Court name
Court of Appeal of Turks and Caicos Islands
Case number
CR-AP 26 of 2009

Regina v. Jackson (CR-AP 26 of 2009) [2011] TCACA 3 (15 July 2011);

Law report citations
Media neutral citation
[2011] TCACA 3
Coram
Zacca, P
Mottley, JA
Ground, JA

IN THE COURT OF APPEAL OF TURKS AND CAICOS ISLANDS

CRIMINAL APPEAL 26 of 2009

BETWEEN:

REGINA                                                                                                                                    Appellant

and

ROBERT JACKSON                                                                                                             Respondent

Before: The Rt. Hon Mr. Justice Zacca -            President

The Hon Mr. Justice Mottley                 -            Justice of Appeal

The Hon Mr. Justice Ground                 -            Justice of Appeal

Appearances:

Brenda Clarke, Crown Counsel for the Crown

Clinton O. Clarke for the Respondent

Heard: 10, 20, 27 January, 15 July 2011

MOTTLEY, J.A.

[1]           After a trial before a judge and jury on 27 November 2010 on an indictment which contained 3 counts the appellant Robert Jackson was convicted on all three counts. He was sentenced to 10 years imprisonment on the aggravated burglary and rape which sentences are to run concurrent, and on the possession of the imitation firearm he was sentenced to 5 years, also to run concurrent. On 27 January 2011 having heard arguments from Counsel we dismissed the appeal and promised to put our reasons in writing at a later date. Those reasons are now set out hereunder.

[2]           The first count alleged that sometime on the 25 January 2008 and 26 January 2008 at Thompson Cove, Providenciales, the appellant unlawfully entered the dwelling house of Rory and Jennifer Stephens, as a trespasser, and stole therein a number of items and at tire time he had in his possession a weapon namely an imitation firearm. On the second count he was charged that acting together with another person at the same occasion he had sexual intercourse with Jennifer Stevens without her consent. The third count related to the offence of being in possession of an imitation firearm with the intent to cause fear.

FACTS

[3]           On the evening of 25 January 2008, Jennifer Stephens and her husband Rory Stephens who resided at Thompson Cove, were invited out to dinner, however, as Jennifer Stephens was feeling tired, she declined the invitation and they remained at home. Around 10.45 to 11 p.m. Rory Stephens was sitting on the couch watching tennis on the television while Jennifer Stephens was sleeping beside him. She was awakened by the loud scream of her husband whereupon she saw two men entering the house via the front door which was immediately opposite to where she and her husband had been on the couch. She described one man as being very tall and the other slightly shorter. The shorter man was armed with a gun in his hand, his face was not covered. He was wearing a black pants and no shirt. The taller man had a T-shirt covering his face and was wearing a multi-coloured beach shorts. Neither man was wearing shoes. The men went immediately to her husband who was screaming. Rory Stephens was told to shut up or he would be hurt. The intruders asked Jennifer Stephens and Rory Stephens where the safe was. On being told that there was no safe, they then asked for money, they also asked Jennifer Stephens where she kept her purse. The taller of the intruders went to the bedroom in search of money, while the shorter armed with the gun remained beside Jennifer Stephens. He continued to ask for money. The taller intruder placed the husband into a closet in the bedroom and closed the door. Jennifer Stephens who was unable to see properly without her glasses, asked the shorter man for permission to go to the living room to retrieve her glasses, she was prevented from so doing by the taller man. After searching the bedroom and taking various pieces of jewelry, the taller man opened the closet and released Rory Stephens. He forced him to lie on the floor and his hands were tied behind his back. A sock was placed in his mouth in order to prevent him from shouting. The wife was also placed on the floor beside her husband. Her hands were also tied behind her back. While lying on the floor Jennifer Stephens saw the taller man remove various items from the closet including her husband’s sailing gloves. Her husband was again placed in the closet by the taller man. After that she was told to go to the bathroom. On reaching the bathroom, she was told by the taller man to lean over the sink and remove her shorts and underwear. This she did. Even though her hands were still tied she was able to remove them as she was wearing her husband’s boxer shorts and they were loose. She was then told to lie on the bathroom rug where the taller man performed oral sex on her and then proceeded to have sexual intercourse with her without her consent. On completion, the shorter man who had been outside, also came and he too had sexual intercourse with her without her consent.

[4]           After the shorter man had completed having sexual intercourse with her, the taller man placed Jennifer Stephens in the bath and turned on the shower. As her hands were tied behind her back, the taller man washed her vagina. On completion, he told her to get into the shower and wash herself. He said he did not want his DNA found in her.

[5]           Jennifer Stephens was then placed in another closet which had a washer and a dryer; she was made to go between the washer and the dryer. The door was then closed and a bench placed against it. She could hear the men in the kitchen searching the refrigerator and the kitchen cabinets. She was asked for the keys to the car. The taller of the intruders brought keys to her where she was in the closet and asked her which were the keys for the car. She however said she was unable to identify them as she could not see. He then brought the keys closer to her face and she identified the key for the car which was parked outside the house. She heard the door of the house close, however she waited some 15 minutes before coming out of the closet. At this stage she was able to untie her hands.

[6]           After the intruders left, Jennifer Stephens was crying as she did not know what had happened to her husband. Shortly after, she saw her husband, who had freed himself. They subsequently went to the house in the same compound where the police were called. After the police came she was taken to a doctor where she was examined.

[7]           The intruders took away various articles including her wedding band, a white gold ring, a yellow gold small diamond ring and a silver watch. A silver saxophone case containing a saxophone, a gift from Jennifer Stephens to her husband for Christmas and a white saxophone music book which were on the floor.

[8]           Neither Jennifer Stephens nor Rory Stephens were able to give any description of either of the intruders. Both Jennifer Stephens and Rory Stephens said neither of the intruders wore shoes while in the house. In cross-examination, Jennifer Stephens was asked if she noticed anything strange about the feet of the taller man. She said that she was not close enough to notice any details concerning their feet. Besides stating that one intruder was very tall and one was shorter, Jennifer Stephens was unable to give any description of the intruders. She indicated that she did not tell the police that the taller man was not wearing shoes because the police did not ask her. When asked if she did not think that it was important to tell the prosecutor or the police that the intruders were not wearing any shoes, Jennifer Stephens replied that after the assault she felt it was important for her to recover and to be healthy to have a child. She also said that she felt it was important to know that she did not have AIDS or any type of hepatitis, and that that was her focus after the assault on her.

[9]           There was a closet/cupboard where the wedding gifts and boxes were kept with other things that looked valuable. The taller man walked to the closet where her husband was. The taller intruder removed the saxophone case. Under the case on the floor there was a saxophone music book which contained instructions on how to play a saxophone. The husband said that, while lying on the ground the music book was in his line of vision. The taller man was in the closet moving around searching the closet. Rory Stephens stated that on the right arm of the taller intruder “there was a tattoo on his right arm, the upper part between the elbow and the shoulder. I could not make out what it was”. He was unable to say whether it was a half heart of half crest, at any rate he said it was a very dark tattoo on a very dark man.

[10]         On examination by the doctor, it was discovered that Jennifer Stephens was in the early stages of pregnancy. The examination also showed superficial abrasions on both wrists on the right side and also on the right shin. The pelvic examination showed that on the vulva there were three superficial abrasions in the pelvic area.

[11]         The police conducted investigations at the scene of the crime. These investigations included the dusting for finger prints and foot prints. We will return to the question of foot prints at a later stage. During the course of the investigation, Sgt. Clinton stated that he saw a saxophone music book on the floor in front of the closet in the bedroom. Sgt. O’Neil spoke to Rory Stephens about the book and he made a statement to him about it. Sgt. O’Neil dusted the saxophone book for prints and invited Rory Stephens to place his initials on it for purposes of identification. At that time, the book was still on the floor. Sgt. O’Neil developed a number of latent impressions on several areas at the home including the saxophone music book. He lifted the impression from the saxophone music book.

[12]         On 9 February 2008, Sgt. Clinton interviewed the appellant at the police station. Only two of the questions asked in that interview were answered. The significance of that interview was that the appellant denied that he was the person who committed the offences for which he was being charged. He denied any knowledge of the offences.

[13]         On 14 February 2008, Sgt. Clinton applied to the Court for permission to obtain a non-intimate sample of finger and foot prints from the appellant. The Court ordered that the relevant samples be taken. These were taken at the police station in Providenciales by Sgt. Ellis. The purpose of obtaining these samples from the appellant was to see whether his foot prints matched the foot print found at the scene on the saxophone music book. This is a matter to which we will refer at a later stage.

[14]         Samples were taken and submitted for DNA testing but all of these were inconclusive and did not in any way incriminate the appellant and may be ignored.

[15]         Sgt. O’Neil, the finger print expert, was accepted by the judge as an expert, not only on finger prints, but also on foot prints. His evidence was to the effect that he had dusted the saxophone book and had discovered the presence of foot prints. He enlarged the footprints of the appellant which he had received from Sgt. Ellis. He subsequently compared the enlarged photographs with the foot prints taken from the saxophone music book and concluded that the foot prints were made by the appellant. This is an area to which we will return later in our judgment as it is in reality the main ground of appeal.

[16]         The appellant did not call any witnesses. He relied mainly on the unreliability of the evidence relating to the foot print expert and of the police officers in relation to the alleged presence of a tattoo somewhere on the body of the taller man. It was the submission of the appellant that the expert, while an expert for finger prints ought not to have been accepted as an expert in relation to foot prints.

[17]         As stated earlier, the husband and wife were unable to identify the intruders. The fingerprint evidence did not implicate the appellant. The DNA evidence submitted for testing was inconclusive and did not incriminate the appellant and is of no assistance in identifying the intruders. The evidence concerning the tattoo by itself was not the evidence upon which a conviction could be based. The sole evidence which connected the appellant to the crime was the footprint impression found on the saxophone music book. The real issue in this appeal is the effect of the evidence given by Sgt. O’Neil. It is therefore necessary to review in some detail the evidence relating to the foot prints.

[18]         Rory Stephens said that while he was on the floor the taller of the intruders went to a cupboard above the closet in which he and his wife kept their wedding gifts and started searching it. During this search, the taller intruder moved the saxophone case under which was the saxophone music book. He was aware of the book because it was in his line of vision.

[19]         Sgt. Dexter O’Neil who is attached to the Scenes of Crime Unit attended the scene where he examined various areas in order to ascertain whether there were any prints, finger or foot, at the scene. He took a number of photographs and searches for latent finger prints at the scene. The Sgt. said that he had developed a number of latent prints found on several areas including a saxophone music book on the floor. Sgt. O’Neil invited Rory Stephens to place his initial on the saxophone music book next to the developed impression. This he did. Sgt. O’Neil also signed the music book and took possession of it. Sgt. O’Neil placed his initials on the saxophone music book in two places and the date on which he wrote his name. He was able to recognize the impression card on which he had placed his signature. The impressions were produced as Exhibits “D.O.2” and “D.O.9”. Detective Tomiko Glinton who was a member of the investigating team which visited the crime scene on Saturday 26 January 2008 also saw the music book on the floor in front of the cupboard/closet in the bedroom.

[20]         Sgt. Randy Ellis who is also attached to the Scenes of Crime Department said that, on 14 February 2008, after speaking with Sgt. O’Neil he took foot impressions from the appellant. He put black finger print ink at the bottom of both of the appellant’s feet who then placed each foot onto separate pieces of plain white paper. The appellant was then invited by the Sgt. to sign each sheet of paper but he refused. Sgt. Ellis however signed each sheet of paper with the foot prints and later handed them over to Sgt. O’Neil.

[21]         After receiving from Sgt. Ellis the two pieces of legal size paper on which the appellant had placed his foot impressions, these were subsequently enlarged and from which he produced two charts which were marked “A” & “B”. “D.O. 2” was compared to the chart marked “A” which represented the right foot, while “D.O. 9” was compared to the chart marked “B” which represented the left foot. Sgt. O’Neil compared the impressions on these two pieces of paper with impressions he had taken from the saxophone book. Sgt. O’Neil concluded that the earlier impressions which had been taken from the saxophone book and labeled “D.O. 2” and “D.O. 9” were identical to the right foot sole and left foot sole respectively of the appellant. He subsequently caused the impression on the card to be photographed and enlarged in order to illustrate to the jury the 16 characteristics.

[22]         On Chart “A” Sgt. O’Neil marked off sixteen ridge characteristics of identical sequence and relative locations to the impressions from the right foot sole impressions of the appellant which he had photographed. Chart “B” was made from the impression of the left foot of the appellant. On this chart he marked off sixteen characteristics which he stated are identical in sequence and relative location to the impressions from the left foot sole impressions of the appellant. The Sgt. indicated an area below the small toe.

[23]         Sgt. O’Neil stated that the soles of the feet, like the palm of the hands and the fingers, have lines or ridges as they are called in fingerprinting. These lines or ridges have minute characteristics which can only be seen if photographs of the lines or ridges are blown up. This is done by the fingerprint or footprint experts for the purposes of conducting comparisons between suspected prints found at scenes of crimes and known prints of persons accused of particular crimes. In conducting these comparisons, these experts will examine the prints to ascertain the presence of similar characteristics. He explained the nature of these characteristics which may be in different forms. When a single line or ridge runs and stops, the point where it stops is referred to as a ridge ending. When a single ridge runs and splits into two, the point where it splits is known as a bifurcation. Another characteristic which is known as an encloser occurs when a single ridge splits into two and then closes back as a single ridge. He explained that on soles of the feet, like the hands and fingers, there are three basic patterns known as whirls, loops and arches. Whirls make a circular pattern on the ball area of the foot just below the toes and on the heel. For identification purposes, the locations of the characteristics on the soles of the feet are unique to each individual. He explained that the ridge endings on his foot would rarely be the same as the ridge endings on another person’s foot. It was his opinion that it was the location of the ridge characteristics, not whirls, loops and arches on the feet of each person which leads to the identification of that person.

[24]         Sgt. O’Neil said that once:

‘’….you find ridge characteristics on two impressions that are in same relative location to each other then you can say that that print was made by the same person. If you cannot find the characteristics in the same relative location to each other then that was not made by the same person but once there is sufficient ridge characteristics of similarity in the same location to each other then he can say that impression was made by the same person and that is what is in this case that’s what is done.

The impression that is I (sic) left on the saxophone book both impressions they were made by the left and right foot impression of the name Robert Jackson on these forms. That’s the reason I enlarged them and placed on these charts for you Members of the Jury to see their similarities.”

[25]         In response to a request from the judge to demonstrate the different types of patterns, Sgt. O’Neil said:

“If we were to look at characteristics number three that is a ridge ending that is on Chart “A”. And if your Lordship it…..sorry let me continue if you are to look at characteristic four is also a ridge ending, five is also a ridge ending, six is also a ridge ending, seven is also a ridge ending, eight is also a ridge ending, nine is also a ridge ending, ten is a bio fication (sic) that’s where a ridge runs and slips in two, eleven is also a bio fication (sic), number 12 is also a ridge ending, 13 is ridge ending, fourteen is bio fication (sic), fifteen is a ridge ending, sixteen is a ridge ending, and one is a ridge ending.

These are characteristics that arc in the same relative location to each other on both enlargements and if you look at both impressions they all have the circular motion on each enlargement likewise on Chart “B”, if you were to look at the impression the same what we call in that area just under number one that is between one, two, three and sixteen we notice that same area is on both enlargements that area in fingerprint world was a delta area and we have ridge characteristic one a ridge ending, two a ridge ending, three ridge ending, four a ridge ending, five a ridge ending, six also a ridge ending, seven a ridge ending, eight a ridge ending, nine also a ridge ending, ten a ridge ending, eleven a ridge ending, twelve also a ridge ending, thirteen a ridge ending, fourteen also a ridge ending, fifteen is a bio fication (sic), sixteen a bio fication(sic).

So these are characteristics that are used in identifying one individual once they are in the same relative location to each other they were made by one and the same person.

Another thing Members of the Jury and your Lordship we notice the impression on the left of both impressions it is not as clear as the one on the right of the impression. Now the impression on the left was made by change (sic) where the individual at time his foot may have been dirty he maybe been sweating profusely this is when (sic) we call a watermark where he was sweating profusely, in addition, the surface on which the impression is made on it maybe have been dusty and hence you get all these come who (sic) dirty marks and scratches between the impression.

Now the impression on the right of the chart that was made under controlled circumstances where the person’s foot was clean and ink was rolled unto the sole of the feet and this impression is made that’s why it is much cleaner than that on left of the chart on both photographic enlargements but the fact that the impression is not as clean as that on the right does not nullify the identification.

We have to look at the circumstances under which this impression was made hence the reason it is in this condition on both photographic enlargements.”

[26]         Sgt. O’Neil went on to express the view that:

“……the impression in the photograph from this impression in the area along with this area the sole of the feet this is impression on chart “A” enlargement and all of this area. The sole of the feet this is the impression along with this area and the sole of feet this area here just above my right in here in this area. This is if (sic) area I photograph and enlarged with this area.

Chart “B”. This is the area right here. This is the area right here that photograph and along with this area along with this area. This is the area here that was enlargement (sic) along with this area you see the area right here the area.”

[27]         In cross examination Counsel for the appellant launched his attack on the expertise of Sgt. O’Neil. Indeed Counsel indicated to the witness that he intended to test his expertise in examining fingerprints. In response to a question from Counsel that the normal standard in the United Kingdom in comparing prints for identification is sixteen similar characteristics, the Sgt. responded that there was no valid scientific basis for requiring a minimum number of ridge characteristics in an impression in order to prove a positive identification. The witness said he was a member of the International Association of Identification and that he was involved in taking fingerprints for over 21 years. He stated that the basic way of identifying fingerprint impressions is by way of using a magnifying glass to make sure there is enough ridge detail to compare the impressions found at the crime scene to the known impressions for similar characteristics in both impressions.

[28]         The Sgt. indicated that the method he used was the same of the HV (sic) methodology which was the same as taking a magnifying glass and examining the print for clarity at the crime scene. If this print is not clear there would be nothing to compare any known print taken from an accused person or suspect. If the print is clear he:

“... first examined this (sic) mark I looked for clarity that’s analysing I looking (sic) for clarity and I see there were sufficient ridge details on this impression, sufficient ridge characteristic on this impression.

I then put this impression side by side with this impression and I looked for ridge characteristic (sic) are in the same relative location to each other on enlargement and I found — there are more — there are sixteen, there are more I could have marked and they are also in the same relative location on both enlargements ..”

[29]         In response to a suggestion from Counsel for the appellant that no one verified his findings, the sergeant confirmed that his findings were in fact reviewed and verified by Special Constable Everlin Hall who is a latent printer examiner of over 12 years experience who had returned to United Kingdom in March 2008. In response to an inquiry from Counsel as to whether he had any documents showing that Everlin Hall had verified his findings, the witness replied that he had what he referred to as a work sheet from his office which had been signed by Hall. Pursuant to a request from counsel, the document was given to him whereupon Counsel proceeded to cross examine the witness on its contents. The witness indicated that the contents of the documents were written by the Special Constable.

[30]         Sgt. O’Neil informed Counsel that characteristics two and three are ridge endings. To a suggestion from Counsel that the third characteristic ended in a bifurcation, the witness responded that there was an explanation for this. He explained that when pressure is applied to the soles of the feet or the hands the characteristic are altered insofar as bifurcation is concerned. If pressure is applied to the ridge, to a simple ridge which ends at a ridge ending and there are two other ridge endings running parallel, the pressure may tend to join the ridges on either side which would give the appearance of bifurcation. The witness said that while on the photographs the single ridge looks like a bifurcation in his opinion it was because of the pressure being applied on the impression. He pointed out that under pressure any ridge ending can look like a bifurcation. But he pointed out that “once the characteristics (sic) falls in the same relative location to each other spacial differences and all and this is what happened in this case. That is what (sic) unique, the relations in the characteristics.” In rejecting a suggestion from Counsel that characteristics six and thirteen were not in the same location the sergeant said:

“..all those impressions sixteen on each enlargement they are in the same relative location to each other that’s how identification is made”

[31]         In response to a further suggestion from Counsel that characteristic three was in fact a bifurcation Sgt. O’Neil explained:

“....impressions or should I say the soles of the feet and the hands because of the pliability of the skin when pressure is applied it tends to move up down and across, this could alter the characteristics in terms of a bio fication.

If you have a single ridge on an impression and it ends what we call a ridge ending. If pressure is applied to those ridges say, for example, there are two other ridges running parallel to this single ridge if pressure is applied or uneven pressure applied to this area of ridge detail they may tend to jam the ridge on either side, which would look as though there is a bio fication (sic) based on pressure. A single ridge stops it is a ridge ending if pressure is applied to that area because of pliability of the skin pressure is applied to that area it could cause that single ridge, that ridge ending to jam against the ridge that runs parallel to it and it would look like a bio fication (sic) but in fact it is a ridge ending.”

He pointed out that, in this case, uneven pressure had been applied causing the particular characteristic to appear as a bifurcation. He explained that when uncontrolled pressure is applied which causes two ridges to connect to each other you get “the impression of bifurcation”. He expressed the opinion that dirt and dust on the feet of a person who was outside without shoes could indicate a possible bifurcation.

[32]         Dealing with the issue of bifurcation and ridge endings the following exchange took place between Counsel and the witness:

“Q. Are you telling this court under the pressure any ridge ending can look like a bifurcation?

A. That’s correct sir.

Q. And any bifurcation can look like a ridge ending?

A. That’s correct. But what is important once characteristics the fall (sec) - - I’m not going to island (sic) a ridge ending.

But once the characteristics falls (sic) in the same relative location to each other special difference and all and this is what happened in this case. That is what is unique (sic), the relation in the characteristics.

Q. Let me go on because I’m going to show you how many ridge endings on these photographs look like bifurcation and how many bifurcations look like ridge endings?

A. Yes but are they in the same location to each other yes they would like ridge ending and bifurcations they would look similar but are they in the same location and that as a result of pressure.”

[33]         Counsel sought to challenge the opinion expressed by Sgt. O’Neil in relation to the sixteen characteristics. He embarked on cross-examination which was intended to show that what the witness called ridge endings were in fact bifurcations. In relation to characteristic six, Counsel for the appellant suggested to the witness that it appeared to be a bifurcation. The witness, while conceding that it appeared to be a bifurcation insisted it was a ridge ending. When asked to explain characteristic thirteen, the witness said, like characteristic six, it may be classified as a short ridge.

[34]         Counsel then sought to ascertain “if there is a ridge ending on one and the same marking appears as a bifurcation on the other” whether as a fingerprint expert the witness was saying it is fair and right to mark those two as identical characteristics. The Sgt. reiterated that:

“Once they are found in the same relative location to each other — if a bifurcation or ridge ending falls in an area and I cannot see that same bifurcation or ridge ending in the same area in the other print then I would go further, I would say they were not made by the same finger or the same foot.”

[35]         The witness described characteristic fifteen as a ridge ending but conceded it could appear like a bifurcation. However he pointed out that it was in the same relative location.

[36]         The Sgt. rejected the suggestions from Counsel that characteristic ten appeared to be a bifurcation on the known print but insisted that it was a ridge ending. He rejected a further suggestion that the print found at the scene was not a good print. He indicated that there was sufficient ridge details for him to make the required comparison. While accepting that sometimes you do not find the best print at a crime scene, he however pointed out that in this case he was fortunate to find such a good impression having regard to the circumstances under which the print was made.

[37]         Sgt. O’Neil rejected as being incorrect a further suggestion from Counsel that once an examiner finds points that differ as to whether they are showings on the photographs as bifurcation or ridge endings, the correct procedure in finger printing is not to mark them as characteristics. The witness, in rejecting a further suggestion by Counsel that his opinion was wrong, said:

“..the impression on the left of charts (sic) ‘A’ and ‘B’ that was lifted from the saxophone book at R...S…..house they were made by the right and left foot sole impression of Mr. Robert Jackson.”

[38]         That was the state of the evidence of Sargeant O’Neil. We have set out his evidence in detail because it was in fact the major area of the appeal. It is important to recall that any suggestion made by Counsel for the appellant in the course of his cross examination is not evidence on which a jury may act unless those suggestions were accepted by the expert.

[39]         Sgt. O’Neil was asked about the foot print of a person who had six toes on one of his feet. Even if a person had six toes, he would not necessarily expect this to be shown on taking a foot impression. Counsel for the appellant sought to find out if a person had six toes on his left foot whether the examiner would try to get the impression of all the toes because of the uniqueness. The witness said it all depended on whether all the toes were needed for the comparison; whether the impression found at the scene of the crime shows six toes. When pressed by Counsel he said he would generally take the whole foot. However, he said he would not dwell on the toes unless it was necessary for comparison and if he got the area which he needed for his comparison.

[40]         At the outset of the evidence of Sgt. O’Neil, Counsel for the appellant objected to the witness being treated as an expert for the purpose of giving evidence as to examination of foot prints and expressing opinions thereon. During the voir dire, the Sargeant stated that, while he had over 21 years as a fingerprint examiner, this was the first time he was giving evidence in relation to the examination of foot prints.

[41]         Following the voir dire the Chief Justice intimated that:

“It’s up to the jury to decide if he is an expert.”

Counsel for the appellant disagreed with this intimation by the Court and submitted that:

“...as long as he doesn’t have the correct qualifications nor the correct experience in dealing with foot prints, he can’t be deemed an expert for those purposes.”

The Chief Justice then ruled:

“That is a matter that I shall address the jury on in my summing up. You will be able to address them in your speech. But it is a matter in the end for the jury as to whether he’s an expert. He says he has the training. He says that the characteristics on the fingers and the feet are the same in the sense they form ridges and whatever the other features are. There are similar features in both. And that really knowledge of one is knowledge of the other. That is sufficient to set up a basis as an expert. The jury will have to decide whether they do consider him an expert. If they don’t they’ll disregard his evidence. I shall tell them to.”

During the cross examination of Sgt. O’Neil, in the presence of the jury, the Chief Justice observed for the benefit of Counsel:

“…….you don’t accept he was an expert (sic), the jury will have to decide whether he is or not and if they accept which he is saying and I will explain all that when I sum up.”

[42]         In summation to the jury the Chief Justice said:

“Mr. Smith has challenged Sargeant O’Neill’s expertise. He points out that his considerable experience and expertise has been restricted to finger and palm prints and this is the first case he has had where he is giving expert evidence on footprints and so you should not accept his opinion on the footprint. It is a matter for you whether you accept he is an expert and, therefore, whether or not you accept his opinion that the footprint on the saxophone book was made by the same person as the known print. However, Sargeant O’Neill’s expertise is, as he told you, in the examination and recognition of ridge characteristics in their form, general distribution and their relationship to each other. He tells you that the ridge characteristics on the feet have the same general characteristics as those on the hands and so the expertise he has gained over so many years can, he says, be applied in exactly the same way to footprints. Mr. Smith’s suggestion is perhaps akin to saying that a mechanic who has worked on the engines of Toyotas cannot give expert evidence of the engines of Chryslers.”

[43]         The Chief Justice ruled it was for the jury to determine whether Sgt. O’Neil is an expert. This was wrong in law and while it was not a ground of appeal, the Court cannot ignore this ruling having regard to the fact it is evidence relating to the foot print found at the scene which connected the appellant to these offences by placing him at the crime scene.

[44]         Whether a witness is competent to give evidence as an expert is for the judge to determine and not the jury. Once the judge has determined that the witness is an expert, it is for the jury to consider what weights if any, is to be ascribed to the evidence.

[45]         In R v Silverlock [1894] 2 Q.B. 776, Lord Russell of Killowen, Chief Justice giving the main judgment in relation to a hand writing expert stated:

“It is true that the witness who is called upon to give evidence founded on a comparison of handwritings must be peritus; he must be skilled in doing so; but we cannot say that he must have become peritus in the way of his business or in any definite way. The question is, is he peritus? Is he skilled? Has he an adequate knowledge? Looking at the matter practically, if a witness is not skilled the judge will tell the jury to disregard his evidence. There is no decision which requires that the evidence of a man who is skilled in comparing handwriting, and who has formed a reliable opinion from past experience, should be excluded because his experience has not been gained in the way of his business. It is, however, really unnecessary to consider this point; for it seems from the statement in the present case that the witness was not only peritus, but was peritus in the way of his business. When once it is determined that the evidence is admissible, the rest is merely a question of its value or weight, and this is entirely a question for the jury, who will attach more or less weight to it according as they believe the witness to be peritus.”

[46]         In R v Bonython (1984) 38 S.A.S.R. 45, Chief Justice King giving the principal judgment of the South Australia Supreme Court stated that a judge had two questions to determine in respect of an expert. He stated:

“The first is whether the subject matter of the opinion falls within the class of subjects upon which expert testimony is permissible. This……..may be divided into two parts: (a) whether the subject matter of the opinion is such that a person without instruction or experience in the area of knowledge or human experience would be able to form a sound judgment on the matter without the assistance of witnesses possessing special knowledge or experience in the area, and (b) whether the subject matter of the opinion forms part of a body of knowledge or experience which is sufficiently organized or recognized to be accepted as a reliable body of knowledge or experience, a special acquaintance with which by the witness would render his opinion of assistance to the court. The second question is whether the witness has acquired by study or experience sufficient knowledge of the subject to render his opinion of value in resolving the issues before the court.

An investigation of the methods used by the witness in arriving at his opinion may be pertinent, in certain circumstances, to the answers to both the above questions. If the witness has made use of new or unfamiliar techniques or technology, the court may require to be satisfied that such techniques or technology have a sufficient scientific basis to render results arrived at by that means part of a field of knowledge which is a proper subject of expert evidence……where the witness possesses the relevant formal qualifications to express an opinion on the subject, an investigation on the voir dire of his methods will rarely be permissible on the issue of his qualifications. There may be greater scope for such examination where the alleged qualifications depend upon experience or informal studies…….Generally speaking, once the qualifications are established, the methodology will be relevant to the weight of the evidence and not to the competence of the witness to express an opinion……..

If the qualifications of a witness to give expert evidence are in issue, it may be necessary to hear evidence on the voir dire in order to make a finding as to those qualifications. If there is an issue as to whether the subject matter upon which the opinion is sought is a proper subject of expert evidence, any disputed facts relevant to the determination of that issue should be resolved by the reception of evidence on the voir dire.”

[47]         In R v G [2004] 2 Cr. App. R. 38, Scott Baker LJ observed:

“30. We were not shown any English authority on the question of holding a voir dire to decide whether a purported expert should be allowed to give evidence. In the vast majority of cases it seems to us the judge will be able to make the decision from the written material before him……

31. A judge should be astute to avoid unnecessary satellite litigation which is likely to increase expense and increase the length of the trial……

32. The judge therefore had a discretion in this case to direct a voir dire, but it was a discretion that had to be exercised sparingly, and the judge was correct, in our judgment, not to exercise that discretion in favour of the defence in this case.

33. We note in passing (see para. 61 of the judgment of Otton L.J. in R v Skingley & Burrett (unreported) December 17, 1999) that the judge has the power, should the need arise, during the trial to remove a witness’s “expert” status and limit his evidence to factual matters.”

The observation by Otton LJ that the judge had the power should the need arise to strip the witness of his expert status is a clear indication that it is the judge and not the jury who is to decide whether the witness is to be treated as an expert.

[48]         There can be no doubt as we said earlier that the Chief Justice erred when he failed to determine, after the voir dire, whether Sgt. O’Neil should be allowed to give evidence as an expert witness. It was his responsibility to decide that issue. In our view there was sufficient evidence for him to determine that he should be treated as an expert in relation to foot prints. It is therefore necessary to determine whether this error affected his conviction to the extent that it may be said that he did not have a fair trial and amount to a miscarriage of justice.

[49]         The jury was required to determine whether the foot prints found on the saxophone music book were in fact made by the feet of the appellant. Sgt. O’Neil expressed the view that the impression on the Chart “A” and Chart “B” that were lifted from the saxophone book found at the home of Rory Stephens were made by the sole of the left and right foot of the appellant. He gave the methodology he used and the reasons on which he based his opinion. No complaint is made of the judge’s summation to the jury on how they were to approach the evidence of the expert. The judge properly left to the jury the question of what weight was to be given to the evidence of Sgt. O’Neil.

[50]         The appellant did not call evidence at the trial. The officer was subjected to a rigorous cross-examination which was designed to question his competence and expertise. As indicated earlier, various suggestions made by Counsel for the appellant in the course of cross examination but not accepted by the Sargeant could be accepted as evidence upon which the jury could act unless these suggestions were accepted by the expert. Many of the suggestions were rejected. Indeed, the suggestions which were intended to cast doubt on the correctness of his opinion were all rejected by the Sgt. O’Neil.

[51]         Section 7(1) of the Court of Appeal Ordinance Cap. 10 provides that an appeal should be allowed:

…..if the Court considers that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence or that the judgment of the Court before which the appellant was convicted should be set aside on the ground of a wrong decision on any point of law, or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal.”

The proviso to the section provides:

“that the Court may, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if the Court considers that no substantial miscarriage of justice has actually occurred.”

[52]         It is therefore necessary to consider whether the proviso should be applied in this case. In Narine Sooklal and Another v The State [1999] UKPC 37 the Privy Council considered the test to be applied by a Court of Appeal when considering the applications of the proviso. His Lordship Lord Hope of Craighead in rendering the opinion of the Board said:

“23. The test which must be applied to the application of the proviso is 'whether, if the jury had been properly directed, they would inevitably have come to the same conclusion upon a review of all the evidence: Woolmington v. Director of Public Prosecutions [1935] A.C. 462, 482-483, per Viscount Sankey L.C. In Stirland v. Director of Public Prosecutions [1944] A.C. 315, 321 Viscount Simon L.C. said that the provision assumed: "a situation where a reasonable jury, after being properly directed, would, on the evidence properly admissible, without doubt convict." Two distinct situations can be envisaged as to the application of this test. The first is where the verdict is criticised on the ground of a misdirection and no question is raised about the admission of inadmissible evidence. In such a case the application of the proviso will depend upon an examination of the whole of the facts which were before the jury in the evidence. The second is where the verdict is criticised on the ground of inadmissible evidence, as where the trial judge allowed evidence to be led at the trial which was inadmissible or where he failed to direct the jury that they must disregard some part of the evidence which was properly before them against a co-defendant when considering the case against the appellant. In such a case the application of the proviso will depend upon an examination of the admissible evidence leaving wholly out of account the evidence which was inadmissible.”

[53]         In this case, the error of law was the failure of the judge to deicide whether Sgt. O’Neil was competent to give evidence as an expert on foot prints. An examination of the evidence which he gave shows that he was competent to be considered as such an expert. As indicated earlier no complaint is made of the direction by the appellant of the direction to the jury by the judge. While the expert was subject to vigorous cross examination by Counsel for the appellant and a number of suggestions were made by Counsel, the evidence of the expert was not contradicted.

[54]         Having regard to all the circumstances we do not consider that the trial was unfair. In Randall v R [2002] UKPC 19 Lord Bingham of Cornhill said at para. 28:

“28. While reference has been made above to some of the rules which should be observed in a well conducted trial to safeguard the fairness of the proceedings, it is not every departure from good practice which renders a trial unfair....

But the right of a criminal defendant to a fair trial is absolute. There will come a point when the departure from good practice is so gross, or persistent, or so prejudicial or so irremediable that an appellate court will have no choice but to condemn a trial as unfair and quash a conviction as unsafe, however strong the grounds for believing the defendant to be guilty. The right to a fair trial is one to be enjoyed by the guilty as well as the innocent, for a defendant is presumed innocent until proved to be otherwise in a fairly conducted trial.”

[55]         In this case, the departure from the correct practice, was the failure of the Chief Justice to decide that Sgt. O’Neil was an expert but instead leaving to the jury so to decide. While the Chief Justice was wrong to do so, we do not consider that it was so prejudicial to affect the conviction of the appellant. From the record it would appear that Sgt. O’Neil gave his evidence in a straightforward manner. He gave reasons for all opinions which he reached. While a number of suggestions were put to him he was not in fact contradicted. As stated earlier, no complaint is made of the direction to jury.

[56]         In Ground 6 of his Grounds of Appeal the appellant complained that the foot print was planted and that he did have a foot print expert for the defence. Sgt. O’Neil asked RS to sign the books. Sgt. O’Neil said he dusted the saxophone book which was on the floor in front and developed impressions which he found. This evidence was supported by PC Tomiko Clinton who at the time was attached to Criminal Investigations Department. He said that he saw the saxophone music book on the floor in front of a closet which Sgt. O’Neil dusted for prints. He said that he lifted prints from the book. Whether the foot print was planted as alleged in the ground of appeal was essentially a question of fact for the jury. The jury accepted the evidence led by the prosecution.

[57]         We mean no discourtesy to Counsel but we did not consider that there was any merit in any of the other grounds of appeal and we do not think it necessary to set them out in any detail.

[58]         The appellant had filed grounds of appeal which his Counsel indicated that he was not going to argue. After indicating that he would pursue these grounds himself, the appellant abandoned those grounds and was content to rely on the grounds filed and argued by his Counsel.

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Zacca, P.

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Mottley, J.A.

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Ground, J.A.