By Paul Taylor QC
Caribbean Court of Justice
On appeal from the Court of Appeal of Barbados
Identification evidence – no case submission – corroboration – special circumstances under Section 102 Barbados Evidence Act
– good character evidence – unsworn evidence – Section 95 Barbados Evidence Act – credibility and propensity
Carlton Junior Hall v The Queen
 CCJ 1 (AJ) S
Based on judgement summary
H was convicted of murder. The Court of Appeal dismissed his appeal against conviction and ordered that he be brought before the trial court for resentencing.
H appealed to the CCJ on the following grounds:
- The identification evidence was weak and unreliable. The Trial Judge erred when she:
- failed to withdraw the case from the jury on the basis that the identification evidence was unreliable;
- directed the jury that there were special circumstances supporting the identification when there were no such special circumstances;
- misdirected the jury on the law with respect to the circumstantial evidence needed to corroborate the identification evidence.
- His Counsel had erred in not raising his good character, resulting in the Trial Judge not giving the appropriate direction;
- The Court of Appeal erred in allowing his murder conviction to stand.
At trial, the case for the prosecution had hinged on the eyewitness evidence of Mr. Benn, a friend of the deceased. Mr. Benn was cross-examined about the amount of alcohol he had drunk that night and about other alleged inconsistencies in his testimony.
At the close of the case for the prosecution, Counsel for the Appellant made the submission, pursuant to Section 102 of the Evidence Act, that there was no case to answer, because the identification evidence was unreliable and there were no special circumstances to bolster that evidence. The Trial Judge rejected the submission and ruled that there was a case to answer.
H elected to make an unsworn statement from the dock. He stated that he had never seen the deceased man in his life and had no reason to harm him. The jury returned a unanimous verdict of guilty of murder.
The Court of Appeal rejected H’s appeal because ‘[t]he quality of the evidence adduced by the Crown in this matter, was of such a standard as to constitute “special circumstances” within the meaning of Section 102(2)(a) and was properly placed before the Jury who were adequately warned’.
CCJ: The appeal was dismissed by a majority of 3-2.
Mr Justice Anderson, JCCJ gave judgement on behalf of the majority:
- He considered Section 102 of the Evidence Act and the Turnbull Guidelines in light of DPP’s Reference No. 1 of 2001 of the Barbados Court of Appeal and the decision of this Court in Severin v The Queen  CCJ 19 (AJ).
- The nature and circumstances of the previous sightings of the Appellant by Mr. Benn were such as to be regarded as special circumstances for the purposes of Section 102.
- Although the identification evidence had passed the threshold that warranted it being left to the jury, there was still a need to give the jury certain directions and warnings. Those directions and warnings were found to be adequate and, indeed, exemplary.
- There was no merit to the submissions that the Trial Judge misdirected the jury on the law relating to corroboration.
- Corroboration of identification evidence was not needed for a conviction
- The Trial Judge had not directed that the expert evidence corroborated the identification evidence. She had merely highlighted that the testimony of Mr Benn was consistent with the expert evidence that the deceased was shot from the front. This was relevant evidence, but it did not, by itself, confirm or prove that it was the Appellant who did the shooting.
- The majority made general comments on the issue of good character before proceeding to consider the applicability of this Court’s decision in August and Gabb v The Queen  CCJ 7 that a good character direction as to credibility was not warranted where a defendant does not give sworn testimony.
- The majority found that since the Evidence Act of Barbados regarded an unsworn statement as evidence of approximately the same status as sworn evidence, there was a reasonable argument that a good character direction is required in Barbados whether an accused gave sworn or unsworn evidence. This was supported by the decision of the Barbados Court of Appeal in Re Nurse [34 of 2004]. The majority was also of the view that the failure of an attorney to raise the good character of his client at trial would not normally deprive the accused of the entitlement to the good character direction.
- The test as laid out in August and Gabb, is that the failure to give a good character direction, where such direction is warranted, will result in a conviction being overturned unless the jury would inevitably have returned the same verdict had the direction been given. The majority explained that this meant that the conviction must be overturned unless the appellate court was satisfied that the jury would have returned the same verdict had the direction been given. The Privy Council decision in Sealey & Anor v The State (Trinidad and Tobago)  UKPC 52 was cited for the proposition that it was permissible to compare the relative strengths and weaknesses of the case put forward by the prosecution and the defence in deciding on the likely attitude of the jury. The majority found that, in the present case, the case for the prosecution was strong compared to that for the Appellant, who offered the most perfunctory and pro forma defence from the dock and called no witnesses to support that defence. The jury clearly found the testimony of the witness, Mr. Benn, to be compelling and disbelieved the Appellant. As such, even if the good character direction had been given, the jury would have still found the Appellant guilty of murder.
If you would like to speak to Paul Taylor QC about this case, please email here.