Ken Charles v The Queen
| Jurisdiction | UK Non-devolved |
| Judge | Lord Carswell |
| Judgment Date | 16 July 2007 |
| Neutral Citation | [2007] UKPC 47 |
| Court | Privy Council |
| Docket Number | Appeal No 77 of 2005 |
| Date | 16 July 2007 |
[2007] UKPC 47
Privy Council
Present at the hearing:-
Lord Bingham of Cornhill
Baroness Hale of Richmond
Lord Carswell
Lord Brown of Eaton-under-Heywood
Lord Mance
[Delivered by Lord Carswell]
On the evening of 12 April 2002 two people were attacked on the Mt Wynne old road and shot by two assailants. One of the victims, Ronald Lewis, was killed and the other, Shelley Ann Gregg, was wounded by the gunfire. On 24 July 2003 the appellant Ken Charles and one Leonard O'Garro (also known as "Toco") were convicted after a trial before Bruce-Lyle J and a jury of the murder of Ronald Lewis and of wounding Shelley Ann Gregg with intent to do her grievous bodily harm. Each defendant was sentenced to death on the murder charge and to 25 years' imprisonment on the wounding charge. Both appealed to the Court of Appeal of St Vincent and the Grenadines and in a written judgment given on 6 December 2004 the Court (Saunders CJ (Ag), Alleyne and Gordon JJA) allowed O'Garro's appeal, quashed his conviction and sentence and ordered a retrial. It dismissed Charles' appeal against conviction, but allowed his appeal against sentence, remitting the matter to the trial judge for consideration in compliance with the sentencing guidelines laid down in Mitcham v Director of Public Prosecutions ( unreported) 3 November 2003; Saint Christopher and Nevis Criminal Appeal Nos 10, 11 and 12 of 2002.
In the afternoon of 12 April 2002 Mr Lewis and Miss Gregg drove out in Lewis' car to a car park on the Mt Wynne old road. About 6 pm they were standing by the car when they were approached by two men carrying guns and wearing overalls. The men told them not to move, then without further ado shot them both. Miss Gregg sustained wounds to her middle right finger, upper left arm and stomach. She lost consciousness and fell underneath the car. The men put her into the back seat of the car and loaded Lewis' body into the trunk. They drove to Mt Wynne beach, where they buried the body. At that place one of the men, whom Miss Gregg subsequently identified as O'Garro, indecently assaulted her. The two men drove to various places in the island over the next few hours, with Miss Gregg in the back beside the man whom she identified as Charles. Finally they parked the car on the beach side of Argyle. The man from the back seat took Miss Gregg by the hand and headed towards the sea, with the apparent intention of killing her. She broke free and ran towards an approaching vehicle, which stopped. The occupants took her to a police station, where she reported the crime about 1.30 am. She was taken to hospital, where she spent five days.
Later that morning police officers found the body of Ronald Lewis buried on the Mt Wynne beach. The car used by the assailants was also found, but it yielded no fingerprints when examined by a police fingerprint officer.
On the same day police officers came to see Miss Gregg in hospital. They showed her two albums containing a number of photographs, from which she picked out that of a man whom she purported to identify as the shorter of her assailants (she described Charles as the shorter one when giving evidence at trial). The man whose picture she picked out was not, however, either of the defendants. Miss Gregg said in evidence that she was sleepy at the time and Detective Corporal Maloney stated that she was disoriented and complaining of pain, though Miss Gregg denied in her evidence that she was disoriented. On 4 June 2002 Miss Gregg was shown some fifty loose photographs (which did not include that which she had picked out on 13 April). She then picked out photographs of both defendants. On 8 June she attended an identification parade, at which both defendants were present in the line-up along with twelve other men. Miss Gregg identified both defendants as her assailants.
The appellant Ken Charles was arrested on 5 June 2002. Following his arrest he made two oral statements, which were subsequently ruled inadmissible. In the evening of 6 June 2002 he commenced to make a long written statement, which was completed some four and a half hours later at 1.15 am on 7 June. The appellant challenged the admissibility of this statement and the judge held a voir dire. The appellant alleged that he had been beaten by the police, in consequence of which he agreed to make the statement and had conducted the police on a tour on the afternoon of 6 June to various places on the island which had been identified by Shelley Ann Gregg. The judge rejected the appellant's allegations in robust terms and admitted the written statement and the evidence relating to his pointing out locations.
In the statement the appellant admitted venturing forth with O'Garro, both armed with shotguns and dressed in overalls. They approached a man and a woman at the Mt Wynne beach and O'Garro fired two shots at them. They took the girl and the man's body in the car to the beach, where they buried the body. They hid the overalls and drove off with the girl to a number of places round the island. At one point in the drive they stopped for Charles to buy some items at a shop. At another point Charles left the car and went to a house to try to obtain clothing. They ended up at Argyle, where they intended to kill the girl. She broke free and made her escape. They then drove the car to Spring, where they abandoned it.
In the afternoon of 6 June the appellant had gone with a party of police officers, together with a justice of the peace Gloria Stapleton, to various places on the island. He pointed out the place where Lewis' car had been parked and where he was buried on the beach. He showed them the place where he said that they had emptied the contents of Miss Gregg's bag. The police carried out a search there and found a brassiere and other items, subsequently identified by Miss Gregg as her property. He showed them the shop where he said they had bought cigarettes and a drink, the house where he went to collect clothes and the place at Argyle where Miss Gregg escaped from them. Ms Stapleton said in evidence that when they were at Argyle the appellant admitted that he and O'Garro had planned to rape and kill her there.
O'Garro also made a detailed written statement, commencing at 2 pm on 7 June 2002. He challenged the admissibility of the statement, claiming that he had been beaten by the police, but following a voir dire the judge admitted it in evidence. In the statement he fully admitted complicity in the shooting, but tended, as is not unknown in such cases, to throw more of the blame on his accomplice. He did admit at the end of the statement that both of them fired shots at the man and the woman at Mt Wynne.
Both defendants gave evidence before the jury. Each denied having anything to do with the incident at Mt Wynne and repeated the allegations about police maltreatment. The appellant also averred that one of the reasons why he had made his statement was because Superintendent Christopher had promised to let him go if he made a statement and he trusted Mr Christopher to help him. When he pointed out places around the island to the police he was simply assenting to what the police put to him.
Mr Guthrie QC, who appeared for the appellant before the Board, relied on a number of matters in his attack upon the safety of the conviction, but in the light of their conclusions their Lordships do not need to deal with them all at length. The first was in relation to the evidence of identification and the use of photographs. It is obvious that when the identifying witness Miss Gregg was shown photographs and picked out suspects from them, her identification at the subsequent parade was of materially less value, since there was the risk that she would pick out the persons at the parade whose faces she...
To continue reading
Request your trial
-
Benjamin and Ganga v The State
...is that the statement was a fabrication and did not represent what the defendant told the interviewing officers: Ken Charles v The Queen [2007] UKPC 47, para. 14. The former is a proper case for the application of a Mushtaq direction, and the latter which essentially alleges that the appell......
-
Ical v The Queen
...at the police station; whether it was after several attempts or any details of this nature.” Counsel referred to Ken Charles v The Queen [2007] UKPC 47, and R v Lamb (1980) 71 Cr App R 198. In Ken Charles, their Lordships stated that “[i]t is obvious that when the identifying witness … was ......
-
Hksar v Ho Wing To And Another
...Strictly speaking, that remains the law in Hong Kong but that approach has now disapproved by the Privy Council in Wizard v the Queen [2007] UKPC 47 which endorses R v Mushtaq [2005] UKHL 25; [2005] 1 WLR 1513 as being declaratory of the common law. Chan Wei Keung pre-dated the Hong Kong Bi......
-
Andrew-Dean Kupa-Caudwell v R
.... 7 At [14]. 8 At [16]. 9 R v Boulattouf [2007] NSWCCA 102 . 10 At [34]. 11 R v Campbell [2004] NSWCCA 314 . 12 At [42]. 13 Charles v R [2007] UKPC 47 14 At [18]. 15 At [15]. 16 At [16]. 17 At [15] of their Lordships' judgment. 18 At [16]. 19 Section 122(2). 20R v Ngarino [2009] NZCA 200. ......