R v Brian Francis (CR 36 of 2022) [2024] TCASC 51 (20 December 2024)

Shortly after 3:00 am on the morning of 24th July 2022, Justin Cox Beckles was shot and fatally wounded in the parking lot of Park Plaza in Blue Hills, Providenciales. His killer left the area moments after the shooting in a white truck, together with two men he had been with throughout that night and who were first located on CCTV near Froggies On Da Beach. One of those men, identified as Leonard Pratt, had initiated the attack on Justin Cox. In the CCTV logs compiled by PC Gardiner, he is labelled as Male 2. The shooter, labelled Male 1, was identified by PC Shashauna Williams as the defendant.

On the 25th July the investigating officer, DC Markland, asked PC Williams to view video footage recovered from camera 2 at Chances Casino, which overlooks the parking lot, to see if she recognised anyone. She viewed the footage on a laptop computer and made a largely contemporaneous log of her observations; the log was introduced into evidence as Ex.7. She gave evidence that, at timestamp 02.06.08, she saw a male know to her as Brian Francis, wearing a white T-shirt, standing amongst a group of males. This person pointed a gun towards the victim, who fell to his knees with a red circle appearing on his shirt; there is other evidence of a single gunshot at that point.

The officer explained that her knowledge of the defendant originated from 2015 when she worked at the Pot of Gold Casino and was introduced to him by a co-worker. PC Williams said she had met the defendant about 8 further times after the initial meeting, but also that she had seen him a couple of times a year, which would make it rather more than 9 times over the 7 years from 2015-2022. The last time she saw him was about one year prior to the viewing. It was the afternoon; he was driving a heavy vehicle and was in her view for as long as it took them to pass each other. Finally, she said that when she and a colleague were driving the defendant to the Supreme Court after his arrest, he addressed her by name. Apart from the length of the first conversation, none of this evidence was disputed by the defence, nor the fact that she knew where Brian Francis lived.

In cross-examination PC Williams accepted the assertion that she had recognised Male 1 as the defendant because of his long face and pointed mouth. She did not accept that the video footage was of such poor quality that no facial features could be seen, nor did she accept that she was mistaken in her recognition.  When pressed by Mr Smith, she said she had recognised the defendant at an earlier point in the footage, 02:01:39 but hadn’t made a note of her recognition until 02:04:03.  Her log entry contained a description of Male 1 as he appeared on the footage, and a longer description of the defendant; light skin, long face, pointed mouth, medium build. In re-examination, PC Williams said she had also recognised the man in the footage as the defendant by his body structure and fair complexion. 

At the conclusion of the prosecution’s case, Mr Oliver Smith KC applied for the single count of murder to be removed from the jury. The basis of his application was what he submitted to be the unreliable evidence of identification given by PC Williams and the absence of any supporting evidence. Having heard from both counsel, a short extempore ruling was delivered rejecting the application but the Court informed counsel that a written ruling would be provided.

In his written submission Mr Smith KC, relies upon Wilbert Daley and the Queen [1994] 1 A.C. 117 as authority for “the considerations attendant to a submission of no case to answer in the context of cases which rest primarily on identification evidence.” The Privy Council held: “that where the trial judge considered that the quality of the identification evidence was poor and insufficient to found a conviction, and there was no other evidence to support that identification evidence, he should withdraw the case from the jury at the end of the prosecution case; but that where the strength of the prosecution evidence depended on the determination of a witness's reliability, and on one possible view of the facts there was evidence upon which a jury could properly convict, the judge should not stop the trial even if he regarded the prosecution evidence as uncreditworthy but should leave the case to the jury…;”

Mr Smith submits further that the case of The Director of Public Prosecutions v Randi Bain SCCrApp. No. 204 of 2018 establishes there must be a nexus between the identifying features referred to by the witness, and the image relied upon to make the identification.  Finally, insofar as supporting evidence is concerned, Mr Smith submits: The Prosecution has sought to support the weak identification evidence with the following, which we say together or separately are wholly insufficient to make the jury sure there was no mistaken identity

In her oral response, Ms Hatmin submitted that: On one possible view of the evidence the jury could conclude that the defendant committed the offence: It was not correct to say the only identifying features were the long face and pointed mouth, build and complexion were mentioned: This was not a case of identification following a fleeting glimpse, it is one of recognition, and PC Williams pointed out on the footage where she said she could make out the features she referred to.

Held: The not case submission application was rejected. The following relevant principles can be distilled from the authorities:

1. where a trial judge considers that the quality of the identification evidence is poor and insufficient to found a conviction, he should withdraw the case from the jury at the end of the prosecution case, unless there is other evidence to support that identification evidence;
2. where the strength of the prosecution evidence depended on the determination of a witness's reliability, and on one possible view of the facts there was evidence upon which a jury could properly convict, a judge should not stop the trial;
3. there should be sufficient material from which a jury can make an assessment of an identifying witness’s reliability;
4. where the quality of the visual images is insufficient for a jury to make their own comparison between the images of the suspect and the defendant, but a judge concludes that the images are of sufficient quality for a witness to make a recognition from them, the jury can assess whether a recognition made from them was one on which they could rely.

See R v Yaryare (2020) 4 WLR 156; R v Chaney [2009] EWCA Crim 21; [2009] 1 Cr App R 35; R v McGrath [2009] EWCA Crim 1758; R v Moss [2011] EWCA Crim 252; [2011] Crim LR 560; R v Lariba [2015] EWCA Crim 478.

In my judgement, there was ample material upon which the jury could assess her reliability, particularly after robust cross-examination by leading counsel.  In my view, the quality of the CCTV footage viewed by PC Williams on a laptop was sufficient for her to make a recognition based on her previous knowledge of the defendant. There is the additional factor that, unlike PC Williams, the jury has seen enhanced CCTV footage, not only from the Chances Casino camera 2 but also from the 809 Club, which is from a different angle and is of better quality. The jury are able to examine the enhanced images, not to make their own comparison, but in making their assessment of PC Williams’ reliability.

That being so, the case could go before the jury absent any supporting evidence. However, and in this regard I disagree with Mr Smith KC, there is evidence here capable of supporting the identification.  The audio attached to CCTV footage from Best Buy Pawn Shop contains the use of the defendant’s first name in the context of a discussion about the shooting.  The only people seen in the vicinity of the camera are the three suspects involved in the violent attack, including the shooter, Male 1.  It would be open to the jury to conclude that the words spoken came from that group, and that it is beyond coincidence the defendant’s first name was used, where Male 1 was identified by PC Williams as the defendant.

It follows for the reasons above that I reject the application and the trial will continue.