Milton and another v The Queen

A warning under the Evidence Act 2006, section 146, is not justified merely because a witness has a history of mental illness. There must be medical grounds for doubting the reliability of the particular evidence. A caution based on stereotype risks irrationality and prejudice. Expert evidence may establish the necessary medical foundation. Appellate courts assess defects in a summing-up in the context of the whole case. Errors do not make a conviction unsafe where the evidence establishes that conviction was the only proper verdict. Foreign sentencing practice may assist, but local courts should retain independent judgment.

Andrew Milton and Dennis Campbell were convicted in the High Court of the British Virgin Islands of murdering Dorcas Elizabeth Rhule and conspiring to murder Kerrian Ebanks. They received life sentences for murder, with parole eligibility after 35 years, and concurrent ten-year sentences for conspiracy.

The Court of Appeal of the Eastern Caribbean Supreme Court dismissed their appeals. Campbell appealed against conviction, and both appellants appealed against sentence. The issues before the Board concerned directions about witness reliability, DNA and identification evidence, the safety of Campbell’s conviction, and the proper approach to sentencing guidance from another jurisdiction.

1. The Board dismissed Campbell’s appeal against conviction and both appellants’ appeals against sentence. The deficiencies in the summing-up did not cause a miscarriage of justice.

2. Section 146 of the Evidence Act 2006 does not require a warning merely because a witness has a history of mental illness. A warning is appropriate where there are medical grounds for doubting the witness’s ability to give reliable evidence. Expert medical evidence may be admitted to assist the jury on that issue. A direction based on mental illness without a medical foundation would risk irrationality and stereotypical prejudice. On the evidence, Shawana Wilson’s illness was transient, followed the events in question, and was not shown to affect her ability to give a reliable account.

3. The trial judge had inaccurately summarised the limited DNA evidence and failed to identify its weaknesses. She also wrongly suggested that the evidence of Mr Shirley could assist in identifying Campbell, although his description was too general and there was no identification evidence against Campbell. These were deficiencies in the directions.

4. The safety of a conviction must be assessed in the context of the evidence as a whole. The evidence against Campbell, including the accounts of Shawana and McLeod, his possession of a gun and McLeod’s phone, and the evidence that three men were involved, made conviction the only proper verdict. The DNA evidence was limited but provided additional circumstantial support.

5. Murder carried a mandatory life sentence under the Criminal Code 1997. Under section 9(2) of the Parole Act 1997, the sentencing judge had to address parole eligibility and specify the minimum period before consideration for parole. Courts may consult foreign sentencing practices, including Schedule 21 of the Criminal Justice Act 2003, but should not bind themselves too closely to another jurisdiction’s regime. The Court of Appeal was better placed to assess the appropriate tariff in the British Virgin Islands, and the Board would not interfere.

• Privy Council — dismissed Campbell’s appeal against conviction and both appellants’ appeals against sentence.
• Court of Appeal of the Eastern Caribbean Supreme Court (British Virgin Islands) — dismissed the appeals, accepting deficiencies in the summing-up but holding Campbell’s conviction safe.
• High Court of the British Virgin Islands — convicted both appellants of murder and conspiracy to murder and imposed the sentences described above.