Welcome
Welcome
 
Paul Taylor QC
Paul Taylor QC

Welcome to the August edition of our monthly Criminal Appeals Bulletin.

 

The Bulletin aims to highlight recent changes in case law and procedure in England and Wales, Northern Ireland, the Caribbean and Hong Kong (with an occasional series on appeal cases from Scotland) and to provide practical guidance to those advising on appellate matters. Our monthly case summaries illustrate when an appellate court is likely to interfere with conviction or sentence, as well as looking at the courts’ approach to procedural matters. 

 

The featured article focuses on a current appeal topic. In this edition Kate O'Raghallaigh comments on Jack Shepherd, the appeal against conviction and the linked extradition proceeding.

 

We also look at:

  • CACD conviction appeals dealing with bad character evidence, hearsay, jury questions, abuse of process, “potting” and noxious things, and unfitness to plead.
  • CACD sentencing appeal relating to minimum terms for murder (discount for guilty plea to manslaughter);
  • CCJ murder conviction appeal from a Judge without jury trial.

Doughty Street has some of the most experienced appellate practitioners at the Bar, including the contributors to the leading works on appellate procedure - The Criminal Appeals Handbook, Taylor on Criminal Appeals, Blackstones Criminal Practice (appeals section), Halsbury’s Laws (Appeals).

 

Please feel free to e-mail us or to call our crime team on 020 7400 9088. We also offer our instructing solicitors a free Advice Line, where they can discuss initial ideas about possible appeals, at no cost to them or their client. More information on our services can be found on our website.

 

We hope that the bulletin is of interest to you. 

 

With best wishes,

 

Paul Taylor QC

Head of the DSC Criminal Appeals Unit


Welcome to the August edition of our monthly Criminal Appeals Bulletin.

 

The Bulletin aims to highlight recent changes in case law and procedure in England and Wales, Northern Ireland, the Caribbean and Hong Kong (with an occasional series on appeal cases from Scotland) and to provide practical guidance to those advising on appellate matters. Our monthly case summaries illustrate when an appellate court is likely to interfere with conviction or sentence, as well as looking at the courts’ approach to procedural matters. 

 

The featured article focuses on a current appeal topic. In this edition Kate O'Raghallaigh comments on Jack Shepherd, the appeal against conviction and the linked extradition proceeding.

 

We also look at:

  • CACD conviction appeals dealing with bad character evidence, hearsay, jury questions, abuse of process, “potting” and noxious things, and unfitness to plead.
  • CACD sentencing appeal relating to minimum terms for murder (discount for guilty plea to manslaughter);
  • CCJ murder conviction appeal from a Judge without jury trial.

 

 

Doughty Street has some of the most experienced appellate practitioners at the Bar, including the contributors to the leading works on appellate procedure - The Criminal Appeals Handbook, Taylor on Criminal Appeals, Blackstones Criminal Practice (appeals section), Halsbury’s Laws (Appeals).

 

Please feel free to e-mail us or to call our crime team on 020 7400 9088. We also offer our instructing solicitors a free Advice Line, where they can discuss initial ideas about possible appeals, at no cost to them or their client. More information on our services can be found on our website.

 

We hope that the bulletin is of interest to you.

 

With best wishes,

 

Paul Taylor QC

Head of the DSC Criminal Appeals Unit

Feature Articles
Criminal Appeal and Extradition
 
Kate O’Raghallaigh
Kate O’Raghallaigh

Kate O'Raghallaigh looks at R v Jack Shepherd: manslaughter, police interviews and extradition bail act offences.


By Kate O'Raghallaigh

 

 

Manslaughter - Application of Code C during significant witness interview - breach of specialty protection

 

Jack Shepherd [2019]

 

EWCA Crim 1062

 

 

The case of Jack Shepherd is better known for the media furore surrounding his trial in his absence than it is for the issues of law which arose in relation to his conviction and subsequent extradition from Georgia. In June, however, the Court of Appeal handed down judgment in two appeals relating to Shepherd’s case: first, an appeal against his conviction for gross negligence manslaughter and secondly, an appeal under s.13 of the Bail Act 1976 relating to breaches of specialty protection under the Extradition Act 2003. The latter appeal was brought against Shepherd’s conviction for a Bail Act offence to which he had pleaded guilty after his extradition. The case underscores the importance of strict compliance with specialty provisions for defendants who are extradited to the UK.

 

Facts

 

Shepherd and the deceased had been on a date. They had been drinking over the course of the evening and later took Shepherd’s speedboat out on the river. After further drinking, Shepherd drove the boat at speed and let the deceased drive the boat, during which time the boat hit a submerged tree and both were thrown into the water. Whilst Shepherd was rescued, the deceased died later in hospital.

 

Shepherd was interviewed as a significant witness the next day. Despite officers having formed the impression that he had been drunk the previous evening, they did not treat him as a suspect. The officers in question were unaware of the Thames Byelaw prohibiting being in charge of a boat whilst intoxicated and for reasons which are unclear, did not otherwise suspect Shepherd of an offence of criminal negligence. Shepherd was therefore not cautioned or offered legal advice during the interview, despite making significant admissions about alcohol consumption. He was later prosecuted for gross negligence manslaughter on the basis that he had breached his duty of care towards the deceased - in part, by being intoxicated whilst he was in charge of the vehicle.

 

Shepherd later absconded to Georgia and was tried and sentenced in his absence. He consented to his extradition from Georgia in April 2019 and pleaded guilty at the Central Criminal Court to a s.6 Bail Act offence for which he was sentenced to six months’ imprisonment. However, the UK Extradition Unit had not included a Bail Act offence in the extradition request and did not thereafter seek Georgia’s consent to prosecute Shepherd under the Bail Act.

 

The manslaughter appeal

 

It was Shepherd’s significant witness interview which formed the subject of the appeal against conviction, the issue being whether the trial judge was correct to admit parts of the interview in which Shepherd spoke of the accident. The interviewing officer accepted on the voir dire that, had he known of the byelaw, he would have cautioned Shepherd before seeking to ask specific questions about alcohol. In the context of an alleged breach of Code C, the judge drew a distinction between questions which went to alcohol consumption and other more general questions about the accident, ruling inadmissible parts of the interview referring to alcohol consumption but admitting Shepherd’s answers to open questions about the accident.

 

In dismissing the appeal, the Court was persuaded that, because the interviewing officer had been subjectively unaware of the byelaw offence, the protection of Code C was not triggered. The Court reached this conclusion despite accepting that there were objective grounds on which they could have suspected Shepherd of a criminal offence. The Court placed significant emphasis on the purpose of the significant witness interview: Shepherd had answered questions during the ‘investigative phase’ of police activity and, whilst there may well have been the possibility that he was a suspect, the police should not be trapped by ignorance of an obscure byelaw offence so as to render their questioning in breach of the Codes. Finally, the Court decided that, even if there had been a breach of Code C, the breach was not such as to render the admission of any evidence from that interview, unfair.

 

 

The specialty appeal

 

The law of extradition does not permit countries to surrender individuals from one place to another without any form of limitation: one such limitation is specialty protection. Specialty protection is a principle whereby a requesting state undertakes not to try or punish a requested person for any offence committed prior to extradition, save for the offences for which he or she has specifically been extradited. The principle is elemental to the operation of extradition arrangements and is enshrined in the Extradition Act 2003.

 

The consequence of specialty protection is that the Crown Court did not have jurisdiction to deal with Shepherd for a Bail Act offence unless the Crown had alleged such an offence in the extradition request or had sought consent from Georgia to prosecute him under the Bail Act. Though there had been reference within the extradition request to Shepherd’s failure to attend his trial, as previously canvassed in R v Seddon [2009] 2 Cr App R 9, R v Dey [2010] EWCA Crim 1190  and R v Birch [2015] EWCA Crim 2289, s.151A(3)(b) of the Extradition Act 2003 requires that the full criminal allegation must be included.  

 

Thus, the only way in which the Bail Act conviction could stand was if Georgia had given consent under s.151A(3)(c). Whilst the Crown exhibited a series of emails between the UK Extradition Unit and their Georgian counterparts, the Court accepted that those emails did not contain any request for consent. Accordingly, the Court accepted that the proceedings under the Bail Act were a nullity and Shepherd’s conviction for failure to surrender was quashed.

 

Shepherd’s is the latest in a line of cases where convictions under the Bail Act have been quashed because the provisions of Part 3 of the Extradition Act have not been complied with. Where practitioners represent someone who has been extradited and appears in the Crown Court, the extradition request should be obtained and scrutinised to make sure that specialty protection has been complied with.

 

 

If you would like to discuss this case with Kate O'Raghallaigh, please email here.

 

Appeals against Conviction; England and Wales
 
Paul Taylor QC
Paul Taylor QC

Paul Taylor QC looks at the latest CACD conviction appeals dealing with bad character evidence, hearsay, jury questions, abuse of process, “potting” and noxious things.


By Paul Taylor QC

 

Historic sex offences – bad character evidence – absence of judge’s direction

 

R v Adams

 

[2019] EWCA Crim 1363

 

A was convicted of six counts of rape and eight counts of indecent assault.  He was sentenced for those offences to a total of 15 years' imprisonment. There were two complainants, M and G.

 

CACD quashed the convictions on the basis that the judge erred in not giving the jury any direction about whether, and if so how, they could rely on the evidence of each complainant when considering the allegations made by the other. 

 

At trial the prosecution did not seek to put its case on the basis that evidence relating to any of the counts on the indictment was admissible in relation to the issue of whether A was guilty on any other count. Consequently, [18] “the jury ought to have been directed that, in considering each count, they should have regard only to the evidence which was directly relevant to that count and should ignore evidence relating to other counts…[whilst he did direct them to consider each count separately [19]] No such direction was given by the judge.  Indeed, he did not give any direction to the jury at all with regard to whether, and if so how, they could take account of evidence relating to one count when considering other counts and in particular whether they could take account of either complainant's evidence when considering the allegations made by the other.”

 

This was “a case in which…the question whether the evidence of each complainant was admissible in relation to the allegations made by the other was potentially of great significance to the jurors' decisions.  In these circumstances, we consider that the failure to give any such direction makes the appellant's convictions unsafe.”

 

Commentary:

The CACD emphasised the need for the prosecution to adhere to procedural rules when seeking to adduce bad character evidence, even if with hindsight it could be said that if an application to adduce such evidence had been made, it might properly have succeeded.

  1. The fact was that “no such ruling was sought or given and, unless the procedure for admitting evidence of bad character is to be treated as a complete dead letter, that meant that the evidence was inadmissible and the appellant was entitled to have the case decided on the basis that evidence on each count was inadmissible in relation to other counts".  That in turn made it necessary for the judge so to direct the jury. [21]
  2. “Looking at the matter more broadly, the general tendency of the criminal law over time has been towards a gradual relaxation of rules of evidence and an increasing willingness to trust to the good sense and rationality of juries to judge for themselves whether particular evidence is relevant to an issue they have to decide and if so in what way.  But we have not yet reached the point where evidence of a defendant's bad character can be left as a free for all.  The particular ways in which evidence that a person has committed one offence may or may not be relevant in deciding whether that person is guilty of another offence are not always immediately obvious even to legal professionals and have had to be worked out by the courts in a number of cases.  Lay jurors are entitled to assistance on these questions and cannot be expected to work out the approach which the courts regard as proper for themselves.  It therefore seems to us to be essential that, in a case of this kind, the jury should be given clear directions on whether, and if so how, evidence relating to one count may be taken into account in deciding guilt on another count". [22]

 

 

Hearsay evidence – car registration number

 

R v Nico Brown

 

[2019] EWCA Crim 1143

 

The CACD considered whether the trial judge erred in admitting as hearsay evidence a statement made at the scene of a crime by a person who could not afterwards be identified or traced.

 

The victim had been stabbed in his car. The assailant was seen to get out of a car, make repeated downward thrusts with a knife before running back to his own car. NB was charged with wounding with intent to cause gbh and possession of an offensive weapon on the basis that he was the assailant.  He denied that he was that person.  

 

A witness, Ms Ghani, made a 999 call immediately after the incident in which she gave what she said was the registration number of the car driven by the assailant. The number reported matched the number of a car of which NB was the registered keeper. 

 

Ms Ghani gave evidence that she saw a man trying to stab someone who was sitting in the driver’s seat of a car; but she then immediately rushed to her child, who was standing at the front of the bus, to cover his eyes.  She had seen another black saloon car behind the victim’s car but did not herself note its registration number.  Within 40 seconds of the incident she made a 999 call.  The call was recorded and on the recording Ms Ghani’s voice can be heard reporting the stabbing and giving a car registration number which she said was that of the car driven by the assailant.  Ms Ghani said in evidence that she read this number from the mobile telephone of a woman who was sitting behind her on the bus.   Ms Ghani did not know this person and recalled that she had a South African accent.  On the recording of the 999 call, a woman’s voice can be heard in the background helping Ms Ghani with the phonetic spelling (Papa, Foxtrot etc) of the registration number.

 

On footage from a CCTV camera inside the bus showing the front of the top deck a female passenger can be seen sitting behind Ms Ghani.   When the bus began to move, which was immediately after the stabbing occurred, the passenger can be seen retrieving her phone.  Then, while Ms Ghani was making what must have been the 999 call, the passenger behind her can be seen during the call holding out her phone towards Ms Ghani so that Ms Ghani could see the screen.  

 

The police made extensive efforts to trace this passenger. It had not been suggested that there was any further step which the police could reasonably have taken. Their efforts were unsuccessful.

 

Ms Ghani was able to give first-hand evidence that the number she reported to the operator during the 999 call was a number that she read from the screen of the mobile phone shown to her by the person who was sitting behind her on the bus.  But she had no direct knowledge that the number recorded on that person’s mobile phone was the number plate of the car to which the assailant returned after the attack.  Her belief that this was so was based on what her fellow passenger had told her.  That person’s statement to Ms Ghani was therefore admissible as evidence of the truth of the matter stated if, but only if, this case falls within one of the limbs of section 114(1) of the 2003 Act.  

 

The CACD analysed the various bases upon which the hearsay evidence could be admitted. It concluded that the evidence was admissible on the basis that it formed part of the res gestae.

 

 

 

Jury question – adequacy of judge’s response

 

R v Medouni and Kouider

 

[2019] EWCA Crim 1283

 

M and K were convicted of murder. The CACD considered the directions given by the trial judge in answer to a question asked by the jury during their deliberations. The sole point was whether the answer provided to the jury question was unbalanced and heavily weighted in favour of the prosecution. It was submitted that the judge should also have reminded the jury of the appellant’s evidence. Further it was argued that the judge should have informed the jury that the question was not one of interpretation.

 

The Judge received a note and discussed it with counsel. Appellate counsel accepted that “the submissions made by counsel at the time of the note suggests approval of the proposed direction, or at least, acquiescence. He was not present in court but was consulted by telephone. He did not agree the proposed response but did not pursue the matter.” [25] It was submitted that “the real question for this court should be not the attitude of trial counsel but the adequacy of the direction irrespective of agreement or acquiescence at the time.”

 

The CACD rejected the argument that the Judge’s response was in any way inaccurate. It pointed, inter alia, to the following matters in support of this conclusion: the judge had provided the jury with clear written directions and a route to verdicts. He had summed the evidence up over considerable time with care and in detail.

 

 

 

Historic sex offences - Abuse of process – loss of evidence by police

 

R v PR

 

[2019] EWCA Crim 1225

 

This case will be reviewed in detail in the September bulletin.

 

This appeal concerned whether the trial judge was right to allow the case to proceed when evidence gathered by the police in 2002, relevant to the appellant’s defence, was destroyed by water damage and was unavailable for the trial in 2018.  PR submitted that the judge wrongly refused his application, which was renewed following the prosecution’s evidence, to stay the proceedings as an abuse of process.

 

 

 

“Potting” – whether urine is a “noxious thing”

 

R v Versey, Monroe and Beardshaw

 

[2019] EWCA Crim 1225

 

These three cases, otherwise unconnected, were listed together because each raises issues as to a form of assault which is colloquially referred to as "potting" (a prisoner either throwing at a prison officer, or smearing a prison officer with, urine, faeces or a mixture of the two). The question is whether it amounts to an offence under section 24 of the Offences Against the Person Act 1861, of unlawfully and maliciously administering a noxious thing with intent to injure, aggrieve or annoy. Is urine capable of being a noxious thing in this context? At para 26 Holroyde LJ stated:

 

“In our judgment, where an issue arises as to whether a substance is a noxious thing for the purpose of section 24 of the 1861 Act, it will be for the judge to rule as a matter of law whether the substance concerned, in the quantity and manner in which it is shown by the evidence to have been administered, could properly be found by the jury to be injurious, hurtful, harmful or unwholesome. If it can be properly so regarded, it will be a matter for the jury whether they are satisfied that it was a noxious thing within that definition. In the present case, the judges below were entitled to find that a cupful of human urine, from an unknown source, thrown at the face of a victim is capable of being regarded as an unwholesome, and therefore a noxious, thing….”

 

 

If you would like to speak to Paul Taylor QC about these cases, please email here.

Appeal against Conviction; England and Wales
 
Erim Mushtaq
Erim Mushtaq

Erim Mushtaq reviews the latest CACD decision on challenging findings of fact following a finding of unfitness.


By Erim Mushtaq

 

Unfitness to plead – impact on subsequent appeal

 

R v Roberts

 

[2019] EWCA Crim 1270

 

 

The CACD set out the procedure to be adopted when a defendant who has been found unfit to plead and subsequently been found to have committed the actus reus of the offence, wishes to pursue an appeal against the finding of fact.

 

R was found unfit by the Recorder in the Crown Court. Counsel was appointed to put the defence case. Pursuant to s.4A of the Criminal Procedure (Insanity) Act 1964, the jury found he had committed the acts in respect of two offences of meeting a child following sexual grooming, contrary to s.15 Sexual Offences Act 2003. He was sentenced to a hospital order under s.37 Mental Health Act 1983 and the Court imposed a Sexual Harm Prevention Order.

 

R prepared voluminous grounds of appeal himself. The case was referred to the full court and counsel was appointed by the Registrar to represent Mr Roberts’ interests.

 

One ground of appeal was pursued by counsel relating to the admissibility of bad character evidence. The remainder of the grounds were considered by the Court but not pursued by counsel. The CACD reaffirmed the position in R v Creed [2011] EWCA Crim 144 that the bad character provisions did apply to finding of fact proceedings and that in this case the Recorder was correct to admit the various material in evidence.

 

Whilst the application was refused, the CACD took the opportunity to clarify the procedure to be adopted when dealing with applications from applicants found unfit. The Court provided that:

 

Competence to launch an appeal

  • Where an individual has been adjudged unfit under s.4 CP(I)A 1964, the individual is not competent to appeal in person against that ruling or any subsequent ruling under s.4A of the Act.
  • S.15 Criminal Appeal Act does not extend to individuals acting in person, as the individual has to be judicially determined on expert psychiatric evidence to be unfit to plead or stand trial.
  • The above does not mean that an individual adjudged to be unfit cannot appeal. The process to be adopted is found within section D9 of the Guide to Commencing Proceedings in the Court of Appeal, Criminal Division (August 2008), which provides that the accused can seek to appeal against a finding of unfitness or that he did the act/omission charged by the person appointed to represent the accused.

Legal representative’s obligations

  • It is the duty of the person appointed by the court to present the defence case to consider as a matter of professional obligation whether an appeal might properly lie against the finding of unfitness, the finding of fact or the disposal. The person appointed may have regard to the instructions of the accused but this is a matter of judgment and those instructions will not bind the representative as they come from an individual who has been assessed and determined as unfit.
  • If the appointed person considers there are no arguable grounds and does not settle a Notice of Appeal, there can be no valid appeal. The individual will not be competent to pursue an appeal in person, nor is competent to instruct fresh counsel or solicitors to pursue an appeal on his or her behalf.
  • However, if the appointed advocate believes there are no grounds of appeal, the case papers are then to be referred to the Single Judge to review and consider under s.31B CP(I)A 1968, whether to give a direction that such a person should be appointed. If the Single Judge finds that there are no properly arguable grounds, the application will be rejected by the Single Judge on the basis that it is ineffective by reason of lack of mental capacity but the Single Judge will give such reasons on the grounds actually sought to be pursued indicating that they lack sufficient merit to justify appointing a person to put the case.  Thereafter there can be no right of renewal to the Full Court (see below).

The Single Judge

  • If the Single Judge considers on the papers that there may be potential arguable grounds, then the Single Judge is entitled to direct that fresh counsel be appointed to consider whether there are viable grounds, to settle them if there are grounds and to present the case to the Court of Appeal. The process will be for the grounds to be placed before the Single Judge, preferably the same one, and for the Single Judge to consider on the papers if leave is to be granted or if the application is to be referred to the Full Court. If fresh counsel is of the view that there are no viable grounds to be advanced, then the matter is to be referred to the Single Judge who will reject the application.

Recovery of capacity prior to the appeal

  • Where an applicant claims subsequently to have recovered mental capacity, and states that they want to pursue an appeal, this will not be accepted in the absence of fresh, psychiatric evidence. If such evidence is lodged in support of the application for permission to appeal, then the papers will be referred to the Single Judge (together with the application to adduce such evidence and any application for an extension of time). The Single Judge will then determine whether it is in the interests of justice for a person to be appointed to put the case under s.31B.

Legal professional privilege

  • Privilege applies to communication between the unfit individual and the advocate appointed. It is a matter for counsel to consider what use can be made of the instructions given. Where the individual seeks to criticise the person appointed on their behalf, the question of waiver of privilege may arise. An unfit individual cannot himself or herself meaningfully waive privilege (the Registrar asked Mr Roberts whether he waived privilege and he agreed, a course of action which the Court stated was an incorrect procedure but that no prejudice had arisen in his case). Waiver of privilege will therefore be a matter for the appointed advocate or the freshly appointed advocate to decide, acting in the best interests of the accused and having regard to their normal duties to the Court.
  • A new amended form might be appropriate in such cases other than the standard NG form used.

Costs of the appeal

  • The costs of such an appeal should not be covered by a representation order but rather an order should be made for payment to be made out of central funds where an appeal against a finding of unfitness or the finding of fact that he or she did the act/omission charged is allowed, to be capped at legal aid rates. Where leave is granted or referred to the full Court, an application can be made to the Court at the conclusion of the hearing for the defendant’s costs. Where an appeal against either determination is reasonably and properly brought, if the appeal is unsuccessful, the legal representatives should be remunerated. Where the Single Judge has refused leave, then that judge determines whether to make a costs award out of central funds of the application for leave.

 

Erim Mushtaq appeared as counsel for Mr. Roberts in the application for leave. She was appointed by the Registrar of Criminal Appeals.

 

 

If you would like to speak to Erim Mushtaq about this case, please email here.

 

Appeals against Sentence; England and Wales

Paul Taylor QC looks at the latest CACD sentencing appeal relating to minimum terms for murder (discount for guilty plea to manslaughter).


By Paul Taylor QC

 

Murder – minimum term – mental disorder reducing culpability – Judge’s assessment of psychiatric evidence – discount for early admission of killing

 

R v Turner

 

[2019] EWCA Crim 1300

 

T was convicted of murder. The only issue at trial was diminished responsibility. He had previously pleaded guilty to manslaughter on that basis. T was sentenced to imprisonment for life with a minimum term as 16 years less 306 days.

 

At trial there was a dispute between the psychiatric evidence, in particular as to whether or not T was suffering from a mental illness. In sentencing, the judge stated his own conclusion that T was not suffering from either schizophrenia or from a schizoaffective disorder, but that instead  “his behaviour was as a result of anti-social personality traits, coupled with his anger and stress and possibly exacerbated by cannabis and alcohol consumption ..."  He also addressed the mitigation, which essentially was in the form of the mental health disorder, and assessed whether that lowered the degree of culpability.  As to that, the judge said this:   "In my view it did, but only to a small extent.” The judge then turned to consider credit for the guilty plea, accepting that he had entered a guilty plea to manslaughter at the earliest opportunity and "...has always accepted the facts of what took place, without seeking to mitigate"; as a result he gave a 1 year discount.

 

T argued that (a) insufficient weight had been given to T’s mental health issues when considering his culpability; (b) insufficient credit was given to reflect T’s earlier admissions of killing the deceased and his early acceptance of guilt of manslaughter by reason of diminished responsibility.  (c) the judge erred in his assessment of the aggravating factors. The CACD rejected (a) and (c); the impact of the mental health issue “was a matter for the judge and his appraisal of the evidence.”

 

As to (b): The CACD analysed the background to his admissions and the Definitive Guideline on Reduction on Sentence for a Guilty Plea issued by the Sentencing Council, Para F1, and Markham [2017] EWCA Crim 739. It concluded that the proper discount should have been 2 years and not 1 year. (Minimum term reduced to 15 years).

 

 

If you would like to speak to Paul Taylor QC about this case, please email here.

 

Caribbean Case Summary

Paul Taylor QC notes a recent CCJ murder conviction appeal from a Judge without jury trial.


By Paul Taylor QC

 

The Caribbean Court of Justice (Appellate Jurisdiction)

Judge only trial – hearsay – treatment of evidence – defence case

 

Dioncicio Salazar v The Queen

 

[2019] CCJ 15 (AJ)

 

On appeal from the Court of Appeal of Belize

 

DS was convicted of the murder of Rivera after a trial before a Judge without a jury.

 

The prosecution had alleged that DS approached Rivera and Dougal and shot both men. The main issue in this case was whether that murder was committed by DS. He denied involvement from the start. The prosecution’s case was based, to a great extent, on the evidence of Dougal’s common law wife, Bahado, Rodriguez, a former police officer who at the time was on mobile patrol near to the scene, and a deposition (police statement) of Dean Dougal, who had died (of causes unrelated to the shooting) prior to the start of the trial. 

 

The grounds of appeal were as follows:

  1. The trial judge had given “full weight” to the deposition of Dougal. DS argued that hearsay evidence admitted under section 123 of the Indictable Procedure Act [IPA] must as a starting point be considered of lesser weight than similar evidence admitted under section 105 Evidence Act, although at the end after a full analysis of the entire evidence it could be given full weight.
  2. The trial judge considered a portion of a transcript of a previous unrelated trial, which had not been entered as evidence in the trial against him for the sake of confirmation of evidence given by DS’s alibi witness.
  3.  The judge had wrongly admitted the statement of Rodriguez where he testified that he had heard Bahado say that “Life just shot my husband” as this was hearsay evidence the prejudicial effect of which far outweighed its probative value. But even if it was admissible, it was evidence of too poor a quality to be used in a serious matter as this one.
  4. The judge had not properly considered the defence case as she had already reached the conclusion that he was guilty before she even looked at his alibi evidence. In his view she should have considered all the evidence before concluding halfway through the judgment that he had killed the deceased. 

The CCJ analysed the judge’s decision and rejected the criticism.

 

The CCJ also made some general comments regarding:

  1. The constitutional requirement that any criminal trial needs to be fair. This implies, among other things, that the accused and society must be able to understand the verdict flowing from that trial. Underlying this idea are the rule of law and the avoidance of arbitrariness. [Para 25]
  2. The differences between challenging judge only and jury trials on appeal [Paras 26 and 27], and the extent to which a judge only must give reasons [28 and 29];
  3. The situation in Belize where it appears that the unsworn statement of a person to a police officer is in principle admissible as evidence in criminal proceedings if the maker of the statement dies before the trial. Such out of court statements are regularly used in Belize and are admitted either under section 123 IPA or section 105 Evidence Act.  [Paras 36 -40].

 

 

If you would like to speak to Paul Taylor QC about this case, please email here.