IN THE SUPREME COURT CR APM 1/06
TURKS AND CAICOS ISLANDS
BETWEEN: ALBERT WILLIAMS
PAUL TALBOT Appellants
Mr. Noel Skippings for the Appellants
Mrs. Elizabeth Hinds for the Respondent
1. The Appellants appeal against their convictions and sentences imposed by the Chief Magistrate on 11 January 2006 for the offence of Burglary contrary to s. 11 (1) (b) Theft Ordinance.
2. In relation to conviction Mr. Skippings submits that there was no/insufficient evidence that the Appellants entered the dwelling as trespassers, that they were acting in concert, that they were not labouring under a mistake of fact as to the building being occupied, and in the case of Talbot that he stole anything.
3. The Chief Magistrate heard evidence from Kendal Handfield, the officer in the case and from the two appellants, and has fully set out that evidence in his record and in his reasons for conviction. In those circumstances, for the purposes of these appeals it is only necessary to summarise it. The owner had left his premises secure at 6 p.m. on 25 July 2005 and, when he returned at 4.30 a.m. the following morning, he saw the light had been turned on and was able to see through the windows two persons moving around in his house both of whom were gathering up his belongings. Having watched them for some time he entered armed with a baseball bat. He saw Williams and Talbot, who he knew, inside his home, and took a swing at the former, and was grabbed by the latter, who said "Bring the gun'' before running off. Williams ran off with something in his hand. Mr. Handfield did not see anything in Talbot's hands when he ran off. He later found that the items detailed in the information were missing. These have never been recovered He called the police to whom he showed a window to his premises that had been broken.
4. In his evidence Williams said that he had been smoking crack and had been walking in the south dock area, hoping to find a sloop from which to obtain drugs, when it began to rain and. seeing the back door of the house open, he and Talbot had gone in to shelter. Then a man had come in swinging a baseball bat and he had run our empty handed, having had no intention to steal. In his police interview he said that he was at his home at the time and had not gone into Kendal Handfield’s house at all that night.
5. In his evidence Talbot said that he had been asked to go to the house by Williams. Although he knew that it was not Williams’ place, he did not know Williams had no permission to go into it, or to remove any items. The house looked as if it was abandoned. When he saw what Williams was doing he knew that it was wrong. When the man came in with the baseball bat and took a swing at him he took hold of him so that he could not hit him. He did not know anything about the stolen items.
6. The Chief Magistrate correctly noted that in their evidence both men had accepted that they were in the house on the night in question when the owner returned. Therefore, although in his interview Williams had denied being there, in fact the correctness of their identification by the owner was not in issue, and he did not therefore have to give himself a Turnbull direction. Mr. Skippings does not seek to criticize this. In relation to Mr. Handfield’s evidence as to his observations, the Chief Magistrate accepted his account that he had watched the two men, whom he knew, from outside the property for about two minutes, there being a light on in the premises, and had seen both of them gathering his belongings. He found Mr.Handfield to be an accurate and convincing witness who gave his evidence in a firm manner. In contrast, he considered Talbot to be a most unconvincing witness of nervous demeanor who was seeking to mislead the court, as was the witness Williams.
7. His impressions as to the witnesses who gave evidence, which can, and obviously in this case did, form an important part in the Court’s determination, is not something that an Appellant Court has the benefit of. Therefore, when considering issues as to the credibility and reliability I accept, as does Mr. Skippings, the view of Acting Chief Justice Sir Robin Auld in Mc Dowall CR-APM 28/05 that these are essentially matters for the Chief Magistrate, with which the Appeal Court will not interfere in the absence evidence from which it could question the soundness of his assessment of the credibility and reliability of those witnesses to the extent of the same being Wednesbury unreasonable. However, Mr. Skippings submits such impressions have to be tempered by consideration of the factual evidence and considerations of whether that evidence establishes the essential ingredients of this offence.
8. I consider that the Chief Magistrate, on the evidence that he heard and evaluated, was entitled to make the findings of fact set out in paragraph 9 of his reasons, and that such findings did establish the ingredients of the offence in relation to both appellants, and that it was both competent and reasonable for him, upon those findings, to convict both appellants.
9. When considering overall, therefore, whether the convictions are safe, I am quite satisfied that they are, and these appeals are accordingly dismissed.
10. Turning to the appeals against sentence, I accept that the offence of burglary is a serious one the prevalence of which has increased in Providenciales. When sentencing Williams the Chief Magistrate remarked, quite understandably, that he had been sentenced to 18 months imprisonment as recently as April 2004 for burglary. He did not know, but I have had confirmed to me, that he was released from that sentence following the Court of Appeal decision in Kirkley Parker CR App 21/04, whose conviction was quashed due to a failure of the Magistrate to sign an endorsement on the information as to the order for summary trial. The same applied to Williams. Therefore his last conviction for burglary was in 1999 when he was sentenced to 12 months imprisonment. Had the Chief Magistrate known this I do not believe that he would have imposed the maximum sentence.
11. Mr. Skippings, who accepts that both of his clients are drug addicts, urges me to deal with them other than by imprisonment, so that they can get help with their addiction, although it should be noted that in prison there is both group and one-t-one drug addiction counseling.
12. I consider that the Chief Magistrate was entirely justified in imposing terms of imprisonment. Williams is aged 45 and Talbot almost 40 and they both have numerous previous convictions, but in the circumstances that I have just rehearsed I will allow the appeals against sentence and impose instead sentences of 15 months imprisonment in respect of each appellant.
Christopher Gardner QC
1 June 2006.