R v Pop (Aurelio)
| Jurisdiction | UK Non-devolved |
| Judge | Lord Rodger of Earlsferry |
| Judgment Date | 22 May 2003 |
| Neutral Citation | [2003] UKPC 40 |
| Court | Privy Council |
| Docket Number | Appeal No. 31 of 2002 |
| Date | 22 May 2003 |
[2003] UKPC 40
Present at the hearing:-
Lord Hope of Craighead
Lord Lloyd of Berwick
Lord Rodger of Earlsferry
Sir Andrew Leggatt
Sir Swinton Thomas
Privy Council
[Delivered by Lord Rodger of Earlsferry]
On the evening of 7 July 1995 George Chavez was shot and killed in the village of Guinea Grass in the Northern District of Belize. On 31 March 2000 in the Northern Session of the Supreme Court of Belize the appellant, Aurelio Pop, was convicted of his murder. As was required by section 102 of the Criminal Code in the case of murder by shooting, the appellant was sentenced to death. On 19 October 2000 the Court of Appeal of Belize dismissed his appeal. The appellant appeals, by special leave, to this Board. Their Lordships recall that, in Reyes v The Queen [2002] 2 AC 235, the Board held that the mandatory death sentence in cases of murder by shooting was unconstitutional. In the event of the appellant's appeal being dismissed, the case would therefore have to be remitted to the Supreme Court to determine the appropriate sentence.
Although the murder took place on 7 July 1995, the man who was to be the principal Crown witness, Martin Adolphus, was not interviewed by the police until 12 December 1995, some five months later. A warrant for the appellant's arrest was issued the day after Adolphus was interviewed but the police did not trace the appellant until he was taken into custody, apparently in relation to another matter, on 13 August 1998. For some reason the police did not then hold an identification parade. On 14 August the appellant was cautioned and charged with the murder.
The only issue at the trial was whether it had been the appellant who shot the deceased. According to the appellant, at the time of the shooting he had been drinking in a bar. On the way home he had heard people saying that he had shot the deceased. A member of the deceased's family had previously killed the appellant's brother and he was afraid that they would kill him too. Therefore, on reaching home, he told his family that he was leaving. He crossed the New River and eventually made his way to Kendal in another part of the country where he lived until he was arrested in 1998.
In his evidence Adolphus said that, on the evening in question, he was riding his bicycle at about 6.00 pm when the deceased and another man Sifredo called out to him. He stopped to talk to them. The sun had gone down and night was setting in. There was no moon and the available light came from a lamp post across the road and another light beside the Roman Catholic church. While he was talking to the deceased and Sifredo, Adolphus saw a man whom he said he had known for about ten years. He did not know his full name and just knew him as R. The man walked towards and then past the group. Adolphus was able to see his face as he came towards them and then his side, as he walked past about 40 feet away. Adolphus gave two versions of what happened next.
On the version which he gave in examination in chief Adolphus next saw R standing in the centre of the road about 18 to 20 feet away. He had something in his hand and was watching the group. He then "cranked" and loaded a shotgun and shot the deceased. The deceased had turned to run away and the shot caught him in the back. Sifredo rode off on his bicycle and Adolphus dashed himself to the ground. He saw R reload the gun and walk towards the deceased, who was lying on the ground, aim at his head and fire another shot at him. Adolphus ran behind a house from where he saw R load the gun again and make off.
As the judge pointed out to Adolphus at the end of his evidence, his account in his evidence differed in certain respects from what he had said in the statement which he made to the police on 13 December 1995. In that statement he had made no mention of dashing himself to the ground. Also in the statement Adolphus was recorded as saying that the man in question approached on a mountain climber bike, jumped off, and broke and loaded his shotgun. Adolphus ran off in one direction and the deceased in another. He heard a shot and looked back to see the deceased fall to the ground. He saw the man walk up to the deceased and shoot him again, before getting on his bike once more and riding off. When asked about the difference in the sequence of events Adolphus said that the police had not written down what he had said to them in 1995.
In his statement as recorded by the police Adolphus refers to the man who shot the deceased as Aurelio Pop. In evidence, however, as their Lordships have noted, Adolphus said that he only knew the man as R. The fact that he was referring to the appellant came out as a result of a question put by prosecuting counsel: "Now, when you saw Aurelio Pop, did you speak to him or did he speak to anybody or any one of you? When you saw Pop, R, was he saying anything, did you talk to him or what?" Adolphus replied, "No, at that moment he did not have anything" – thereby impliedly acknowledging that R and Pop were one and the same. It may well be that prosecuting counsel simply made an unfortunate slip, but the question was, of course, improper, especially in a case where identification was the critical issue. Defence counsel did not, however, object to the question or raise the matter in any other way. Indeed, rather strangely, he made matters worse from the point of view of the appellant when, in the course of cross-examination, he asked Adolphus a question that is recorded in these terms: "So, since that evening of the 7th of July 1995 your first occasion of the person who you are saying you saw there, who you are saying that is Aurelio Pop right now in this court?" To this question Adolphus answered "Yes". In re-examination Adolphus was asked about this answer and then explained that in fact he had also seen the appellant at the committal hearing before the magistrate at Orange Walk.
Before turning to the principal argument which Miss Montgomery QC advanced on behalf of the appellant, their Lordships note that the narrative which they have given so far reveals two important and interrelated features.
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 looking suspects, the English procedure is in practice followed here in Belize."
The facts that no identification parade had been held and that Adolphus identified the appellant when he was in the dock did not make his evidence on the point inadmissible. It did mean, however, that in his directions to the jury the judge should have made it plain that the normal and proper practice was to hold an identification parade. He should have gone on to warn the jury of the dangers of identification without a parade and should have explained to them the potential advantage of an inconclusive parade to a defendant such as the appellant. For these reasons, he should have explained, this kind of evidence was undesirable in principle and the jury would require to approach it with great care: R v Graham [1994] Crim LR 212 and Williams (Noel) v The Queen [1997] 1 WLR 548.
In this particular case there was a second important feature. The evidence identifying the appellant as the gunman had emerged as the result of the leading question by prosecuting counsel, to which their Lordships have already drawn attention. The judge should accordingly have pointed out to the jury that for this reason they required to take even greater care in assessing Adolphus's evidence that it was the appellant who had shot the deceased.
In fact, however, the judge gave the jury no directions whatever on either of the two features which their Lordships have identified. Despite the fact that the first ground of appeal in the Court of Appeal criticised the lack of any direction on the issue of the failure of the police to hold an identification parade, in their judgment the court did not deal with the point. Their Lordships need not decide whether, taken by itself, the lack of any direction on these points would have justified allowing the appeal. It does, however, form an important part of the context in which the main ground of appeal falls to be considered.
The entire case turned on the issue of identification. It was therefore of the utmost importance that the jury should receive proper directions on how to approach the evidence of Adolphus identifying the appellant as the person who shot the deceased. The general requirements for such directions have not...
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