Ebanks v The Queen
| Jurisdiction | UK Non-devolved |
| Judge | Lord Rodger of Earlsferry,Lord Steyn,Sir Swinton Thomas |
| Judgment Date | 27 March 2006 |
| Neutral Citation | [2006] UKPC 16 |
| Date | 27 March 2006 |
| Docket Number | Appeal No 11 of 2005 |
| Court | Privy Council |
[2006] UKPC 16
Privy Council
Present at the hearing:-
Lord Rodger of Earlsferry
Lord Steyn
Lord Carswell
Lord Mance
Sir Swinton Thomas
[Majority judgment delivered by Lord Rodger of Earlsferry]
On the morning of 18 January 2000 the body of Curtis Seymour was found in a refuse disposal area near the Flowers Apartment complex off Walkers Road in George Town. He had been stabbed to death. In due course the appellant, Kurt Fabian Ebanks, and his co-defendant, Bryan Roland Powell, were tried for his murder before Henderson J sitting without a jury in the Grand Court. Both defendants were convicted on 26 January 2001 and were sentenced to life imprisonment. Both appealed to the Cayman Islands Court of Appeal and on 12 April 2002 the court (Zacca P, Rowe and Taylor JJA) dismissed the appeals in a judgment delivered by Rowe JA. On 27 July 2004 the Board granted the appellant special leave to appeal as a poor person.
At the hearing before the Board counsel for the appellant, Mr Froomkin QC, argued a single ground of appeal, that the appellant had been denied a fair trial by reason of the conduct of counsel who represented him at the trial, his barrister, Mr Philip St John Stevens, and his attorneys Mr David Thomas McGrath, Mr Gregory Link and Mr Neville W Levy. In fact, as their Lordships go on to explain, there were really two interrelated aspects to the ground of appeal.
At the trial the only evidence against the appellant came from a statement which he was alleged to have made to WPC Angela Campbell and DC Wayne Powell on 17 February 2000. In order to appreciate the significance of that statement it is necessary to look briefly at how the issues presented themselves at the trial. The Crown proceeded on the basis that on the night in question both the defendants had participated in a jointly planned robbery of Curtis Seymour and that both had participated in stabbing him to death in his taxi in the early hours of 18 January.
At the trial Powell admitted that he had stabbed Seymour, but in evidence claimed that, at the time when the stabbing occurred, he had been alone in the taxi with Seymour. According to Powell, they drove to the Flowers Apartments ostensibly to get some drugs. When they got there, Seymour asked him for money which Powell owed him for drugs which had been stolen from him before he could sell them. Powell had no money and Seymour drew a knife. In the ensuing fight Powell stabbed Seymour in self-defence. For reasons which he explained in his judgment Henderson J accepted Powell's evidence that he had stabbed Seymour and caused his death, but rejected the rest of the account which he had given in evidence. The judge accordingly convicted him of murdering Seymour.
If the judge had accepted the version of events given by Powell at the trial, it would have exonerated the appellant Ebanks, since on that version he was not even present in the taxi when Seymour was killed. Not surprisingly, therefore, at the trial counsel for Ebanks did not cross-examine Powell when he gave evidence. In the result, however, since the judge disbelieved Powell, his evidence was of no assistance to Ebanks. But equally, of course, the rejection of the account given by Powell in evidence did not prejudice the position of Ebanks. It was still necessary for the Crown to prove their case against Ebanks on evidence which was admissible against him. The only such evidence came from the statement which WPC Campbell and DC Wayne Powell said that he had made to them on 17 February. At the trial the admissibility of their evidence about the alleged statement was challenged, first, in a voir dire on 15 and 16 January 2001, in which defence counsel "put the Crown to proof as to the voluntariness of the … remarks recorded by" the officers in question. The police officers gave evidence and were cross-examined. In the course of their evidence they spoke to the terms of the statement which they said that Mr Ebanks had made. After they had given their evidence and had been cross-examined, the judge asked Mr St John Stevens whether he was calling any evidence on the voir dire and he replied "My Lord, I am not. Thank you." Mr Ebanks was present when he said this. The judge heard legal submissions on the admissibility of the evidence on 17 January. In particular, counsel argued that the evidence had been obtained by an inducement. The judge rejected that argument and also rejected an argument that the appellant should have been given a further caution before the statement was taken. He also rejected certain other arguments presented on behalf of the appellant, including an argument that he should exclude the evidence on the ground that the confession had been obtained unfairly.
After the trial judge had given judgment to this effect, Mr St John Stevens indicated that he did not accept that, in these circumstances, the evidence of the statement should be admitted. He wished to raise a further matter as to the circumstances in which Mr Ebanks had been arrested and held in custody. In effect, he asked for a further voir dire on that point. The judge pointed out that it was unusual, to say the least, for there to be a further voir dire in relation to a statement which he had already ruled should be admitted in evidence. But, in view of the serious nature of the charge and the importance of the evidence, the judge declared a further voir dire and heard evidence from two police officers in relation to that matter. Again, at the conclusion of the Crown evidence, and in the presence of Mr Ebanks, his counsel announced that he was not calling any evidence. Having considered the evidence given on the voir dire, the judge again held that the evidence of the statement taken by WPC Campbell and DC Wayne Powell was admissible. Counsel for the Crown and for the defence agreed that the evidence given in the voir dire need not be repeated and the evidence in chief and the cross-examination became part of the evidence in the main trial. The judge gave counsel for the defence an opportunity to ask additional questions. Counsel for Powell did so, but when his turn came, Mr St John Stevens took a moment to make sure that Mr Ebanks understood that counsel were adopting the cross-examination from earlier. In the light of that, he then announced that he had no further questions.
According to the police witnesses, in his statement Mr Ebanks accepted that he had taken part in a joint robbery of Curtis Seymour and, in particular, that at one point he had passed a knife to Powell which Powell had then used to stab Seymour. While recognising the dangers of accepting Mr Ebanks' confession because of the way it was taken, Henderson J was sure that it was true. In particular, he was satisfied beyond a reasonable doubt that Mr Ebanks did hand Powell the knife knowing that it would be used by Powell to kill Seymour and thus eliminate him as a witness to their robbery. On that basis the judge held that Mr Ebanks had aided and abetted Powell in the killing of Seymour and convicted him of murder. In the hearing of the appeal before the Board it was not disputed that the judge had been entitled to convict Mr Ebanks in this way if he admitted and accepted the relevant part of his alleged confession.
On 9 February 2001 the agents who had conducted the trial on his behalf gave notice of an application for leave to appeal against conviction on the ground that the conviction was unsafe and unsatisfactory and indicated that full written grounds would follow. At some point after that, however, Mr Ebanks instructed another attorney, Mr Schofield, to act for him and on 22 October Mr Ebanks swore an affidavit about the conduct of counsel at this trial. On 24 October 2001 Mr Schofield gave notice that Mr Ebanks was applying to the Court of Appeal to have his affidavit received in evidence. At the same time he lodged amended grounds of appeal alleging in particular that he had "continually and consistently instructed each of his defending counsel that he had not made the alleged statement and that it was a fabrication by the police officers" and that the failure to call him to testify on the voir dire proceedings, in defiance of or without proper instructions, "was a failure of judgment so fundamental in nature that the appellant was deprived of due process of law and did not receive a fair trial." On 2 November he lodged amended grounds of appeal in which he alleged that the conduct of counsel discouraged, impeded and prevented the appellant from testifying that he did not make the statement alleged, resulting in a material irregularity in the course of his trial.
Thereafter, Mr Ebanks Having waived confidentiality, the attorneys who had acted for Mr Ebanks at his trial swore affidavits which were lodged with the Court of Appeal shortly before the hearing of the appeal on 23 November 2001.
In his affidavit the appellant said that he did not give the statement that the police officers had testified to at his trial: they both lied to the court. He continued, at paras 11-13:
"11. When the voir dire started concerning my statement, I was expecting Mr St John Stevens to charge right at the two police officers who were lying and try to discredit them. But he didn't. and he kept telling me, 'This way is better. They gave you a truncated form of your rights.' He also kept saying to me, 'You've told me that you did not make the statement, but I'm going to attack it this way. They kept you in custody too long without charging you. I'll get the statement thrown out because of oppressive conduct.' Never once did he put to the officers the fact that I didn't make the statement at all. I sat in the court and listened to the two officers' lies and kept thinking that I would have my...
To continue reading
Request your trial
-
John v The State of Trinidad & Tobago (Trinidad & Tobago)
...unless it would serve no useful purpose: see Goldson and McGlashan v The Queen [2000] UKPC 9, Aurelio Pop v The Queen [2003] UKPC 40, Ebanks v The Queen [2006] UKPC 6. Most recently, in Pipersburgh, Robateau v The Queen [2008] UKPC 11, the Board has said that "In their Lordships' view, i......
-
Brantley and Others v Constituency Boundaries Commission and Others (Saint Christopher and Nevis)
...366; [1976] 1 All ER 353, PCM v Home Office [1994] 1 AC 377; [1993] 3 WLR 433; [1993] 3 All ER 537, HL(E)Mauritius (State of) v Khoyratty [2006] UKPC 16; [2007] 1 AC 80; [2006] 2 WLR 1330, PCNewbold v Comr of Police [2014] UKPC 12, PCOlivier v Buttigieg [1967] 1 AC 115; [1966] 3 WLR 310; [1......
-
Libke v The Queen
...3 All ER 225 at 230 per Lords Radcliffe, Tucker and Cohen; R v Lyttle (2004) 180 CCC (3d) 476 at 489–493 [47]–[66]; Ebanks v The Queen [2006] 1 WLR 1827 at 1839–1844 [26]–[31]. 79 Walker and Walker, The Law of Evidence in Scotland, (1964) at 361. 80R v R(AJ) (1994) 94 CCC (3d) 168 at 178 pe......
-
Libke v The Queen
...3 All ER 225 at 230 per Lords Radcliffe, Tucker and Cohen; R v Lyttle (2004) 180 CCC (3d) 476 at 489–493 [47]–[66]; Ebanks v The Queen [2006] 1 WLR 1827 at 1839–1844 [26]–[31]. 79 Walker and Walker, The Law of Evidence in Scotland, (1964) at 361. 80R v R(AJ) (1994) 94 CCC (3d) 168 at 178 pe......
-
Noticeboard
...the Court of Appealwould not interfere.The duties of defence counsel and appellate court fact-finding—Privy CouncilIn Ebanks vThe Queen [2006] UKPC 16, the defendant was convicted of murder by ajudge. The prosecution relied upon a confession. Defence counsel challenged theadmissibility of t......
-
Noticeboard
...the Court of Appealwould not interfere.The duties of defence counsel and appellate court fact-finding—Privy CouncilIn Ebanks vThe Queen [2006] UKPC 16, the defendant was convicted of murder by ajudge. The prosecution relied upon a confession. Defence counsel challenged theadmissibility of t......