Saltus v R

• Jurisdiction: Bermuda
• Judge: Baker P,Bell JA,Clarke JA
• Judgment Date: 12 April 2018
• Court: Court of Appeal (Bermuda)
• Docket Number: Civil Appeal 2017 No 7
• Date: 12 April 2018

[2018] Bda LR 45

In The Court of Appeal for Bermuda

Before:

Baker P; Bell JA; Clarke JA

Civil Appeal 2017 No 7

Between:

Travone Saltus

Appellant

and

The Queen

Respondent

Mr R Horseman for the Appellant

Mr C Mahoney and Ms K Swan for the Respondent

The following cases were referred to in the judgment:

R v Riat & ors [2013] 1 All ER 349

Leshore and Simons v R [2016] Bda LR 115

Reid v R [1979] 2 All ER 904

R v Maxwell [2010] UKSC 48

Murder and using a firearm — Appeal against conviction — Crucial witness abroad — Evidence made by statement — Whether admissible — Request for mutual assistance — Admissibility of hearsay evidence — Retrial

JUDGMENT of Baker P

1. On 23 March 2018 we allowed the appeal of Travone Saltus (“the Appellant”) against his conviction for murder and using a firearm and ordered a retrial. We now give our reasons.

Facts

2. Soon after 10.00pm on the evening of 23 September 2012 Lorenzo Stovell was shot and killed as he sat on a bus in a layby near Woody's Bar in Sandy's. It was a private bus and all the other passengers had got off the bus and gone to the bar except the deceased, who was disabled. Only the deceased, who was sitting immediately behind the driver, and the bus driver, remained on the bus. The deceased was shot through the window. A number of shots were fired. Two other defendants, Zakai Cann and Cordova Marshall were acquitted. A motor cycle, with a passenger, was seen to speed away from the scene. The driver, Menelik Isaac, immediately drove off and made his way to Port Royal Fire Station. The case against the Appellant was dependant upon a confession that he was alleged to have made in about May 2013 to one Troy Harris. Harris made a statement to the police recounting this confession at Hamilton police station on 27 May 2015. He later confirmed this in a further statement to the police made when he was detained at Winson Green prison, Birmingham, United Kingdom on 9 June 2016.

Harris's Evidence

3. The problem for the prosecution was that when the case came to be tried in February 2017 Harris was still in prison in Winson Green and he was a vital witness for the Crown. The prosecution applied to have his evidence admitted in his absence under section 75 of the Police and Criminal Evidence Act 2006. Section 75(1) provides that a statement made by a person in a document shall be admissible in criminal proceedings as evidence of any fact of which direct oral evidence by him would be admissible if the requirements of one of the paragraphs of subsection (2) are satisfied. Those relevant to the present case are that the person who made the statements (Harris) is outside Bermuda and it is not reasonably practicable to secure his attendance.

4. Section 77 makes it the duty of the court in deciding whether to admit the evidence to have regard to a number of factors. These are:

• “(a) the nature and source of the document containing the statement and whether, having regard to its nature and source and to any other circumstances that appear to the court to be relevant, it is likely that the document is authentic

• (b) the extent to which the statement appears to supply evidence which would otherwise not be readily available;

• (c) the relevance of the evidence that it appears to supply to any issue which is likely to have to be determined in the proceedings; and

• (d) Any risk, having regard in particular to whether it is likely to be possible to controvert the statement if the person making it does not attend to give oral evidence in the proceedings, that its admission or exclusion will result in unfairness to the accused or, if there is more than one, to any of them.”

5. Section 78 also applies to this case. It provides that the statement shall not be given in evidence:

“… in any criminal proceedings without the leave of the court, and the court shall not give leave unless it is of the opinion that the statement ought to be admitted in the interests of justice; and in considering whether its admission would be in the interests of justice it shall be the duty of the court to have regard to –

• (i) the contents of the statement;

• (ii) any risk, having regard in particular to whether it is likely to be possible to controvert the statement if the person making it does not attend to give oral evidence in the proceedings, that its admission or exclusion will result in unfairness to the accused or, if there is more than one, to any of them; and

• (iii) any other circumstances that appear to the court to be relevant.”

6. A few days after the start of the trial the prosecution applied under section 75(2)(b) to have Harris's two statements admitted in evidence on the ground that he left Bermuda on 1 December 2015, was in HM...