Dill v R

• Jurisdiction: Bermuda
• Judgment Date: 19 January 2010
• Date: 19 January 2010
• Docket Number: Criminal Jurisdiction 2009 No. 17
• Court: Supreme Court (Bermuda)

In The Supreme Court of Bermuda

Criminal Jurisdiction 2009 No. 17

BETWEEN:

R

Plaintiff

v

DARRONTE LAVAR DILL

Defendant

Mr C Mahoney and Ms M Sofianos for the Crown

Ms A Weekes, QC and Mr R Woolridge for the Defendant

The following cases were referred to in the judgment:

BaileyUNK (1993) 97 Cr App R 365

Dearing v RBDLR [1986] Bda LR 27

Jelen & KatzUNK (1990) 90 Cr App R 456

RobertsUNK [1997] 1 Cr App R 217

Abstract:

Admissibility of confessions

RULING of GROUND, CJ

1. This matter was tried between 24th November and 16th December 2009. At the end of the trial the defendant was found guilty by a unanimous jury of the two counts of murder on the indictment. The evidence against the defendant included (i) admissions made by him to another prisoner in an adjacent cell, which were overheard and recorded by two police officers, and (ii) admissions made by him in a formal interview under caution. The admissibility of those confessions was challenged, and I heard evidence on the voir dire between 26th November and 1st December 2009, and on 2nd December I gave a short oral ruling, refusing to exclude the confessions, and promised written reasons to follow. I now give those reasons.

2. The admissibility of the confessions was challenged under sections 90(2) and 93 of the Police and Criminal Evidence Act 2006 ('PACE'), and under the inherent jurisdiction, but I do not think that that adds anything to the statutory regime. Section 90(2) of PACE provides -

"(2) If, in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained -

(a) by oppression of the person who made it; or

(b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof,

the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid."

Section 93(1) of PACE provides -

"93 (1) In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it."

3. The background to the case was that shortly after 5 a.m. on the morning of Sunday 21st September 2008 a fire was discovered in a shed on the shore on a spit of land behind the Black Horse Tavern in St. David's. The emergency services attended, and they found a body in a chair at the back of the shed completely engulfed in flames. The next day, Monday 22nd September, at about 8.30 a.m., a second body was found floating nearby in the waters of Smith's Sound, St. David's. The bodies were subsequently identified as those of Maxwell Brangman and Frederick Gilbert, two homeless men who frequented the area. Brangman had died from stab wounds and blunt impact trauma to his face. Gilbert had been stabbed thirteen times, and died of the stab wounds to his chest.

4. On Saturday 27th September a man called Roger Lightbourne senior ('Lightbourne senior') was arrested for the murders, because he had been named by a purported eye-witness, who came to be referred to during the trial as 'Mr. X'1. The defendant was then himself arrested on suspicion of the murders at about 7.30 p.m. in the evening of Tuesday 30th September. He was arrested at Lightbourne's house at 31 Tommy Fox Road, where he had been staying. That arrest had been the culmination of a series of events which provide important background to the confessions. The sequence was this - on Saturday 20th September, the day before the discovery of Mr. Brangman's body in the burning shed, the defendant went to 31 Tommy Fox Road to visit his friend, Roger Lightbourne junior ('Lightbourne junior'). He stayed overnight, and in the early hours visited two local nightclubs with the two Lightbournes, senior and junior. He then remained at 31 Tommy Fox Road until Wednesday 24th September when he was arrested at the house at 6.52 a.m. on suspicion of involvement in an assault at one of the nightclubs on Saturday night. He was held on that charge until Saturday 27th September. On his release he returned to 31 Tommy Fox Road2. He was then arrested on the murder charge at 31 Tommy Fox Road on the evening of 30th September.

5. After his arrest on 30th September the defendant was first taken to Southside Police Station, which is only a few minutes away. There he was documented and read his rights. I find that he was properly cautioned on his arrest by DC Bundy, and to the extent that the defendant denied that in cross-examination, I reject it. It is not clear whether he was cautioned again at the Station, but he was given a standard form notice which set out his rights. The form has not been put in evidence and so I do not know what it says, although the police evidence is that it contains a caution3. The notice does address his right to legal representation, and I find that that right was explained to him, and he then declined legal advice and signed the appropriate box on the Custody Record to record that he declined legal advice: it is a pro-forma and it reads "I do not want to talk to a lawyer at this time". I have no doubt that at that point he was fully aware of his right to remain silent and to legal advice, and indeed he accepted that in cross-examination.

6. It is the defendant's evidence that, in the car en route to Southside, DS Christopher said to him that the police had got his clothes and the knife and the gloves "from a guy named Buffy's house". The defendant says that he did not know what Christopher was referring to. DS Christopher did not give evidence on the voir dire so that was not put to him4. Nor was it put to DC Bundy, who was in the car, although in

cross-examination the defendant said that he knew that Bundy would have heard it. However, I reject the defendant's evidence on this, as I do not consider him a credible witness. In any event, I do not think it relevant for the purposes of the voir dire as it is not the defendant's case that that induced him to confess. It is the defendant's case that he had no idea what Christopher was talking about.

7. There was also a suggestion that the officer in charge of the case, D.I. Daniels, had given instructions that the defendant not be allowed to contact a lawyer. This was based entirely upon an entry in the custody record which states "NOTE: by order of Chief Inspector Daniels, prisoner Dill was not allowed to telephone Lois Astwood or any one at this time". In cross-examination D.I. Daniels explained that that meant not to contact anyone other than a lawyer. I absolutely accept his evidence on that, which is entirely consistent with the way the police treated the defendant throughout. It is supported by the entry on the custody form under the heading "Notification of Named Persons Requested". The defendant identified two named persons, one of whom was Lois Astwood, and then the custody officer had written "No calls by order of C.I. Daniels". I think that that is all that the other entry meant, and that it does not support the inference which defence counsel seeks to draw from it. In any event it is a red-herring, as the defendant accepts that he indicated that he did not want a lawyer and does not challenge the entry...