REPUBLIC OF TRINIDAD AND TOBAGO IN THE COURT OF APPEAL Cr. App. Nos. 28 & 29 of 2013 Between GLENROY CAMPBELL – Appellant No. 1 ELROY CAMPBELL – Appellant No. 2 And THE STATE Respondent PANEL: P. Weekes, J.A. A. Yorke – Soo Hon, J.A. M. Mohammed, J.A. APPEARANCES: Mr. K. Scotland instructed by Mrs. A. Watkins – Montserin for appellant no. 1 Mr. J. Singh instructed by Mr. M. Rooplal for appellant no. 2 Mr. T. Ward QC for the respondent DATE DELIVERED: 2 nd July 2015
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REPUBLIC OF TRINIDAD AND TOBAGO
IN THE COURT OF APPEAL
Cr. App. Nos. 28 & 29 of 2013
Between
GLENROY CAMPBELL – Appellant No. 1
ELROY CAMPBELL – Appellant No. 2
And
THE STATE Respondent
PANEL:
P. Weekes, J.A.
A. Yorke – Soo Hon, J.A.
M. Mohammed, J.A.
APPEARANCES:
Mr. K. Scotland instructed by Mrs. A. Watkins – Montserin for appellant no. 1
Mr. J. Singh instructed by Mr. M. Rooplal for appellant no. 2
Mr. T. Ward QC for the respondent
DATE DELIVERED: 2nd
July 2015
Page 2 of 16
JUDGMENT
Delivered by: Mohammed J.A.
BACKGROUND
1. The appellants were convicted on the 29th
of October 2013 for the murder of Nixon Smith
(the deceased). The prosecution presented its case on the basis of a joint enterprise involving
three gunmen and a getaway driver. Key to the prosecution’s case was the recognition
evidence of Anthony Melville who had been in company with the deceased and witnessed the
shooting. He recognised two of the gunmen as the appellants who were well known to him
for over thirty years since they had all grown up together and socialised frequently.
CASE FOR THE PROSECUTION
2. Around 11pm on the 2nd
of October 2005, the deceased and Anthony Melville left the
deceased’s home at Prizgar Lands, Laventille to attend a party at Club Amazon which was
located on the Eastern Main Road, St. Augustine, obliquely opposite Henry Pierre Terrace.
The deceased parked along the eastern side of Henry Pierre Terrace and he and Melville
proceeded to Club Amazon.
3. At approximately 1.15 am on the 3rd
October 2005 police officers Grant and Hernandez were
on patrol along the Eastern Main Road in the vicinity of Club Amazon when they observed
two persons seated in a B14 Sentra motor vehicle, registration number PBP 407 which was
parked along the Eastern Main Road, roughly 30 feet from Club Amazon. About 15 minutes
later the officers saw that car proceeding north along Wilson Street St. Augustine and shortly
thereafter, it was seen reversing onto Warren Street, St. Augustine.
4. The officers stopped the vehicle and confronted the occupants who identified themselves as
Rodney Antoine, the driver, and Elroy Campbell. The occupants and the vehicle were
subsequently searched and allowed to proceed on their way. Approximately 15 minutes later
Page 3 of 16
the police officers saw the car again, this time proceeding east along the Eastern Main Road
in the vicinity of Club Amazon.
5. Between 2.30 – 3am on the 3rd
October 2005, the deceased and Melville emerged from Club
Amazon and were about to enter the deceased’s vehicle when Melville heard the sound of
“doors cracking” and saw a B14 Sentra, PBP 407, parked to his north on the opposite side of
the road. He watched the appellants and another gunman emerge from the vehicle but could
not make out the driver, who was the fourth person in the vehicle. The three gunmen
approached the deceased and shot him multiple times causing him to drift toward the western
side of the road.
6. On seeing this, Melville retreated to the Eastern Main Road. From there he observed the third
gunman firing into the drain on the western side of Henry Pierre Terrace while the appellants
stood by. The three gunmen noticed him and began approaching in his direction. Melville
fled across the Eastern Main Road. When he looked back, he saw PBP 407 at the corner of
Henry Pierre Terrace and the Eastern Main Road facing east. Melville saw the third gunman
get into the vehicle which then left the scene heading east along the Eastern Main Road.
7. In his first witness statement to the police, Melville did not state that he had seen or
recognised the appellants. In that statement, Melville told the police that the gunmen had
worn bandanas and had escaped in a silver Mitsubishi Lancer. He later admitted that he had
lied to the police in his first statement because he was fearful.
CASE FOR THE DEFENCE
8. The appellants did not give evidence or call witnesses and put their case through cross –
examination. Their primary defence was that Melville had fabricated his account which
placed them at the scene of the crime.
Page 4 of 16
GROUNDS OF APPEAL
9. Both appellants each advanced four grounds of appeal. We find it appropriate to only deal in
detail with the common ground of appeal relating to the judge’s failure to adequately put the
appellants’ defence to the jury, as this common ground is favourably dispositive of both
appeals. The other grounds of appeal will be discussed briefly.
Appellant No. 1 Ground 4, Appellant No. 2 Ground 1 – The learned trial judge failed to
adequately put the defence of fabrication to the jury.
10. Counsel for appellant no.1 submitted that a miscarriage of justice occurred when the judge
put this appellant’s case as one of mistaken identity and failed to direct the jury to consider
his defence of fabrication. Therefore the jury could not have properly appraised his case
which resulted in manifest unfairness.
11. Counsel for appellant no. 2 submitted that the judge had a duty to identify this appellant’s
defence in his summing-up and to marshal the evidence in support of that defence. At no
point in the summation did the trial judge adequately identify to the jury that this appellant’s
cardinal defence was fabrication. Moreover, the summation failed to address the fact that the
jury had to consider whether the witnesses were prima facie honest and the judge conflated
the issues of honesty and credibility with mistaken identification and reliability.
12. Counsel for the respondent submitted that upon a careful examination of the tone and tenor
of defence counsel’s cross examination, and what was actually put, it was evident that while
defence counsel clearly put the credibility of the witness and the reliability of his
identification in issue, she stopped short of asserting malicious fabrication.
13. Counsel for the respondent further submitted that since the judge used the word “fabrication”
in the summation on at least two occasions to characterise an aspect of the appellants’
defence,1 the jury must have clearly understood that the stark issues confronting them were
1 see summation dated October 28
th, 2013 at pg 18, lines 8-12 and at pg 27, line 1
Page 5 of 16
whether Melville was lying, or, whether he may have been mistaken. In this regard the
judge’s duty was to ensure that the jury appreciated that the defence was challenging the
credibility of the witnesses, which he accomplished by providing careful and extensive
directions on all the issues pertaining to the credibility of Melville.
Law and Analysis
14. An accused is entitled to have all possible defences that arise on the evidence put to the jury.
If there is evidence upon which a properly instructed jury could acquit, the trial judge must
draw the jury’s attention to it and instruct them in reference to it: Wu v R [1934] SCR 609.
Where a cardinal line of defence is advanced by the accused and the trial judge fails to
include it in his summing up, this may be a ground for regarding a subsequent conviction as
unsafe: R v Keith Badjan [1966] 50 Cr. App. R. 141, R v Omar Nicholas Lobban [2004]
EWCA Crim 1099.
15. The primary defence of the appellants was that of fabrication. This was made apparent, in
part, from the cross examination of Melville:
“Q You said that your first statement was the untruth, but I want to take you to
your first statement. Would you agree with me, sir, that in your first statement
to the police, you told the police that the vehicle you saw was a silver
Mitsubishi Lancer?
A Yes, ma’am.
………
Q What you described was men wearing white bandanas on their face?
A Yes, ma’am.
Q When you signed that statement, you also signed that statement as being true
and correct, not so?
A Yes, ma’am.
………
Q Sir, I am going to put it to you that my client, No. 1, Elroy Campbell, did not
shoot at Nixon Smith.
A Ma’am, he shoot Nixon Smith, ma’am.
Q My other client, Glenroy Campbell, did not shoot Nixon Smith.
A Yes, ma’am, he shoot Nixon Smith, ma’am.
Q I am also going to put it to you that that early morning, you did not see PBP
Page 6 of 16
407 on Henry Pierre Road.
A Ma’am, the B-14, ma’am, was on Henry Pierre Street, ma’am, that silver B-
14.”2 [emphasis added]
16. The defence of fabrication was reinforced by defence counsel when she summarized the
appellants’ case during the state’s application to adduce bad character evidence on October
9th
, 2013. On that occasion defence counsel said:
“…. my case doesn’t fall on the weakness of the identification evidence, my case is
that of concoction and fabrications. So I would hate to be criticized for not testing
him on the Turnbull facets, My Lord, the aspects of Turnbull. This is not my case. My
case is pure unreliability and concoction and fabrication. So I wouldn’t like to be
criticized for that, My Lord.”3 [emphasis added]
17. Most significantly, at the Ensor hearing, defence counsel expressly said:
“The eye-see evidence in the case against Elroy Campbell is that of Anthony Melville,
whom we say is an unreliable witness; we are denying his account; he is an admitted
liar and what inevitably flows from that, My Lord, is that his case is that of a
concoction….
……………..
My Lord, that is probably why I did not adopt a pedestrian approach to the cross-
examination, My Lord, because the witness, on the State’s case, is an admitted liar.
That is on the State’s case. That is why we went through the trouble, My Lord, of
setting out why Anthony Melville is unreliable….4 [emphasis added]
18. Although defence counsel did not explicitly suggest to Melville in cross examination that his
eye-witness account was a fabrication, having elicited an admission from him that he had
been untruthful in his first statement to the police on the most significant issues in the case,
his credibility was brought frontally into issue. It was therefore clear that the central defence
was fabrication.
19. The jury should have been directed that if they were sure that Melville was truthful, then they
should go on to consider the issue of mistaken identification, consistent with the ‘Turnbull’
2 see transcript of the cross examination of Mr. Anthony Melville on October 8
th, 2013 at pg 30, line 27 to pg 31,
line 8 3 see transcript of legal submissions heard on October 9
th 2013 at pg 17, lines 9-15
4 see transcript of the Ensor hearing dated October 16
th, 2013 at pg 21, line 21 to pg 22, line 31
Page 7 of 16
guidelines. This sequence was explained to the jury and in this matter, the judge’s ‘Turnbull’
analysis has not, in any way, been assailed.
20. In determining whether to give a two stage direction on fabrication (veracity/honesty and
credibility) and mistaken visual identification (accuracy and reliability), trial judges should
bear in mind the helpful learning summarised in Archbold 2015 at para 14-17 under the
heading “Issue as to veracity”:
“A Turnbull warning is not required and would only confuse a jury where, (a) the
defence attack the veracity and not the accuracy of the identifying witness; (b) there is
no evidence to support the possibility of mistaken identification. R. v. Cape [1996] 1
Cr. App. R. 191, CA, or (c) the identifying witness states that he was mistaken and the
prosecution do not rely upon his earlier statement: R. v Davis [2006] 8 Archbold
News 4, CA. There is, however, an obvious need to give a general warning even in
recognition cases where the main challenge is to the truthfulness of the witness. The
first question for the jury is whether the witness is honest; if he is, the next question is
the same as that which must be asked of every honest witness who purports to make an
identification, namely, whether he is right or might be mistaken: Beckford v. R., 97 Cr.
App. R. 409, PC; but the judge need not go on to give an adapted Turnbull direction
(reminding the jury that people can make mistakes in recognising relatives, etc.)
where such a direction would add nothing of substance to the judge’s other directions.
Capron v. The Queen, unreported, June 29, 2006, PC [2006]. UKPC 34) (considering
Beckford, ante, and Shand v. The Queen [1996] 2 Cr. App. R. 204, PC); and see R. V.
Giga [2007] Crim.L.R. 571, CA.
The previous paragraph was expressly approved in Grieves v. The Queen
[2012] Crim. L.R. 212, PC.”
21. In Grieves v The Queen [2012] Crim. L.R. 212, Sir Roger Toulson said at paras 31-34:
“[31] In Turnbull the court was concerned with the particular problem of mistaken
identification by honest witnesses. Part of the standard warning is that a mistaken
witness can be a convincing one and that a number of such witnesses can all be
mistaken. In later cases the courts have considered to what extent a Turnbull direction
is required where the issue is whether the identifying witness has fabricated his
evidence rather than whether he has made an honest mistake. Mr Birnbaum accepted
that the following passage in the current edition of Archbold, at para 14–15, is an
accurate and succinct summary.…..
Page 8 of 16
[32] In Shand [1995] 4 LRC 710 the defence case was that the identifying witnesses
were deliberately lying and it was not suggested that they were mistaken. Lord Slynn,
delivering the judgment of the Board, said (at 715):
'The importance in identification cases of giving the Turnbull warning has been
frequently stated and it clearly now applies to recognition as well as to pure
identification cases. It is, however, accepted that no precise form of words need
be used as long as the essential elements of the warning are pointed out to the
jury. The cases in which the warning can be entirely dispensed with must be
wholly exceptional, even where credibility is the sole line of defence. In the latter
type of case the judge should normally, and even in the exceptional case would
be wise to, tell the jury in an appropriate form to consider whether they are
satisfied that the witness was not mistaken in view of the danger of mistake
referred to in R v Turnbull.'
[33] That statement was reiterated by the Board in Pop v R [2003] UKPC 40, [2003]
5 LRC 320 at [12].
[34] In the present case it was logically possible, as Mr Birnbaum submitted, that
there might have been a combination of fabrication and mistake; but, as already
observed, the possibility that both identifying witnesses were simultaneously mistaken
was remote. In cases where the real issue is whether the identification of defendants
by witnesses who know them was fabricated, the potential relevance of weaknesses
will be to that issue. Mr Birnbaum submitted that a weakness includes anything
capable of being regarded as a weakness. On his argument, anything which could be
regarded by the jury as a reason for suspecting that an identifying witness had lied
requires to be identified as such by the judge. That comes close to saying that the
judge must put to the jury every potential argument for questioning the credibility of a
witness. Such a proposition goes beyond the authorities and is
unsound. Turnbull requires the judge to remind the jury of any specific weaknesses
which have appeared in the identification evidence. It does not require the judge to
remind the jury more generally of every argument which there may be for not
believing a witness.” [emphasis added]
22. In some situations, it will be readily apparent that the issue of fabrication of evidence and
thus veracity/honesty is the only real issue which arises for consideration. This is
particularly so where (a) the parties are said to have been well known to each other; (b) there
is no suggestion of an honestly mistaken identification and/or (c) there is additional material
which is capable of suggesting a possible reason for the fabrication of evidence.