Leslie Pipersburgh and Another v The Queen

JurisdictionUK Non-devolved
JudgeLord Rodger of Earlsferry
Judgment Date21 February 2008
Neutral Citation[2008] UKPC 11
CourtPrivy Council
Docket NumberAppeal No 96 of 2006
Date21 February 2008
(1) Leslie Pipersburgh
(2) Patrick Robateau
Appellants
and
The Queen
Respondent

[2008] UKPC 11

Present at the hearing:-

Lord Bingham of Cornhill

Lord Scott of Foscote

Lord Rodger of Earlsferry

Lord Carswell

Lord Neuberger of Abbotsbury

Appeal No 96 of 2006

Privy Council

[Delivered by Lord Rodger of Earlsferry]

1

During the evening of 18 June 2002, at the premises of Bowen & Bowen in Belize City, two security guards were shot and killed. Earlier that evening a Coca-Cola truck had been driven into the premises. After the shootings, at about 9.15 the same evening, police were summoned to a different area of the city where shots had been reported. A police officer went to the area and saw a Coca-Cola truck, from which a shot was fired at his vehicle. The police officer gave chase. The occupants of the truck soon abandoned it and, eventually, both of them made their escape. When the area was searched, the bodies of a man and woman were found about 300 metres from the truck. Both had been shot with the same weapon as had been used to kill the two security guards.

2

At the relevant time the appellants, Leslie Pipersburgh and Patrick Robateau, were employed as drivers by Crystal Trucks. In the course of their work they had occasion to make regular visits to the premises of Bowen & Bowen. The day after the shootings the appellants did not turn up for work. Suspicion fell on them and their names and photographs were subsequently published in the Belize Times. On 9 July, Mr Salvador Figueroa, the ambassador of Belize to Mexico, saw two men in the hallway of the embassy in Mexico City. They were, in fact, the appellants who had been detained by the Mexican authorities in Tijuana, where they had apparently been trying to cross into the United States. They were brought to the capital. The ambassador recognised their photographs from the newspaper. He spoke to them and Mr Pipersburgh gave his name as Lance Gabourel. The ambassador spoke to the appellants again the following morning at the Mexican government Immigration Detention Centre, in circumstances which their Lordships will have to examine in a little more detail later. In due course, the appellants were returned to Belize where they were tried on four counts of murder and one of attempted murder.

3

The trial before Gonzalez J and a jury lasted from 9 February until 15 March 2004. The appellants did not give evidence, but made unsworn statements from the dock. At the conclusion of the trial both appellants were convicted on all the charges. On 24 March they were sentenced to death. They appealed to the Court of Appeal of Belize against conviction. Mr Robateau also appealed against sentence but, at the outset of the appeal hearing, he abandoned that appeal. On 24 June 2005, by a majority (Carey JA and Mottley P, Sosa JA dissenting), the Court of Appeal dismissed their appeals against conviction. The Board granted them special leave to appeal and directed Sosa JA to reduce his dissenting judgment to writing. Which he subsequently did on 20 July 2007. Their Lordships are grateful for the care which he took in assisting them in this way.

4

Despite the fact that there was no live appeal against sentence in the Court of Appeal, the appellants' appeal to the Board is against both conviction and sentence. So far as sentence is concerned, they complain that the death sentences were imposed following an unfair procedure and that they were unconstitutional. They also allege that sentences of death by hanging would constitute inhuman and degrading punishment and that the carrying out of those sentences would accordingly be unconstitutional. But the Board must first address the appeals against conviction.

5

Before turning to that matter, their Lordships think it right to record that, although the Director of Public Prosecutions knew that the hearing before the Board was taking place, he was not represented. So the Board has had to deal with the appeals on the basis of the submissions of counsel for the appellants alone. They must also mention that the very long trial – only segments of which are available to the Board in transcript – was characterised by astonishingly rude remarks by Mr Willis, the defence counsel, both about the judge and about some of the witnesses for the Crown. This behaviour is unlikely to have been anything but prejudicial to his clients' case. At the same time it must have made the trial extremely difficult for the judge to handle.

6

At the trial, prosecuting counsel, Ms Moyston, adduced a total of five dock identifications of the appellants, as being involved in the murders at Bowen & Bowen's premises, from three witnesses - Karl Ventura (identifying Mr Robateau), John Ventura (identifying both appellants) and Virgilio Requena (also identifying both appellants). In the Court of Appeal the Director of Public Prosecutions accepted that the witnesses had not known the appellants' names. Moreover, the police did not hold an identification parade for either of the appellants. This was on the advice of the Crown Counsel then acting - apparently on the basis that an identification parade would have been inappropriate because the appellants' pictures had been published in the press and so there was a risk that witnesses would identify the appellants from the pictures. However well-intentioned that advice may have been, the decision not to hold an identity parade meant that the first time the three witnesses were asked if they could identify the men involved in the raid was more than eighteen months after the incident, when they were in the witness box and the appellants were sitting in the dock. In their Lordships' view, in a serious case such as the present, where the identification of the perpetrators is plainly going to be a critical issue at any trial, the balance of advantage will almost always lie with holding an identification parade.

7

The first of the three identification witnesses to give evidence was Karl Ventura on the first day of the trial. He worked as a security guard at the premises of Bowen & Bowen. He described how he and another guard, Kevin Alvarez, had been confronted by two men pointing guns at them, and how, subsequently, one of the men had shot Mr Alvarez. He described the person who did so as "a red skin male person" dressed in a blue and white Crystal uniform shirt. The witness said that he had worked at Bowen & Bowen during May 2002 and had seen the man in question coming in through the gate every day. On the evening of the raid, the witness had been about 3 feet from the man. Prosecuting counsel eventually asked whether the witness saw "this red skin male person here today." At that point Mr Willis, who was representing both the appellants, objected. The jury withdrew and the admissibility of the evidence was argued under reference, inter alia, to the decision of the Board in Pop v The Queen [2003] UKPC 40. The judge ruled "that the red skin can be pointed out in court", but added that some clarification was needed as to what was meant by a red skin person. Having attempted to clear that matter up – on the basis that the description referred to a person with light brown skin – prosecuting counsel asked Karl Ventura whether he saw the red skin person in court. He said that he did and she asked if he could point him out to the court and tell the court where he saw him. The witness then pointed to Mr Robateau.

8

Defence counsel renewed his objection on each of the four subsequent occasions when prosecuting counsel indicated that she was going to ask John Ventura or Virgilio Requena to identify either of the men involved in the raid. The trial judge treated his ruling on the first objection as applying to all the subsequent objections, which he accordingly overruled. On each occasion, the witness then proceeded to make a dock identification of one or other of the appellants as having been involved in the events at the premises of Bowen & Bowen. By the end of the trial, therefore, both of the appellants had been identified in this way by John Ventura and Virgilio Requena, while Mr Robateau had also been identified by Karl Ventura. It is unnecessary for present purposes to go into the evidence of the other witnesses in detail since, in presenting the appeals, Mr Fitzgerald QC took his stand on the broad ground that all the evidence constituted by the dock identifications had been, in principle, inadmissible. Alternatively, the judge had not given the kind of directions which were necessary in a case like the present where such evidence had been admitted.

9

As Mr Fitzgerald very frankly admitted, his primary submission - that evidence by way of a dock identification is inadmissible where the witness has not previously attended an identification parade - flies in the face of what the Board said in its judgment in Pop v The Queen [2003] UKPC 40. In that case, no identification parade had been held and the dock identification of the appellant by a witness, Adolophus, had occurred as a result of what appeared to have been a slip by prosecuting counsel in formulating one of his questions. Against that background, the Board said this, at para 9:

"First, the police held no identification parade and in consequence the identification of the appellant was a dock identification. The failure to hold an identification parade was contrary to the practice in Belize as explained by the Court of Appeal in Myvett and Santos v The Queen ( unreported) (9 May 1994, Criminal Appeals Nos 3 and 4 of 1994):

'The detailed code adopted in England for the holding of identification parades to have suspects identified is intended to ensure that the identification of a suspect by a witness takes place in circumstances where the recollection of the identifying witness is tested objectively under safeguards by placing the suspect in a line made up of like...

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  • Tido v R
    • United Kingdom
    • Privy Council
    • 15 June 2011
    ...great care: R v Graham [1994] Crim LR 212 and Williams (Noel) v The Queen [1997] 1 WLR 548." 18 In Pipersburgh and Robateau v The Queen [2008] UKPC 11 the Board re-affirmed (in para 10) its rejection of the suggestion that a dock identification where no prior identification parade had bee......
  • Mark France and Rupert Vassell v The Queen
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    • Privy Council
    • 16 August 2012
    ...have been the occasion of repeated judicial warnings – see, for instance, Pop (Aurelio) v The Queen [2003] UKPC 40; 147 SJLB 692, Pipersburgh v The Queen [2008] UKPC 11, 72 WIR 108; Edwards v The Queen UKPC 23, 69 WIR 360 and Tido v The Queen [2012] UKPC 16, [2012] 1 WLR 115. The inclin......
  • Stubbs v The Queen
    • United Kingdom
    • Privy Council
    • 2 November 2020
    ...by an identifying witness who has not made a previous identification of the accused is not per se inadmissible ( Pipersburgh v The State [2008] UKPC 11; (2008) 72 WIR 108, para 10), it is well established that a dock identification in such circumstances is undesirable and ought not to be ......
  • George Brodie V. Her Majesty's Advocate
    • United Kingdom
    • High Court of Justiciary
    • 16 November 2012
    ...in such circumstances. Without that, the standard directions on eye-witness identification were inadequate (Pipersburgh v The Queen [2008] UKPC 11, paras [9]-[18]). The trial judge should also have directed the jury, in the terms set out in Tido v The Queen (supra, at para 26), to consider ......
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