William Penn v The Queen
| Jurisdiction | British Virgin Islands |
| Judge | EDWARDS, J.A |
| Judgment Date | 28 September 2009 |
| Neutral Citation | VG 2009 CA 9 |
| Court | Court of Appeal (British Virgin Islands) |
| Docket Number | HCRAP 2006/001 |
| Date | 28 September 2009 |
IN THE COURT OF APPEAL
Before:
The Hon. Mr. Brian Alleyne. SC, KCN Chief Justice [Ag.]
The Hon. Mr. Hugh Rawlins Justice of Appeal
The Hon. Mde. Ola Mae Edwards Justice of Appeal [Ag.]
HCRAP 2006/001
Dr. Joseph Archibald, Q.C. with Ms. Anthea Smith for the Appellant
Mr. Terrence Williams, D.P.P. with Ms. Grace Henry McKinley for the Respondent
Criminal Appeal — Burglary — Admissibility of Fingerprint Expert Evidence — whether fingerprint evidence only admissible where fingerprints were taken before appellant charged pursuant to section 29 of the Police Act (Cap 165) — common law jurisdiction to take fingerprints — guidelines and criteria for admissibility of fingerprint evidence — Admissibility of Video Tape evidence of masked burglar and photographic stills — probative value of that evidence — No case submission — Directions to be given to jury in absence of testimony that masked man in video was appellant — whether conviction unsafe — Whether trial judge's direction on time limit to deliberate and her subsequent correction of that previous direction before jury retired placed pressure on jury — Whether sentence was too severe — Sentencing guidelines for domestic burglary
The appellant was convicted on three counts of burglary and sentenced to eight years imprisonment on each count with sentences to run concurrently. The Crown's case was that the appellant had between the 26 th April 2000 and the 18 th June 2002, burgled holiday villas in Virgin Gorda at different times and stole cash and ferry tickets from tourists occupying the villas. In mid June 2000, Mr. Cummings, the holiday occupant of one of the villas at Euphoria set up a surveillance camera and a 24-hour video recorder pointed at the exit/entrance door in the lower bedroom of the 2-storey villa; and on the 28 th July 2000, the video captured a masked man entering the room through the exit/entrance door; and after taking up money from a table and dresser in the room the burglar left through the exit/entrance door. Following the burglary reports the police on each occasion lifted latent palm and fingerprint impressions from the several crime scenes including the outer door knob of the exit/entrance door of Mr. Cummings' villa. The burglaries remained unsolved until the 21 st December 2002, when the appellant was charged with the burglaries including those for which he was convicted. The appellant who was detained as a suspect on the 20 th December 2002, had consented to the police taking his palm and fingerprints before he was charged; and the Fingerprint expert Sgt. Mason confirmed that the appellant's fingerprints matched the latent fingerprint impressions taken from the crime scenes. At his trial the learned trial judge heard preliminary objections and ruled that the fingerprint evidence and the video tape and photographic still derivatives were admissible. The appellant appealed against his convictions on 7 grounds. The Court of Appeal in its previous determination of grounds 1 and 2 pertaining to the jury panel; declared the trial a nullity. The Privy Council held that the trial was not a nullity and remitted the matter to the Court of Appeal for a determination of grounds 3 to 7. Ground 3 contended that the mandatory conditions in section 29 of the Police Act Chapter 165 laid down the jurisdiction for the police to take a person's fingerprints after the person has been charged with an offence and the police had no common law jurisdiction to take the appellant's fingerprints before he was charged. The other grounds challenged the ruling of the trial judge on the preliminary objections and the no case submission while questioning the relevance and probative value of the video tape evidence, in the absence of any witness testifying that the masked burglar captured in the video is the appellant. The grounds also raised the issue as to the applicable standards for fingerprint work by fingerprint experts in our jurisdiction in the absence of any statutory criteria; and alleged that the conviction is unsafe. The directions given to the jury regarding the time they had for deliberations and the sentence imposed were also challenged
Held: dismissing the appeal against conviction and sentence and affirming the sentence.
1. The court is of the view that ground 3 has no merit since at the appellant's trial there was no suggestion or evidence that he did not voluntarily submit or consent to the request by the police for his fingerprints to be taken. In the absence of any such oppression there is nothing else which would justify the exercise of discretion in favour of excluding this evidence.
Callis v Gunn [1964] 1 QB. 495 and R v Buckingham and Vickers [1946] 1 WWR 425 followed
2. There is no evidence more directly relevant than a video tape showing the commission of a crime. Though this circumstantial evidence could not be used as the primary basis for establishing the guilt of the appellant, its probative value existed in the fact that the jury could properly find that it supported the fingerprint evidence to the extent that it confirmed that the burglar at the time of the offence had handled the outer knob of the exit/entrance door, from which the left middle finger print which matched the appellant's was lifted. It was permissible for the jury to be invited to compare the image of the burglar in the video and stills with the appellant in the dock. This video evidence was clearly evidence from which the members of the jury could draw inferences by using their own senses and their perception of what they observed in the video and stills. It was real evidence that was equally admissible as the sworn testimony or documentary evidence.
R v Patrick Dodson and another [1984] 1 WLR 971 ; David Richard Blenkinsop [1995] 1 Cr. App. R 7; R v Downey [1995] 1 Cr App. R. 547 considered and applied.
3. Consistent with the reasoning in The Queen v Richard Kieran Stevens [2002] NICA even though the trial judge did not give the jury any warning on the dangers of identification from photographic [or video tape] evidence which should be given in most if not all such cases; and is almost invariably required, a conviction may still be safe notwithstanding its absence. Considering that the jury specifically requested to have the video before retiring and the time they spent in their deliberations, we conclude that no more than ordinary common sense and judgment was required having regard to the facts in the appellant's case. It required no further specific direction from the learned trial judge to come to a safe conclusion and the limited directions of the trial judge on the video evidence would not have compromised the fairness of the trial.
4. American cases referring to the existence of a current non numerical standard in England can provide no binding authority for our courts to abandon the English common law guidelines governing the admissibility of fingerprint expert evidence. Section 48 of the Criminal Procedure Act Chapter 18 of The Laws of the Virgin Islands mandates that matters of procedure not expressly covered by domestic legislation be regulated as to the admission thereof by the Law of England and the practice of the Superior Courts of Criminal Law in England. The trial judge was obliged to follow as she did the English common law guidelines declared by the English appellate court in R v Buckley [1999] EWCA Crim 1191 (30 th April, 1999) in the absence of any known case law in England demonstrating any implementation of a new non-numerical standard in England.
5. The learned judge's mistake in imposing a 2 hour time limit for the jury to deliberate was subsequently corrected; and it is clear that the jury would have understood from her corrected instructions that there was no deadline or time limit to their deliberations. Such a mistake and the subsequent corrections cannot reasonably be construed as placing pressure on the jury; and the conviction which resulted is not unsafe.
McKenna (1960) 44 Cr App R. 68 , Rupert Crosdale v The Queen Privy council App No. 13 of 1994 (Jamaica) delivered 6 th April, 1995, De Four v The State [1999] 1 WLR 1731 distinguished.
6. The English guidelines as to the appropriate sentencing levels in cases of domestic burglary given in Mc Inerney and Keating [2003] 2 Cr App. R. 240 which are set out at paragraphs 62 to 69 below are approved and recommended to sentencers in our courts. The trial judge's approach in weighing and analyzing the factors that she took into account included the 2 high level features of professional planning of the crimes and that the complainants were vulnerable victims deliberately targeted. The trial judge's sentencing judgment modeled the approved English guidelines and this court has no valid reason to disturb the long sentence imposed.
This is the Judgment of the Court. On 20 th March 2006, the appellant, Mr. William Penn, was convicted on 3 counts of burglary from tourist rental villas in Virgin Gorda, Virgin Islands and sentenced to eight years imprisonment on each count on 21 st March 2006, with the sentences to run concurrently.
On 31 st March 2006, the appellant appealed against his conviction and sentence. Grounds 1 and 2 of his 7 grounds of appeal contended that the trial was a nullity because of procedural irregularities in the selection process of the nine members of the jury who tried the appellant; and non compliance with the Jury Act (Cap. 39).
The Court of Appeal in a written judgment delivered on the 3 rd December 2007 held that the array of common jurors from the voters' list was invalid, set aside the verdict and judgment, and made an order for a new trial.
The respondent successfully appealed to Her Majesty in Council. The Privy Council held that there was nothing in...
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