Francis Eiley and others v The Queen (Belize)

Where a conviction depends on an accomplice or otherwise suspect witness who has been offered immunity, the trial judge must direct the jury carefully on the inducement, credibility and the actual issue in the case. A Turnbull identification warning is inappropriate where the defence is that the witness fabricated the accusation and there is no real possibility of mistaken identity. The appellate question is whether, having regard to the evidence, the circumstances in which it was given and the judge’s summing-up, the conviction is safe. A no-case submission may have merit, but stopping the trial without such a submission is an unusual and extreme step. Evidence obtained following an inducement may be excluded in the interests of justice, although that discretion should be exercised sparingly.

Three appellants were convicted of murder in the Supreme Court of Belize on 13 August 2004. The prosecution case rested solely on Frank Vasquez, who had been found near the scene in bloodstained clothing and shoes, had initially been charged with murder, and later received an agreement promising immunity if he gave truthful evidence. The Court of Appeal of Belize dismissed their appeals on 18 October 2005. Before the Board, the appellants argued that Vasquez’s evidence should have been excluded, that there was no case to leave to the jury, and that the convictions were unsafe because the trial judge misdirected the jury, particularly by treating the case as one of mistaken identification. The central issue was whether the convictions were safe.

Lord Phillips delivered the judgment of the Board. The three appeals were allowed and the convictions were quashed.

1. Evidence and immunity. A trial judge has a discretion to exclude evidence where the circumstances in which it was obtained make admission contrary to the interests of justice. An inducement to a prosecution witness may render the evidence suspect. The discretion should be exercised sparingly. Promises of immunity to an accomplice may nevertheless be justified in the public interest: R v Turner (1975) 61 Cr App R 67. The Board had reservations about the agreement with Vasquez, whose reference to section 95 of the Evidence Act of Belize 2000 was inaccurate because no judicial order had been made. However, the trial judge should not have excluded Vasquez’s evidence of his own motion.
2. No case to answer. No application was made under the principle in R v Galbraith [1981] 1 WLR 1039. The Board considered that such an application would have had merit, but ruling that there was no case without a submission from a defendant would have been an unusual and extreme step.
3. Jury directions. The case turned on Vasquez’s credibility. The judge should have emphasised that the defence was fabrication designed to shift responsibility for the murder, rather than mistaken identification. He should also have directed the jury on the material weaknesses in Vasquez’s evidence, including inconsistencies, the blood on his clothing and shoes, the missing shoe laces, his explanation for carrying a knife, the immunity inducement and his apparent initial misidentification of Burmudez. The lengthy Turnbull direction, [1977] QB 224, was inappropriate and potentially damaging because there was no real possibility of an honest mistake of identity. The later corrective postscript did not necessarily cure the earlier misdirection.
4. Safety of convictions. The decisive question was whether, having regard to the nature of the evidence, the circumstances in which it was given and the terms of the summing-up, the convictions were safe. Given the absence of corroboration, the weaknesses in Vasquez’s account, the apparent misidentification and the inadequate summing-up, the Board could not regard the convictions as safe. It therefore advised Her Majesty that the appeals should be allowed and the convictions quashed.

• Privy Council: In [2009] UKPC 40, the Board allowed all three appeals and quashed the convictions.
• Court of Appeal of Belize: On 18 October 2005, dismissed the appellants’ appeals against conviction.
• Supreme Court of Belize: On 13 August 2004, convicted the appellants of murder after trial before Gonzalez J and a jury.