Teiko David Jamel Furbert and Another v The Queen
| Jurisdiction | UK Non-devolved |
| Judge | Lord Hutton |
| Judgment Date | 23 March 2000 |
| Judgment citation (vLex) | [2000] UKPC J0323-2 |
| Court | Privy Council |
| Docket Number | Appeal No. 61 of 1998 |
| Date | 23 March 2000 |
[2000] UKPC J0323-2
Privy Council
Present at the hearing:-
Lord Steyn
Lord Hope of Craighead
Lord Clyde
Lord Hutton
Lord Millett
[Delivered by Lord Hutton]
On 6th July 1996 James Caines was killed in Bermuda by a single shot from a gun. The two appellants were jointly charged on an indictment that they, being concerned together, murdered James Caines. The appellants were convicted by a majority verdict of a jury in the Supreme Court on 29th April 1997 and were each sentenced to imprisonment for life. Their appeals against conviction were dismissed by the Court of Appeal on 20th November 1997 and they now appeal by special leave from that decision.
The Crown case.
The evidence called by the Crown established the following facts. On the evening of 6th July 1996 James Caines was sitting in a room in a house at 27 Curving Avenue in Pembroke with a number of friends. Caines and his friends were drinking and smoking cocaine when shortly after 9.00 p.m. a gun was fired into the room from outside the front of the house. A bullet struck James Caines on his left cheek and exited on the right side of his neck and embedded itself in his right shoulder. On being struck by the bullet Caines ran out through a door in the back of the house into a small garden. Both Franks and Furbert were seen to be in the vicinity of the house both before and after the shooting, and immediately after Caines had run out into the garden Franks was seen to attack him with a stick, striking him on the leg, before Caines ran away. Shortly after running away Caines died as a result of his wound and was pronounced dead in a hospital at 10.10 p.m. that evening.
The Crown case against Franks.
Franks was arrested by the police on 7th July 1996. On that date the police seized the clothes that he admitted wearing on the evening of 6th July 1996. This clothing was tested for gunshot residues and the police also took swabs from his left and right hands for testing. Evidence was given that gunshot residues were found on his clothing and on the swabs from his right hand. Franks made a number of statements to the police. In one statement he said that he met Furbert in Curving Avenue and Furbert told him that Caines was in the house and asked him if he wanted to do something and he replied that he did. He then went back to his home where he obtained a stick and returned to Curving Avenue where he joined Furbert. They both went round to the back of the house where they heard several voices but they could not see the people. They then went round to the front of the house where he started to go up the stairs in front of Furbert when a shot was fired and someone came running out of the house. He went back to the rear of the house where he saw a man standing in the backyard. It sounded as if the man was being sick. Someone coming out of the house called his name and the man in the backyard then ran off. He did not hit the man with the stick but he proceeded to chase the man for a short distance and then went to his girlfriend's home.
Sandra Cyrus and Jermaine Caines, the mother and brother of the deceased, were called as witnesses by the Crown. They gave evidence that after he had been shot the deceased staggered to their house and told them "Franks shot me".
The Crown case against Furbert.
The police arrested Furbert on 11th July 1996 and took clothes from him which he identified as clothing he was wearing on 6th July 1996. This clothing was tested for gunshot residues and residues were found on the left side of his T-shirt. Because of the passage of time since the shooting no swabs were taken from his hands for testing for gunshot residues. The mother of the deceased gave evidence that on 14th July 1996 she met Furbert and had a conversation with him in which he told her that he had nothing to do with her son's death but he admitted to her that he had accused him of taking packages, and it appears to be clear that "packages" meant packages of drugs.
During the early stages of the police investigation Furbert had declined to answer any questions put to him by the police and he had given no statement about his involvement in the events of the evening of 6th July 1996. Detective Constable Maxwell gave evidence that on 9th August 1996 while he was waiting to take Furbert to court Furbert began a conversation with him by asking what was going to happen to him. The detective constable replied that he was going to court so that he could hear the charges and that he would be remanded. Furbert then referred to Franks and said that he knew that he would crack under the pressure. The detective constable then told Furbert to be careful what he was saying to him and that he was writing it down for his (Furbert's) safety, and the detective constable then noted down what had been said and what Furbert continued to say. Furbert then made some further remarks about Franks and the detective constable asked him: "Who shot Jamis (sic) then?". Furbert replied: "I'm not saying anything about the shooting I accept the blame its cool. You guys are something I can respect you guys. All you had to do was pressure him and he starts talking". Later the detective constable asked him "Why take the blame if you haven't done anything?" and Furbert replied "No its cool I'll take the heat. How long do you think I'll get 18?". A little later in the conversation the detective constable asked Furbert "You want to say anything about the shooting to me?". Furbert replied "No no I got nothing to say about that my lawyer told me to say nothing I'll leave that to Franks".
The defence cases.
Both defendants gave evidence. No other witnesses were called. In his evidence Franks said that he suspected that James Caines had broken into his house on two occasions. On the evening of 6th July he met Furbert in an alley close to the house and Furbert told him that James Caines had been in the vicinity and asked him if he "want to go and do him something?". He said that he did and he went back to his house to get a stick. Caines was known to carry a knife and as he was going to accuse him he felt it would be wiser to carry a stick. He came back to the alley with a stick and started to walk towards the house and Furbert then said to him "hold up". While he waited sitting on a wall Furbert went up a little road to a bush and then returned to where he was sitting. They then went round to the back of the house. They could hear male and female voices in the house and Furbert climbed onto a pipe under the window and tried to see inside but was unable to do so. They then went round to the front of the house on the south side. At this time his frame of mind was that he was not worrying about his situation. As they reached the area by the south door he said to Furbert "Look – lef him. I ain't worrying about this guy", meaning to forget about whatever they came there for. He started walking over the stairs and he heard a loud bang, which frightened him. He turned and looked back at Furbert. He then continued to walk up the stairs and he heard Furbert cock the weapon and then Furbert ran over the stairs past him and across the yard and up the rocky road. He figured that James Caines had probably run out of the back of the house so he walked to the back of the house. He saw a person who appeared to be James Caines who was vomiting. As he got close to Caines, Caines ran away and he ran after him, but soon stopped and he rode away on his cycle.
In his evidence Furbert said that he did not fire a gun on 6th July. He was in the vicinity of the house in the alley on the evening of 6th July. He was talking to a number of other men in the area. He saw Franks arrive on his bicycle. He was feeling hungry and he went to get his bicycle and as he went to pick it up he heard a bang and smelt fumes. Everyone ran to see what had happened. He then left the area on his bicycle. He told Caines' mother that he had accused him of taking a package. This was early in 1995. He did not own a gun and was not in possession of one on the evening of 6th July. He had no reason to hurt James Caines. He could give no explanation why Franks had picked on him.
On 9th August 1996 when he was waiting to be taken to court Detective Constable Maxwell asked him "Who shot Jamis?" and he replied that he had nothing to say and explained that his lawyer had told him not to say anything. The conversation described by Detective Constable Maxwell had never taken place.
The grounds of appeal.
1. The evidence of Detective Constable Maxwell
Furbert advanced a number of grounds of appeal in respect of the evidence of Detective Constable Maxwell. These grounds can be summarised as follows.
(a) The judge failed to recognise that the police investigation had ceased on 9th August 1996 and that Detective Constable Maxwell had acted in breach of the Judges' Rules.
(b) The judge should not of his own volition have made Detective Constable Maxwell's notes exhibits in the case.
(c) The judge should have directed the jury that the notes were not corroborative of Detective Constable Maxwell's evidence and were merely an aide memoire.
(d) The judge's direction to the jury that the appellant's words were "not an out and out admission" were inadequate and would have served to confuse the jury.
Before Detective Constable Maxwell gave his evidence and in the absence of the jury counsel for Furbert objected to his evidence. It is clear from the record that counsel did not object on the ground that Furbert's remarks were involuntary or obtained in breach of the Judges' Rules. He said:-
"I object to content as set out in notes. I can only assume it is some form of admission. I say it is...
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...excluded. The learned judge accordingly erred in admitting Mr. Browne's dying declaration. Furbert and Another v The Queen (Bermuda) [2000] 1 WLR 1716 (Privy Council), distinguished. REASONS FOR DECISION BAPTISTE, J.A. 1 This judgment concerns the reasons for allowing an appeal against a mu......
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...excluded. The learned judge accordingly erred in admitting Mr. Browne's dying declaration. Furbert and Another v. The Queen (Bermuda) [2000] 1 W.L.R. 1716 (Privy Council) , distinguished. Baptiste, J.A. 1 This judgment concerns the reasons for allowing an appeal against a murder conviction ......