Evanson Mitcham v The Queen
| Jurisdiction | UK Non-devolved |
| Judge | Lord Carswell |
| Judgment Date | 16 March 2009 |
| Neutral Citation | [2009] UKPC 5 |
| Court | Privy Council |
| Docket Number | Appeal No 44 of 2007 |
| Date | 16 March 2009 |
[2009] UKPC 5
Present at the hearing:-
Lord Phillips of Worth Matravers
Lord Hoffmann
Lord Hope of Craighead
Lord Rodger of Earlsferry
Lord Carswell
Privy Council
[Delivered by Lord Carswell]
On 10 June 2002 the appellant and his co-defendants, Vincent Fahie and Patrice Matthew, were convicted of the murder of Vernal Nisbett after a trial before Baptiste J and a jury in the High Court of Saint Christopher and Nevis. On 26 June 2002 the appellant was sentenced to death and the other defendants were sentenced to imprisonment for life. On 3 November 2003 the Court of Appeal of Saint Christopher and Nevis dismissed the appeal of all three defendants against conviction, but allowed the appeal against sentence and remitted the case to the trial judge for sentencing. On 2 June 2004 the appellant was again sentenced to death and his co-defendants to life imprisonment.
On 7 July 2004 the appellant gave notice of his intention to appeal to the Privy Council against the Court of Appeal's decision of 3 November 2003 and his London solicitors informed the London agents of the Attorney General of Saint Christopher and Nevis that they were instructed to present a petition for leave to appeal. No further step took place for some time and on or about 15 June 2007 the appellant was informed that he would be executed four days later. An immediate petition was presented to the Privy Council and heard on 28 June 2007, when the Board granted leave to appeal and ordered that the carrying out of the appellant's sentence of execution be stayed pending the hearing of the appeal.
Before the appeal came on for hearing, the Eastern Caribbean Court of Appeal granted the appellant leave to appeal against sentence out of time. That appeal, against the sentence imposed on 2 June 2004, is still pending. The Board heard the appeal against conviction on 11 December 2008 and announced at the close of the hearing that they would advise Her Majesty that the appeal should be dismissed, for reasons which would be given later. This judgment now contains those reasons.
The charge against the appellant arises out of an event which took place in Basseterre on 3 February 2001. In the light of the view which the Board has taken of the sole issue in the appeal, a relatively brief résumé of the material facts will suffice.
On 3 February 2001 about 12.30 am three masked men approached Arlene Fleming at her barbecued chicken stall in Basseterre. One of the men, armed with a gun, held on to her apron and demanded money. Vernal Nesbitt came to her assistance, also grabbed hold of the apron and told the gunman to desist. A struggle took place, then the gunman stood back and shot Nesbitt, inflicting a fatal wound.
Neither Arlene Fleming nor the other eye-witness was able to identify the assailants, who were all masked. The case against them depended largely on the evidence of Dayane Lake, who stated that he saw the appellant some time before the shooting, and Jacqueline Hendrickson, who saw him immediately after it.
Lake said that he had been in the company of all three defendants from 4 pm until some time later on the day of the shooting. He saw Fahie give Matthew a gun, wrapped in a red cloth. The appellant distributed clothing to the other two and fashioned a mask by cutting eyeholes out of a black "tam". Lake stated that when the three men were walking away the appellant turned around, pointed his finger at him and said "ah you ain't seen me".
Ms Hendrickson said that when she was sitting in a bus at Shadwell she saw three men running along the road, in a direction taking them away from the scene of the shooting and some hundreds of yards from that place. She claimed to have recognised the appellant, but not the other two, who she said were running too fast for her to identify them. Her evidence was challenged in a number of respects, especially her assessment of time and distance. It was put to her in cross-examination that there was a feud between her family and that of the appellant and that she had threatened to have him sent to prison.
The incident which gave rise to the arguments presented on behalf of the appellant in the appeal to the Board took place on the second day of the trial, 22 May 2002, immediately after the lunch adjournment. The record reads that when the sitting recommenced at 2.20 pm the following exchange took place:
"MR. MERCHANT, DPP rises to state that certain destructing developments have occurred which threaten the orderly conduct of the matter. It relates to threats.
COURT: Inquires whether it is something the jury should hear.
DEFENCE COUNSEL DR BROWNE AND MR BENJAMIN: States they do not object to the jury being excused for the purpose of Mr Merchant's observation. Jury excused at 2.23 pm.
MR. MERCHANT: States that has been advised that threats have been made to witnesses. I am instructed that the threat have been made by No. 1 accused [the Appellant].
DR. BROWNE: States that whoever is receiving threats should go to the police.
MR. BENJAMIN: States that he is confused about the word threat.
COURT: States that the parties to [the] proceedings should not issue threats against any witnesses.
Jury returns at 2.31 p.m."
The trial continued without any further reference to the matter discussed in the jury's absence and no mention was made at any time to it, nor did the trial judge refer to it in his summing-up. No request was made by any of the counsel to have the jury discharged. The only reference to threats of any kind was, as related above, in the evidence of Dayane Lake and the suggestion put to Jacqueline Hendrickson.
A statement made by the appellant to the police was put in evidence, in which he claimed to have been at home at the material time. The other defendants in their statements admitted being present at the scene of the shooting, but each denied that he had done the shooting and claimed that he had sought to withdraw from the enterprise. None of the defendants gave evidence or called any witnesses.
In their appeal to the Court of Appeal the three defendants unsuccessfully argued that the judge should have allowed the submission of no case at the close of the prosecution evidence and that the jury's verdict could not be sustained on the evidence given at trial. None of them raised the question of...
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