Gilbert v The Queen

JurisdictionUK Non-devolved
JudgeLord Woolf
Judgment Date27 March 2006
Neutral Citation[2006] UKPC 15
CourtPrivy Council
Docket NumberAppeal No 25 of 2005
Date27 March 2006
Edmund Gilbert
Appellant
and
The Queen
Respondent

[2006] UKPC 15

Present at the hearing:-

Lord Hoffmann

Lord Woolf

Lord Scott of Foscote

Lord Rodger of Earlsferry

Lord Brown of Eaton-under-Heywood

Appeal No 25 of 2005

Privy Council

[Delivered by Lord Woolf]

1

The appellant was no doubt a respected and well-known figure in Grenada. He had been a Senior Tax Collector and a Bishop of one of the Island's Baptist churches. He was tried for the murder of a 15 year old girl called Robby Ann Jeremiah. He was convicted on 12 December 2001 before Sylvester J and a jury on the 17 December 2001 imposed the death penalty. He appealed against his conviction to the Eastern Caribbean Court of Appeal (Grenada) and on the 23 November 2002 that court (Byron CJ, Redhead and Georges JJA) dismissed his appeal against conviction and sentence. The present appeal is brought with special leave which was granted by the Board on the 27 July 2004.

2

On the appeal he was represented by Miss Montgomery QC and Mr Julian Knowles. At the outset of her submissions Miss Montgomery made it clear that the central point of the appeal was whether the judge was under a duty to give a direction as to the appellant's good character and if he was under such a duty as to the effect of his failure to give such a direction. The appellant also complains about:

  • (i) the judge's failure to warn the jury that they should ignore anything that they might have heard or read about the case in the media,

  • (ii) the judge being wrong to allow a witness, called Aleccia Victor who was aged 17, to give evidence that she had had a sexual relationship with the appellant and seen him slap the deceased,

  • (iii) the judge's directions about telephone calls which were made early on the morning of the day when the deceased's body was found,

  • (iv) misdirecting the jury on how it should approach the appellant's alibi,

  • (v) the judge's failure to direct the jury correctly as to the possible partiality of a juror.

In addition, the appellant submits that the sentence of death was unlawfully imposed because he was sentenced to death by the jury and not by the judge. That this should not have happened is accepted by Mr James Guthrie QC who appeared on behalf of the respondent.

The Facts

3

The body of the victim was found at a place in Grenada called "True Blue" at about 7.00am on the morning of 1 February 2001. Earlier that morning, at 5.29, a Constable Gill, who was at the CID Office received a telephone call to the effect that the victim was "on top of the hill in True Blue lying down." When the Constable asked whether she was dead, the voice answered, "may be." The Crown contended that this call was made by the appellant to Police Headquarters and then re-routed to the CID Office. If the telephone call was made by the appellant, this would be inconsistent with the appellant's case that he knew nothing about the strangling of the victim.

4

In addition to that telephone call, the Crown also called evidence from a Sandra Hinds who said that at around 7.30am, two hours later, she saw the appellant near to a telephone box. There was also evidence that two calls had been made from the appellant's mobile phone at 7.58 am and 8.00 am to the Police Headquarters. Those calls were received by another Officer who stated that the caller said that there was a body of a dead girl on True Blue. Sarah Hinds saw the appellant at around 7.30 am. She noticed that he had a mobile phone with him and asked him why he was using a callbox. He replied that it was because it was cheaper. On the 1 February 2001 the appellant was said to have taken a gold chain to a jeweller and asked for it to be incorporated into an item that he had previously ordered. The chain was identified as belonging to the victim by Aleccia.

5

Aleccia gave evidence after the objection to her doing so had been overruled, that she was the victim's best friend. She stated that she had had sexual relations with the appellant three times prior to the 31 January 2001. She also described seeing the appellant slapping the victim on several occasions and said that he had told her that he and the victim had had sexual relations. On two of the occasions on which Aleccia contended she had sexual intercourse with the appellant, she said that this had occurred at the place where the victim's body was found. Furthermore, Aleccia said that on the 1 February 2001, when she had called the appellant on his mobile phone to ask where the victim was, he had told her to go to a "burial home."

6

It was suggested to Aleccia during her cross-examination that she had told the victim's grandmother, Anita Jack, that the murder had been committed by three other men. It was suggested that the three men had taken her and the victim to a house where each of the men had had "sex" with the victim in front of Aleccia. It was alleged that she had then told Anita Jack that the men had killed the deceased by among other things, striking her with a piece of wood on the back of her head with such force that "one eye was coming out." They had then taken the deceased body and dumped it at True Blue. The men had also threatened her that if she talked "it would be her turn next."

7

Aleccia denied this had happened and denied that she had told Anita Jack anything of the sort suggested. Anita Jack was called as a witness. She confirmed that Aleccia had given this account of the events. She also said that that the victim had sometimes run away from home. The Crown were allowed to treat Anita Jack as a hostile witness. She had not given this account to the magistrate who conducted the preliminary inquiry as to the appellant's responsibility. It was denied by Inspector Dunbar, who originally arrested the appellant at Anita Jack's home, that Anita Jack had told him about the three men.

8

In due course a post mortem was carried out. The cause of death was strangulation. There was no evidence of an injury which would be compatible with death being caused in the manner which was suggested during the cross-examination of Aleccia.

9

A submission of no-case was made and rejected. The appellant made an unsworn statement from the dock. He described how he was 60 years of age and a Minister of Religion for the past 32 years. He also described his work as a tax collector for 36 years. So far as his relationship with the victim was concerned, he contended it was no more than that of "a father and pastor" and that he was "merely assisting the family in trying to stabilise her with her wild sexual activities." He said that on occasion he had gone with her family to try and find her, but she had been abused by 11 bus drivers and conductors. The chain that was produced in evidence was not one which he had taken to the jeweller. He called his wife to support his alibi. The mother of the victim, the daughter of Anita Jack gave evidence that she was present on 4 February when Aleccia came to Anita Jack's house and told them she had been killed by the three men.

The failure of the judge to give the jury a direction as to the appellant's good character.

10

We were referred to a considerable number of authorities as to the obligation of a trial judge in relation to a defendant of good character. The authorities make it clear that there is a considerable consensus as to what are the responsibilities of a trial judge when directing a jury as to the significance of a defendant being of good character.

11

However, the position is made more complicated if defending counsel does not ensure that the judge clearly understands whether the defendant is relying upon his good character. The general rule as to counsel's responsibility was clearly set out in Thompson v The Queen [1998] AC 811. Thomson was an appeal from a judgment of the Court of Appeal of St Vincent. The judgment was delivered by Lord Hutton. At p 844 Lord Hutton stated:

"In the course of the trial the defence led no evidence in relation to the good character of the defendant. The defendant's written case on the appeal to their Lordships' Board advanced the submission that the defendant had no previous convictions and, notwithstanding that no evidence was led on this matter by the defence, the trial judge should (in the absence of the jury) have inquired whether or not the defendant had a good character, and on learning that he had, should (in accordance with Reg v Vye [1993] 1 WLR 471 and Reg v Aziz [1996] AC 41) have directed the jury that they should take the defendant's good character into consideration in assessing both the truthfulness of his account to them and whether he was likely to have committed the offence.

It was submitted that this duty, which it was suggested lay on the judge, was analogous to the duty of the judge to direct the jury to consider a possible defence arising on the evidence upon which defence counsel had not relied, and it was further submitted that the duty was particularly incumbent on the judge where the accused faced a charge of murder carrying the death penalty."

Lord Hutton having referred to the fact that unknown to counsel the appellant had one previous conviction, continued:

"However, if it is intended to rely on the good character of the defendant, that issue must be raised by calling evidence or putting questions on that issue to witnesses for the prosecution: see per Lord Goddard CJ in Rex v Butterwasser [1948] 1 KB 4, 6. Their Lordships are of opinion that where the issue of good character is not raised by the defence in evidence, the judge is under no duty to raise the issue himself: this is a duty to be discharged by the defence and not by the judge. The duty of a judge to bring to the attention of the jury a possible defence not relied on by defence counsel is not analogous, because that duty only arises where evidence which gives rise to that defence has been given...

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