Duporte v The Queen

Whether a jury should be discharged because potentially prejudicial material was shown is an evaluative question for the trial judge, assessed in the circumstances of the case. Production of an unconnected firearm did not require discharge where the jury already knew that the victim had been shot and received clear directions to disregard it.

A hostile witness’s statement was admissible under Criminal Procedure (Amendment) Act 2005 (No 3 of 2005), section 3. Directions that the witness was wholly unreliable and that nothing he said could prove facts were sufficient. A summing-up on identification is assessed as a whole. It need not rehearse every discrepancy if the central weaknesses and need for caution are fairly placed before the jury.

The appellant was convicted of murder in the High Court of Justice in Saint Christopher and Nevis and sentenced to death. The Court of Appeal dismissed the appeal against conviction but substituted life imprisonment for the death sentence.

The appellant appealed to the Privy Council against conviction. He challenged the production of an unconnected firearm, the treatment of a hostile witness’s repudiated deposition, and the directions on identification evidence, recognition and inconsistencies. The central question was whether these matters, individually or cumulatively, rendered the conviction unsafe or created a lurking doubt.

Appeal dismissed. The Board held that the conviction was safe and that the grounds gained no additional force cumulatively.

1. Production of the firearm. Whether a jury should be discharged is a matter for evaluation by the trial judge on the particular facts and circumstances, as illustrated by R v Lawson [2007] 1 WLR 119. The firearm produced at trial was not connected with the killing or the appellant. Since the jury already knew that the victim had been shot, its production caused no irremediable prejudice. The judge expressly directed the jury that the firearm proved nothing, was unconnected with the appellant and had to be disregarded. The jury could be trusted to follow that direction.
2. Steven Thomas’s deposition. Section 3 of the Criminal Procedure (Amendment) Act 2005 (No 3 of 2005) made a statement by a witness declared hostile admissible as evidence of the truth of facts contained in it. The deposition was therefore legally admissible. However, both counsel treated Thomas as wholly unreliable, and the judge directed the jury that nothing he said could be relied on to prove facts. A fuller direction inviting the jury to assess the truth and reliability of the deposition would have been contradictory and confusing. The judge’s direction was sufficient.
3. Identification evidence. The judge gave the jury a proper R v Turnbull [1977] QB 224 direction. He stressed caution, warned that a mistaken witness may nevertheless be convincing, and required the jury to be sure that the identification was accurate. Although there was no specific direction about mistakes in recognition, the direction was adequate in the circumstances. The summing-up reviewed the evidence fully and identified the material weaknesses, including the description given by the only witness who saw the shooting. It was unnecessary to highlight every discrepancy, particularly where it had not been explored in cross-examination or closing speech.

The evidence of the principal witnesses was substantially consistent on the clothing and the movements of the gunman. The Court of Appeal was entitled to conclude that there was no lurking doubt. The Board advised that the appeal be dismissed.

• Privy Council: The appeal against conviction was dismissed.
• Court of Appeal of the Eastern Caribbean Supreme Court (Saint Christopher and Nevis): On 6 March 2009, the appeal against conviction was dismissed. The appeal against the death sentence was allowed and a sentence of life imprisonment substituted.
• High Court of Justice in Saint Christopher and Nevis: On 29 June 2006, the appellant was convicted of murder. On 20 July 2006, the trial judge imposed the death sentence.