Dial and another v State of Trinidad and Tobago
| Jurisdiction | UK Non-devolved |
| Judge | Lord Brown of Eaton-under-Heywood |
| Judgment Date | 14 February 2005 |
| Neutral Citation | [2005] UKPC 4 |
| Docket Number | Appeal No. 16 of 2004 |
| Court | Privy Council |
| Date | 14 February 2005 |
[2005] UKPC 4
Present at the hearing:-
Lord Bingham of Cornhill
Lord Steyn
Lord Hutton
Lord Carswell
Lord Brown of Eaton-under-Heywood
Privy Council
[Majority Judgment delivered by Lord Brown of Eaton-under-Heywood]
On 21 January 1997, following a four-day trial before Volney J and a jury, the appellants Kelvin Dial (known as Peter) and Andrew Dottin (known as Maxwell) were convicted by the jury's unanimous verdict of the murder of Junior Baptiste (Junior). Junior had been shot seven times in the early hours of 20 February 1995 and had died in hospital early the following day. The shooting took place in the presence of Junior's elder brother, Shawn Baptiste (Shawn) and of Shawn's girlfriend Alicia Henry (Alicia) in Shawn's apartment in Laventille.
Shawn was far and away the most important prosecution witness: he alone gave evidence identifying the appellants, whom he knew as associates of Junior, as the killers. Both appellants denied any involvement in the killing; each gave evidence of having spent that night at home with his girlfriend. Besides their alibi defence, both appellants questioned the likelihood of their having committed such an offence unmasked in the presence of a witness who could identify them and who was then left alive. No motive has ever been suggested by the prosecution for this killing. Nor, however, has any motive ever been suggested for Shawn having falsely identified the appellants as his brother's killers.
In one part of his evidence at the trial (although not his evidence identifying the appellants as the killers) Shawn is now conclusively shown to have lied. Counsel's essential contention before the Board on this appeal is that because of this lie the Court of Appeal should properly have regarded the appellants' convictions as unsafe.
It may be noted at the outset that this is not the first time the Board has considered these convictions. Previous petitions to the Board for special leave to appeal against an earlier dismissal by the Court of Appeal of appeals against these convictions were dismissed on 28 April 1999. As will later appear, it was shortly after the dismissal of those petitions that both Shawn and Alicia sought to retract the incriminating evidence they gave at trial and it was pursuant to these retractions that the Court of Appeal became seised of a second appeal.
With that brief introduction their Lordships now turn to the facts of the case in somewhat greater detail although these will be simplified wherever possible.
The shooting took place at about 2.50 am on 20 February 1995. Not only was Junior shot seven times but Alicia too suffered three entry wounds to her leg and hip, quite possibly caused by three of the same bullets that had passed through Junior (who had fallen on top of her during the attack). At the end of the attack Shawn ran out of the apartment followed by both attackers. Almost immediately afterwards he returned and with the help of a neighbour took Junior and Alicia to hospital. At about 3 o'clock he made a brief report of the matter at the police station and was then taken back to his apartment by PC Pereira and other officers who at that stage secured, but did not search, the premises. At 4 am PC Pereira saw Junior in the casualty department in the presence of a doctor. On being asked who attacked him Junior replied: "Maxwell and Peter shoot me". Junior was not in a condition to give a formal statement and died later of shock and haemorrhage. At about 6.45 am a record of the incident was made in the police station diary, an entry to which their Lordships will return.
On a search of Shawn's apartment at about 8 am PC Seepersad found a silver and black .44 revolver under a sheet on the sponge mattress near where Junior had been shot. The revolver contained one live .38 round and one spent 9mm round. PC Seepersad also found, within the mattress, four spent .38 bullets.
At 3 pm that day Shawn returned to the police station and gave a detailed statement to PC James, an officer with no previous involvement in the investigation. Shawn, then a 25 year old private security guard, described how, after he, Alicia and Junior had gone to bed, "the door was forced open and two men ran inside with guns in their hand". He said he recognised them as Maxwell and Peter whom he knew "from hanging out on Nelson Street, Port-of-Spain about a year now". (Later in the statement he said that he would be able to identify them "because I know them very well", a fact no longer in dispute). He described the shooting as follows:
"Maxwell had his gun pointed at me; all of a sudden I saw Peter started to shoot Junior and he fell on the bed next to my girlfriend. Maxwell then turned the gun away from me and also started to shoot Junior. Junior attempted to get up from the bed and Peter held him around his shoulder and shoot him in his neck. On seeing this I held onto Maxwell's hand that had the gun and we started to struggle. I saw the gun fall out of his hand. I ran out of the house…"
He then said that whilst running away he was fired at. Later in the statement he said that during the subsequent search of his apartment "a police officer found the firearm to the foot of the bed where Maxwell and I had the struggle".
Three days later, on 23 February 1995, Alicia made a statement to the police which included the following description of the killing:
"I then saw one of the men pointing a gun at Shawn and kept him in the corner … Junior then got up and was standing on the mattress behind me while I was still lying on the bed. The other man then turned on Junior pointing his gun at him and fired a shot at him. Junior then fell on the bed, he attempted to get up and the man held him around his shoulder; put the gun to his neck and shot him and he fell on the bed and both men began shooting at him; he was lying across the lower part of my legs so I was unable to move and I was shot on my right hip and upper right leg. Shawn then began to struggle with the man who kept him in the corner and shortly afterwards Shawn ran out of the house and both men ran out of the house behind him and I heard an explosion…"
The appellants were arrested on 24 February and formally identified by Shawn at the police station on 28 February when Shawn gave a further statement to that effect.
On 21 April 1995 Shawn and Alicia swore to the truth of their respective statements before a justice's clerk and on 14 August 1995, at the preliminary hearing before a magistrate, both gave evidence consistently with their statements.
The trial took place on 15, 17, 20 and 21 January 1997, the jury's verdict being returned some two and a half hours after the close of the judge's two and a quarter hour summing up which began the final day of the hearing.
Alicia gave evidence in line with her statement. This included the fact that both men had guns and both of them fired at Junior.
Shawn's evidence too was entirely consistent with his statements. Notwithstanding that PC Seepersad had earlier given evidence of finding the .44 gun under the sheet on the mattress, Shawn was quite emphatic in saying that this was the gun which the appellant Maxwell had been firing at Junior and which then fell from Maxwell's hand as they struggled and, indeed, he repeated what he had said in his statement about that gun being found by the police "at the foot of the bed around where Maxwell and I had the struggle".
Although defence counsel pointed to this discrepancy in the evidence, relatively little was made of it. Prosecuting counsel for his part reminded the jury that Shawn's scuffle with Maxwell had occurred close to the mattress and he poured scorn on the suggestion, implicit in defending counsel's addresses, that the .44 had not been used by the attackers but more likely belonged to Junior or Shawn himself. He made it plain that the State's case was indeed that the .44 had been one of the guns used in the attack before it had fallen from Maxwell's hand. (No one suggested that perhaps only one of the attackers had fired at Junior, unsurprisingly given the unchallenged expert evidence that 3 of the 4 spent .38 bullets found by PC Seepersad in the mattress had been fired from one firearm, the fourth from another.) Towards the end of prosecuting counsel's address to the jury appears this:
"Did Shawn Baptiste strike you as a man who was lying? Did he strike you as a man who had come here to point fingers at Maxwell and Peter mistakenly? … The State has staked its flag of credibility in the evidence of Shawn Baptiste. The State's case will lie or stand according to what you make of Shawn Baptiste. If you discount him or are in any doubt about the identification that he is making, do your duty: set both accused free."
The judge too stressed in his summing up the importance of Shawn's veracity in his identification of the accused:
"I cannot but emphasise the absolute necessity for you to closely consider the circumstances that, according to the evidence, allowed, depending on your view of the veracity of the witness, Shawn Baptiste, for the positive identification of the accused."
The appellants' first appeal against their conviction was dismissed by the Court of Appeal (Hosein, Permanand and Jones JJA) on 16 October 1997. The grounds of appeal at that stage focussed on the judge's directions on identification and alibi and his refusal to give a joint enterprise direction. These matters also formed the basis of the appellants' original petition to the Board for special leave. There was added to them, however, by way of a supplementary petition dated 18 February 1999, fresh evidence in the form of a report from a...
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Subject Index
...355 ..294Delgamuukw v British Columbia [1997] 3SCR 1010................................................. 95, 97Dial v State of Trinidad [2005] UKPC 4... 233Dombo Beheer BV v Netherlands (1994) 18EHRR 213, ECtHR...................................... 2 00DPP v Chalmers [1999] EWHC Admin 172........
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