Posted on 23 December 2016.
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Sullivan – “The court has taken away the function of the jury”
The Queen v Orin Evans
Appearances: Mr. Oris Sullivan and Mr. Kenroy Hyman for the Crown
Mr. David Brandt for the accused
Mr. Sullivan: I have a couple of issues I would want to raise. The most troubling is that, in my view, the court has taken away the function of the jury by saying to the jury that if they find that it is not proved which is a function of the jury to determine whether or not a particular piece of evidence is proved. At no time can the court or the court ought to say the Crown’s case is not proved; that is a matter for the jury and once the court has said that the court has taken away the function of the jury.
The Court: You presumably are complaining about my suggesting that your description of Mr. Evans deliberately killing Mr. Barry is some pre planned event with the suggestion that he had the mattock all along in order to bury the body and that the burglary on the 3rd of September was a fabrication because Mr. Evans had and you suggest you could prove been planning all along to kill Mr. Barry. You are saying as a matter of judicial comment that that was not appropriate.
Mr. Sullivan: Yes My Lord. I am saying that is highly improper and I am saying that the court went further than that. The court said this is not proved. That is a question of fact. Facts are in the province of the jury not in the province of the court.
The Court: I understand the point. Mr. Brandt, what do you say?
Mr. David Brandt
Mr. Brandt: My Lord, every time the court say something that is not in favour of Mr. Sullivan he behaves in a certain way.
The Court: In fairness to Mr. Sullivan I don’t think that he’s behaving inappropriately. He is raising the question of whether I’ve gone too far.
Mr. Brandt: In my opinion you have not gone too far. You told the jury whatever I tell you and you want to disregard it is up to you. You told them you are the judges of the facts from the very beginning and in this end you told them listen if I say anything you could disregard what I say. The decision is yours. You own, those were your words, you own it. You are entitled to give a view of the evidence and it is for you to decide and you told them anything I say you could disregard it, you own it.
The Court: Any further thoughts on this point Mr. Sullivan.
Mr. Sullivan: Yes, it is not in isolation I raise the issue. The court even went further as to posit theories. Theories for the jury to consider in terms of Mr. Barry for example there is no evidence one way or the other that Mr. Barry had gone into the apartment to fix anything. We don’t know how he went in there. That is a question for the jury but you have put on the table well Mr. Barry might have gone in there to fix something when Mr. Evans was not there knowing that Mr. Evans has gone to work. We say that is highly improbable; it’s way too far. It’s more or less the court making a decision and asking the court to go and confirm it and to make matters worse there was nodding at the response by members of the jury when Your Lordship made that –
The Court: You are concerned that the jury seems to be agreeing with me.
Mr. Sullivan: Yes and nodding and writing and taking notes. I’m also concerned about the matters we discussed still being put before the jury, the propositions in the earlier cases.
Judge Iain Morley (The Court)
The Court: He said it in evidence. Mr. Evans said it in evidence that the case was originally prosecuted on the realms that it was a robbery. It’s in evidence.
Mr. Sullivan: I think what Your Lordship should have done was warned against that piece of evidence that that really does not concern them.
The Court: It probably does because it shows that you train them in the way you put the case depending on what might fit the evidence.
Mr. Sullivan: I was going on to say that the fact that the prosecution posited theories before other juries before has nothing to do with this jury, nothing whatsoever.
The Court: I completely disagree with that. Mr. Sullivan I am going to address you very directly. You have floated a whole series of wonderful theories in this case and you’ve put forward a factual basis on 2 previous occasions which turned out to be wrong suggesting that there was a robbery outside, blood had consequently fallen on the floor and a man had been dragged inside to be murdered. Not able to use that in a third trial because the forensic evidence is demonstrative of blood drops not blood spatter outside and therefore is evidence of blood dripping to the floor as the stricken Mr. Barry was being taken to the ambulance. You’ve changed your tune, you have offered an entirely different way of considering the case and it hasn’t been at all clear. It hasn’t been clear whether you are arguing lay and wait for any intruder to punish the intrusion and therefore it was the case that Mr. Barry happened to be in darkness when Mr. Evans launched at him as distinct from the lights were on and it was an attack on Mr. Barry which was pre planned for reasons that aren’t particularly clear to anyone with a view to burying Mr. Barry’s body with the mattock which I observe seem to be some of this came out of nowhere as a suggestion as being a factual finding invited by you of this jury during the course of this trial on the back of very thin evidence of a rent dispute not properly platformed evidentially because there was no evidence properly advanced that this man had no money and was broke; it being a pretty thin reason to commit a murder anyway with the light being on. There being no evidence that there was an argument between Barry and
Mr. Kenroy Hyman
Evans at the apartment which you would expect there to be if there was a rent dispute that turned murderous. Bearing in mind Mr. Alvin Allen describes hearing a sound 4 to 6 pounding sounds and that’s all; no voices, no call for help and you would have expected him to have heard a rent dispute taking place in the kitchen/living room area. Those theories were always weak or beyond weak and the idea of floating that a conversation that was held between Mr. Evans and Mr. Wendell Barry about a TV crime show so that you could postulate that Mr. Evans had always contemplated committing the perfect murder. It not being in evidence, there not having been an application to put this in as evidence in some other way was fantasy.
Now you had a perfectly clear case that you could have run, perfectly clear and in fairness to your helpful junior Mr. Hyman he mentioned quite early on at one point that an issue in this case is the Tony Martin position but that’s not how you run the case. You ran the case that this was a pre-planned deliberate murder of Mr. Aubrey Barry, the lights being on with an expectation that Mr. Evans had planned all along a) a false burglary allegation and b) to bury him. That was just miles from provable, miles. The truth of this case as experience Counsel will see straightaway and indeed Mr. Hyman sensed very early on is a Tony Martin question. We got the meat cleaver spotted not by you, not by anybody in 3 trials but by a juror in this case. We’ve got the mattock, we’ve got the 2 by 4, we’ve got the hammer. Are we dealing with a young man who decided that the intruder might come back and he was going to handle him and that that’s why he cracked down the passageway in the darkness not knowing as you quite rightly identified that there might be 2 or 3 or 4 people, not knowing it might be his mom, it might be his brother but there he is creeping down in the dark not putting on the light, not calling out, not finding out whose there because he’s going to have the person who’s in the room. He’s going to do him serious injury not because he’s acting in self-defence but he’s out to punish. It’s a retaliatory and punishing attack by this young man in the darkness who doesn’t want the person to see him coming and so he hit first and ask questions later. That’s what this case has always been about as being provable; provable as distinct from fantastical theories and on that basis you don’t need very much evidence from police constable Washington, police constable Gilford. You got what he himself says about what he did in the darkness creeping down the passageway with a weapon.
Now as I said who brought the hammer into the room? That’s one of the critical questions in this case. That should have been a focus of attention for the prosecution as part of the investigation. You have run the case twice before. It would not have been beyond the bowels of possibility to get family members to say whether or not they’ve ever seen that hammer before. There’s no evidence to that effect that I’ve seen anywhere. If you could put that hammer in Mr. Evans’ hand as he slips in quietly in the dark not letting the person know that he’s coming for them then you’ve got a Tony Martin murder but it’s not been run instead we’ve had these fantastical theories. Now if I may say it might be said that I have rescued the peculiarity of the prosecution presentation of this case and distilled this case to the heart of it because it did happen during the course of your closing speech as you were running a whole variety of your different thoughts we did begin to gravitate towards the Tony Martin circumstance. So in fact this jury has gone out with a very real question. If the question had been left as simply as deliberate murder, lights on, pre plan, mattock, do the burial on the back of the television program to commit the perfect murder with an intention from the beginning to fabricate the burglary allegation September 2012. If that was their choice you can complete the thinking for yourself Mr. Sullivan but as it happened as you got to the end of your closing speech you began to slip into what Mr. Hyman observed, sometime ago Tony Martin so and so and so and that’s really where that case has always been.
Mr. Sullivan: I totally disagree with you. From the onset when Your Lordship raised the issue about motive I said to Your Lordship that we not running robbery, we don’t know and we have no duty none whatsoever to prove motive.
The Court: Just pause there. You have sought to describe a fantastical series of propositions about how this murder was going to be carried out and when you began this case you did actually say that you were going to be arguing that it was over a rent dispute.
Mr. Sullivan: Because Your Lordship asked what our theory was.
The Court: Yes and the problem I could see coming was that the rent dispute was terribly thin. The real issue in this case was as Mr. Hyman identified in the very early stage is the Tony Martin position. What I didn’t expect were these extraordinary theories about using a mattock for pre-burial, fabrication of the burglary allegation with no fair evidential foundation at all.
Mr. Sullivan: Irrespective of what the prosecution’s theory is it is wrong for the court to tell the jury it is not true. That is a function for the jury.
The Court: Well to be very clear about it I fundamentally disagree. The judge is entitled to offer comment on what is fantastical and I have done so. It is a matter for them whether they accept it or not and I have not taken the issue from the jury. Firstly, it is up to them; secondly, actually the jury unlike before are more focused on what the real issues are in this case.
Mr. Sullivan: That is the purpose of the court to focus the jury.
The Court: If I may offer another thought, for you to say that it is not for the court to pass any comment on a fantastical theory being offered by the prosecution is to allow licence for fantastical theories to be put forward and nothing to be said by the court. That has to stop. What you propose to a jury has to be capable or proved beyond reasonable doubt and what you were saying were nowhere near that.
Mr. Sullivan: At the end of the day that is a matter for the jury. My Lord can say that it is not proved but the jury can find that it is proved.
The Court: No, there are dangers. What would be the basis of a sentence in a case like this? Would it be vigilante punisher in the dark or would it be planned it all along and was going to dig a hole in the ground and dump Mr. Barry’s body and made a big lie in respect of the burglary of September. What would it be?
Mr. Sullivan: When you put it that way the court is imposing on the Crown to prove a motive which is not a requirement in our law.
The Court: No. we are talking about the circumstance, we are not even getting close to motive now. We’re talking about how this thing came to happen. You have the lights on, deliberate murder, pre-planned, premeditated, mattock there for the body to buried and it was all prepared in advance by creating a fabricated burglary in September 2012. That’s what you’ve got and then you’re also running somehow as it came to be during the course of the closing speech that he crept up on the person unawares in the dark. So what’s your case? He’s entitle to know what is being put. I mean if you are saying that the jury should only return a verdict on the basis of what I describe as a fantastical theory then we can have the jury back and we can agree that that is the only basis upon which you want a conviction from them. Is that what you want?
Mr. Sullivan: No. One of the problems is that nobody not even the court can inquire into the jury deliberations.
The Court: Are you saying to me that your case is fully and only what I call a fantastical theory.
Mr. Sullivan: I respectfully submit that I did not submit any fantastical theory.
The Court: I’m calling it that. So let’s just call it the fantastical theory v the Tony Martin theory. So are you saying the only basis upon which you seek a conviction in this case is what I call a fantastical theory?
Mr. Sullivan: I am not saying that My Lord.
The Court: Because if you are we will have the jury back and I will say as a result of legal discussion you are being directed by me that the only basis upon which you are to return a verdict of murder or any offence in this case is on the basis that you find it proved that the lights were on, it was pre-planned, the mattock was there to bury, the burglary report on the 3rd September 2012 was a fabrication in the beginning and this was an attempt to create a perfect murder on the back of a TV series. Now what do you think is going to happen? You think they’ll get further than the door.
Mr. Sullivan: I think that if you do that, that is highly improper.
The Court: What is your case Mr. Sullivan?
Mr. Sullivan: I have posited my case before the jury. A case in which the jury can find –
The Court: Not can find, you are putting forward what happened. This isn’t a game where you just throw up any number of possibilities. That’s sometimes what the defence is expected to do but hasn’t happened in this case. Mr. Brandt has run a very neat, clear, crisp case that this is self-defence and then thrown in at the end is possibility of provocation but all the different possibilities and the rat runs and rabbit runs they are all from the prosecution. So I’m asking you now to articulate what you say happened as being the basis upon which you seek a conviction.
Mr. Sullivan: That whatever happened in that building Mr. Barry was unlawfully killed and there was an intention to kill.
The Court: Mr. Sullivan it is not your function to run any number of theories just to see what happens. That is not proper prosecuting. You have to have a clear version of events which the defendant understands and can meet. You can’t be running anything and everything at the same time. You have actually run 2 completely inconsistent cases together at the same time. You have run light on, deliberate killing and you have run light off intruder and he’s crept up on him. So what is it that you are seeking to say they can be sure of because the jury look to you for guidance as to what they can be sure of because you set out to say you can be sure of the following and what you’re telling me is you think the presentation of the Crown’s case does not involve the jury being sure of what happened. What if you get 5 jurors thinking it’s all a fantastical theory and 4 jurors thinking that he’s acting as a vigilante against an intruder? So what happens then?
Mr. Sullivan: It’s a hung jury.
The Court: They are both agreeing that it’s murder. What happens then? They have no idea what they are suppose to agree on or is it that you simply say they just have to agree that they were unlawfully killed.
Mr. Sullivan: With intent.
The Court: Yes but then both scenarios there would be the finding that he has been unlawfully killed with intent but one group thinks it’s one version and the other group thinks it’s another. That’s not right Mr. Sullivan. They have to be agreed as to the factual basis. You have run 2 inconsistent cases but as it happens in the end as the trial drew to a close it became clear that the jury needed to consider very carefully the vigilante in the dark. Now there are two way to see this unhappy circumstance. The first is for you to think that your case has been identified as being unprovable but that is not what’s happened. What happened is what maybe provable has been identified but not by you because you’ve been running everything and as a result of the court and the issues being distilled for the directions of law as agreed and put towards the jury yesterday, paragraph 27. So that complaint doesn’t fly. The alternative is you stand before me being told you aren’t doing your job properly. I’m going to say no more about it than simply that is another way of looking at this but what we do have now is we have some clarity about what it is the jury can properly approach in this case. Insofar as you are concerned that no comment should have been made thank you for your presentation but I disagree. It is open to a judge to offer comment and in my view this was a case that comment is properly offered on the fantastical theories. Do you have anything further?
Mr. Sullivan: No, I don’t.
The Court: Mr. Brandt, do you have anything?
Mr. Brandt: My Learned Friend didn’t even put to the defendant that you had this thing and whoever comes into your house you are going to clubber them. That case wasn’t put to him and if that wasn’t put to him there is no foundation in my humble submission —
The Court: It’s not quite right. Part of the cross examination touched on it when Mr. Sullivan was describing with Mr. Evans the moving in the dark down the passageway. It is sort of there but I don’t disagree it wasn’t very fully explored and you would remember in any event it is an issue which you agreed should be left to the jury in paragraph 27 of the directions. I can say now that in the event Mr. Evans is convicted of murder he would be sentenced on the basis he was acting as a vigilante towards somebody he thought was an intruder because I’ll make it plain that I consider the alternative to be fantastical and nowhere near proved.
Mr. Brandt: Having regard to that is it permissible for you to ask them whether it is that or the other since it will affect sentence.
The Court: No, I have told you straight away that I will assume that any finding by the jury is a finding of vigilante and when the verdicts are returned – I can say now Mr. Meade in due course if there’s a verdict of guilty of murder we’re going to want to know if it is guilty of simple murder or guilty murder by reason of excessive force in self-defence but I will help you through the process if and when it arises. I think we’ll all agree it’s been a very interesting trial but really Mr. Sullivan keep your feet on the ground and your head out of the clouds when it comes to offering what happened. It was just coming out of the cork from any number of directions and when the point came up about the mattock being in the house in order to bury Mr. Barry and had been there all along with that view—
Mr. Sullivan: If Your Lordship listened to my cross examination I’m saying it wasn’t there all along that’s why there is no blood on it.
The Court: Mr. Sullivan how can you say that you can prove the mattock was in the house in order to bury Mr. Barry. How can you prove that beyond reasonable doubt? The presence of the mattock inferentially shows a plan to bury Mr. Barry. Do you not accept that as a matter of inference doesn’t point to that at all? There could be any number of explanations for that.
Mr. Sullivan: I certainly will agree with the court that there could be any number of reasons.
The Court: Then why did you put up that that was the basis upon which the mattock was in the house.
Mr. Sullivan: That is an inference that could be drawn by the jury.
The Court: No, no it’s a speculation.
Mr. Sullivan: Inference means that from a number of facts you could draw some conclusions and you could draw 2, 3, 4 but if you do draw 2, 3, 4, 5 different conclusions you must draw the one that’s most favourable to the accused, that is what inference.
The Court: No, not at all. It means you draw the only conclusion that the facts lead to whether it’s for the advantage or disadvantage of the defendant. Maybe at some point if I may say to members of the bar we’ll be able to have a chat a more sociable discussions about these things but I think to draw matters to a close. Insofar, Mr. Sullivan, you’re unhappy about judicial comment. I understand that but it’s within the proprieties of the court that such comment can be offered and has been offered in such a way as not to take matter away from the jury but in addition I don’t know what you’re complaining about. There is still something which is a very real issue for this jury to consider and if you’d left this case on a fantastical basis, there we are; draw your own conclusions. You essentially rescued your case on the way you summarized your closing speech and if I may offer my compliments to Mr. Hyman because it was him who mentioned Tony Martin way, way, way back.