UKPC 14
Privy Council Appeal No 0005 of 2012
Stoutt (Appellant) v The Queen (Respondent)
Dr Joseph Archibald QC
(Instructed by Collyer Bristow LLP)
Wayne L Rajbansie
Leslie Ann Faulkner
(Instructed by Charles Russell LLP)
"Complaint (sic) came to the East End Police Station, BVI and reported that he was just involved in a traffic accident in the area of the Long Look Clinic and because he told the other driver that he was going to report same, he threatened him. He requested assistance…
Cato was interviewed and he stated that he was driving his motor jeep toward Road Town and a green motor car (possibly an old Toyota) license number unknown collided into the back of his vehicle and fled the scene. He was unable to give any useful information as to the identity of the other driver."
"Complainant came to the East End Police Station and reported that on the 09102006 he got into a traffic incident with an unknown male, but is familiar with his face in the area of Long Look, where police visited the scene. He went on to say that on the 10102006 while driving on Greenland Public Road in in (sic) vicinity of the cross walk, the same gentleman approached him driving a Grey Suzuki 2006 Jeep PV17445, pointed a gun at him and told him that if it wasn't for people in the area, he would kill him. He requested police assistance in the matter."
"On Monday 9th October 2006, I was driving my black Suzuki Vitara PV 9958 along East End Public Road when I got involved in a minor traffic accident with a green Toyota motor car…. The driver of the green motor car and his passenger flee the scene of the traffic accident. Actually, the driver left the scene and the passenger stayed and was cursing me. The driver later returned without his motor car. I walked to East End Police Station and informed them of the traffic accident….The police visited the scene and took measurements. While the police was at the scene two other young men who were not involved in the traffic accident started to tell me that 'I am a punk, they will kill me and I can't drive by East End again'. I told them whenever they are ready I am waiting on them. I do not know the young men names, but I know them by seeing them. One of the young men is slim about 5 feet 6 inches in height about 150 pounds in his mid 20s with braided hair. The other young man was about 16 years old about 5 feet 4 inches in height about 140 pounds with a low hair cut.
On today's date the 10th day of October 2006, about 9:30 a.m. while I was driving in a westerly direction, I saw a brand new Grey Coloured Suzuki Grand Vitara PV 17447 driving in an easterly direction….. While in the vicinity of the road going to Greenland in the area of the Community Centre, the driver of PV 17447 pulled up alongside me. I stopped and he stopped also. He exited his jeep with a big handgun….The young man pointed the gun at me and told me that if the houses were not around he would have killed me. He assured me that when he gets the chance he is going to kill me. While he was pointing the gun at me I exited my jeep with a baseball bat and a knife in my pocket. I was frightened for my life. The driver of motor jeep PV 17447 was not the person who was involved in the traffic accident but he is a relative to the young man who and I (sic) were involved in the traffic accident. The young man. who I was involved in the traffic accident with, I do not know his name but I know him by seeing him. I don't know his passenger either, but I believe they gave the East End Police their names. The driver of PV 17447 is the young man I described earlier who is in his mid 20s about 5 feet 6 inches with braided hair, bulged eyes and is very slim…"
999 Operator: Emergency line good evening
Voice 1: Yes hello good evening, my name is Godwin Cato
999 Op: eh, ha.
Voice 1: about from last year I made a complaint to the police department in East End of a gentleman who threatened me with a gun, now tonight this gentleman has threatened me with a gun, I'm at a bar here, in East End, the new bar Johnny's bar that open
999 Op: OK hold on for the police please, hold on.
Police Op: Good evening, Road Town police, how may I help you.
Voice 1: emergency please, couple months ago last year I made a complaint to the Police station in East End concerning a gentleman who pulled me over with a gun, tonight I'm at a bar here at Johnny's this gentleman has pulled me over again with a gun, I'm here asking for assistance please.
Police Op: Johnny's? Johnny's in where? Hello, Hello, hello
Police Op: (Continuous hello)
Voice 1: Daddy you flat my tire you nuh, I looking to get a ride you nuh daddy.
Voice 2: you get me fuck up you nuh
Voice 1: daddy you can't cut my hair you nuh,
Voice 2: Well daddy you can't cut my hair
Voice 1: I need to get a ride.
Voice 2: You think this is a game de man
Voice 2: You playing a game with me,
Voice 1: No ain't no game
Voice 2: I will show you what I feeling.
Voice 1: This is no game daddy.
[Bang - first gun shot]
…3 seconds later…
[Bang - second gun shot]
… 3 seconds later…
[Bang - third gun shot]
Voice 1: Hello
There was evidence that the deceased's vehicle was found near to his body and had a flat tyre. Three spent cartridges were found in the road. The deceased was found to have three gunshot wounds, a relatively superficial one on the back of the right forearm, a grazing wound on the front of the left arm with the bullet remaining in the arm by the elbow and the fatal wound where the bullet had passed from front to back and somewhat downwards. It had entered in the upper left abdomen and exited from the back, passing on the way through the stomach and right kidney and perforating the vena cava.
i) he denied that he had been in any altercation with Cato on 9 October, but admitted two of his cousins called Said and Stephan had been in a road traffic accident with Cato, that this had happened outside his home, and that he had been there sometime after the accident because he had seen Cato there with the police;
ii) he denied that he had pulled a gun on Cato on 10 October; he added that he had not driven Sharon's jeep that day; he did not repeat the counter allegation previously made according to PC Trumpet that Cato had menaced him with a baseball bat; he appeared to be denying any contact with Cato that day;
iii) he admitted that the green bungalow was his home;
iv) he admitted that he was in the street outside that house on the night that the deceased was shot; although not immediately, he eventually asserted that Cato had arrived at the bar opposite his home complaining about a car accident and had chased him towards his house and attacked him from behind with a cutlass or similar, causing him the shoulder wound; subsequently he had heard shots; it had not been him who shot Cato;
v) he admitted that he had left Tortola the next day and had gone to the US Virgin Island of St Thomas, without passing through customs either on leaving or on entry; he had done this because people were saying he had shot someone;
vi) he said that he had not reported the attack upon him; he asserted, however, that he had gone to the hospital on the night of the injury but had not stayed for treatment because they had wanted information which he was not prepared to give.
The grounds of appeal.
"The hearsay rule does not prevent the admission or use of evidence of a previous representation adduced by a defendant, being evidence that is given by a witness who saw, heard or otherwise perceived the making of the representation."
i) the differences between the reports attributed to the deceased in the computer entries of 9 and 10 October, on the one hand, and his witness statement of 10 October on the other; the chief of these was that the two computer reports both suggest that it had been the driver of the other car who threatened the deceased, whereas his statement said that the aggressor was a different person who came on the scene afterwards; similarly, the computer report of 9 October said that the deceased could give no useful description of the driver, whereas that of 10 October said that the assailant's face was familiar to him and the witness statement gave a detailed description; thirdly, the computer reports did not suggest two men being present on 9 October, which the witness statement did; nor, fourthly did the computer reports contain any hint that the deceased knew that the assailant was in some way a relative of the driver of the car;
ii) the description given in the witness statement, which the prosecution asserted fitted the appellant, did not do so because the appellant, whom the jury saw, was plainly significantly taller than 5'6", and counsel adduced from a police witness an estimate of his height in the region of 5'11";
iii) the deceased at no time purported to name the gunman;
iv) the identification was weakened by the fact that Sharon Liburd said that she did not know who had been driving her jeep on 10 October.
i) neither of the two computer entries had been verified by the deceased; both were double hearsay of his report and carried the plain risk of incomplete or inaccurate summarising; by contrast his witness statement was an infinitely fuller account, signed and verified by him; the implication in the computer entry of 9 October that the assailant was the driver, and the omission of reference to a second person, were particularly likely to be a misunderstanding through truncation of what the deceased was saying, duly corrected in the full witness statement;
ii) for the same reason there was probably no inconsistency at all between the report of being unable to describe the driver and the description given the next day of the assailant; the witness statement makes it clear that they were not being said to be the same person;
iii) it is extremely common for an initial report to be amplified later; much depends on what if any questions the recipient of the report asks; the recipients of the initial reports were not identified; the witness statement was clearly carefully taken; the additional information that the assailant was believed to be related to the driver is exactly the kind of material which questions asked in the process of taking a witness statement are likely to elicit;
iv) it was true that the deceased had never named his assailant, but if reminding the jury of this the judge would have had to remind them also that there was no reason why he should know the name;
v) it was true that Sharon Liburd had said that she did not know who was driving the jeep on 10 October; this asserted agnosticism had no impact on the assessment of the identification by the deceased; moreover in any event, if reminding the jury of this, the judge would have been obliged to remind them also (a) that she had said that the only male who drove it was the appellant, and (b) that the appellant had, if PC Trumpet was right, told him that he had indeed been the driver that day.
i) the gap in time between the incidents of October 2006 and the killing on 25 January 2007; this was clear to the jury, as was the fact that it had to consider was whether the deceased's assertion that it was the same man might be wrong;
ii) a suggestion that there was a risk of damaging communication between witnesses; it is impossible to see where this possibility arose;
iii) the contention that the identification of the deceased's voice by his brother called for a specific direction as to the difficulties of voice identification; this is irrelevant since there was no doubt that one of the voices on the 999 call was that of the deceased; nobody suggested that the other voice had been identified as that of the appellant;
iv) a difference of expert evidence as to the age of the wound to the appellant's shoulder; this was fully and fairly ventilated before the jury.
An unsafe conviction?
i) The appellant's admission to PC Trumpet was evidence entirely independent of the deceased that there had been an altercation between them on 10th October. The deceased did not purport to identify the appellant by name as the person who threatened him on 9 and 10 October, but the appellant's admission made it clear that it was him on the 10; further he gave the additional detail of the deceased's use of a baseball bat; if it was him on the 10, this was very powerful evidence that it was also him on the 9.
ii) Likewise, Sharon Liburd's evidence powerfully supported the deceased's recollection of the number of the jeep and was material entirely independent of the deceased that it was the appellant who must have been concerned in the altercation of 10 October.
iii) The appellant's admission to the police in interview that his relatives had been in a car accident with the deceased was independent support for the deceased's statement that his October assailant was related to the car driver.
iv) Likewise, the appellant's admissions to the police in interview that he lived in the green bungalow and that the car accident had happened outside it supported the deceased's assertion to Inspector Howe that he knew the home of his assailant and could point it out.
v) The impromptu and contemporaneous circumstances of the deceased's assertions in the 999 call and to Inspector Howe made deliberate invention very unlikely; not only was there no time for it, but the deceased was mortally wounded for part of the call.
vi) Whilst there might yet, in principle, have been an error by the deceased in telling the 999 operators that his assailant was the same man as he had had trouble with in October, this risk was effectively removed by the appellant's admission in interview that he had not only been present when the deceased was shot but had been in a further altercation with him.
vii) There was further support for the deceased's identification of the appellant in the fact that the latter made himself scarce the next day, taking precautions not to be recorded in his movements.
viii) If the jury accepted it, there was expert medical evidence that the appellant's wound could not be as old as to have been sustained on the night of the killing. Moreover several hospital staff gave apparently compelling evidence that the appellant had not, as he told the police he had, presented himself with a wound that night.