Huggins v. R (Barbados) [2004] UKPC 7 (29th January 2004)

	Privy Council Appeal No. 98 of 2002

Michael McDonald Huggins	Appellant
	v.
The Queen	Respondent

	FROM

THE COURT OF APPEAL OF BARBADOS
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	JUDGMENT OF THE LORDS OF THE JUDICIAL
	COMMITTEE OF THE PRIVY COUNCIL,
	Delivered the 29th January 2004
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	Present at the hearing:-
			Lord Steyn
Lord Hoffmann
Lord Hope of Craighead
Lord Hobhouse of Woodborough
Lord Rodger of Earlsferry
		  	[Delivered by Lord Hope of Craighead]
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1. 	This is an appeal against a decision of the Court of Appeal of Barbados (Simmons CJ, Chase JA and Waterman JA) on 27 March 2002 dismissing the appellant’s appeal against his conviction by Payne J and a jury on 19 July 2001 for the murder of Stephen Wharton (“the deceased”), for which he received the mandatory death sentence in terms of section 2 of the Offences against the Person Act 1994.  The appellant has appealed against both conviction and sentence.  Their Lordships have decided to stay his appeal against the mandatory sentence to await the outcome of the appeal in Lennox Boyce and Jeffrey Joseph v The Queen.  This judgment is concerned only with his appeal against conviction.

2. 	The incident which led to the deceased’s death took place at about midday on 30 November 1999, which was Independence Day.  The deceased’s brother, Neil Wharton, was selling fruit from his stall in the Golden Rock area of Pinelands, which he did almost every day.  Among the people who began to gather in the vicinity during the morning was the deceased, who went to another shop nearby which was selling beer.  About an hour after he had arrived the appellant appeared.  He approached the deceased.  A gun was produced and shots were fired.  One of the shots hit the deceased, who fell to the ground beside a shed at the Senior Citizens’ Home. He was taken to the Queen Elizabeth Hospital where he was found to be dead on arrival.  The cause of death was blood and air in his chest cavity as a result of a firearm injury.

3. 	About six days later the appellant went voluntarily to the District A Police Station accompanied by an attorney.  He was informed by Sergeant Reid that the deceased had been shot at Golden Rock in the area of the Senior Citizens’ Home and that he had died as a result of that gun shot injury.  He was then informed that the police had been told by an eyewitness that it was the appellant who had shot the deceased, and he was cautioned.  The appellant replied that he did not wish to say anything.  He was then told that he was being arrested for the murder of the deceased and was formally charged with the offence.

4. 	When the case came to trial it was accepted that the deceased had been killed by a single gunshot wound and that the appellant had been involved in some way in the incident.  The case for the prosecution was that it was the appellant who fired the shot and that he had done so in cold blood as the deceased was running away.  This version of what happened was based on the evidence of two eyewitnesses, Neil Wharton and Rhonda Hollingsworth-Hinds.  There was also evidence from a forensic pathologist, Dr K Sree Ramulu, who had prepared the post mortem report, from a forensic scientist, Mark Sargeant, who had examined the deceased’s clothing and a forensic firearms examiner, Graham Husbands, who had examined a bullet which had been recovered from the deceased’s body.  Two police officers, Sergeant Winston Goddard and Sergeant Neville Reid, gave evidence about the scene of the crime and what happened when the appellant presented himself at the police station.

5. 	Dr Ramulu said that he observed two injuries when he performed his post mortem examination of the deceased.  One was an abrasion on the forehead above the inner end of the right eyebrow.  This was a trivial injury, which he said might have been due to a fall or a blunt force injury.  The other was a penetrating wound which had entered the deceased’s chest cavity.  This was the fatal injury.  It had entered the back of his chest 10.5 cms to the right of the midplane and 36 cms below the top of the right shoulder between the 9th and 10th ribs.  It had penetrated the lungs and lodged in the collar bone.  The direction of the injury was from right to left, from below upwards and from behind forwards.  A distorted projectile was recovered in the supra-clavicular on the left side of the body.  He agreed in cross-examination that the wound, with the bullet travelling from right to left and from below up, was consistent with what might have happened if someone had drawn a firearm and was engaged in a struggle.  The projectile was identified by Sergeant Husbands as a deformed .38 calibre lead bullet which had apparently struck some hard object during its flight.   

6. 	Mr Sargeant examined the clothing that the deceased was wearing when he arrived at the hospital.  The shirt which he was wearing had several holes in it.  Around one of these holes, which was 17 cms from the left and 32 cms from the base, he found a lead cloud which he identified as gun shot residue.  It was 7 cm in diameter.  He said that this meant that the muzzle of the gun was anywhere between 1 to 14 inches away when the shot was fired, depending on the ammunition, the length of the barrel and the cartridge.  The muzzle was not touching the target.  

7. 	It was possible to draw some conclusions from the forensic evidence.  The shot which killed the deceased hit him in the back. It was fired from close range from a .38 calibre weapon.  The bullet entered the body at a pronounced angle, from right to left and from below upwards.  It ended up by striking the collar bone.  Dr Ramulu accepted in cross-examination that the injury could have been self-inflicted during a struggle.  The prosecution’s case that it was the appellant who fired the shot depended on the evidence of the eyewitnesses.   

8. 	The deceased’s brother, Neil Wharton, said that he knew the appellant as they had grown up together.  He was at his stall and the deceased was in front of a shop drinking beer, when he saw the appellant come from behind a wall.  He was tying a blue scarf around his head.  He ran towards the deceased with gun in his hand and pulled the trigger.  The deceased ran away, and the appellant chased after him.  The appellant fired another shot as the deceased was running away from him.  The deceased ran into a pole that was supporting a shed and fell to the ground.  In cross-examination Wharton indicated that the distance between the appellant and the deceased when the deceased was shot was the distance from the witness box to the back of the courtroom.  It was agreed that this was about 20 feet.  He denied in cross-examination that he had taken the gun from his brother’s hand after he fell.  But he agreed that he had been involved with the law on one occasion when he was hiding a gun for his brother, and that his brother had stabbed the appellant and put him in hospital.  His mother, Phyllis Wharton, also gave evidence.  She said that she had visited the appellant in hospital who was there because of her son.  The appellant had stabbed her son and that he had stabbed him back.

9. 	Rhonda Hollingsworth-Hinds was a reluctant and rather garrulous witness.  She said that she known both the appellant and the deceased for years, because she lived in the Golden Rock area. She said that she felt bad about what had happened because she had seen the deceased being killed, and that it was not fair.  She said that a man had nothing, another man had something and another man was running for his life.  Pressed by prosecution counsel to describe what she had seen more precisely, she said that the deceased was sitting on two tyres and that the appellant, who had a thing in his hand, jucked the deceased in the side and shot him.  The deceased got up, held his hip and tried to run away with the appellant behind him.  At this point she refused to answer any more questions put to her by the prosecutor.  She said that she was scared for her life.  

10. 	When she was cross-examined, Ms Hollingsworth-Hinds was first asked about a statement she had given to the police.  She denied that she had given them a completely different account, but she admitted that she had not told them about what happened when the appellant first shot the deceased.  As her cross-examination proceeded, Ms Hollingsworth-Hinds began to give a more complete account of her recollection of the incident.  She said that there were three shots.  The first was when the deceased was sitting down.  The appellant went up close to him, jucked him in the side and shot him.  She saw that shot but did not hear it.  The deceased then got up and started to run.  The appellant was behind him with a brown-handled gun in his hand.  He let go two more shots.  It was the third one that killed the deceased as he was running away. There was about 10 feet between them when he fired the third shot. The appellant ran past the deceased as he fell on a shed.  She ran over to where he had fallen.  His brother, who was already there, turned him over and she saw two wounds, one in his hip and the other in his back.

11. 	Evidence was led without objection about what happened when the appellant arrived at the police station with his attorney, Miss Helga McIntyre.  Sergeant Reid told him about his rights to an attorney.  The appellant replied, looking at her, “She cool there man”.  Sergeant Reid then told him that the deceased had died from a gunshot wound and that there was eye-witness evidence that he was responsible.  On being cautioned he said: “I don’t wish to say anything”.  Sergeant Reid than told him that the eyewitness said that he had seen him shoot the deceased with a gun.  He asked him to hand over the gun and again cautioned him.  The appellant looked at his attorney and asked “I got to answer that?”.  She shook her head, indicating no.  He then said “I don’t have anything to say. I just wanted to be clear on the question”.  Sergeant Reid told the appellant that he was arresting him for the murder of the deceased at Golden Rock on 30 November 1999.  He again cautioned him.  The appellant made no reply.

12. 	The appellant made an unsworn statement from the dock in which he admitted to having been involved in an incident with the deceased at Golden Rock.  He said that the deceased approached him and said that he was going to kill him.  The deceased put his hand to the right side of his back, and when his shirt was raised he saw a gun:
“I was scared for my life because he had already stabbed me and I was in hospital.  I tried to lick the gun out of his hand and my hand either connect with his hand or the gun. On connection I heard two explosions and he ran off of me. When he ran off he turned round like he was going to fire at me and raised his hand.  I ran from there.”

The appellant then said that he went home and told his mother that the deceased had come and troubled him again and pulled a gun on him, and that he would like to call the police.  His mother became hysterical and appeared not to understand what he was saying.  He then went to explain it to his aunt.  While he was there he called home to tell his mother where he was.  She told him that she had just heard that the deceased had died.  He told her that he had not troubled the deceased but that the deceased had told him that he was going to kill him and had taken out a gun.  He said that he would like her to get a lawyer for him to go to the police station. On 6 December 1999 he was accompanied to the police station by Miss Helga McIntyre.  

13. 	The appellant’s appeal to their Lordships’ Board was presented by Mr Guthrie QC on two main grounds.  The first was that his conviction was unsafe in the light of inconsistencies between the evidence of the experts and that of the eyewitnesses, between the evidence given by each of the two eyewitnesses and between the evidence which Ms Hollingsworth-Hind gave at the trial and her earlier statement to the police.  The second was that the evidence relating to his silence when questions were put to him in the police station was inadmissible, and that the trial judge failed to direct the jury properly in relation to that evidence.  But he sought to make two further points in the course of his argument. The first was that the trial judge misdirected the jury in various passages in his summing up, including a passage where he commented on a point made by defence counsel in his address to the jury about the conclusions to be drawn from the direction that the bullet had travelled in the deceased’s body.  The second was related to the absence from the summing up of a direction about the appellant’s good character.

Inconsistencies: the evidence of the eyewitnesses
14. 	Mr Guthrie submitted that the evidence of the experts was consistent with the appellant’s version of what had happened and did not fit in with the evidence of the eyewitnesses.  Dr Ramulu’s evidence was that the bullet entered the deceased’s body at the level of the 9th and 10th ribs and then travelled to the left and upwards.  This was supported by the position of the hole in the shirt which was identified by Mr Sargeant as having been caused by the bullet wound.  He said that the angle of entry was inconsistent with its having been inflicted while the deceased was on his feet and running away.  The evidence of the eyewitnesses that the appellant was either 10 or 20 feet from the deceased when he fired the shot could not be reconciled with Mr Sargeant’s evidence that the lead cloud around the hole indicated that the muzzle of the gun was between 1 to 14 inches away when the shot was fired.  The differences between these distances was so great that there was no room for confusion.  Dr Ramulu was not asked by prosecution counsel whether the injury could have been sustained while the deceased was running away.  But he did agree in cross-examination that the deceased could have inflicted it on himself in the course of a struggle.

15. 	Mr Guthrie then submitted that the evidence of Rhonda Hollingsworth-Hinds was unreliable.  He said that her evidence that she saw two bullet wounds on the deceased’s body could not be reconciled with the evidence of the pathologist, who found only one such wound at the post-mortem.  He also said that her evidence was inconsistent with a statement which she had previously given to the police.  In that statement she said that she saw two men running across the pasture by the old people’s home.  The deceased was being chased by the appellant, who had a gun in his hand.  She then heard two explosions, and saw the deceased run into a galvanised shed where he collapsed.  She said that she did not see these two men before she saw them running past the pasture.  In particular, she made no mention in that statement of the deceased having been attacked and shot in the hip while he was sitting down.

16. 	There is no doubt that there were inconsistencies in the evidence.  But their Lordships do not consider that they were of such a character as to make the appellant’s conviction unsafe.  It was for the jury to consider and to try to resolve them as best they could, bearing in mind that it was for the prosecution to prove its case.  Two observations in particular can be made in order to emphasise this point.  

17. 	First, estimates of distance by eyewitnesses are notoriously prone to error.  The incident which Neil Wharton and Rhonda Hollingsworth-Hind were attempting to describe was just the kind of incident where one would expect there to be discrepancies.  It took place suddenly and without warning.  It was fast moving, as there was a chase, and it was violent.  Precision about the distances between the two men and about the angle of the body of the man who was being chased cannot be expected in these circumstances. Some allowance must be made too for the fact that the experts were not there.  They gave their opinions about what they found when they examined the deceased’s body and the shirt.  But these were only their opinions.

18. 	Second, the materiality of discrepancies between the evidence of experts and of eyewitnesses depends on the issues which the jury need to resolve to arrive at their verdict.  The central issue in the case was a simple one.  It was whether the deceased met his death by accident, as the appellant suggested in his statement from the dock, or whether the appellant attacked, chased and then shot him deliberately.  The appellant’s statement was short on detail. The suggestion that the deceased inflicted the injury on himself in the course of a struggle was put to Dr Ramulu in cross-examination.  But here too there was no attempt to pursue the question as to how this might have happened in detail.  Nor was the proposition put in the same terms as the appellant used later when he made his statement.  The appellant did not mention a struggle. All he said was that he tried to lick the gun out of the deceased’s hand.

19. 	Against that uncertain background, the common thread that ran through the evidence of the prosecution’s eyewitnesses was that the deceased was pursued and then shot by the appellant from behind as he was running away.  The same common thread too ran through the descriptions of the incident which Ms Hollingsworth-Hinds gave to the police and then in court under cross-examination.  Her opening remarks that what she had seen was unfair and that she felt bad as she had seen a man running for his life fit in with this pattern.  Towards the end of her cross-examination she again said that she felt within herself that the way the deceased got killed was unfair.  The eyewitness’s account of how the incident ended was supported by Sergeant Reid’s evidence.  He said that when he arrived at the scene at about 1.15 pm on the day of the incident he saw that one of the posts that was supporting a shed attached to the Senior Citizens’ home was broken and that there was what appeared to be a blood stain under the shed.  In this context the need for precision about the distance from which the shot was fired and the route which the bullet took when it entered the body fades into insignificance.

The summing up
20. 	Mr Guthrie submitted that the trial judge undermined the case for the defence when he gave the following direction to the jury in his summing up at p 79:
“Mr Pilgrim in his address to you yesterday suggested that the bullet could only travel through the body from below upwards if it was fired upwards and he then said the if the deceased was sitting down, the accused would have to be lying down.

One does not have to study physics to understand that when a projectile meets with resistance, it can be deflected from its course.  So according to what structures the bullet encounters in its path in the body, it can change direction and so we cannot assume without considering the structures in the flight path that a bullet must travel through the body in a straight line.  We cannot assume that.  And remember that Dr Ramulu said that he recovered a distorted projectile.”

21. 	The question whether the bullet might have been deflected from its course as it passed through the body was not pursued in evidence with Dr Ramulu.  Nor was there any evidence that the bullet might have struck something which was liable to cause it to be distorted until it reached the deceased’s collar bone.  The judge was inviting the jury to speculate, and the fact that he did so might well have been regarded as objectionable if the issue had been one of any real importance in the case.  As it is, their Lordships consider, for the reasons already given, that this cannot be said about the precise direction of travel of the bullet which caused the fatal injury.  The defence did not offer any detailed alternative explanation for the injury.  In the result the critical issue in the case was whether or not the appellant chased after the deceased and shot him while he was running away.  On the appellant’s account there was no such chase.  There was ample evidence to support the prosecution’s version of what happened, without descending into the level of detail that was being discussed in this passage of the summing up.

22. 	Mr Guthrie made a number of other points about the summing up in support of his proposition that there were defects in it which should not be left out of account in an overall assessment of the safety of the conviction.  These points were, for the most part, directed to aspects of the judge’s treatment of Ms Hollingsworth-Hind’s evidence, its lack of consistency within itself and its inconsistency with her police statement.  For the reasons already given, very little weight can be attached to points of detail of this kind.  The jury were given ample guidance as to how they should approach her evidence.  In parts it was confused, and there were inconsistencies.  But the effect of her evidence overall was very clear.  The way the deceased was killed was unfair because the appellant shot him while he was running away.  Their Lordships are not persuaded that there were any defects in the summing up which could be regarded as material.           

Silence: the events in the police station
23. 	The judge dealt in his summing up with the events in the police station.  He did so by narrating in full the evidence which Sergeant Reid gave about the appellant’s replies at each stage in the process from his being told of his right to consult an attorney to his being arrested and charged with the murder.  At the end of this narrative the judge said, at pp 85-86:
“Now, of course, an accused man is not obliged to say anything, but you are entitled to examine his reaction and his demeanour and what he does say.”

He repeated this direction at p 91 at the end of a passage where he referred once again to Sergeant Reid’s evidence.  Mr Guthrie submitted that this was a misdirection, having regard to the terms of section 76 of the Evidence Act 1994.  He said that the judge should have confined himself to a direction that the jury were not entitled to draw any adverse inferences from the appellant’s silence when questions were being put to him in the police station. 

24. 	Section 76 of the Evidence Act 1994 provides:
“(1) An inference unfavourable to a party may not be drawn from evidence that the party or some other person failed or refused to answer a question, or respond to a representation put or made to the person in the course of official questioning.

(2) Where evidence of the kind referred to in subsection (1) may only be used to draw an inference referred to in that subsection, it is not admissible.

(3) Subsection (1) does not prevent the use of the evidence to prove that the persons failed or refused to answer the question or respond to the representation if the failure or refusal is a fact in issue in the proceedings.”           

25. 	Counsel for the prosecution made it clear in his opening address that details of the appellant’s interview would be given by the police officers.  No objection was taken at the trial to the leading of any of this evidence.  The appellant made it clear at the outset of the conversation that, on the advice of his attorney, he did not wish to say anything.  Sergeant Reid did not press him on this point, and he did not attempt to conduct a formal interview.  All he did, before proceeding to the formal stages of arresting and charging the appellant, was to tell him that an eyewitness had stated that he had shot the deceased and to ask him to hand over the gun.  This led to an exchange in the course of which, having been advised that he did not have to answer the question, the appellant asked for it to be repeated and said that he just wanted to be clear on the question.

26. 	It is not surprising that defence counsel did not object to the leading of this evidence.  The appellant’s demeanour throughout the interview was one of nonchalance.  His remark, on being told of his right to an attorney, was to look at Miss Helga McIntyre and say “She cool there man”.  He had, after all, come to the police station voluntarily.  This pattern was maintained throughout the conversation.  His observation, when he asked for the question about the gun to be repeated, that he just wanted to be clear on the question was capable of being regarded as a further indication that he was relaxed and unconcerned.  The jury were entitled to take the view the evidence about the appellant’s demeanour was helpful to the defence.  His remarks at the start and at the end of the interview were both part of that evidence.  The judge was right to allow the jury to consider this evidence as a whole.  It would have been confusing and possibly prejudicial to the defence, in the absence of any objection at the time, for him to do otherwise.  Their Lordships consider that the requirements of section 76 were met in this case by his direction that the appellant was not obliged to say anything.                
Good character
27. 	There was evidence before the jury that both eyewitnesses had previous convictions.  Neil Wharton admitted to a conviction for possessing a firearm, and Rhonda Hollingsworth-Hinds admitted to being a known thief.  The question whether the appellant was of good character was not the subject of evidence.  Their Lordships were informed by the Director that the leading of evidence of good character is becoming more common in Barbados, in the light of the Board’s decision in Sealey and Headley v The State [2002] UKPC 52, (2002) 61 WIR 491.  But the position at the date of the trial was that it was not the practice for evidence of good character to be led and a direction of good character to be sought from the trial judge.

28. 	Mr Guthrie submitted that evidence of good character should have been led in this case.  He submitted a document which had been prepared by the police which made no mention of any previous convictions.  This was, he said, a case where evidence of good character would have been relevant both as to credibility and as to propensity: R v Vye [1993] 1 WLR 471.  He maintained that its absence, and the lack of the direction on the point by the trial judge that would have resulted from it, had resulted in a miscarriage of justice.

29.	Their Lordships cannot accept this argument.  The question whether the appellant truly was of good character has not been tested by evidence.  The absence of any reference to previous convictions in the police document does not conclude the matter. If there was any merit in this point it ought to have been raised in the Court of Appeal, where the appropriate investigations could have been made.  It was not.  In any event there was evidence that the appellant had been involved with the deceased in a mutual stabbing incident.  The deceased’s mother gave unchallenged evidence about this in cross-examination.  Any direction given by the trial judge about the appellant’s good character would have had to have mentioned this fact.  He would have had to say that there had been a previous incident where the appellant had resorted to violence and that the person against whom this violence was used was the deceased. The effect would have been to water down the direction, if it was to be given at all, to a point where any benefit that it would have given to the appellant would at best have been minimal.  It cannot be said in these circumstances that the fact that it was not given led to a miscarriage of justice.   

Conclusion
30.	Their Lordships have not been persuaded that the verdict of guilty which the jury returned was unsafe.  They will humbly advise Her Majesty that the appellant’s appeal against his conviction should be dismissed.