The Queen v Lorne Parsons; Mario Pemberton; Clinton Hamm; Selena Varlack

• Jurisdiction: British Virgin Islands
• Judgment Date: 23 June 2006
• Date: 23 June 2006
• Docket Number: CRIMINAL CASE NO. 9 OF 2005
• Court: High Court (British Virgin Islands)

IN THE HIGH COURT OF JUSTICE

CRIMINAL CASE NO. 9 OF 2005

BETWEEN

The Queen

and

Lorne Parsons

Mario Pemberton

Clinton Hamm

Selena Varlack

Appearances:

Mr. Terrence Williams and Ms. Tamia Richards for the Crown

Dr. Henry Browne Q.C. and Mrs. Benedicta Samuels-Richardson of Samuels-Richardson & Co. for the First and Second Defendants

Mr. Hayden St. Clair-Douglas and Mr. Kevon Swan of Mc W. Todman & Co. for the Third Defendant

Mr. Richard Rowe and Ms. Anthea Smith of J.S. Archibald & Co. for the Fourth Defendant

[Criminal Law — Murder — No case submission — Joint unlawful enterprise — Crown relying in the main on phone records to prove plan — whether necessary to give direct evidence of contents and makers of calls

Criminal Law — Murder — No case submission — Circumstantial evidence — No direct evidence connecting Defendants with the crime — whether circumstances must point inexorably to inference of guilt before case can be left to jury]

1 ) The Defendants were all jointly indicted on the charge of murder and their trial commenced on the 23^rd May 2006. At the close of the Crown's case, Counsel on behalf of each Defendant made a no case submission. For completeness, the indictment contains two additional counts for unlawful possession of firearms against the Defendants, Parsons and Pemberton but these counts are not the subject of submissions. The court took time to consider the submissions and on the 6^th June delivered its decision in draft and undertook to make the written judgment available. I now do so.

The Law on No Case Submissions

2 ) For ease of reference I have set out a list of the authorities relied on in the last paragraph of this judgment.

3 ) There is no dispute as to the governing principles. Counsel agreed they are as set out by Lord Lane C.J. inR v Galbraith. These principles are well established and the Court of Appeal in William Labrador v R, (Singh JA) re-stated the ‘crystallized’ learning stemming from Galbraith as follows:

‘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 . See also Daley v. R. andTaibo v. R’

4 ) However, as the source, Lord Lane C.J himself acknowledges in his statement of the principles, the difficulty lies where there is some evidence but it is of a tenuous character. This difficulty is also aptly illustrated by the wealth of cases which have been cited to show how those principles have been applied in a myriad of different factual situations.

5 ) What, to my mind, is clear from the authorities is that the judge at this stage must only be satisfied that there is a prima facie case for each defendant to answer. The judge does not have to consider whether the Crown have proved the case beyond a reasonable doubt as if the judge is required to do so then that will amount to an usurpation of the jury's functions which, it follows, is strictly to be guarded against. ‘The real question is to decide whether there is sufficient evidence on which a reasonable jury properly directedmight convict.’ Per Chancellor Massiah in R. v. Mitchell [1984] 39 WIR 185 quoted by Singh JA in William Labrador.

The Crown's opening address

6 ) I will start, as did the Defendants, with reference to the Crown's case as outlined in the Learned Director of Public Prosecutions' opening address. In brief, the DPP told the jury that the Crown is alleging that the four Defendants were engaged in a joint unlawful enterprise that ended up in the killing of Tristan Todman Industrious, and that if they found that there was a joint enterprise which ended up in his killing they can bring in a verdict of guilty against anyone who they were sure was part of the joint enterprise. Further, it did not matter if his death was not desired so long as the Defendants realized that someone might be killed. He went on to say that the case was based on circumstantial evidence, I will add entirely, and that evidence of telephone calls played a major role.

The Crown's Case

7 ) At the close of the Crown's case approximately 44 witnesses had testified, including Detective Constable David Johnston from New Scotland Yard, an expert on the interpretation of telecommunications data, Mr. Franco Tomei, a firearms expert and Dr. Francisco Landron, a medical expert. In addition, numerous exhibits were admitted into evidence including the alleged murder weapon (an Uzi Eagle semi-automatic pistol)projectiles allegedly found at the scene and in the body of the victim and two statements made to the Police by Defendants Varlack and Hamm respectively.

8 ) The nature of the submissions entail an in depth review of the Crown's evidence. I will try to give a narrative history of the Crown's case as far as possible, as it will be easier to follow than simply trotting out the evidence in the order in which the Crown called their witnesses.

9 ) The Victim, Mr Tristan Todman Industrious, a young fire officer aged 26 lived with Varlack, who was then his girlfriend, at an apartment in Nottingham Estate, East End, Tortola up to July, 2004 when they separated. He then took up residence with his mother at her home at Long Bush. On Sunday 29^th August, 2004 at about 3–4 p.m. his mother saw him leave their home driving his car. She never saw him alive again.

10 ) There is evidence, if accepted, that the Victim at about 9:10–9:30 p.m. that evening, outside the After Dark Night Club in Road Town, borrowed and used the cordless phone of a friend, Kimmora Harrigan.

11 ) The records show a call from that phone to the mobile phone of Hamm at 9:31:22, lasting approximately 1 minute, which Mr. Harrigan said he did not make. (Mr. Harrigan's deposition was read in evidence at the trial as he was abroad.) The records also show almost immediately after that call, a call on the Hamm mobile phone to Parsons mobile at 9:34:08 p.m. and another at 9:39:00 p.m. from the Hamm mobile to the Parsons mobile.

12 ) The next event is that Ms. Tashia Potter heard the Victim's car in Defendant Varlack's yard some time after 9:30 p.m. that evening. The witness did not actually see it but she was a close neighbor of the Victim and Varlack when they lived together at Nottingham Estate, (in fact she and her family lived in the adjacent apartment) and she testified that the car had a very distinctive sound. She said that it drove up and very shortly after she heard it leave. She went to bed at about 11 p.m. and did not hear it return by then but readily admitted that it may have whilst she slept.

13 ) However, her evidence conflicts in some respects with that of Ms. Faulkner, a cousin and another neighbour of Varlack's. Ms. Faulkner testified that she saw the Victim's car parked outside Varlack's apartment when she returned from ‘chilling’ with her friends in town at about 9 p.m. that night. That was the last that anyone saw or heard of the Victim whilst yet alive save for Varlack who gave a different account to the Police as to the time the Victim arrived at and left her apartment.

14 ) Shortly after Mrs. Potter heard the Victim's car leave, Varlack came to the Potters' house to use their home phone. She used the phone, a cordless, outside of the house. Minutes afterwards, a call came in on the Potters' home phone for Varlack. Mr. Michael Potter answered the phone. Not surprisingly, in this small island where everyone appears to be related to each other in one form or the other, it turned out that Hamm's sister is married to Mr. Potter's uncle and so Mr. Potter is well acquainted with Hamm and had often spoken to him on the telephone. Mr. Potter testified that the caller was Hamm and when pressed in cross-examination explained without hesitation and quite simply that although the caller did not identify himself he recognized the voice as Hamm. Counsel for Hamm prudently left well alone.

15 ) The relevant phone records show a further sequence of calls that evening of the 29^th August—Varlack accessed phone (the Potters') to Hamm's mobile at 9:58:50 p.m., then Hamm's mobile to Parsons' mobile at 9:59:35 and Hamm's mobile to Varlack accessed phone (the Potters') at 10:04:26—this call last 72 seconds. Thereafter, Hamm's mobile phone went silent for about 53 minutes and Parsons' mobile phone went silent for about 1 hour and 52 minutes—contemporaneous with inferential time of death says the Crown.

16 ) At about 11:45p.m on 29^th August, 2004 Mr. Elvin Forbes, a fire officer, saw a green Toyota Corolla or...