Number | CRIMINAL CASE No. 4 of 2016 |
| Court | High Court (British Virgin Islands) |
IN THE HIGH COURT OF JUSTICE (CRIMINAL)
CRIMINAL CASE No. 4 of 2016
Mrs. Tiffany R. Scatliffe Esprit, DPP & Mr. Kael London, Crown Counsel, Counsel for the Crown/Applicant
Mr. Sherfield P. Bowen & Ms. Ruthilia Maximea, Counsel for the Defendant/Respondent
The Applicant has brought two Applications. The first Application seeks to allow the reading into evidence of the statements of two Crown witnesses, Detective Inspector Mark Hughes and David Springette, during the trial of this matter. The second Application seeks to have audio recordings and the transcripts of those recordings of conversations between the Respondent and the Crown witness, Lenin Joseph, admitted into evidence (subject to editing) at the trial of this matter. The Respondent is charged with murder contrary to section 148 of the Criminal Code 1997. The date of offence is 9 th May, 2013. These Applications were originally filed on 18 th April, 2019.
On the evening of 9 th May, 2013, Melbourne Francis, also known as “Trouble,” was shot and killed
at a place known as “The Stickett”, in Long Look, Tortola. Investigation revealed that the deceased was socializing with friends in a gazebo, when a gunman approached carrying a handgun. The deceased was shot five times. He died at the scene.
The police spoke to a number of witnesses. They received a description of the gunman from an eyewitness, J.F. The gunman wore a hat and a handkerchief covered his face. Further descriptors, including clothing, complexion (from his hands), hairstyle, height and build, were given. The gunman ran past this witness towards Little Dix Hill Main Road until he was out of sight.
Another witness, David Springette, also known as “Moonhead,” gave a statement to police. He was in the same location as the deceased at the time of the shooting. He had known Melbourne Francis for many years. He told police that the shooter was someone he had also known for many years. That man went by the name “Thirteen.” “Thirteen” was in the area, then left in a rental car. He returned, but as a passenger in the vehicle. He again left. Later, the witness saw a man wearing a hoodie with a bandana covering his face. He recognized the man as “Thirteen.” “Thirteen” had a gun in his hand. He was dressed as before and the witness gave a description to police including clothing, height, build, hairstyle, and complexion (from the area around the eyes). After shooting “Trouble”, “Thirteen” ran up Little Dix Hill Main Road. The witness described “Thirteen” as running with a limp. This was the same gait he had always had since their school days, including time spent on the basketball court.
The police did not charge anyone with this crime for some time. In September, 2013, a new witness, Lenin Joseph, came to the attention of the Royal Virgin Islands Police Force (RVIPF). Mr. Joseph knew “Trouble” as they had lived in the same building at one time. Mr. Joseph became friends with someone known as “Kip”. Mr. Joseph was aware of the killing of “Trouble.” At some point, “Kip” informed Mr. Joseph that a friend of his known as “A.J.” had told him that he had killed “Trouble.” Mr. Joseph was aware of people wanting to harm “Trouble.” In particular was one, Jefferson Joseph, also known as “Hoody” and “Jeff.” “Jeff” was a drug dealer for whom the witness, Lenin Joseph, had worked selling drugs. “Jeff” had offered Mr. Joseph money and a gun to kill “Trouble.” Mr. Joseph had declined that invitation. The witness, Lenin Joseph, also said that “Kip” told him that “A.J.” planned on murdering other people. Although they were not friends, “A.J.” and Lenin Joseph were known to each other.
As a result of receiving this information, Lenin Joseph decided to tell his cousin, Detective Inspector Vernon Larocque of the RVIPF. After doing so, further meetings were arranged between Mr. Joseph and members of the RVIPF, including on 11th September, 2013. Thereafter, Mr. Joseph agreed to work with the police. This became a covert surveillance operation. The focus of the operation was to gather evidence regarding the murder of Melbourne Francis. The main subject of the investigation was Andreas Norford, also known as “A.J.” Detective Inspector Mark Hughes and Detective Sargent Richard Taylor were in charge of the investigation. Lenin Joseph would be given money with which to rent a motor vehicle. A listening device would be installed in the vehicle. Conversations between Lenin Joseph and the Respondent would be recorded. At one point, some additional funds were given to Mr. Joseph to purchase an IPAD or a laptop computer that the Respondent had offered for sale and to purchase some credit for use on Mr. Joseph's cell phone plan. Authorization for this operation was given by Police Commissioner David Morris. It was determined by the police that such a covert operation was necessary and proportionate in order to further investigate this serious murder case. It was determined to be in the public interest.
From 11 th September, 2013 to 18 th September, 2013, the Respondent and Lenin Joseph met and socialized. They attended bars, restaurants and other locations. They bought and consumed alcohol and marijuana. Conversations inside the rental vehicle were recorded. During those conversations, the Respondent made certain utterances admitting to the killing of “Trouble.” He provided certain details such as shooting “Trouble” in the head and neck while “Trouble” had been texting on his cell phone. He described running towards the church and then to the main road where someone was waiting for him in a car. The Respondent said that “Moonhead” was there when he shot “Trouble.” “Moonhead” saw him and ran away. The Respondent said that he was paid to do this and that he had disposed of the gun. At one point, the Respondent produced a handgun and showed it to Mr. Joseph.
All of the audio recordings were transcribed by police.
Sometime in 2013, the Respondent left this Territory and traveled to St. Kitts. An extradition request was eventually made and the Respondent was ordered back to the Territory of the Virgin Islands. On 23 rd November, 2015, the Respondent returned in police custody. He was charged accordingly and has remained in detention ever since.
Detective Inspector Mark Hughes provided a statement in this case. He subsequently passed away on 7 th February, 2019.
David Springette, also known as “Moonhead,” gave a statement in this case. He subsequently passed away on 21 st June, 2017.
Counsel for the Applicant advised the Court that she now sought only to read into evidence the statement of Crown witness D/I Mark Hughes and not David Springette. She invited the Respondent to bring his own Application if he sought to read into evidence the statement of Mr. Springette. Counsel for the Respondent indicated that he would nonetheless wish for the Court to consider that portion of the Application relating to the evidence of David Springette.
For the reading into evidence at trial of witness statements, the Applicant relies upon s. 5 (1) (a) of the Evidence Act which states, somewhat obviously, that a person shall be taken not to be available to give evidence if that person is dead. Further reference is made to ss. 71 (1) and (2) of the Evidence Act which state that where a person who made a previous representation is not available to give evidence, the hearsay rule does not apply if the representation was made under a duty to make that representation, the representation was made at or shortly after the time when the asserted fact occurred, the representation was made in the course of giving sworn evidence or the representation was against the interests of the person who made it. Similarly, s. 71 (5) states that the hearsay rule does not prevent the admission or use of evidence of a previous representation adduced by a Defendant.
The submission of the Applicant is that the confirmed deaths of the witnesses, Hughes and Springette, who had previously provided statements, renders them unavailable and their statements or previous representations, are therefore admissible. The information provided in their statements is relevant to the issues at trial and appropriate for consideration by the jury. Counsel for the Applicant concedes that the inability of counsel to cross examine these witnesses is a consideration. It is not, however, a bar to the admissibility of the evidence. It would require an appropriate direction from the trial judge to the jury as to how such evidence may be considered and what weight that evidence should be accorded. Counsel for the Respondent did not make any submissions on the issue of the tendering of these statements, other than by reference to making use of the statement of Mr. Springette in his own case.
The larger issue in this Application is the request to enter into evidence the covert recordings of the conversations between the Respondent and the police operative, Lenin Joseph. The position of the Applicant is that these recordings are relevant, their probative value outweighs any prejudicial effect upon the Respondent, the rights of the Respondent were not violated in the obtaining of the recordings, the recordings were obtained in compliance with United Kingdom legislation, the Regulation of Investigative Powers Act 2000 ( RIPA), such legislation being appropriate as no such legislation existed in this Territory, and the admission of the recordings would not impede the Respondent's right to a fair trial.
The statement of D/I Hughes indicates that, as the officer in charge of this operation, he followed the
guidelines set out in the RIPA legislation.
Counsel for the Applicant submits that evidence from the recordings that relates to any other...
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