“The United States Attorney is the representative not of an
ordinary party to a controversy, but of a sovereignty whose
obligation to govern impartially is as compelling as its
obligation to govern at all; and whose interest, therefore, in a
criminal prosecution is not that it shall win a case, but that
justice shall be done. As such, he is in a peculiar and very
definite sense the servant of the law, the twofold aim of which
is that guilt shall not escape or innocence suffer. He may
prosecute with earnestness and vigor — indeed, he should do
so. But, while he may strike hard blows, he is not at liberty to
strike foul ones. It is as much his duty to refrain from improper
methods calculated to produce a wrongful conviction as it is
to use every legitimate means to bring about a just one.”
[250] It was submitted that prosecutorial misconduct has to be made of more offensive
and abrasive conduct than rendering advice of the type given by the DPP in this case, at
the request of the judge. All that the DPP did, it was contended, was to give her invited
view on what she thought was best to preserve the interests of justice.
[251] The Crown also submitted that the Three Rivers case has three ingredients,
which must be proven before the offence of misfeasance in a public office could be
established: viz, (i) that the defendant is a public officer; (ii) that that person must exercise
a public power; and (iii) that the public officer must have demonstrated a particular state
of mind, to wit: either conduct specifically intended to injure others; or acting, knowing
that there is no power to do so and that the act will probably cause injury. Neither of the
factors in (iii) applies in this appeal, it was argued. It was submitted that, in the
circumstances of this case, the arguments and submissions in respect of this ground are
unsubstantiated, unmeritorious and unfortunate.
Analysis
[252] It is important to briefly revisit the circumstances of what transpired in chambers
in relation to this ground and of some of the dialogue between the judge, on the one
hand, and counsel for the prosecution and for the defence, on the other. For one, it bears
repeating that it was the judge who initiated the discussion in chambers as indicated in
Vol IX of the transcript at pages 5129, lines 17-21, as follows:
“HIS LORDSHIP: Yes, I have arrived at the point where I
will need the assistance of both sides before I can further
continue my summation. I am going to ask both sides to meet
me in my Chambers very shortly.”
Thereafter, in chambers, followed dialogue between the judge and counsel, with the
following extracts, at Vol X, pages 10 to 11, being the focus of the complaint:
“MISS PAULA LLEWELLYN D.P.P.: Can we speak?
HIS LORDSHIP: Could you answer?
MISS PAULA LLEWELLYN D.P.P.: Just warn them again about
their oath. Just their oath.
HIS LORDSHIP: Because this is how I reason it. If it were not
so, a person could always taint the trial.
MISS PAULA LLEWELLYN D.P.P.: As far as the Prosecution is
concerned, we are prepared for the matter to proceed, just
that your Lordship remind them of their oath and their charge,
all of them.
HIS LORDSHIP: Mr. Finson?
MR. T. FINSON: We are of the view – we don’t see how you
could proceed under these circumstances where you have a
person who is making an allegation that someone is going
around offer [sic] the jurors money, and she obviously have
some tapings. Her role is very serious. I don’t see in those
circumstances …
MISS PAULA LLEWELLYN D.P.P.: Remember she has not really
told us – she said that the charge that she has – she has
remember [sic] what the judge is saying. So in otherwords
is ‘You must be true to your oath and it is only the
evidence you must be guided by.’ In other words out of the
both of us it is the Prosecution who is most at a
disadvantage.”
[253] The focus of the complaint is in respect of the advice given by the DPP to proceed
with the trial, with a warning to the jurors to bear in mind the oath that they took as
jurors.
[254] It is useful, as the discussion begins, to bear in mind the general background
against which criminal trials such as the one giving rise to this appeal are conducted. That
can be seen in paragraph 9 of the case of Randall v R (Cayman Islands) [2002] UKPC
19:
“[9] A contested criminal trial on indictment is adversarial in
character. The prosecution seeks to satisfy the jury of the guilt
of the accused beyond reasonable doubt. The defence seeks
to resist and rebut such proof. The objects of the parties are
fundamentally opposed. There may well be disputes
concerning the relevance and admissibility of evidence. There
will almost always be a conflict of evidence. Some witnesses
may be impugned as unreliable, others perhaps as dishonest.
Witnesses on both sides may be accused of exaggerating or
even fabricating their evidence. Defendants may choose to
act in an obstructive and evasive manner. Opposing counsel
may find each other easy to work with or they may not. It is
not unusual for tempers to become frayed and relations
strained. In a fraud trial the pressure on all involved may be
even more acute than in other trials. Fraud trials tend to
involve a great deal of documentation, which is particularly
cumbersome to handle in a jury trial. They tend to involve
much unfamiliar detail, often of a technical nature, which it is
difficult for many people to understand, assimilate, retain and
recall. And fraud trials tend to be very long, which in itself
tends to increase the strain on all involved, whether the
defendant, witnesses, jurors, counsel or the judge. The
appellant’s trial was said to be the longest criminal trial ever
held in the Cayman Islands.”
[255] The trial from which these appeals arise was, it should be remembered, a trial for
the offence of murder with five defendants. It lasted for some 17 weeks. The trial in
Randall v R lasted some 41 days. The pressure on all participants (including the judge)
must have been the more intense in this trial, given the more serious charge and the
longer duration of the trial. Against that general consideration, we think it is also important
to set out briefly the nature of the contentions as to prosecutorial misconduct against the
relevant persons in the two main cases cited in this area: Randall v R and Berger v
United States.
[256] In Randall v R, the main complaint made was that that the trial was conducted
in a manner which was grossly and fundamentally unfair, due to the conduct of
prosecuting counsel. At paragraph [12] of the judgment, the main complaints against
counsel in that case are set out as follows:
“[12] The appellant makes a number of complaints of
unfairness. These complaints fall under several different
heads. First it is complained that prosecuting counsel
repeatedly interpolated prejudicial comments while examining
prosecution witnesses, repeatedly interrupted the crossexamination of prosecution witnesses, often with prejudicial
comment, repeatedly interrupted the examination in chief and
re-examination of the appellant, interpolated prejudicial
comment in the course of his cross-examination of the
defendant and interrupted the judge in the course of his
summing up…”
[257] At the end of the day, the Board found that some of these complaints were made
out and that, by virtue of them, there was so gross a departure from good practice that
the appellant was denied a fair trial.
[258] In Berger v United States, the allegations and findings against the appellant
were summarized at page 84 of the judgment as follows:
“2. That the United States prosecuting attorney overstepped
the bounds of that propriety and fairness which should
characterize the conduct of such an officer in the prosecution
of a criminal offense is clearly shown by the record. He was
guilty of misstating the facts in his cross-examination of
witnesses; of putting into the mouths of such witnesses things
which they had not said; of suggesting by his questions that
statements had been made to him personally out of court, in
respect of which no proof was offered; of pretending to
understand that a witness had said something which he had
not said and persistently cross-examining the witness upon
that basis; of assuming prejudicial facts not in evidence; of
bullying and arguing with witnesses; and in general, of
conducting himself in a thoroughly indecorous and improper
manner.”
[259] In our view, compared to the complaints in Berger v United States and Randall
v R, and even looked at on their own, the facts about which complaint has been made in
these appeals cannot be regarded as a departure from good practice. Further, they could
never be said to have come near to that point described in paragraph [28] of Randall v
R as follows:
“… There will come a point when the departure from good
practice is so gross, or so persistent, or so prejudicial, or so
irremediable that an appellate court will have no choice but to
condemn a trial as unfair and quash a conviction as unsafe,
however strong the grounds for believing the defendant to be
guilty.”
[260] It appears from this dictum that the conduct complained of in any given case would
have to be “gross”; “persistent”; “prejudicial” or “irremediable” in nature in order for an
allegation of prosecutorial misconduct fairly to be made. For our part, the DPP’s offering
of advice when requested by the judge, although the appellants disagree with it, cannot
fairly be characterised as prosecutorial misconduct. Whether the advice given by the DPP
was right or wrong, we can discern no intention to mislead or deceive the court into
making an error so that a conviction might have been won. Contrary to the appellants’
submission, there is nothing in the DPP’s suggestion that comes close to being fairly
regarded as aiding and abetting an attempt to pervert the course of justice.
[261] Again, whether the advice was right or wrong, the giving of the advice, it is
important to note, was not an action the consequence of which was final. The advice given
was considered by the judge (who had requested it in the first place) who was not bound
by it and under no compulsion to accept it. The judge sought the assistance of counsel
on both sides, received contrasting submissions, and made his independent decision at
the end.
[262] We are unable to conclude (as counsel for the appellants submitted) that the
suggestion made by the DPP resulted in an abridging of the appellants’ constitutional
rights and/or that it occasioned a breach of any of the cannons of the legal profession.
We also find that the conduct of the DPP in, at the judge’s invitation, making a suggestion
as to a valid course to be adopted in the circumstances, cannot possibly approach being
an instance of misfeasance in a public office, as outlined in the Three Rivers case. Any
attempt to get guidance from this case would be stymied by the lack of any evidence of
the third limb of the tort, as outlined by Lord Steyn as follows:
“(3) The third requirement concerns the state of mind
of the defendant
The case law reveals two different forms of liability for
misfeasance in public office. First there is the case of targeted
malice by a public officer i.e. conduct specifically intended to
injure a person or persons. This type of case involves bad faith
in the sense of the exercise of public power for an improper
or ulterior motive. The second form is where a public officer
acts knowing that he has no power to do the act complained
of and that the act will probably injure the plaintiff. It involves
bad faith inasmuch as the public officer does not have an
honest belief that his act is lawful.”
[263] At paragraph 18 of the appellants’ first document relating to the ground alleging
prosecutorial misconduct, we were invited to assume jurisdiction to allow the appellant to
challenge the DPP’s decision not to invoke her powers to terminate the case against the
appellants after the incident on 13 March 2014. Whilst asking us to do so, an important
concession was made, that is, that:
“… ordinarily, the exercise of the DPP’s discretion to halt a
case falls in the realm of public law by way of judicial review
…”
[264] One basis on which we were asked to assume jurisdiction was that the decision
not to discontinue the case was not known to the appellants at the time. It seems to us,
however, that this could be a basis for an application to extend the time to challenge the
decision by way of judicial review. (It will be recalled that rule 56.6 (1) of the Civil
Procedure Rules, 2006, requires that applications for judicial review be filed promptly,
and, in any event, within three months from the time the right to make the application
first arose. Rule 56.6(2), however, permits an extension of time if “good reason” for doing
so is shown.)
[265] Another basis put forward was that the DPP’s decision not to discontinue the case:
“… was made despite the acceptance by the DPP that the
tribunal of fact had become impartial …”
Suffice it to say that we can discern no such acceptance by the DPP from our reading of
the transcript. What was accepted was that a member of the jury appeared to have been
attempting to influence the others not to give a true verdict according to the evidence.
[266] In the circumstances, it would be injudicious for us to assume the jurisdiction the
appellants would wish us to assume. This would properly be a matter for judicial review if
the “decision” complained of can be properly identified. Such a hearing would necessitate
the filing of affidavit evidence. All that we now have are submissions, which are insufficient
for us to properly consider what are serious allegations.
[267] In the result, therefore, we find this somewhat amorphous and wide-ranging
ground to be without merit.
Issue C – The judge’s directions to the jury (other than in relation to the
admissibility of the cellular telephone and video evidence)
(i) The judge’s treatment of the letter allegedly written by Mr Chow to the Public
Defender (ground 5/AP, KJ, AStJ)
[268] As we have indicated, Mr Chow was the sole eye-witness upon whose evidence
the prosecution relied. Much therefore turned on his credibility. Accordingly, as was to be
expected, the defence made significant efforts – including extensive and searching crossexamination by all counsel on that side – to discredit him.
[269] Not least among these efforts was the suggestion that, less than a week before
the trial was to commence, Mr Chow wrote and delivered a letter dated 13 November
2013 to the then Public Defender, Mr W Earl Witter QC, in which he sought to distance
himself from his previous statements to the police implicating the appellants in the murder
of the deceased.
[270] Mr Chow denied this suggestion on the several occasions it was put to him in crossexamination by counsel (see, in particular, the cross-examination by Mr Finson QC,
counsel for Mr Palmer – Vol VII, pages 4028-4040 of the transcript). In addition, in answer
to Mr Rogers, counsel for Mr Jones, Mr Chow stated that, on 13 November 2013, he was
in “[police] protection” and was therefore not free to “move about” (Vol II, page 749 of
the transcript).
[271] So, as part of the defence case, Mr Witter was called to produce a handwritten
letter dated 13 November 2013. The letter was purportedly written by one “L Chow” and
was addressed to “the Public Defender Mr. Earl Witter”. The evidence was that it was
received at the office of the Public Defender on 18 November 2013. Mr Witter testified
that the letter was brought to his attention in office by a member of his staff on 20
November 2013. Having read the letter, he dispatched a copy to the Director of Public
Prosecutions under cover of a letter dated 20 November 2013. In due course, the letter
was disclosed to the defence by the Director.
[272] The letter read as follows:
“Good day, I’m Lamar Chow Im [sic] the witness in the Vydz [sic]
Kartel cause the purpose of this letter is to inform you that that
statement taken by the police by me wasn’t willing Because I
didn’t go freely to the police station they came for me in brute
force because of this I apprehend fear and I legitimise their
theory of what happen on the 16 of August 2010 I didn’t intend
to be involved in their cause the reason why I don’t want to come
to court is because I see Clive after that.”
[273] Counsel for Mr Palmer also called as a witness Mr Karl Major, a retired Senior
Superintendent of Police. At the time of his retirement in 1997, Mr Major was the Chief
Handwriting Expert attached to the Jamaica Constabulary Force; and, even after his
retirement, he had continued to give evidence in criminal matters on behalf of the Crown,
the last occasion having been as recently as September 2013. Despite the fact that Mr
Major was extensively cross-examined by counsel for the prosecution as to the
methodology adopted by him in his examination of the challenged document in this case,
his qualification as an expert appears to have been accepted.
[274] Mr Major’s evidence was that, having examined a total of 32 specimens of
signatures made by Mr Chow, and compared them with the handwriting and signature on
the 13 November 2013 letter, he had formed the opinion that they were made by the
same person.
[275] In his summing-up, after reading the letter to the jury, the judge told them this
(Vol IX, pages 5123-5128 of the transcript):
“That is the – well, Mr Chow has denied that he wrote this letter. What
Mr. Chow has said, the evidence before the court is at the time when
this letter was written, he was in the protective custody of the police.
He defined ‘productive custody’ to mean he could move around freely
but he couldn’t go a road. He couldn’t go a road. That was how he
described his state. And that condition, that ‘protective custody’,
according to his testimony, was going on up until when he was giving
evidence.
The 13th of November would have been a matter of, perhaps two
weeks or so, a matter of days before he gave evidence before you for
the first time. What the letter is saying, ‘I didn’t intend to be involved
in their cause, the reason why I don’t want to come to court is because
I see Clive after that.’
Now, the date that he mentions is, ‘I legitimize their theory of what
happened on the 16th of August, 2010,’ and the date he refers to, ‘I
don’t want to come to court is because I see Clive after that.’ Is that
the date he is referring? The 16th of August, 2010? You have seen the
witness, Mr Chow. You heard, in fact, when he started to give his
testimony, the lawyer was asking, under cross-examination, if he had
refreshed himself, he said he hadn’t. He was, to my mind – a comment
I make – very clear in respect of what he was saying.
HIS LORDSHIP: It is a matter for you, whether in writing about the
incident, in writing this letter, if he would have put the date, the 16th
of August, 2010. And because you would probably think a date, the
16th of August, would be, and the year it happened, would be of some
significance to him. Is this something that he would have forgotten?
It is a matter for you, Madam Foreman and your members.
You may well ask yourselves, who was it who took this letter to the
Public Defender? How did it reach there? What the Crown has said,
that the word ‘cause’ how used here, ‘the Vibes [sic] Kartel cause’.
Now, I don’t know how many – a comment I make – persons know
that you can describe a case in court by calling it a cause. That is a
way lawyers describe a case. You have a cause before the Court. But,
Madam Foreman and your members, this tattoo artist that you saw,
he described, he called it the Vibes [sic] Kartel cause. It is a matter
for you. It is a matter for you.
The Prosecution has also drawn to your attention to [sic] the fact that
he uses the language ‘legitimize their theory’. You have heard him. Is
that something you expect Lamar Chow would have said, ‘legitimize
their theory’?
When the Court asked Mr. Chow if he knew who the public defender
was, he said no. This is addressed to the Public Defender, Mr. Earl
Whitter, he knew the Public Defender’s name. It is a matter for you.
And how, if it is, this letter is written on the 13th and he told you, that
the 13th, it is undisputed before this court that he was in protective
custody then. He says he was. You haven’t heard anything that he
wasn’t. You may very well ask your yourselves [sic], how could he,
him seh him cyaah goh a road, and police is there – well, he is in
protective custody, he is protected, how did this letter get to wherever
it got to? It is a matter for you.
This is the letter you will be allowed to take into the room with you.
Importantly, too, you have heard evidence of where Mr. Chow had
been for a period of time since the incident; because he told you the
incident he left one place, police came for him there etc. and what
happened after that, you heard the parishes. And you heard how the
lawyers went on before the place was even called, because one of the
attorneys kept mentioning public interest and whatever, and what was
the background against where this man was being held.
Now, the address he gives was his, rather, and you will see it, 3545
some Way or the other, you can look at it, Waterford. Would that have
been his address when this letter was written? He says he was in
police custody, protective custody. But then it is a matter for you,
because the handwriting expert has said, a man on whom the
Prosecution relied earlier, has said, having examined this letter, along
with signatures of his Lamar Chow that is given to him, he formed the
view that it was written by one and the same person, you bear that in
mind. You bear also in mind when you think of this letter, that even if
– and this is a comment I make, and you have heard from me and
you have heard what you can do with comments that you don’t like,
from whatever source they come.
What is the significance of this, what does it say? It is saying, on a
literal interpretation, that he has seen Chow [sic] since the 16th of
August, 2010. But then, that is not the problem. What the Prosecution
is saying he has not been seen a year later. Is one year after that, the
Prosecution is saying, nobody has seen him. Of course, everybody
used to see him everyday before and when this man was saying he
saw him, that wasn’t a problem, everybody used to see him who
wanted to see him. The thing this Prosecution is saying, the 16th of
August, 2011, when, according to Lamar Chow, Lizard, taken by
Needfa, went to 7 Swallowfield Avenue, the home of Adijah Palmer;
he has not been seen since. And that is what is before the Court, not
2010, but that is a matter for you, Madam Foreman and your
members.”
[276] In ground 5, the appellants complain that the judge’s comments about the 13
November 2013 letter “were unreasonable and, at its lowest, capable of suggesting
manipulation by Counsel acting on behalf of the appellants”. Further, that the judge’s
comments “prejudiced the appellants and denied them a fair trial”.
[277] The appellants highlight two aspects of the directions in particular. First, the
judge’s remark that “I don’t know how many … persons know that you can describe a
case in court by calling it a cause … [t]hat is the way lawyers describe a case … [b]ut …
this tattoo artist that you saw [Mr Chow], he described, he called it the [Vybes] Kartel
cause” (Vol IX, page 5125 of the transcript). And second, the judge’s reminder that “[t]he
prosecution has also drawn to your attention to the fact that he uses the language
‘legitimize their theory’”, followed by his comment that “You have heard him … [i]s that
something you expect Lamar Chow would have said, ‘legitimize their theory’?” (Vol IX,
page 5126 of the transcript.)
[278] Mrs Neita-Robertson QC, whose submissions on this ground were adopted by
counsel for all of the other appellants, submitted that the judge’s comments on the use
of (i) the word “cause”, and (ii) the phrase “legitimize their theory”, in the 13 November
2013 letter were inappropriate and improper, in that they implied complicity by counsel in
the writing of the letter. Therefore, the clear inference from the judge’s remarks was that
the letter was manufactured by the appellants with the assistance of a lawyer.
[279] In response, Mr Taylor submitted that the judge’s comments were reasonable and
were merely directed at inviting the jury to think about the evidence critically. In any
event, the judge made it clear to the jury that, his comments notwithstanding, it was
ultimately a matter for them to decide.
[280] We agree with Mr Taylor. It seems to us that the use of the word “cause” and the
phrase “legitimize their theory” (to which we might also add the phrase, “I apprehend
fear”), in the context of the otherwise simple writing style evinced in the 13 November
2013 letter as a whole, was sufficiently unusual as to warrant the judge’s comments. In
this regard, it is relevant to keep in mind that, as the judge reminded the jury, these were
points which counsel for the prosecution had already made in addressing them.
[281] Further, in his comments, the judge expressly invited the jury to consider the
points in the light of the way in which they had already heard Mr Chow give his evidence.
There was therefore no question of them being invited to speculate about the limits of Mr
Chow’s vocabulary.
[282] The judge also balanced his comments in the appellants’ favour by reminding the
jury that “the handwriting expert [Mr Major] … a man on whom the Prosecution relied
earlier, has said, having examined this letter, along with signatures of this Lamar Chow
that [were] given to him, he formed the view that it was written by one and the same
person”.
[283] And finally, and in any event, the judge expressly reminded the jury that it was
entirely a matter for them to decide what weight to attach to the 13 November 2013
letter. This was in fact a repetition of his expansive general direction on the point at an
early stage of the summing-up (Vol IX, pages 4719-4720 of the transcript):
“During the course of my summation to you, Madam Foreman and
your members, I may make a comment on aspects of the evidence. I
want you to understand in the same way I have described myself as
being supreme in relation to the law, you are supreme in relation to
the facts. If I make any comment or, in fact, counsel – and you heard
the various and several comments that were made in how you are to
view and apply the evidence – comments came fast and furious and
from every direction. If those comments don’t accord with your view
… you can toss it [sic] aside. You don’t have to accept it because you
are supreme in relation to the facts of this case.
Again, if I make any comment or counsel, for that matter, make any
comment with which you disagree, do not hesitate to discard them
and to substitute your own views of the facts for any comment which
I or counsel might make. The same principle applies to all counsel for
the Crown or for the Defence.”
[284] Ground 5 therefore fails.
(ii) The directions on the treatment of inferences (ground 6/AP,KJ,AStJ)
(iii) The directions on circumstantial evidence (ground 7/AP,KJ,AStJ)
[285] It is convenient to take these two issues together. The appellants complain in
ground 6 that the judge “gave inadequate directions in respect to the law of inferences or
to apply the law relating to it, thereby denying the jury appropriate tools to enable a fair
and balanced assessment of the case”. And the complaint in ground 7 is that the judge
gave “inadequate directions in respect to the law of circumstantial evidence” and that,
given the nature of the case, “this] was a critical misdirection”.
[286] The judge gave general directions on inferences in two parts. First, he told the
jury that (Vol IX, page 4725 of the transcript):
“Madam Foreman and your members, another part of your function is
to draw reasonable inferences from proven facts. Where direct
testimony is not available, when you draw inferences from proven
facts, you must be quite sure that it is the only inference that can
reasonably be drawn in the circumstances. Where the evidence is
capable of two interpretations my duty … is to point out those possible
interpretations leaving you, the jury, to select one, having heard the
rest of the evidence in the case. I cannot direct you to which facts you
are to find and what other inferences you draw are tantamount to the
finding of facts. When I leave both interpretations to you, you look
over the whole picture and see which one you are going to take. In
considering the evidence given from the witnesses called in the case,
you are entitled … to take into account what is referred to as the
demeanour of the witnesses and this is very important in this case.”
[287] And then, after telling the jury that not everything can be proved by direct evidence
and that “[s]ome things have to be proved inferentially”, the judge added this (Vol IX,
page 4731 of the transcript):
“Inferences can only be drawn from facts which you find proved. The
law permits you to draw inferences, but the law says you must not
draw an inference from a set of proven facts unless that inference is
reasonable and inescapable. And you may draw an inference either to
establish guilt on the one hand or innocence on the other hand. But
bearing in mind, again, I remind you, an inference can only be drawn
if it is reasonable and inescapable.”
[288] Counsel for the appellants submitted that, notwithstanding the judge’s comments
to the jury about drawing reasonable inferences from proven facts, he did not indicate to
the jury that, in drawing inferences, they must rule out all inferences consistent with
innocence before they could find that an inference of guilt had been established.
[289] For the Crown, it was submitted that the judge’s directions on inferences were
adequate and that he was not required to give any specific directions on inferences in the
circumstances of the case.
[290] The Crown relied on the oft-cited statement by Lord Morris of Borth-Y-Gest in
McGreevy v Director of Public Prosecutions (‘McGreevy’) [1973] 1 All ER 503, 510:
“In my view, the basic necessity before guilt of a criminal charge can
be pronounced is that the jury are satisfied of guilt beyond all
reasonable doubt. This is a conception that a jury can readily
understand and by clear exposition can readily be made to
understand. So also can a jury readily understand that from one piece
of evidence which they accept various inferences might be drawn. It
requires no more than ordinary common sense for a jury to
understand that if one suggested inference from an accepted piece of
evidence leads to a conclusion of guilt and another suggested
inference to a conclusion of innocence a jury could not on that piece
of evidence alone be satisfied of guilt beyond all reasonable doubt
unless they wholly rejected and excluded the latter suggestion.
Furthermore a jury can fully understand that if the facts which they
accept are consistent with guilt but also consistent with innocence
they could not say that they were satisfied of guilt beyond all
reasonable doubt.”
[291] In our view, in an area of the law which is now completely uncontroversial, this
authoritative statement of the position provides a complete answer to the appellant’s
complaint in ground 6.
[292] Close to the beginning of the summing-up (Vol IX, page 4729 of the transcript),
the judge told the jury that they should –
“… consider all the evidence in the case, including what the accused
man has said and see whether you are satisfied, so that you feel sure,
that the prosecution has proven its case because it is only when you
are so satisfied so that you feel sure, that you can say that the accused
is guilty.”
[293] Then, virtually at the end (Vol IX, page 5139 of the transcript), he reiterated that
point:
“As I told you … you must be satisfied to the extent that you feel sure
of the guilt of the accused before you can find them guilty.”
[294] In these circumstances, it seems to us that, when taken in the context of these
clear directions on the standard of proof, the jury would have had no difficulty in
appreciating that, where there were competing inferences pointing to guilt, on the one
hand, or innocence, on the other, they could not be satisfied of guilt beyond a reasonable
doubt unless they wholly rejected and excluded the latter. In our view, therefore, it was
not necessary for the judge to go on to tell the jury specifically that they must rule out all
inferences consistent with innocence before they could find that an inference of guilt had
been established.
[295] Ground 6 therefore fails.
[296] The power of circumstantial evidence derives, of course, from inference. Much of
what we have already said in the foregoing paragraphs is therefore equally applicable to
the appellants’ concerns about the judge’s directions on circumstantial evidence.
[297] But the judge also dealt specifically with the issue of circumstantial evidence at a
number of points in the summing-up. Firstly, in the context of proof of death, after
reminding the jury that there was no direct evidence that Mr Clive Williams was dead, the
judge explained that (Vol IX, pages 4714-4715):
“The fact of death can be proven like all other facts in a case, by what
is called circumstantial evidence. That is to say … evidence of facts
that lead to one conclusion, and one conclusion only. And you must
be aware … that before you can draw an inference that Clive Williams
is dead, and that it is the accused who killed him, all the circumstances
on which the Prosecution rely, must point in one direction, and one
direction only.
You must be sure that the circumstances point to his death.
Circumstantial evidence … is regarded as being reliable because it
usually consists of a number of items pointing to the same conclusion.
In the absence of a body or any trace of a body ever being found,
death is provable by circumstantial evidence. Before the defendants
can be convicted, the fact of death should be proved by such
circumstances as rendered the commission of the crime certain…
The circumstantial evidence should be so cogent and compelling as to
convince you and your members that [on] no rational hypothesis other
than murder can the facts be accounted for, so that’s the first issue
for the prosecution. You have to find and determine whether Clive
‘Lizard’ Williams is dead.”
[298] Secondly, the judge undertook a detailed review, of which the appellants make no
complaint, of the items of circumstantial evidence upon which the prosecution relied to
prove the death of the deceased. Despite its length, we will reproduce it in full below in
order to show the basis on which the judge left the prosecution’s case of circumstantial
evidence to the jury (Vol IX, pages 4733-4744):
“So what are the ingredients which the Prosecution must prove to your
satisfaction before you can say that the offence of murder has been
established? The first thing, Madam Foreman and your members, the
Prosecution must prove, is the death of Clive Williams. That’s the first
thing the Prosecution must prove. And in this case the Prosecution
sets out about doing that by identifying certain circumstances. They
are relying on circumstantial evidence to establish, to prove the death
of Clive Williams. The first of those circumstances is that there was a
common design to kill the men responsible for the loss of the guns
and for failure to return them before 8 o’clock on the 14th of August
2011.
Let me say that, again, the first thing the Prosecution is saying,
because what I am telling you in relation to the charge of Murder,
there are certain ingredients that have to be proven. We are now
dealing with the first ingredient that the Prosecution has to prove,
which is the death the [sic] Clive ‘Lizard’ Williams. Remember I told
you already, this is not a case where they can bring a [sic] ‘I see’
witness. I have already indicated to you that the law allows death in
these circumstances where there is no ‘I see’ witness, to be proven by
circumstantial evidence, and I explained to you what circumstantial
evidence is.
The circumstantial evidence that the Prosecution is relying on at this
point, to establish that Clive ‘Lizard’ Williams is dead, is, firstly, that
there was a common design, a common plan to kill the men
responsible for the loss of Adijah Palmer’s new shoes, him [sic] new
gun. If those guns were not returned before 8 o’clock on the 14th of
August, then sanctions would apply. And in due course those, the
Prosecution is saying, if you listen to the voice notes that you heard,
voice note 1, 4, 6 and 7, where – and I think in 7 Mr. Palmer is saying
that well, if the guns are not returned, him and him mumma a goh
dead. It is indicating what the common plan was. In addition, Shawn