Benedetto v The Queen (No 2)
| Jurisdiction | UK Non-devolved |
| Judge | Lord Hope of Craighead |
| Judgment Date | 20 October 2003 |
| Neutral Citation | [2003] UKPC 27,[2003] UKPC 70 |
| Date | 20 October 2003 |
| Docket Number | Appeal No. 62 of 2002 |
| Court | Privy Council |
[2003] UKPC 27
Present at the hearing:-
Lord Bingham of Cornhill
Lord Steyn
Lord Hope of Craighead
Lord Hutton
Lord Rodger of Earlsferry
Appeal No. 62 of 2002
Appeal No. 88 of 2002
Privy Council
[Delivered by Lord Hope of Craighead]
The appellants Alexander Benedetto and William Labrador and two other men named Michael Spicer and Evan George went to trial on 21 April 2001 in the High Court of Justice of the British Virgin Islands charged with the murder on 14 January 2000 of Lois McMillen, whose body was found the next day on a beach in the West End district of Tortola. On 3 May 2001 the trial judge, Benjamin J, upheld submissions by Benedetto, Spicer and George that there was no case for them to answer on the charge of murder and they were acquitted of this charge. He also ruled that the prosecution should not be allowed to proceed against them on a secondary charge that they were accessories after the fact. He rejected a submission of no case to answer by Labrador. The case against him was left to the jury. On 10 May 2001 Labrador was convicted of the murder and sentenced to life imprisonment. The Crown then appealed against the decision of the trial judge to acquit Benedetto and Spicer, and Labrador appealed against his conviction.
On 14 January 2002 the Eastern Caribbean Court of Appeal (British Virgin Islands) (Sir Dennis Byron CJ, Satrohan Singh and Albert Redhead JJA) allowed the appeal by the Crown against the ruling by the trial judge that there was no case for Benedetto to answer on the murder charge, set aside his acquittal and ordered his retrial on this charge. The ruling by the trial judge that the Crown was not to proceed with the charge of accessory after the fact against Benedetto, Spicer and George was upheld. The appeals by the Crown against Spicer's acquittal and by Labrador against his conviction were dismissed. On 26 June 2002 Benedetto and Labrador were each granted special leave to appeal against the judgment of the Court of Appeal against them to their Lordships' Board.
The case has some unusual features, and their Lordships must now set the scene for an examination of the various grounds on which the appeals for Benedetto and Labrador were presented. The facts must first be described in some detail. An account must then be given of the proceedings in the trial court and in the Court of Appeal which led to the decisions which are under appeal.
The following index is provided to help readers find their way through what is, regrettably, an unusually long judgment:
The facts
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(1) The facts (paras 5-11)
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(2) The criminal proceedings in BVI (paras 12-24)
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(3) The grounds of appeal before the Board (paras 25-26)
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(4) The cell confessions (paras 27-35)
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(5) The need for a warning in Labrador's case (paras 36-38)
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(6) Further comments on Plante's evidence (paras 39-45)
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(7) The case against Benedetto (paras 46-49)
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(8) The need for a lies direction (paras 50-52)
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(9) The conduct of the prosecutor at the trial (paras 53-57)
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(10) Fresh evidence in the Court of Appeal (paras 58-68)
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(11) Whether the fresh evidence should have been rejected (paras 69-72)
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(12) The conduct of the appeal before the Board (paras (73-76)
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(13) Conclusion (para 77)
The deceased Lois McMillen had been staying with her parents at their holiday property on Belmont Point, near Smugglers Cove on the island of Tortola, British Virgin Islands ("BVI"). She was aged 34 and worked as an artist. The family home was in Connecticut in the United States of America. At about 9.30 pm on 14 January 2000 she left home after a light supper with her parents. She was driving a motor car which Mr and Mrs McMillen had rented for use during their holiday. She had been expected to return later that evening. When she failed to do so her parents became concerned for her safety. At 10 am the following day her mother Mrs Josephine McMillen called the police. They arrived about half an hour later and reported that a body of a woman had been found. The body was later identified as that of Lois McMillen.
The deceased's body was found lying in shallow water on the seaside east of the police station at West End, partly in the water and partly on the shore. The car which she had been driving was found a short distance away to the west in the area of the ferry dock. Various items of clothing and other personal belongings including a can of mace, a chain and tampons were found scattered around the car and in the area where the body was found. They were identified as belonging to the deceased. There were traces of blood on the rocks nearby. An initial examination indicated that the deceased had been drowned. This was later confirmed following a post mortem examination on 18 January 2000. Particles of sand were found in her upper airways suggesting that she had breathed in sand before her death. There were incisions on her hands which indicated that she had fought off or grabbed at a sharp object such as knife. There were abrasions on her face caused by the rubbing of skin on a rough surface or the pressing of the face on a rough surface. A woman who lived in a house on the hillside near the area where the body was found said that shortly after 11.45 pm that evening she had heard a car applying its brakes suddenly and then the sound of someone screaming for mercy for about three to four minutes. But there were no eyewitnesses to the incident, nor was anything seen or found where the body was lying or in the car to indicate who might have been responsible for the deceased's death.
A short distance away from the McMillens' holiday home was another holiday home called Zebra House. It too was owned by a family, the Spicer family, whose residence was in the United States. Benedetto, Labrador, Spicer and George were all staying there on 14 January 2000. A member of the US Coastguard named Jeffrey Simms, who was visiting BVI on leave, went to Zebra House that evening at about 8 or 9 pm. Benedetto, Labrador, Spicer and George were all there, but they all left at about 10 pm. A conversation between Spicer and Labrador suggested that they were going to meet somebody, and Benedetto indicated that they were going to the other side of the island in the direction of West End. Simms was asked if he wanted to go with them, but he declined.
On 15 January 2000 the police carried out a search of Zebra House. They found three pairs of sneakers which were wet. Labrador identified one of them as his and said that they had got wet the previous day when he had been hiking. He had a small fresh cut on the bridge of his nose. Some bloodstained napkins and fingernail clippings were also found, as well as some tampons which were similar to those used by the deceased. Benedetto had scratches on his arms and legs. All four men were then arrested on suspicion of murder. On 19 January 2000 they were charged with murder and remanded in custody.
An extensive search was carried out of the area, and various items which were found in the vicinity of the car and the body were subjected to forensic examination. Traces of DNA on the car keys and the key chain indicated that they had been handled by a male person, but these traces did not match the DNA samples taken from Benedetto, Labrador, Spicer and George. Semen was found on a tampon which the deceased had been wearing at the time of her death, but here too nothing was found to indicate that the semen came from any of them. The bloodstained napkins and fingernail clippings found in Zebra House and fingernail clippings and scrapings taken from each of the four men together with some articles of clothing were also tested but with negative results. There was no physical or scientific evidence which linked any of the four men to the car or the deceased's body or to the place where they were found.
Labrador gave a written statement to the police in which he said that on 3 January 2000 he had seen the deceased driving a vehicle which he thought belonged to her parents. He said that he and the other three men had met her at a place called the Bomba Shack on 12 January 2000, and that he seen her again the following day as they thought that they should ask her over for a drink because she had given them a lift the night before. Spicer, who had her telephone number, gave her a call and she agreed to pick them up and drive them to a place called Pussers in Sopers Hole. Benedetto stayed at home. The others were with her at Pussers until about 7.15 pm when she went home. He said that he and the others were back at Zebra House by about to 11 pm to 11.15 pm. The following day, 14 January, they had all gone hiking, then went for a swim and had dinner together at Zebra House. He gave an account of his movements for the rest of the evening in which he made no mention of having had any contact with the deceased. Benedetto also gave a statement to the police in which he said that he had sustained the scratches to his arms and legs while climbing around Belmont Point.
Benedetto and Labrador were detained in Her Majesty's Prison in Balsam Ghut, where at first they were put together in the same cell. Another US citizen named Jeffrey Plante, who was also facing criminal charges in Tortola, was in another cell in the same prison. On 25 January 2000 Labrador was moved from the cell which he had been sharing with Benedetto to the cell in which Plante was being held. They remained together in that cell for 130 days. On 11 May 2000 Plante gave a statement to the police, which he amplified on 3 June 2000 and again on 17 July 2000. He said that while they were in the cell together he asked Labrador whether he had had anything to do with the deceased's...
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