DPP (British Virgin Islands) v Varlack

JurisdictionUK Non-devolved
JudgeLord Carswell
Judgment Date01 December 2008
Neutral Citation[2008] UKPC 56
CourtPrivy Council
Docket NumberAppeal No 23 of 2007
Date01 December 2008
Director of Public Prosecutions
Appellant
and
Selena Varlack
Respondent

[2008] UKPC 56

Present at the hearing:-

Lord Hoffmann

Lord Hope of Craighead

Baroness Hale of Richmond

Lord Carswell

Lord Neuberger of Abbotsbury

Appeal No 23 of 2007

Privy Council

[Delivered by Lord Carswell]

1

The respondent Selena Varlack was on 12 June 2006 convicted, after a trial before Joseph-Olivetti J and a jury, of the murder of Tristan Todman (described in the indictment as Tristan Todman Industrious) on the night of 29-30 August 2004. She and her co-defendants Lorne Parsons and Clinton Hamm, who were also found guilty, were sentenced to imprisonment for life. They appealed to the Eastern Caribbean Court of Appeal (Alleyne CJ Ag, Barrow and Rawlins JJA), which dismissed the appeals against conviction of Parsons and Hamm but allowed the respondent's appeal, on the ground that the trial judge should have ruled at the close of the prosecution evidence that there was no case to answer and withdrawn the case from the jury. The Director of Public Prosecutions appealed by special leave to the Privy Council against the Court of Appeal's decision in respect of the respondent. Petitions brought by Hamm and Parsons for special leave to appeal were dismissed by the Board.

2

The body of Tristan Todman was found about 7.30 am on 30 August 2004 in his car at the end of an isolated dirt track in the mountains of the island of Tortola in the BVI. He had been shot seven times and his body was hanging out of the front passenger door of the car. The keys were in the ignition in the "on" position, the gear lever was in "Drive" and the engine was still warm but not running. Empty bullet cases were found in and near the car and bullet fragments were later recovered from his body. The probable time of death was never clearly established.

3

The prosecution case was that the murder was carried out some time after 10 pm on the night of 29-30 August in the execution of a joint enterprise to which Parsons, Hamm, Mario Pemberton and the respondent were parties. The evidence against each of the defendants was circumstantial. It tended to establish Parsons' possession of the murder weapon, an Uzi pistol, and to prove that a car which was driven on that evening by Hamm was seen parked at or about 11. 30 or 11.45 pm on the night of the murder on a lonely road at the other end of the dirt track, a short distance from the place at which Todman's body was found. The judge found that Parsons and Hamm each had a case to answer, which conclusion was upheld by the Court of Appeal. She acceded to the submission of no case at the close of the prosecution evidence made on behalf of Pemberton, and at the end of the case he was acquitted by the jury on the charge of keeping a firearm without a licence.

4

The prosecution case against the respondent was that she was used as a lure to get Todman to go to a meeting place on the mountain road, where he was to be murdered. It was based largely on evidence of telephone calls made between the defendants, from which the prosecution sought to draw the inference that she knew and agreed to the plan to kill Todman. It was claimed that she was instrumental in getting him to travel into the mountains and tipped Hamm off by telephone when he left her apartment for the meeting.

5

The prosecution assembled detailed evidence at trial of the significant number of telephone calls made between Hamm, Parsons and the respondent in the space of nine days from 25 August to 2 September 2004. Expert evidence was called to place the general area in which the caller and the person called in each case were located, by identifying the location of the telephone relay stations that processed the telephone calls. The calls were summarised in paragraphs 10 to 15 of the judgment of Barrow JA in the Court of Appeal:

"[10] …. In a period of some five months before 25th August 2004 there were sixteen telephone calls between Parsons' mobile or home telephone and Hamm's mobile or home telephone. On 25th August 2004 there were three calls by Varlack from a neighbour's telephone to Hamm's mobile telephone, and one call from Parsons' home telephone to Varlack's neighbour's telephone. These calls were all within the space of 6 minutes. On the following day there was one call from Parsons' home telephone to Hamm's home telephone.

[11] On 28th August 2004, in less than an hour beginning at 7:15 in the morning, Varlack called Hamm three times and Hamm called Varlack five times. That evening Hamm called the deceased at the latter's home and later Parsons called Hamm.

[12] On 29th August 2004, the last day the deceased was seen alive, in the morning Hamm made three calls, two to the work place and the third to the home of the deceased. Varlack called three times to the deceased's home telephone, apparently reaching him once.

[13] That evening, at 8:49 Varlack telephoned from the neighbour's home and spoke with Hamm on his mobile phone. At 9:31 the deceased made his final telephone call: it was to Hamm's mobile. Three minutes later Hamm used his mobile telephone, from an East End location, and spoke with Parsons on his mobile telephone. Five minutes later Hamm again telephoned Parsons on his mobile. Twenty minutes after that call (at 9:58) Varlack, from another neighbour's telephone, called Hamm on his mobile. Hamm was still in the area of East End. Less than a minute after that, Hamm telephoned Parsons, who was in the Road Town area of Tortola, on his mobile. Five minutes later, at 10:04, Hamm telephoned Varlack at the same neighbour's home. The final call that night was at 10:57 when Hamm called the telephone company's balance check number.

[14] The following morning, the morning that the body was discovered, Hamm telephoned for Varlack twice and in the afternoon Varlack telephoned Hamm. On the next day, 31st August 2004, Hamm and Varlack each telephoned the other a number of times, Parsons and Hamm each telephoned the other a number of times and Parsons telephoned Varlack twice. On 1st September 2004, after the police interviewed Varlack, Parsons telephoned Hamm twice and Varlack telephoned Hamm twice.

[15] At 4:11:33 and at 4:11:37 in the morning of 2nd September 2004, after the Uzi firearm was recovered from Parsons' mother's jeep, Varlack telephoned Hamm."

It was submitted on behalf of the prosecution that the timing of some of these calls was significant in relation to several matters which occurred, both before and after the killing.

6

The respondent and Todman had been in a sexual relationship and had cohabited at her apartment until some time within a period of two weeks before Todman was killed, when he left and commenced a relationship with Kishma Martin. It was alleged by the prosecution, but denied by the defendants, that the respondent had begun a relationship with Hamm when Todman left. The respondent averred in her written statement to the police that the estrangement was a ruse planned by Todman and herself to enable Todman to take advantage of Ms Martin's beneficence. On 29 August 2004 Todman called at the respondent's apartment, which was a few minutes' drive from the scene of the murder, about 9.30 pm, stayed a short time and left shortly before 10 pm. At 9.58 pm the respondent used a neighbour's telephone to call Hamm on his mobile telephone. At 9.59 Hamm called Parsons, then at 10.04 called the respondent at her neighbour's house. The respondent claimed that Todman returned a little while later, then they made love and he stayed until about 11.45 pm. Evidence was given, however, by one neighbour, Mrs Tasha Potter, that up to the time when she went to bed at 11 pm or thereabouts she did not hear his car return, although it had a distinctive sound. Another neighbour Mr Allison Punt stated that he returned home a few minutes before 11 pm, but did not remember seeing Todman's car at the respondent's apartment.

7

On the morning of 30 August 2004 Sergeant Arthur went to the respondent's apartment and told her that Todman had been found dead in a car up the mountain. She went with him to the police station, where she met Todman's mother Carla and his brother Austin. When Carla and Austin asked the respondent if she knew where the scene of the killing was, she replied that she did not. They then set off along with the respondent to find the scene. In the course of the journey Austin, who was driving, started to make a left turn, whereupon the respondent told him that he had taken a wrong turn. The prosecution relied on this as showing knowledge on the respondent's part of the place of the killing, but the defence suggested that it might be explained by the fact that some instructions had been given to Carla at the police station about finding it, which it was possible the respondent could have heard.

8

Later that day the respondent indicated that she wanted to talk to Inspector Charles. She was taken to see Inspector Alexis Charles, whereas she had intended to talk to Inspector Marlon Charles, but she proceeded to make an oral statement. She said that Todman had become involved in selling drugs and owed money to some others. He had moved out of her apartment because he could not afford to pay the rent, their intention being that a cousin could then stay and contribute to it. He had come to her apartment about 9.30 pm and asked her for jugs of water for a car up the hill which was overheating. He returned about 15 minutes later and stayed until 11.45 pm, at which time he left, taking a pillow and a fan with him. The respondent telephoned Hamm at 6.45 pm that evening and had a conversation lasting 2 minutes and 22 seconds.

9

Shortly after midnight on 2 September 2004 police officers stopped a vehicle towing a boat on a trailer. Pemberton was driving the vehicle, with Parsons in the front passenger seat. When the vehicle was...

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