Mark France and Rupert Vassell v The Queen

JurisdictionUK Non-devolved
JudgeLord Kerr
Judgment Date16 August 2012
Neutral Citation[2012] UKPC 28
Date16 August 2012
Docket NumberAppeal No 0049 of 2010
CourtPrivy Council
Mark France and Rupert Vassell
(Appellants)
and
The Queen
(Respondent)

[2012] UKPC 28

Before

Lord Mance

Lord Kerr

Lord Sumption

Lord Reed

Lord Carnwath

Appeal No 0049 of 2010

Privy Council

Appellant

Malcolm Bishop QC

Sarah Fawcett

(Instructed by Slaughter and May)

Respondent

Tom Poole

(Instructed by Charles Russell LLP)

Heard on 24 April 2012

Lord Kerr
Introduction
1

On 11 May 2001, following a trial before Cooke J and a jury, the appellants were convicted of murdering Glenroy Sutherland on 14 June 1998. They were sentenced to life imprisonment. It was recommended that Mr France serve a minimum of thirty years and that Mr Vassell serve twenty years before becoming eligible for parole. Mr France had three previous convictions. These were for robbery, possession of a firearm and wounding with intent. Mr Vassell had a clear record.

2

The appellants applied for leave to appeal against their convictions and the sentences which had been imposed. The application was refused by the single judge. They renewed it before the full court. Their application for leave to appeal against conviction was dismissed by the Court of Appeal on 2 June 2003. The sentence imposed on Mr Vassell was upheld. Mr France's sentence was reduced from thirty years without parole to twenty five years. On 16 March 2011 the Judicial Committee of the Privy Council advised Her Majesty that permission to appeal against the appellants' conviction should be granted.

The facts
3

On the evening of the day that he was killed, Glenroy Sutherland was outside his home at 3 Greenwich Road, St Andrews, Jamaica. He was with his brother, Hubert, and three friends, Richard Smith, Andrew McKenzie and Michael Henry, who had earlier been in the Sutherland home watching a basketball game on television. After the match, the group left the house and their friends gathered on the opposite side of the road from that on which the Sutherland brothers were sitting. They were talking across the road to each other about the game. A minibus drew up. According to Hubert Sutherland, the vehicle was brought to a halt on the side of the road where he and his brother were sitting. It was then about four feet from where he and his brother sat. Mr Sutherland described the vehicle as being white with a blue streak that ran around it. He recognised it as a Toyota.

4

When it stopped, Hubert Sutherland looked towards the vehicle and he claimed that he recognised two occupants: the appellant, Mark France, and another man whom he knew as "Legamore". Each had a gun in his hand. Mark France was in the front passenger seat area and Legamore was near the steering wheel. The passenger side of the vehicle was nearer the Sutherland brothers. The two occupants, according to Mr Sutherland, pointed their guns out of the windows, France placing the gun outside the nearside window and Legamore out of the offside. When he saw the gun held by France pointed towards him and his brother, Mr Sutherland ran off. His brother also ran off. Hubert Sutherland heard four shots. He stopped then and turned round to discover his brother lying about eight feet from where he had been sitting. He had been shot. The minibus had been driven off. He took his brother to hospital but he was found to be dead on arrival.

The trial
5

At the appellants' trial the deceased's father, Elroy Sutherland, gave evidence that he was watching television in his home while his two sons were outside talking to friends. He heard shots and left his house. He found the body of his son, Glenroy, lying some twenty to twenty five feet from the front door of his house.

6

Hubert Sutherland gave in evidence the account set out above. He also testified that, although it was a dark night, there were two street lights outside the house and that the minibus had stopped directly under one of these. He observed the face of France for some 4 seconds and that of Legamore for about 6 seconds. He had known both for about eight to ten years before the murder. Although he did not know Legamore's real name, he pointed to the appellant, Vassell, when asked to identify him during the trial. He had known him through playing football with him on a regular basis. He had also seen him in a betting shop, although, as he accepted under cross-examination, he did not speak to him then. It was put to him that he was mistaken about his identification but he rejected this suggestion.

7

Detective Constable Ainsworth Williams gave evidence that, as a result of information he received on 15 June 2008, while on duty two days later he noted a white Toyota Hiace minibus with a blue streak on the side. The minibus was being driven by Rupert Vassell whom he knew as Legamore.

8

Detective Inspector Karl Malcolm gave evidence that at about 10.50 pm. on the evening of 14 June 1998 he received certain information that led him to attend Madden's Funeral Parlour where he observed the body of the deceased. He then went to 3 Greenwich Road where he spoke to several persons including Hubert and Elroy Sutherland. He took statements from both of them. He attended the address at night time and noted that there was a street light by each of the two gates to the property.

9

On Monday 15 June 1998 he prepared warrants of arrest for both of the defendants. On Wednesday 17 June 1998 he received information which led him to attend the Constant Spring Police Station where there was a white Toyota Hiace minibus. He noticed that it had a blue streak around the bottom which was 3 inches wide. He then went and spoke to Mr Vassell inside the police station. He knew him as Legamore. He was given the name Vassell by a colleague. He stated that before he cautioned him, he asked him about the bus and was told that Mr Vassell had got it from a Miss Smith from Stony Hill to "juggle". Under cross-examination the detective inspector accepted that the only thing that was distinctive about the minibus was the blue streak around it and he had seen other buses with similar streaks. He accepted that he knew several Vassells but said that he knew only one Legamore.

10

Neither of the appellants gave evidence. Both made unsworn statements from the dock. They denied involvement in the murder. Vassell claimed that he did not know the deceased or his brother, Hubert. France did not expressly deny knowing the brothers but he did not acknowledge that he did. Both appellants claimed that they did not know each other.

The appeal
11

Two principal grounds of appeal were advanced on behalf of both appellants. Two subsidiary grounds related solely to Mr Vassell. The main ground of appeal was that the trial judge had failed to give appropriate directions in relation to the identification of the appellants by Hubert Sutherland. The second ground (which was common to both appeals) concerned the manner in which counsel had conducted their defence. The grounds that related solely to Mr Vassell were that his trial had been irredeemably prejudiced by the failure of his counsel to adduce evidence of his good character and by the judge's having admitted hearsay evidence about his identity.

12

The submission that the trial judge had failed to give adequate directions on the identification evidence had a number of aspects. His charge to the jury was said to be generally deficient. It was disputed that this was a case that could properly be characterised as one of recognition but, if it could be, the appellants argued that the judge had not warned the jury in sufficiently clear terms of the dangers attendant on that species of evidence. It was claimed that the judge did not advert sufficiently to the fact that no identification parade had been held. Finally, the appellants submitted that they had been subject to impermissible dock identifications and that the prejudice which this evidence had caused was compounded by the judge's failure to address its adverse impact in his charge.

13

On the question of the conduct of the trial by counsel, three points were made. First, it was suggested that they should have been present throughout the judge's charge. It appears that they were absent for at least part of his summing up. Secondly, it was claimed that they had compromised the appellants' defence by failing to call witnesses to the killing of Glenroy Sutherland. Lastly, it was contended that the brevity of counsel's closing submissions meant that the case to be made on their behalf had not been properly presented.

The identification evidence
14

Mr Bishop QC, who appeared with Ms Fawcett for the appellants, submitted that the directions of a trial judge, in order to sufficiently alert the jury to the possible frailties of identification evidence, must scrupulously, indeed meticulously, follow the various elements required of a summing up which had been identified in R v Turnbull [1977] QB 224. He took the Board through the judgment of Lord Widgery CJ in that case, identifying what he claimed were indispensable components of every judge's charge to a jury about identification evidence. As a preliminary and general comment, the Board would observe that a formulaic recital of possible dangers of relying on identification evidence, if pitched at a hypothetical rather than a practical (in the sense of being directly related to the circumstances of the actual case that the jury has to consider) level may do more to mislead than enlighten. The purpose of what has become known as a Turnbull direction is to bring to the jury's attention possible dangers associated with identification evidence but that purpose is not achieved by rehearsing before the jury difficulties that might attend that evidence on a purely theoretical basis. A trial judge should always be conscious of the need to relate conceivable difficulties in relying on this type of evidence to the actual circumstances of the case on which they...

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