REPUBLIC OF TRINIDAD AND TOBAGO

IN THE COURT OF APPEAL

Cr. App. Nos. 28 & 29 of 2013

Between

GLENROY CAMPBELL – Appellant No. 1

ELROY CAMPBELL – Appellant No. 2

And

THE STATE Respondent

PANEL:

P. Weekes, J.A.

A. Yorke – Soo Hon, J.A.

M. Mohammed, J.A.

APPEARANCES:

Mr. K. Scotland instructed by Mrs. A. Watkins – Montserin for appellant no. 1

Mr. J. Singh instructed by Mr. M. Rooplal for appellant no. 2

Mr. T. Ward QC for the respondent

DATE DELIVERED: 2nd

July 2015

Page 2 of 16

JUDGMENT

Delivered by: Mohammed J.A.

BACKGROUND

1. The appellants were convicted on the 29th

of October 2013 for the murder of Nixon Smith

(the deceased). The prosecution presented its case on the basis of a joint enterprise involving

three gunmen and a getaway driver. Key to the prosecution’s case was the recognition

evidence of Anthony Melville who had been in company with the deceased and witnessed the

shooting. He recognised two of the gunmen as the appellants who were well known to him

for over thirty years since they had all grown up together and socialised frequently.

CASE FOR THE PROSECUTION

2. Around 11pm on the 2nd

of October 2005, the deceased and Anthony Melville left the

deceased’s home at Prizgar Lands, Laventille to attend a party at Club Amazon which was

located on the Eastern Main Road, St. Augustine, obliquely opposite Henry Pierre Terrace.

The deceased parked along the eastern side of Henry Pierre Terrace and he and Melville

proceeded to Club Amazon.

3. At approximately 1.15 am on the 3rd

October 2005 police officers Grant and Hernandez were

on patrol along the Eastern Main Road in the vicinity of Club Amazon when they observed

two persons seated in a B14 Sentra motor vehicle, registration number PBP 407 which was

parked along the Eastern Main Road, roughly 30 feet from Club Amazon. About 15 minutes

later the officers saw that car proceeding north along Wilson Street St. Augustine and shortly

thereafter, it was seen reversing onto Warren Street, St. Augustine.

4. The officers stopped the vehicle and confronted the occupants who identified themselves as

Rodney Antoine, the driver, and Elroy Campbell. The occupants and the vehicle were

subsequently searched and allowed to proceed on their way. Approximately 15 minutes later

Page 3 of 16

the police officers saw the car again, this time proceeding east along the Eastern Main Road

in the vicinity of Club Amazon.

5. Between 2.30 – 3am on the 3rd

October 2005, the deceased and Melville emerged from Club

Amazon and were about to enter the deceased’s vehicle when Melville heard the sound of

“doors cracking” and saw a B14 Sentra, PBP 407, parked to his north on the opposite side of

the road. He watched the appellants and another gunman emerge from the vehicle but could

not make out the driver, who was the fourth person in the vehicle. The three gunmen

approached the deceased and shot him multiple times causing him to drift toward the western

side of the road.

6. On seeing this, Melville retreated to the Eastern Main Road. From there he observed the third

gunman firing into the drain on the western side of Henry Pierre Terrace while the appellants

stood by. The three gunmen noticed him and began approaching in his direction. Melville

fled across the Eastern Main Road. When he looked back, he saw PBP 407 at the corner of

Henry Pierre Terrace and the Eastern Main Road facing east. Melville saw the third gunman

get into the vehicle which then left the scene heading east along the Eastern Main Road.

7. In his first witness statement to the police, Melville did not state that he had seen or

recognised the appellants. In that statement, Melville told the police that the gunmen had

worn bandanas and had escaped in a silver Mitsubishi Lancer. He later admitted that he had

lied to the police in his first statement because he was fearful.

CASE FOR THE DEFENCE

8. The appellants did not give evidence or call witnesses and put their case through cross –

examination. Their primary defence was that Melville had fabricated his account which

placed them at the scene of the crime.

Page 4 of 16

GROUNDS OF APPEAL

9. Both appellants each advanced four grounds of appeal. We find it appropriate to only deal in

detail with the common ground of appeal relating to the judge’s failure to adequately put the

appellants’ defence to the jury, as this common ground is favourably dispositive of both

appeals. The other grounds of appeal will be discussed briefly.

Appellant No. 1 Ground 4, Appellant No. 2 Ground 1 – The learned trial judge failed to

adequately put the defence of fabrication to the jury.

10. Counsel for appellant no.1 submitted that a miscarriage of justice occurred when the judge

put this appellant’s case as one of mistaken identity and failed to direct the jury to consider

his defence of fabrication. Therefore the jury could not have properly appraised his case

which resulted in manifest unfairness.

11. Counsel for appellant no. 2 submitted that the judge had a duty to identify this appellant’s

defence in his summing-up and to marshal the evidence in support of that defence. At no

point in the summation did the trial judge adequately identify to the jury that this appellant’s

cardinal defence was fabrication. Moreover, the summation failed to address the fact that the

jury had to consider whether the witnesses were prima facie honest and the judge conflated

the issues of honesty and credibility with mistaken identification and reliability.

12. Counsel for the respondent submitted that upon a careful examination of the tone and tenor

of defence counsel’s cross examination, and what was actually put, it was evident that while

defence counsel clearly put the credibility of the witness and the reliability of his

identification in issue, she stopped short of asserting malicious fabrication.

13. Counsel for the respondent further submitted that since the judge used the word “fabrication”

in the summation on at least two occasions to characterise an aspect of the appellants’

defence,1 the jury must have clearly understood that the stark issues confronting them were

1 see summation dated October 28

th, 2013 at pg 18, lines 8-12 and at pg 27, line 1

Page 5 of 16

whether Melville was lying, or, whether he may have been mistaken. In this regard the

judge’s duty was to ensure that the jury appreciated that the defence was challenging the

credibility of the witnesses, which he accomplished by providing careful and extensive

directions on all the issues pertaining to the credibility of Melville.

Law and Analysis

14. An accused is entitled to have all possible defences that arise on the evidence put to the jury.

If there is evidence upon which a properly instructed jury could acquit, the trial judge must

draw the jury’s attention to it and instruct them in reference to it: Wu v R [1934] SCR 609.

Where a cardinal line of defence is advanced by the accused and the trial judge fails to

include it in his summing up, this may be a ground for regarding a subsequent conviction as

unsafe: R v Keith Badjan [1966] 50 Cr. App. R. 141, R v Omar Nicholas Lobban [2004]

EWCA Crim 1099.

15. The primary defence of the appellants was that of fabrication. This was made apparent, in

part, from the cross examination of Melville:

“Q You said that your first statement was the untruth, but I want to take you to

your first statement. Would you agree with me, sir, that in your first statement

to the police, you told the police that the vehicle you saw was a silver

Mitsubishi Lancer?

A Yes, ma’am.

………

Q What you described was men wearing white bandanas on their face?

A Yes, ma’am.

Q When you signed that statement, you also signed that statement as being true

and correct, not so?

A Yes, ma’am.

………

Q Sir, I am going to put it to you that my client, No. 1, Elroy Campbell, did not

shoot at Nixon Smith.

A Ma’am, he shoot Nixon Smith, ma’am.

Q My other client, Glenroy Campbell, did not shoot Nixon Smith.

A Yes, ma’am, he shoot Nixon Smith, ma’am.

Q I am also going to put it to you that that early morning, you did not see PBP

Page 6 of 16

407 on Henry Pierre Road.

A Ma’am, the B-14, ma’am, was on Henry Pierre Street, ma’am, that silver B-

14.”2 [emphasis added]

16. The defence of fabrication was reinforced by defence counsel when she summarized the

appellants’ case during the state’s application to adduce bad character evidence on October

9th

, 2013. On that occasion defence counsel said:

“…. my case doesn’t fall on the weakness of the identification evidence, my case is

that of concoction and fabrications. So I would hate to be criticized for not testing

him on the Turnbull facets, My Lord, the aspects of Turnbull. This is not my case. My

case is pure unreliability and concoction and fabrication. So I wouldn’t like to be

criticized for that, My Lord.”3 [emphasis added]

17. Most significantly, at the Ensor hearing, defence counsel expressly said:

“The eye-see evidence in the case against Elroy Campbell is that of Anthony Melville,

whom we say is an unreliable witness; we are denying his account; he is an admitted

liar and what inevitably flows from that, My Lord, is that his case is that of a

concoction….

……………..

My Lord, that is probably why I did not adopt a pedestrian approach to the cross-

examination, My Lord, because the witness, on the State’s case, is an admitted liar.

That is on the State’s case. That is why we went through the trouble, My Lord, of

setting out why Anthony Melville is unreliable….4 [emphasis added]

18. Although defence counsel did not explicitly suggest to Melville in cross examination that his

eye-witness account was a fabrication, having elicited an admission from him that he had

been untruthful in his first statement to the police on the most significant issues in the case,

his credibility was brought frontally into issue. It was therefore clear that the central defence

was fabrication.

19. The jury should have been directed that if they were sure that Melville was truthful, then they

should go on to consider the issue of mistaken identification, consistent with the ‘Turnbull’

2 see transcript of the cross examination of Mr. Anthony Melville on October 8

th, 2013 at pg 30, line 27 to pg 31,

line 8 3 see transcript of legal submissions heard on October 9

th 2013 at pg 17, lines 9-15

4 see transcript of the Ensor hearing dated October 16

th, 2013 at pg 21, line 21 to pg 22, line 31

Page 7 of 16

guidelines. This sequence was explained to the jury and in this matter, the judge’s ‘Turnbull’

analysis has not, in any way, been assailed.

20. In determining whether to give a two stage direction on fabrication (veracity/honesty and

credibility) and mistaken visual identification (accuracy and reliability), trial judges should

bear in mind the helpful learning summarised in Archbold 2015 at para 14-17 under the

heading “Issue as to veracity”:

“A Turnbull warning is not required and would only confuse a jury where, (a) the

defence attack the veracity and not the accuracy of the identifying witness; (b) there is

no evidence to support the possibility of mistaken identification. R. v. Cape [1996] 1

Cr. App. R. 191, CA, or (c) the identifying witness states that he was mistaken and the

prosecution do not rely upon his earlier statement: R. v Davis [2006] 8 Archbold

News 4, CA. There is, however, an obvious need to give a general warning even in

recognition cases where the main challenge is to the truthfulness of the witness. The

first question for the jury is whether the witness is honest; if he is, the next question is

the same as that which must be asked of every honest witness who purports to make an

identification, namely, whether he is right or might be mistaken: Beckford v. R., 97 Cr.

App. R. 409, PC; but the judge need not go on to give an adapted Turnbull direction

(reminding the jury that people can make mistakes in recognising relatives, etc.)

where such a direction would add nothing of substance to the judge’s other directions.

Capron v. The Queen, unreported, June 29, 2006, PC [2006]. UKPC 34) (considering

Beckford, ante, and Shand v. The Queen [1996] 2 Cr. App. R. 204, PC); and see R. V.

Giga [2007] Crim.L.R. 571, CA.

The previous paragraph was expressly approved in Grieves v. The Queen

[2012] Crim. L.R. 212, PC.”

21. In Grieves v The Queen [2012] Crim. L.R. 212, Sir Roger Toulson said at paras 31-34:

“[31] In Turnbull the court was concerned with the particular problem of mistaken

identification by honest witnesses. Part of the standard warning is that a mistaken

witness can be a convincing one and that a number of such witnesses can all be

mistaken. In later cases the courts have considered to what extent a Turnbull direction

is required where the issue is whether the identifying witness has fabricated his

evidence rather than whether he has made an honest mistake. Mr Birnbaum accepted

that the following passage in the current edition of Archbold, at para 14–15, is an

accurate and succinct summary.…..

Page 8 of 16

[32] In Shand [1995] 4 LRC 710 the defence case was that the identifying witnesses

were deliberately lying and it was not suggested that they were mistaken. Lord Slynn,

delivering the judgment of the Board, said (at 715):

'The importance in identification cases of giving the Turnbull warning has been

frequently stated and it clearly now applies to recognition as well as to pure

identification cases. It is, however, accepted that no precise form of words need

be used as long as the essential elements of the warning are pointed out to the

jury. The cases in which the warning can be entirely dispensed with must be

wholly exceptional, even where credibility is the sole line of defence. In the latter

type of case the judge should normally, and even in the exceptional case would

be wise to, tell the jury in an appropriate form to consider whether they are

satisfied that the witness was not mistaken in view of the danger of mistake

referred to in R v Turnbull.'

[33] That statement was reiterated by the Board in Pop v R [2003] UKPC 40, [2003]

5 LRC 320 at [12].

[34] In the present case it was logically possible, as Mr Birnbaum submitted, that

there might have been a combination of fabrication and mistake; but, as already

observed, the possibility that both identifying witnesses were simultaneously mistaken

was remote. In cases where the real issue is whether the identification of defendants

by witnesses who know them was fabricated, the potential relevance of weaknesses

will be to that issue. Mr Birnbaum submitted that a weakness includes anything

capable of being regarded as a weakness. On his argument, anything which could be

regarded by the jury as a reason for suspecting that an identifying witness had lied

requires to be identified as such by the judge. That comes close to saying that the

judge must put to the jury every potential argument for questioning the credibility of a

witness. Such a proposition goes beyond the authorities and is

unsound. Turnbull requires the judge to remind the jury of any specific weaknesses

which have appeared in the identification evidence. It does not require the judge to

remind the jury more generally of every argument which there may be for not

believing a witness.” [emphasis added]

22. In some situations, it will be readily apparent that the issue of fabrication of evidence and

thus veracity/honesty is the only real issue which arises for consideration. This is

particularly so where (a) the parties are said to have been well known to each other; (b) there

is no suggestion of an honestly mistaken identification and/or (c) there is additional material

which is capable of suggesting a possible reason for the fabrication of evidence.

Page 9 of 16

23. Otherwise, in the majority of cases, the two stage evaluative approach will be required and

the jury will require careful direction on how to proceed through the two stages. Crucial to

this direction is the drawing of the boundary between veracity/honesty and

accuracy/reliability. The jury must be told in clear terms that if they reject or they are unsure

of the veracity/honesty of the witness, then they must stop at that point and reject the

witness’s evidence.

24. The level of detail which a trial judge builds into each limb of the direction will be

dependent on the issues contested and how they are framed in the context of the trial as a

whole. The key point to be made is that any stage of the two stage direction must not be

invested with an artificial legitimacy or conversely, be attenuated. Should this occur, it

carries with it the real risk of the defence case not being accurately conveyed. The entire

balance of the case could then become affected and the jury could lose focus on what the

real issues in the case are.

25. The trial judge gave the following directions on the first day of the summing up, October

18th

, 2013:

“So I turn then, Mr. Foreman, Members of the Jury, to the case against Accused No.

1 (Elroy), and the case against him depends on the correctness of three identifications

of him which he alleges to be either mistaken or fabricated…”5 [emphasis added]

“… So what about Accused No. 1? His position is different because, in his instance,

there is a conversation and there are no documents that are produced and it is

disputed that he was - - Accused No. 1 disputes that he was ever in that vehicle…”6

“… So let me suggest to you the following approach that you do in relation with

respect to Accused No.1: Consider the case of fabrication or mistaken identification

and alibi. If you accept his defence or you are not sure, you must return a verdict of

“not guilty” in his favour. If you reject his defence and go on to consider the

Prosecution’s case and consider the rest of the evidence against him to decide the

issue as to whether or not he did play a role in committing the offence, in the way I

explained to you earlier about joint enterprise, clearly, if you find him to be one of the

gunmen who had shot at the deceased and you rely on the evidence of Melville to that

5 see summation dated October 28

th 2013 at pg 18, lines 8-12

6 ibid at pg 20, lines 38-42

Page 10 of 16

effect, then it will be open to you to find him guilty of the offence. If you are not sure,

then of course, you must find him not guilty.”7 [emphasis added]

“… So just to be clear, of course, the defence’s position is that it was not the accused

No. 1 who was there at the material time when any shooting took place; it was not

Accused No. 2 that was present at that time, at any material time when any shooting

took place; and that the vehicle, any vehicle that was there was not the vehicle – first

of all, it wasn’t the PBP 407 vehicle that has been referred to during the course of the

evidence – it was not PBO 407 a, and certainly it was not Accused No. 2 who was

driving that vehicle. That is the defence’s position. That is their position.” 8

26. On the second day of his summation, October 29th

2013, the trial judge gave the following

directions:

“…So of course, by now I am sure you appreciate that the first question you have to

ask yourselves with respect to the key Prosecution witness, Melville, is whether he is

honest. If the answer to that question is yes, the next question is the same as that

which must be asked concerning every honest witness who purports to make an

identification, namely: Is he right or could he be mistaken?.....”9 [emphasis added]

“….you have to decide whether first and foremost the witness, Melville, is honest; and

secondly, you have to decide whether the circumstances in which he purports to

identify Accused no. 3 is accurate enough for you to be sure that he is right in who he

identifies…”10

[emphasis added]

“I am going to give you a direction now, a fuller direction on this credibility issue,

because that’s the first, I may suggest, manner in which you ought to consider this

case in relation to Melville before going on to consider whether his identification was

accurate enough for you to rely on.”11

27. In our view, the trial judge did not, with sufficient clarity, demarcate the boundary between

the defences of fabrication and mistaken identification. A clear direction was required that

the appellants’ primary defence was fabrication. Next, the jury ought to have been explicitly

directed that if they concluded that Melville was untruthful or if they were not sure that he

was a truthful witness, then they should go no further and that they should proceed to acquit

7 ibid at pg 26, line 69 to pg 27, line 14

8 ibid pg 37, lines 33 – 44.

9 see summation dated October 29

th 2013 at pg 3, lines 40-47

10 ibid at pg 7, lines 19-24

11 ibid at pg 9, lines 8-14

Page 11 of 16

the appellants. In this case the judge did not proceed in such a careful, sequential and explicit

fashion with the result that an important direction required in the sequence was not given.

The judge thus, in effect, told the jury that if they accepted that Melville was an honest

witness, this being the question to be decided first and foremost, then they had to go on to

consider the issue of the reliability of the visual identification evidence. The essence of the

respondent’s argument is that implicit in this direction, it must have been brought home to

the jury that if they rejected or were unsure of Melville’s honesty, then they must stop at that

point. This argument is not without some level of attraction but it does not hold sound. On

such a cardinal issue in a case, nothing should be left to implication. This is not an issue

where the presumed intelligence of jurors can be relied on to fill in a critical gap. That gap

can only be filled by explicit directions from the trial judge. The issue and the consequence

of resolving it in a particular manner must be clearly and plainly spelt out. This was not done.

An additional sentence or two was all that was required to accomplish a clear articulation of

the real core issue in the case.

28. In this case, the judge’s directions on the appellants’ core defence of fabrication were

inadequate. The risk of injustice in this case was amplified by the fact that this was a

recognition case in which Melville claimed to have known the appellants’ for over 30 years.

A jury might, given the cogency of the recognition evidence, likely have reasoned against the

possibility of a mistaken identification once they had arrived at the second stage of the

evaluative process. Hence, it was particularly important that the judge first underscore the

sharp distinction between credibility and reliability and moreover that the judge instruct the

jury, in explicit terms, that if they rejected or were not sure of Melville’s credibility, then the

appropriate verdict was not guilty.

29. For the reasons given above, this ground, relating to the judge’s failure to adequately put the

appellants’ defence, is meritorious. On this ground of appeal alone, we are of the view that

this omission renders the convictions unsafe and that a miscarriage of justice has occurred.

This is because the appellants did not have the benefit of their core defence being adequately

explained to the jury. In these circumstances it is unnecessary to traverse, in any detail, the

other grounds of appeal except to make the following brief observations.

Page 12 of 16

30. In relation to appellant no. 1:

i. Ground 1 - The learned judge erred in failing to address his mind to whether a

corroboration care warning was warranted in respect of Anthony Melville.

The credibility issues surrounding Melville were not so extreme so as to require a full

corroboration warning. A warning to exercise caution and care, together with an

accompanying explanation as to why such an approach was necessary, was required.12

Such a warning and explanation were given when the judge directed the jury in the

following manner:

“First of all, they challenge the accuracy of that evidence and the reliability of

that evidence, in that you will no doubt note it, from the cross-examination, that

the witness has said different things on different occasions in relation to the

identity of these perpetrators, and that is why you have to be cautious, as well as

examine the circumstances...”13

[emphasis added]

“It is for you, Mr. Foreman, Members of the Jury, you, to judge the extent and

importance of those inconsistencies because if you conclude that he had been

inconsistent on an important matter, you should treat both his accounts with

considerable care.”14

[emphasis added]

Therefore, this ground has no merit.

ii. Ground 2 - The learned judge failed to properly direct the jury as to how they

should approach the inconsistencies in the evidence of the main witness Anthony

Melville.

The judge gave adequate directions on the prior inconsistent statement. He was careful

to reinforce to the jury the consequence of the inconsistencies between the two

statements given by Melville; that if they believed that he was inconsistent on an

important matter, then they should treat his accounts with considerable care.15

Further,

the judge directed that the jury were to find the appellants not guilty if they accepted

12

see R v Makanjuola 1 WLR 1348 CA at page 1351 13

see summation dated October 28th

, 2013 at pg 31, lines 20-27 14

ibid at pg 37, lines 15 - 19 15

ibid

Page 13 of 16

Melville’s first statement which indicated that he was not able to identify the shooters.16

This ground has no merit.

iii. Ground 3 - The learned judge erred in law by not withdrawing the case from the

jury based on the poor quality of the identification evidence.

In the case of R v Kerry Ley [2006] EWCA Crim 3063 Lord Justice Scott Baker said

at paragraphs 18 and 19:

“18. True it is that the Turnbull principle requires a judge to withdraw the case

from the jury when the quality of the identifying evidence is poor. Furthermore,

recognition cases are not excluded from that principle. As the Lord Chief Justice

pointed out in Turnbull at p.137:

‘Recognition may be more reliable than identification of a stranger; but

even when the witness is purporting to recognise someone whom he knows,

the jury should be reminded that mistakes in recognition of close relations

and friends are sometimes made.

All these matters go to the quality of the identification evidence. If the

quality is good and remains good at the close of the accused's case, the

danger of a mistaken identification is lessened, but the poorer the quality

the greater the danger.’

19. There are of course recognition cases and recognition cases. The degree of

familiarity of the witness with the person he or she is identifying is very relevant

just as are the circumstances of the identification itself.”

This was not a case where the identification evidence was of a tenuous quality. The

opportunity for observation of the appellants was a short one, but the recognition

evidence was of very strong quality. This ground has no merit.

31. In relation to appellant no. 2:

i. Ground 2 - The learned trial judge erred when he misdirected the jury on the issue

of alibi.

In the cross-examination of Superintendent Daniel, a Prosecution witness, the following

16

ibid at pg 37, lines 20-26

Page 14 of 16

exchange took place:17

“Q Excellent. As a matter of fact, you questioned Accused No. 1 as to his

whereabouts on the night—I am going to break it up—on the night of the

Nyabinghi party, the night of the 2nd

October, 2005, yes?

A Yes ma’am.

Q He gave you answers, yes?

A Yes, ma’am.

……

Q For the night of the Nyabingi party, he gave you an idea as to where he

was and with whom he was?

A Yes, ma’am.” (emphasis added)

Based on this evidence, it is clear that the issue of alibi arose and it was incumbent on

the trial judge to give the necessary directions on that issue.

In addition, we agree with the argument of counsel for the State that this was a case

where, without a proper warning on a rejected or false alibi, there was a risk that the

jury might treat the rejected alibi as being supportive of guilt. Such a warning was

therefore required and necessarily incorporated a direction as to the limited and very

narrow circumstances in which a rejected alibi can supply support for identification

evidence, in line with settled authorities on the point.18

Thus, the jury was expressly

instructed that they could rely on the false alibi as supportive of the identification

evidence only if they were satisfied that the sole reason for the fabrication was to

deceive them:

“But even if you conclude that the alibi was false, so, for example, you do find

that he was in the vehicle when the officers say he was, that does not, by itself,

entitle you to convict the accused. It is a matter which you may take into account

but you should bear in mind that there may be many reasons for putting forward a

false alibi. Sometimes, for example, an alibi may be invented to bolster a genuine

defence, and only if you are satisfied, Members of the Jury, that the sole reason

for the fabrication was to deceive you and there was other explanation for it being

put forward, may you rely on the false alibi as support for the identification

evidence. The mere fact that the accused may have lied about his whereabouts

17

see transcript dated October 15th

2013, pg 7, lines 2-38. 18

see R v Lesley [1996] 1 Cr App R 39; Keane [1977] EWCA Crim J0323-6

Page 15 of 16

does not of itself, or the mere fact that the accused did lie about his whereabouts

does not, of itself, prove that he was where the identifying witness or witnesses

said he was.”19

[emphasis added]

By giving the direction, the judge was simply exercising fidelity to a long line of

English authorities on this point and we can identify no error in his approach. This

ground of appeal is without merit.

i. Ground 3 - The learned trial judge erred in law when he directed the jury on the

issue of the prior inconsistent statement of the main prosecution witness Anthony

Melville.

As discussed above at paragraph 30 (ii), this ground has no merit.

ii. Ground 4 - The learned trial judge erred in law in the treatment of the dock

identification of the police witnesses, officers Grant and Hernandez and further

erred when he directed that these identifications were supportive of each other.

In this case, having exercised his discretion to admit the dock identification, the trial

judge gave very careful and the necessary robust directions on the dangers of relying on

it, consistent with the guidance in Tido v The Queen [2011] UKPC 16. There is no

merit in this ground of appeal.

RETRIAL

32. We have considered the relevant factors set out in Reid v R (1978) 27 WIR 25, specifically:

i. The seriousness and prevalence of the offence;

ii. The expense and length of time involved in a fresh hearing;

iii. Whether the interests of justice require a second trial;

iv. The length of time that has elapsed between the offence and the new trial; and

v. The strength of the case presented by the Prosecution at the previous trial.

19

see summation dated October 28th

, pg 26, lines 30-48

Page 16 of 16

33. We take into account in particular the seriousness and prevalence of this offence and also the

strength of the prosecution’s case. Based on these considerations, we consider it appropriate

to order a retrial.

DISPOSITION

34. The appeals are allowed and the appellants’ convictions and sentences are set aside. The

matter is remitted for a retrial.

P. Weekes

Justice of Appeal

A. Yorke – Soo Hon

Justice of Appeal

M. Mohammed

Justice of Appeal