Alfred Flowers v The Queen
| Jurisdiction | UK Non-devolved |
| Judge | Lord Hutton |
| Judgment Date | 30 October 2000 |
| Judgment citation (vLex) | [2000] UKPC J1030-2 |
| Court | Privy Council |
| Docket Number | Appeal No. 54 of 1999 |
| Date | 30 October 2000 |
[2000] UKPC J1030-2
Present at the hearing:-
Lord Hoffmann
Lord Cooke of Thorndon
Lord Hutton
Lord Hobhouse of Woodborough
Lord Millett
Privy Council
[Delivered by Lord Hutton]
On the evening of 2nd February 1991, Douglas Williams, aged 26, arrived home in the parish of Clarendon in Jamaica by motor car with his mother and step-father, Rachel Douglas and Silburn Douglas, from the supermarket where they all worked. At their home they were held up by a group of armed men who robbed Rachel Douglas and Silburn Douglas and in the course of the robbery Douglas Williams was shot dead. The appellant was charged on 6th April 1991 with the capital murder of the deceased. The particulars of the offence were that he murdered the deceased in the furtherance of a robbery.
The appellant has been tried on three occasions on the charge of capital murder. The first trial took place in December 1992 when the jury disagreed and a retrial was ordered. The second trial took place in September and October 1994 when the jury again disagreed and a retrial was ordered. The third trial took place in January 1997 when the appellant was convicted of capital murder and was sentenced to death. He applied to the Court of Appeal for leave to appeal against his conviction by notice dated 15th May 1998. The application was heard on 26th May 1998 and the Court of Appeal dismissed the application on 14th July 1998. The appellant now appeals with special leave to their Lordships' Board against the decision of the Court of Appeal.
Two separate grounds of appeal have been advanced to the Board by Mr. Andrew Nicol Q.C. on behalf of the appellant. One ground of appeal was that the trial judge had erred in a number of respects in his directions to the jury and that in consequence the appellant had been deprived of the substance of a fair trial, his conviction for capital murder was unsafe and unsatisfactory, and the Court of Appeal should have allowed his appeal and quashed the conviction entirely or should have substituted a verdict of guilty of non-capital murder. The second ground of appeal related to the issue of delay in the trial at which the appellant was convicted and to abuse of process.
Capital murder
In Jamaica section 2(1) of the Offences Against the Person Act provides that, subject to subsection (2), a murder committed in the furtherance of robbery is a capital murder, but section 2(2) provides, in effect, that if two or more persons are guilty of such a murder, only the person who uses violence on the victim is guilty of capital murder, and any other party guilty of the murder who does not use violence is not guilty of capital murder. This distinction is colloquially referred to as the "triggerman" test. Therefore at the trial in January 1997 on the evidence adduced by the prosecution there were two principal issues for the jury to determine. One issue was whether the prosecution had proved beyond reasonable doubt that the appellant was one of the gunmen who carried out the robbery of Rachel Douglas and Silburn Douglas, in the course of which the deceased was shot and killed, and, if so, the other issue was whether the appellant was the gunman who had shot and killed the deceased.
The prosecution case
The prosecution evidence can be briefly summarised as follows. Rachel Douglas, Silburn Douglas and the deceased arrived home in a car driven by Silburn Douglas and he parked in the yard at the rear of the house. The deceased and Mrs. Douglas got out of the car and entered the house through a back door to the kitchen leaving Mr. Douglas seated in the car. As the deceased and Mrs. Douglas went into the kitchen three men came into the yard who were unknown to Mr. and Mrs. Douglas.
In her evidence Mrs. Douglas said that two of the three men entered the kitchen and the first man who entered (and whom she subsequently identified as the appellant) was carrying a handgun. Her son, the deceased, pushed her aside and began to wrestle with the first intruder. In the course of this struggle the first intruder fired his gun once, hitting her son in his hand which started to bleed. He and the intruder continued to struggle, and while this was taking place Mrs. Douglas could hear the other two intruders in the bedroom talking to her husband. The intruder struggling with her son then fired his weapon a second time, hitting her son in the chest which started to bleed. Her son then ran to the front of the house, the intruder who had been struggling with him went outside and Mrs. Douglas hid herself in the bathroom. About four minutes later the first intruder, who had wounded her son, entered the bathroom armed with a knife and robbed her of her bag, which contained about $16,000 to $20,000 and her watch. He then took her to a bedroom where he stole a watch, a sewing machine and a table fan.
Mrs. Douglas said that during the time the intruder was struggling with her son in the kitchen the electric light was on and the kitchen was well lit. She watched the struggle in the kitchen for about three minutes and during that time she was having a good look at the intruder's face. During the time that the first intruder was present with her in the bedroom the electric light was on and they were together in the bedroom for about four minutes during which time she also had a good look at his face. After the first intruder, who was then accompanied by one of the other intruders, had stolen the items from the bedroom, Mrs. Douglas heard a gunshot across the street from her home and heard someone calling "Chipy, Chipy, come back". The first intruder and the other intruder who was with him then ran from the bedroom and ran out from the back of the house.
Mrs. Douglas then went to look for her son and found him lying wounded and dying on the veranda.
In his evidence Mr. Douglas said that whilst he was still outside the house in the car he saw three men, all armed with handguns, enter the house. He heard gunshots and then one of the men (who was not alleged to be the appellant) came out of the house, and pulled him out of the car and began searching him. He took his wallet from him containing $1500 in cash, a Canadian bill and some personal documents. He then pushed Mr. Douglas into a bedroom in the house. Inside the bedroom Mr. Douglas saw one of the intruders (whom he subsequently identified as the appellant) holding a gun to the head of his young daughter, Melissa. This man threatened to kill Melissa if Mr. Douglas did not give him money. This man struck Mr. Douglas on the head with his gun and continued to demand money. After about three minutes the man left the room and Mr. Douglas ran out and went to his neighbour's home. When he returned to the house the intruders had left and he saw the deceased, who appeared to be dead, lying on the veranda. He said that in the bedroom, during the three minutes when the man was pointing a gun at him and demanding money, the electric light was on and he was looking at his face.
At some point during the evening of 2nd February 1991, the appellant was admitted to the Spanish Town Hospital. He was unconscious and suffering from a gunshot wound to the abdomen. No evidence was adduced by either the prosecution or the defence as to the time of his arrival at the hospital or as to the circumstances relating to his arrival there.
In his evidence District Constable Evans said that at 8.00 a.m. on 3rd February, 1991, he went to the Spanish Town Hospital on instructions to guard a particular individual in a ward. In the ward there was a second person who was the appellant. Detective Inspector Grant then came to the ward and as a result of instructions from the Detective Inspector he went to the bedside of the appellant together with Detective Corporal Davey (who has since died). He (District Constable Evans) asked the appellant his name and he gave his name as Alfred Forbes. Detective Corporal Davey then searched the appellant, but found nothing on him, and he then searched a bedside table beside the appellant's bed. Detective Corporal Davey searched inside the drawer of the bedside table and took out from it toothpaste and clothes and also a wallet. Detective Corporal Davey opened the wallet and took from it two drivers' licences together with an National Insurance card and a Canadian $5 bill. Detective Corporal Davey then showed the wallet to the appellant and asked him to whom it belonged and the appellant told Detective Corporal Davey that it belonged to his uncle.
Detective Sergeant Graveney gave evidence that on the morning of 3rd February, 1991, he went to the Spanish Town Hospital where a wallet was handed over to him by Detective Corporal Davey. He saw that the wallet contained documents belonging to Mr Silburn Douglas which included an alien registration card, a driver's licence and a Canadian five dollars or one dollar bill. He cautioned the appellant and asked him where he got the wallet and the appellant replied that the wallet was his uncle's. Subsequently at May Pen Police Station Mr. Silburn Douglas in the presence of the appellant identified the wallet as belonging to him. The Detective Sergeant cautioned the appellant and the appellant replied to the effect that he (the Detective Sergeant) was going to hear him tell the court where he had got the wallet. In his evidence Mr. Douglas also stated that after the wallet had been taken from him by one of the robbers he saw it again at the May Pen Police Station. The wallet then contained the documents which it had contained on the night of the robbery but not all the money which it then contained.
Inspector Cross gave evidence that at Central Police Station on three occasions, 2nd March 1991, 16th March 1991 and 30th March 1991, he requested the appellant to...
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