Henderson J
IN THE GRAND COURT OF THE CAYMAN ISLANDS
HOLDEN IN GEORGE TOWN, GRAND CAYMAN
SCA #57 OF 2002
DONALD KNIGHT
vs
REGINA
Reasons for Judgment delivered by THE HONOURABLE
MR. JUSTICE HENDERSON on Friday, August 1, 2003,
at George Town, Grand Cayman.
APPEARANCES:
For the APPELLANT: MR. S. DICKSON
For the RESPONDENT: MR. S. WILSON
COURT COMMENCED ON FRIDAY,
AUGUST 1, 2003 AT 4:19 P.M.
RULING BY THE COURT:
THE COURT: The appellant, Donald Knight, appeals from his convictions in the Summary Court on charges of being concerned with the importation of cocaine and interfering with a witness. He was sentenced to 15 years.
A number of points have been taken by his counsel on this appeal, but I need deal with one only.
The principle evidence against Knight was given by one Emily Scott. She testified that she was recruited in Jamaica to swallow cocaine and bring it through Cayman Customs. She said that she had two phone calls while she was in Jamaica with a man who identified himself as "Donald Knight". He said that he worked at Ropers doing janitorial work in the Cayman Islands. She said she had never met the man.
She went on to recount how when she arrived at the airport on Grand Cayman Island. She was arrested. Later, while in the holding
cell area of this courthouse, she heard the same voice that she had heard on the telephone and recognised that voice. The voice she heard in the holding cell area was that of the defendant, Donald Knight.
There was some other evidence given by Miss Scott which implicated Knight.
Mr. Knight gave evidence at trial and denied having any knowledge that Miss Scott was importing cocaine. He said that he went there at the behest of a friend who proposed to have a liaison with Miss Scott. The friend was married, so the friend recruited Mr. Knight to pick her up at the airport and bring her into the country. He did not reveal in his evidence at trial who this friend was, where he lived, or any other identifying details. The friend was never called as a witness.
The difficulty is this: Miss Knight was clearly an accomplice. It is well established as a rule of law that where a judge is sitting with a jury he must warn the jury in clear and uncertain terms that it is dangerous to convict on the uncorroborated evidence of an accomplice. He must then go on to advise the
jury of which pieces of evidence might be viewed by them as corroborative of the accomplice's testimony.
Corroboration must be independent of the accomplice. For obvious reasons, an accomplice cannot corroborate her own evidence. One must look for independent supporting or confirming evidence. None of what I have just said is controversial.
This was a trial before a learned Magistrate sitting without a jury. She is experienced in the criminal law and can be assumed to have a good command of basic principles, such as those I have just articulated.
However, it appears to be the law in this jurisdiction that a magistrate who is called upon to weigh the evidence of an accomplice must expressly warn herself, in the course of giving reasons for judgment, of the rule I have just described. As I interpret the relevant authorities, failure to warn oneself in that manner is an error of law.
I draw that conclusion from three cases.
In Helner v R, 1984 CILR 171, Chief Justice
Sommerfield of this court noted with disapproval that, in the judgment under appeal from the Summary Court, there was no reference to the proper approach to the evidence of an accomplice or any search for evidence which could be treated as corroboration. He repeated that observation, again, towards the end of his judgment, and then said (at page 178):
"One would have expected a plausible explanation of the conflicts, inconsistencies and improbabilities adverted to above to justify reliance on those accomplice witnesses as being truthful and reliable."
In the result, His Lordship allowed the appeal.
In Bertolino v R 1990-91 CILR 112, Chief Justice Harre of this court addressed the same question. At page 115 he said this:
"The question of what are the minimum requirements of a judgment was considered by Chief Justice Collett and Justice Schofield in their judgment
dated September 29th 1988 in Smith v R. They reviewed sections 51, 52, 71 and 72 of the Criminal Procedure Code, and concluded that as a minimum the judgment of a Summary Court should, as well as complying with the requirements of section 52 of the Criminal Procedure Code, set out the point or points for determination, the decision thereon, and the reasons for decision. Obviously a simple case will warrant a simple judgment, but it must contain as a minimum the three elements just set out."
In Smith there were no reasons given at all by the Summary Court. And in support, if support is needed, of the principle that they should be given, I refer briefly to a decision of the Court of Appeal of Trinidad & Tobago in Aqui v Pooran Maharaj. It was there held that "Although no statutory provision expressly required a magistrate
to state the reasons for his decision, the practice of doing so had grown up and been adhered to over the years so that it was now properly regarded as a rule of law. It was now a fundamental principle of justice that parties to litigation were entitled to know the reasons for decisions of a court of law."
His Lordship then cited Helner and quoted from that judgment. He then continued in this vein.
"If there are conflicts, inconsistencies and improbabilities, they must be shown to have been considered and dealt with. This is not to say that a trial judge must make explicit findings on every disputed piece of evidence. If it is clear that he has the evidence in mind, it suffices for him to state his final conclusion."
A little later on, though, he said:
"But, if within the broad issue of credibility, there is a narrower issue which has to be determined, and shown to have been determined, before the broad issue can be said to have been fairly tried, that issue must be expressly dealt with in the judgment."
In my view, that last sentence I have quoted from Bertolino aptly describes the present situation.
The broad issue before the learned Magistrate was the credibility of Emily Scott.
The whole case turned on that. Mr. Knight could not be convicted unless the Magistrate was sure that Scott was telling the truth and that Knight was lying.
The narrower issue, within that broader issue, which had to be determined first, before a conclusion could be reached on the broad issue, was the question of corroboration.
Since Scott was an accomplice, it was dangerous to convict on her uncorroborated evidence. The
narrow question of whether there was any independent credible evidence to support, confirm or corroborate Scott's evidence had to be decided before the ultimate issue of her credibility was adjudged.
Chief Justice Harre dealt with this again in Nicoletta v R 1992-93 CILR 225. At page 229 he said this:
"The learned Magistrate did find that McLean fell into the category of an accomplice but, it was submitted, failed to warn himself properly, or at all, of the danger of acting on his uncorroborated evidence. In my view, when an experienced magistrate expressly refers to the status of a witness as an accomplice, it can safely be inferred that he is saying that for a reason and is aware of what the implication of that finding is. The important thing is to ascertain, looking at the evidence as a whole, whether he
heeded the warning which is implicit in the finding."
I do not think the passage I have just quoted gives enough comfort to the Crown on this particular appeal to save the conviction.
I note that Chief Justice Harre was dealing with a case where an experienced Magistrate expressly refers to the fact that a witness is an accomplice without, however, spelling out all of the implications which flow from that.
Here, in her extensive reasons for judgment, the learned Magistrate did not at any point refer to the fact that Emily Scott is an accomplice. The learned Magistrate may well have been aware of that. She made extensive findings of fact from which it must have been obvious that Scott was an accomplice; but she did not, in her reasons for judgment, say so.
Moreover, the learned Magistrate did not at any point in her judgment focus upon the dangers that flow from accomplice evidence.
She did not deal with such questions as Scott's motivation for testifying. She did not advert to the fact that Scott has not yet been sentenced and, at the point of giving evidence,
had a potential sentence of many years imprisonment hanging over her head.
I think this case has to be distinguished from Nicoletta. It falls within the class of case described by Chief Justice Harre in Bertolino.
The learned Magistrate erred in law when she failed to identify expressly Scott's status as an accomplice and state the need for a search for corroboration, coupled with some sort of recognition that it is dangerous to convict on the uncorroborated evidence of an accomplice. That means I must set aside the conviction.
The remaining question is whether there should be an acquittal entered or a new trial ordered.
The criteria to be considered on this aspect have been set out succinctly and clearly in Bertolino, supra. Chief Justice Harre identified them in these terms:
C) Among the factors to be considered in determining whether or not to order a new trial are: 1) the seriousness
and prevalence of the offence,
2) the expense and length of
time involved in a fresh
hearing.
3) the ordeal suffered by an
accused person on trial.
4) the length of time that will
have elapsed between the offence
and the new trial.
5) the fact that, if it be so,
that evidence which tended to
support the defence on the first
trial would not be available at
the new trial.
6) the strength of the case
presented by the prosecution."
That list is not exhaustive.
The present case involves one which is
very serious indeed, and depressingly prevalent
in this jurisdiction.
The expense and length of time involved in
a fresh hearing are not, in my view, of any
great consequence. There was only one witness
of real substance called at the trial. That
was Emily Scott.
The ordeal suffered by an accused person is item three on the list. I must take that into account, and I do.
The length of time that will have elapsed between the offence and the new trial here is now considerable. That, however, may work against the Crown, rather than against the accused, as it tends to diminish the acuity of the recollection of Miss Scott.
The fifth factor is that evidence which tended to support the defence on the first trial would not be available at the new trial. I have not been told of any such evidence. Indeed, it may be that at the new trial Mr. Knight will be able to locate the man that he says arranged to have him meet Ms. Scott.
Finally, I must consider the strength of the case presented by the prosecution. Because there will be a new trial, it would be inappropriate for me to say much about that. I am, however, satisfied that the prosecution presented a case of reasonable strength.
These factors clearly tip the balance in favour of a new trial, rather than an acquittal.
My order is that the convictions are set aside and a new trial is to be held in the Summary Court on both charges.
(PROCEEDINGS CONCLUDED AT 4:52 P.M.)