John v. The State, Court of Appeal - Privy Council, March 16, 2009,  UKPC 9
|Resolution Date:||March 16, 2009|
|Issuing Organization:||Privy Council|
|Actores:||John v. The State|
 UKPC 12
John v. The State of Trinidad & Tobago (Trinidad & Tobago)  UKPC 9 (16 March 2009)
Privy Council Appeal No 66 of 2007
Ronald John Appellant
The State of Trinidad and Tobago Respondent
THE COURT OF APPEAL OF THE REPUBLIC OF
TRINIDAD AND TOBAGO
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JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL
Delivered the 16th March 2009
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Present at the hearing:-
Lord Rodger of Earlsferry
Baroness Hale of Richmond
Lord Brown of Eaton-Under-Heywood
Sir Jonathan Parker
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[Majority Judgment Delivered by Lord Brown of Eaton-Under-Heywood]
In the early afternoon of Wednesday, 27 November 2002, in the course of a robbery at the Starlite Recreation Club in Palmyra Village, San Fernando, the club's proprietor, Kenneth Boxie, was shot dead. On 8 February 2006, following a three-week trial before Mohammed J and a jury at the San Fernando Assizes, the appellant, Ronald John, was convicted of Boxie's capital murder and, as required by the law of Trinidad and Tobago, sentenced to death. On 28 March 2007, his appeal against conviction was dismissed by the Court of Appeal (Hamel-Smith, Warner and Kangaloo JJA). This further appeal is brought pursuant to special leave granted by the Board on 6 December 2007.
The only evidence against the appellant was that given by an accomplice, Jeffrey Lewis, a taxi driver, whose basic account to the jury was that on the occasion of the killing he had driven the appellant and two other (unidentified) men to various locations in the south including the Starlite Club, having understood that the men were just going ``to mark a scene'' (carry out a reconnaissance), that at the Club the appellant got out of the car with a gun in his hand, that he himself remained in the car under threat during the course of the robbery, that he had then driven the men back to Sea Lots where he had first picked them up, and that he had been in a position to describe the appellant to the police (sufficiently to enable the police to arrest the appellant on 6 December 2002) because for some months previously, once or twice a week whilst on his taxi run, he had used to see the appellant liming (hanging around) on Queen and Nelson Streets, Port of Spain, on one occasion for two or three hours, and so was able to recognise him although he did not know him personally. He had also, of course, seen the appellant on the drive south to the Club on 27 November when, he told the jury, the appellant had hired him and had been the front seat passenger affording him ample opportunity for observation; he said he would have looked at the appellant's face for some 20-25 minutes in all that day.
Indisputably Lewis had driven the robbers to the Club: although efforts had been made to obscure the hire car's registration plates, its number had in fact been noted and had led the police on 3 December 2002 to the vehicle's owner who told them that Lewis had been driving it on 27 November. Lewis himself was arrested on 3 December and twice interviewed by the police that day before taking them on the route he had taken with the robbers on 27 November. On 4 December Lewis made the first of two written statements to the police under caution. On 6 December Lewis was again seen by the police and again accompanied them on the route taken on 27 November. On 6 December, as stated, the appellant was arrested, solely on the basis of what Lewis had already by then told the police. On 7 December Lewis made his second (and, so far as is known, final) statement to the police. On 4 December the police had also taken a statement from Lewis's common law wife, Sophia Phillips (who was present when both of Lewis's statements were taken).
There can be no doubt that Lewis's story to the police had been in certain respects an evolving one, in particular in that he initially sought to deny completely (to Ms Phillips as well as to the police) and then to minimize his own involvement in the robbery, particularly as to the precise circumstances in which the robbers came to hire his cab and for what purpose. For example, his first recorded--recorded only in the sense of being based upon notes taken at the time--interview (the second interview on 3 December) begins by Lewis saying ``sorry for not telling yuh the truth'', and even in his statement of 7 December Lewis says that ``the statement that I did give [on 4 December] was not totally correct''. It was not until 7 December that Lewis admitted knowing that the journey south was to ``mark a scene'' rather than merely to collect spare parts, as he had earlier said, to repair the appellant's own broken down vehicle. So far as his description of the actual gunman was concerned, however, the only change in Lewis's account was that, whereas initially he had given the impression of not knowing him at all, in his statement on 7 December he said: ``I know them fellas by Nelson Street, they do thief and thing, so I ask him if he have anything [i.e. a weapon] on him''.
By the time of the appellant's arrest on 6 December the recorded information about the gunman given by Lewis consisted of the descriptions ``5' 9'' tall, brown skin negro, slim build'' (interview 3 December) and ``I do not know him but he had on a blue and white cap, a blue and white striped jersey, three quarter pants. I can't remember the exact colour. He was a slim, tall, brown-skinned fella with a gold tooth in the top jaw, of African descent with a kinda longish face. He had a small scar on the right side of his face somewhere on his cheek. He had small eyes and was clean shaven'' (statement of 4 December, a description not inconsistent with such as were given by those who had witnessed the robbery at the Starlite Club); plus the fact that he was known to the other robbers as ``Dollars'' (statement of 4 December), and that he lived at Sea Lots (an area near the coast in Port of Spain) where Lewis had picked him up and later returned him on the day of the robbery. The police at trial said that Lewis had mentioned not only Sea Lots but Pioneer Drive in Sea Lots (the address at which the appellant was arrested) and, of course, not everything said by Lewis to the police had been recorded in writing, for example whilst Lewis had twice retraced for them his journey of 27 November. Be that as it may, the police plainly had no doubt that they had correctly identified the person whom Lewis was describing as the gunman (and, on 7 December, was saying that he had in any event been able to recognise from his past knowledge of him on the street). Furthermore, the appellant was already known to the police as ``a local villain'' (a fair characterisation, Mr Birnbaum QC concedes). On arrest, it is right to say, the appellant denied all involvement in the robbery.
So sure were the police that they had arrested the right man that he was never put up on an identification parade. There was no reason to suppose that any of the few other witnesses of this robbery would have been able to identify him and, certainly by 7 December, the police regarded Lewis's identification essentially as recognition rather than observation evidence. On 9 December the appellant was charged with Boxie's murder. The same day, Lewis was released from police custody.
In the event, it was not until 19 February 2004 (over a year after the appellant's arrest and during the preliminary enquiry into the murder charge against him, indeed some four months after that had begun) that Lewis for the first time since the robbery came face to face with him. Without objection from the defence, Lewis's evidence on that occasion was as follows: ``I knew the person who flagged me down a few months before by seeing him. I know him by seeing him on Nelson Street. I used to see this person probably once or twice a week. I see this person I speak of in court today. If I see him again I would be able to point him out (witness points to accused).''
Earlier that very day (19 February) Lewis had been served with a written undertaking signed the previous day by the DPP, in effect undertaking not to prosecute him providing that he made full and truthful witness statements and gave evidence in accordance with them when required to do so in relation to the matters giving rise to the appellant's indictment for murder.
As stated, the appellant's trial before the jury lasted three weeks. He was most ably defended. Lewis, the prosecution's all-important witness, was strenuously cross-examined. Essentially it was put to him that he was lying, rather than mistaken, in stating that the accused was the gunman, lying to save his own skin. His evidence was that he was well able to recognise the appellant. He said that the immunity ``gave me a chance to speak the truth.'' When it was put to him that he identified the appellant in the dock because: ``No matter who you saw as the accused person in the Magistrates Court or this Court - because the State wanted you to involve Ronald John. If not, you would have [been] charged with murder [under the felony murder rule]'', Lewis replied: ``All the State wanted me to do is to speak the truth and I did so.'' The judge having rejected a submission of no case to answer at the close of the prosecution case, the appellant chose not to give evidence. Ms Phillips was called on his behalf but really could say nothing of help. The judge's summing up to the jury took about a day and a half. Although criticising it as ``overlong'', Mr Birnbaum acknowledges that the judge ``clearly strove to be fair'' and took meticulous care in dealing with the evidence.
For their part their Lordships regard the summing up as a model of fairness and clarity. More than once the judge emphasised that ``the State's case stands or falls on the evidence of Jeffrey Lewis. Everything therefore depends on what you make of...
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