Violet Hodge v Commissioner of Police

• Jurisdiction: British Virgin Islands
• Judge: Baptiste JA
• Judgment Date: 27 February 2018
• Neutral Citation: VG 2018 CA 6
• Docket Number: BVIMCRAP2015/0005
• Court: Court of Appeal (British Virgin Islands)
• Date: 27 February 2018

EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Before:

The Hon. Mr. Davidson Kelvin Baptiste Justice of Appeal

The Hon. Mde. Louise Esther Blenman Justice of Appeal

The Hon. Mr. John Carrington, QC Justice of Appeal [Ag.]

BVIMCRAP2015/0005

Between:

Violet Hodge

Appellant

and

The Commissioner of Police

Respondent

Appearances:

Mr. Julian B. Knowles, QC with him, Mr. Patrick Thompson for the Appellant

Mrs. Tiffany Scatliffe Esprit with her, Mr. O'Neil Simpson for the Respondent

Criminal appeal — Offence of conspiracy — Whether variance between complaint and evidence is substantial to result in unfairness to appellant — Whether defects in complaint renders conviction unsafe — Sections 217 and 218 of the Magistrate's Code of Procedure Act of the Virgin Islands — Whether procedural and technical points not addressed in the lower court may be addressed for the first time on appeal — Identification evidence — Identification parade versus dock identification — Turnbull direction — Section 146 of the Evidence Act of the Territory of the Virgin Islands — Whether magistrate's self-direction on identification evidence which failed to consider the provisions of section 146 renders conviction unsafe — Whether magistrate failed to properly take into account appellant's good character — Accomplice evidence — Issue of corroboration — Sentencing — Whether delay in the hearing of a matter is a mitigating factor in sentencing

The appellant, Violet Hodge (“Mrs. Hodge”) was convicted in the Magistrates' Court for the offence of conspiring with persons unknown to import cocaine into the Territory of the Virgin Islands (“the Territory”). She was sentenced to six years' imprisonment and fined $100,000.00. The proceedings which led to this appeal commenced with information provided by four accomplices: James Springette (“Springette”), Eduardo Diaz (“Diaz”), Roberto Hurtado (“Hurtado”) and Elton Turnbull (“Turnbull”), all were convicted in different jurisdictions in relation to drug trafficking. At the trial, the Crown adduced evidence of a conspiracy involving Mrs. Hodge, who acted as a translator in discussions concerning drug trafficking and air drops into the Territory and passed coded messages to her husband, Earl “Bob” Hodge. Mrs. Hodge denied the allegations of conspiracy and refuted knowing the accomplices, except her childhood acquaintance, Turnbull.

The magistrate found that Mrs. Hodge was part of the agreement to import cocaine into the Territory and accepted the evidence of the accomplices that she acted as translator during discussions on drug trafficking and passed messages relating to drug trafficking to her husband.

Mrs. Hodge, dissatisfied with the magistrate's decision, appealed against her conviction and sentence. The issues arising in this appeal can be broadly summarised as follows: whether section 217 of the Magistrate's Code of Procedure Act proscribes against objecting to a complaint or information, not only in substance or in form, but also for any variance between the complaint or information and the evidence adduced at trial; whether the magistrate properly directed herself on section 146 of the Evidence Act 2006 (the “Evidence Act”) and on the issue of corroboration; whether the magistrate's direction on accomplice evidence was wrong in law; whether the magistrate correctly treated with the issue of identification evidence; whether the magistrate dealt adequately or at all with the inconsistencies in the prosecution's case; whether the magistrate failed to properly take into account the appellant's good character; and whether the sentence imposed is excessive having regard to the appellant's age and health, and the delay between the appellant's initial charge and her conviction and sentence.

Held: dismissing the appeal against conviction; affirming the conviction; allowing the appeal against sentence to the extent that the sentence of six years' imprisonment is varied to five years' imprisonment, that:

• 1. Section 217 of the Magistrate's Code of Procedure Act appears to proscribe against objecting to a complaint, not only in substance or in form, but also for any variance between the complaint or information and the evidence adduced at trial. However, in construing section 217, the courts have adopted the following approach: in the case of a slight variance between the evidence and the information, the information may be allowed to stand notwithstanding the variance which occurred. On the other hand, if the variance is of a substantial nature, issues of justice and fairness would be engaged, with the prosecution being required to amend the information.

  Section 217 of the Magistrate's Code of Procedure Act, Cap. 44, Revised Laws of the Virgin Islands considered; Garfield v Maddocks 1974 QB 7 applied; R v Graham [1997] 1 Cr App R 302 applied.

• 2. To determine whether a conviction should be upheld, the primary consideration for this Court is the safety of the conviction. The court should adopt a purposive examination of the matter and a very weighty consideration would be the question of whether material unfairness has been caused to the appellant. In this case, no material unfairness or prejudice has been caused to the appellant and this Court is reluctant to take too technical or formalistic an approach to the complaint laid against the appellant as such an approach could result in quashing the conviction where there is clear evidence in support of it. A mere technical flaw in the drafting of the particulars cannot invalidate the complaint or vitiate the appellant's conviction. Additionally, such procedural and technical points should be taken at the time of the trial when they can be properly and fairly addressed.

  R v Graham [1997] 1 Cr App R 302 applied; R v White [2014] 2 Cr App. R 14 applied; R v Stocker [2013] EWCA Crim 1993 applied.

• 3. The dangers of dock identification are that it lacks the safeguards that are offered by an identification parade and the accused's position in the dock positively increases the risk of a wrong identification. In this case, the identification of the appellant in the dock was a formality and cannot be said to be a dock identification properly so called. The dangers inherent in a dock identification were certainly not present in the case at bar. There was no unfairness to the appellant as Springette had known her for 30 years and indicated the circumstances under which that knowledge was acquired. There was no danger of Springette assuming simply because of the appellant's presence in the dock, she was the person whom he had met and had known for 30 years. Therefore, the complaint that the magistrate did not consider whether there were exceptional circumstances justifying the admission of the dock identification is without merit.

  France and Vassel v the Queen [2012] UKPC 28 applied; R v Popat [1998] 2 Cr App R 208 applied; John v The State of Trinidad and Tobago [2009] UKPC 12 applied.

• 4. Where criminal matters are determined without a jury, a magistrate has the conjoint role as judge of law and facts. In this case, the magistrate correctly advised herself of the law and appropriately treated with the issues of corroboration and accomplice evidence. Upon review of her decision, this Court is satisfied that her treatment and appreciation of section 146 of the Evidence Act was unassailable.

  France and Vassel v the Queen [2012] UKPC 28 applied; Stewart (Andrew) v R [2015] JMCA Crim 4 applied.

• 5. The good character direction comprises two elements: the credibility limb which signifies that a person of good character is more likely to be truthful than one of bad character, and the propensity limb, that a person of good character is less likely to commit a crime, especially one of the nature charged. In the instant case, the magistrate clearly articulated the two limbs of the good character direction and fully took into account the good character of the appellant. The magistrate assessed the evidence before her and, as the judge of the facts, made important findings as to credibility and reliability having accepted that the accomplice witnesses were truthful. Therefore, there is no merit in the complaint that the magistrate's treatment of the appellant's good character rendered the appellant's conviction unsafe.

• 6. In cases where the offender is a mature individual with no apparent propensity for the commission of the offence, the sentencer may take this into account in weighing the desirability and duration of a prison sentence. As with first time offenders, the more serious the offence, the less relevant will be these circumstances. In the instant case, given the seriousness of the offence charged, the appellant's age would be of little relevance as a mitigating factor. As it relates to the appellant's health, her condition is now in remission and provides no adequate basis for a reduction in the sentence imposed.

  Desmond Baptiste v The Queen Saint Vincent and the Grenadines Criminal Appeal No. 8 of 2003 (delivered 6th December 2004, unreported) applied.

• 7. In determining the sentence to be imposed, it is necessary to have regard to any failure to proceed with a case with due expedition. Excessive delay can affect the question of the justice of the sentence. Delay in bringing an accused to justice is recognised as a mitigating factor that can be considered in sentencing and its effects can be recognised by a reduction in sentence. In the instant case, the magistrate gave no reason for not examining delay as a mitigating factor. The delay between the appellant's initial charge and subsequent conviction and sentence spans a period of five years, for which no fault can be attributed to the appellant. In the circumstances, the Court in exercise of its discretion considers that a one year reduction for delay would be fair.

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