# CRIMINAL APPEAL No. 19 of 2015 ## THE QUEEN v KAMAL WORRELL

Between: The Court of Appeal for Bermuda CRIMINAL APPEAL No. 19 of 2015

THE QUEEN

v

KAMAL WORRELL

Appellant Respondent

Before: Baker, President Bernard, JA Kawaley, JA (Acting)

Appearances: Mr. Carrington Mahoney and Ms. Larissa Burgess, Department of Public Prosecutions, for the Appellant Mr. Arthur Hodgson, Apex Law Limited, for the Respondent

Date of Hearing: 31 May 2016

Date of Judgment: 17 June 2016

JUDGMENT

Prosecution appeal - power of judge to stop case at close of defence evidence - whether appropriate for defence counsel to interview prosecution witness - allegation of conspiracy for witness to give perjured evidence - Bar Council Code of Conduct

PRESIDENT

1. The Appellant appeals against Simmons J's decision on 30 November 2015 to direct the jury to acquit the Respondent on the ground that there was no case to answer. The appeal is unusual for two reasons. First the judge had ruled at the close of the prosecution's case that there was a case to answer but reversed her decision at the conclusion of the defence evidence. Second it was only on 6 November 2015, during the course of the trial, that the law changed to give the Crown a right to appeal against such a ruling.

Facts

2. The Respondent was charged with three offences, Conspiracy to Defeat Justice, contrary to s128 of the Criminal Code, Fabricating Evidence, contrary to s123(b) of the Criminal Code and Perjury, contrary to s119(1) of the Criminal Code. There were two co-defendants, Dujon Reid-Anderson and Devon Hewey, both of whom were convicted. All three were defendants in the conspiracy and perjury counts; Hewey and the Respondent alone in the Fabricating Evidence count. The thrust of the case against the three was that they had caused Lavon Thomas to give false evidence at the re-trial of Hewey and a man called Cox in which it was alleged they had attempted to murder Thomas. The false evidence was that Hewey was not one of the two men on a motorcycle from which the shots were fired at Thomas. The case was of particular gravity because the Respondent was, at the material time, the lawyer representing Hewey.

3. The shooting occurred on 24 March 2012 when Thomas was out with friends. On departure from Shine's Nightclub in the early hours of the morning two men on a motorcycle rode slowly towards the club, appearing to scope out the crowd outside. The passenger had a firearm which he aimed at Thomas. It appeared to jam. Thomas turned and ran. Shots were fired at him but he managed to escape down a stairwell on to Front Street, without being hit.

4. In January 2014 Washington, Hewey and Cox were tried for the attempted murder of Thomas. Washington was acquitted on the direction of the judge. The jury could not agree in the case of the other two and a retrial was ordered. It was initially set for July 2014 but eventually moved to September 2014.

5. The conspiracy began in May 2014 when Reid-Anderson began discussing the case with Thomas in a bid to help his cousin Hewey to "get off the case". Hewey was interested in how Thomas' account might be tailored to assist Hewey's defence. In due course Reid-Anderson handed Thomas copies of his two police statements that Hewey had given him, each with highlighted passages that might assist Hewey's defence. Accompanying the statements was a piece of yellow paper containing written instructions. Sometime in June 2014 Reid-Anderson told Thomas that Hewey would like his phone number to speak to him. Thomas gave his phone number to Hewey who was in custody at Westgate. Very shortly afterwards Hewey phoned Thomas in a friendly manner to discuss ways in which his statement might be altered and offered him $3,500. This was followed by four or so telephone calls from Hewey between then and when Thomas gave evidence at the trial.

6. Due to work commitments Thomas was unable to respond to various calls and WhatsApp messages sent to him by Reid-Anderson but on 4 July 2014 he was sent a very threatening voice note on WhatsApp. It said: "I told you come link me for a reason. Cause I read your fucking statement, and my people's told me something to tell you cause our lawyers are gonna be asking you shit in Court that I need you to say, and if you don't say it there is going to be a fucking problem, I'm going to let you know that now, hear me?..."

7. At about the same date Thomas received a second voice note from Reid-Anderson which said: "...I just got vexed that like, you know? That you didn't, like, the situation. Ill fucking pay you and everything, you know, whatever, I'll make sure nobody touches you like; I'm got your fucking back. Remember you fucking with my nigga, that's like my bro...."

8. These voice notes caused Thomas considerable concern for his own safety and he did not take the threats lightly. On each subsequent occasion on which he met Reid-Anderson he told someone else because of his concern.

9. On 12 September 2014 Reid-Anderson sent Thomas a voice note to arrange a meeting with his cousin's lawyer, the Respondent: "...and sort this shit out with the lawyer, and have our game plan, you know?"

10. Soon after this the Respondent phoned Reid-Anderson and there was a conversation lasting over five minutes. There is no record of this conversation. It was followed by a second voice note from Reid-Anderson to Thomas saying: "...I got a call from my fucking cousin's lawyer just now...He wants to meet up this Sunday. You know what I mean, so we can write down our game plan, like you know....?"

11. On Sunday 14 September 2014, Thomas, Reid-Anderson and the Respondent met by prior arrangement at the West End Primary School. The Respondent introduced himself to Thomas as Hewey's lawyer. This meeting lies at the heart of the Crown's case of conspiracy against all three. Indeed the jury convicted Hewey and Reid-Anderson. There was clear evidence that Hewey, through Reid-Anderson, had already leant on Thomas to give false evidence and indeed had agreed to pay him to do so. What is less clear is the point at which the Respondent came onto the scene and his state of mind when he did so. What we do know is that the Respondent agreed arrangements to attend a meeting at West End Primary School on 14 September 2014.

12. The Respondent secretly recorded the meeting. Neither Thomas nor Reid-Anderson was aware of this. There is a transcript of what was said at the meeting and for my part I gained nothing additional from listening to the recording which was played for us during the appeal.

13. After the meeting, and on the same day, the Respondent made two calls to the Westgate Correctional Facility and about an hour and a half later Hewey sent a text message to the Respondent: "Its Hewey checkin on how you made out. I did not want to talk on de jail phone."

14. On 20 September Hewey phoned Thomas and they spoke for over 11 minutes. There is no record of the content of this conversation but Thomas's evidence was that this and two subsequent calls were to ensure he "stayed strong and stuck to the game plan."

15. The retrial of Hewey and Cox began on 22 September 2014 and Thomas gave evidence on the following day, the critical aspect of which was that Hewey was not the person he saw on the bike.

16. On 23 September 2014 Reid-Anderson sent a text message to the Respondent which said: "I just wanna see how we looking." The Respondent replied: "So far so good bra."

17. On 3 November 2014 Hewey and Cox were found not guilty of the shooting on 24 March 2012.

18. When the Respondent was later arrested the 18 minute recording of the meeting on 14 September 2014 was recovered from his cell phone. He had made no attempt to hide it from the Police.

19. At the conclusion of the prosecution's case the judge heard, but rejected, submissions by the Respondent and the other defendants that there was no case to be left to the jury. All three defendants gave evidence and at the conclusion of the evidence the judge said she had found cause to reconsider the no case submission in respect of the Respondent. She said she was of the view that she needed only to call on the prosecution to comment on any evidence "capable of condemning (the Respondent) that arose from his case, that in his evidence, or that of the other two defendants." I have read carefully the transcript of the submission that followed by Mr. Mahoney on behalf of the Crown and his exchanges with the judge but am not persuaded that he was able to identify anything that added to the Crown's case. The high water mark seems to me to be (1) that the lawyer referred to in the threatening voice note of 4 July 2014 was according to Reid-Anderson the Respondent (2) that prior to the September meeting there was involvement of the Respondent. Whilst the Respondent admitted contact with Hewey prior to coming on the record on 29 August 2014 I cannot identify any evidence that he was party to a conspiracy as a result (3) Reid-Anderson's statement in interview that he did not want to incriminate the Respondent which he said in evidence meant he did not want to say anything that could be used as evidence against him. But I do not think that takes the Crown's case any further.

20. In R v Brown (Davina) [2002] 1 Cr App R 46 at p49 Longmore LJ giving the judgment of the Court, and having referred to earlier authorities, confirmed that a judge has a duty to keep under review the question whether a jury properly directed could convict at the close of the evidence before he leaves the matter in the hands of the jury. He added: "No doubt this is a power which should be very sparingly exercised and only if the judge really is satisfied that no reasonable jury, properly directed, could on the evidence safely convict."

21. I accept that the judge had a duty in this case to review the position at the conclusion of the evidence bearing in mind, as the judge said, that the case against the Respondent, as opposed to that against the other two defendants, was a borderline case.

22. Mr. Hodgson, who appeared before us for the Respondent, (although the Respondent represented himself in the Court below) does not criticise the judge's ruling at the close of the Crown's case accepting that the Crown's case was based on inference, albeit he submits she could have dismissed the case at that point. Rather, he submits, that the judge was correct in her ruling at the conclusion of the evidence having heard, in particular, the Respondent's evidence.

23. The judge mentioned in her ruling that the assessment of the credibility of any witness called by the defence, specifically the Respondent, was a matter for the jury and not for her. I agree with this important qualification to the judge's ability to revisit a no case submission.

The Meeting on 14 September 2014

24. Parts of the voice note are inaudible and other parts are unclear as to meaning. I have read the transcript carefully to try and identify such parts as might support the Crown's case that the Respondent conspired with Hewey and Reid-Anderson to tee up Thomas to give false evidence. The meeting begins with a statement by the Respondent: "You know I represent Hewey right? So I have certain information that leads me to have a couple of questions. All right? You ain't really got to tell me so much more than what I ask you."

25. He then drew Thomas' attention to his witness statement in which he said he couldn't recognise his assailant. The Respondent then asks this critical question: "Time goes right, and memory fades so whatever but based on my information, the question I have is could you say, right, I mean you said that you couldn't recognise the person. But could you say well from what I did see I could tell it was not Hewey. Can you say that?" Answer: "Yah" A little later the Respondent asked: "So how would you know Hewey then? How you know Hewey from? How would you be able to?" The response was not entirely clear but Thomas said: "...we was talking about that the other day. I don't know who Hewey is but...I could say like..." And then the Respondent intervened: "You've seen him around." To which Thomas responded: "Yah. Seen him around and though like different flexes most times I'm up that way like." Asked which way, he said: "Up St. Monica's Road and I said that there in Court." To which the Respondent said that was basically it and Thomas replied that he wasn't asked in Court.

26. A little later the Respondent told him that giving evidence or not was Thomas' choice. He could be forced to come to Court but he could not be forced to say this or that. The possibility of making him a hostile witness was also mentioned and that pressure might be put to him to stick to his story.

27. It was then put to him that he wasn't changing his story, he was adding to what he had said and how he might deal with a suggestion that he was. The Respondent summarised it: "If you knew who it was, you'll say hey look it was A it was B, right if you knew who it was. From what you saw you could recognise him, you know who they are you could say that A or B all right. You can't say that. But you can say well it's not C or it's not D it weren't him. It weren't her. It weren't them. It weren't that youth. He's too small. You know what I mean. And it's like you said you're saying you saw them prior to the actual incident, from just hanging up round there."

28. It was then emphasised to Thomas that he could not be contradicted because he was supplementing rather than being inconsistent with what he said before and that the Crown weren't going to like it but that they could not do anything about it. At no point were any threats made to Thomas and there is no direct evidence from this meeting that the Respondent knew it untrue that Thomas could say he knew it was not Hewey on the bike on 24 March 2012. The case against the Respondent depended on inference. There was nothing said by Reid-Anderson at the meeting that added to the evidence against the Respondent.

29. Thomas gave evidence at the trial on 23 September 2014 and was cross-examined by the Respondent. He was asked if earlier in the evening of 24 March he had been to St. Monica's Road to which he replied that he had, to pick up a friend called Zico Grant, that he was familiar with the area and those who might be in it. He was then asked if he knew someone with the nickname "Fire". He answered in the affirmative and said he held parties on Sundays called Passa Passa. He agreed he had attended a number of Passa Passa Sundays. He was then asked: "During I wouldn't say all but I would say during several of those occasions you would have seen, you agree, Devon Hewey, at the same event?"

30. To which he answered that he had but he didn't know his name. He then identified Hewey. He was then asked if he had seen him in other places as well in that area to which he answered "Yes". The Respondent then went on to establish with Thomas that Hewey was neither the rider nor the passenger on the bike.

31. The Crown's case was that the Respondent was a party to a fabricated story and that he knew full well that Thomas had not seen Hewey before the shooting and was not able truthfully to say Hewey was not on the motorbike. The false evidence was arranged at the meeting on 14 September and put into effect at the trial nine days later. The Crown relies on the Respondent's closing speech to the jury in support of its case. That, however, adds nothing to the case against the Respondent after Thomas had given evidence. The Respondent's submissions were based on what Thomas had said in evidence. If the Respondent knew Thomas had given false evidence he was guilty of conspiracy regardless of what he said in his final speech; if he was not aware he was entitled, indeed obliged, to make the best argument he could on the basis of Thomas' evidence.

What Caused the Judge to Stop the Case Having Previously Ruled There was a Case to Answer?

32. As I have already said, it is an unusual course for a judge to stop the case at the close of the defence evidence, particularly having ruled there was a case to answer. But it was one that was open to the judge and indeed something she was required to do in appropriate circumstances.

33. The judge said that, without having specifically said so, she regarded it as a borderline case when she had ruled there was a case to answer. This was on the basis that the jury could form the view that the Respondent was putting words into Mr. Thomas' mouth or otherwise trying to make him change his evidence. That was a possible inference that could be drawn to the exclusion of all others consistent with innocence. What changed was the introduction of the Barristers' Code of Professional Conduct 1981 ("the Code") and the Respondent's assertion that he was at all times acting in his professional capacity and that the prosecution evidence had to be seen in that light. The judge pointed out that this did not involve any assessment of the credibility of the evidence. She concluded that a wholly innocent interpretation of the facts existed and that she could not see how a reasonable jury, properly directed as to the drawing of inferences, could reject an inference that is consistent with innocence. Without specifically saying so she was applying the Galbraith test as referred to by Elias LJ in R v Darnley [2012] EWCA Crim 1148 at para 21: "The correct approach is to ask whether a reasonable jury, properly directed would be entitled to draw an adverse inference."

34. Detailed reference to the Code was made in the course of the Respondent's evidence. The following paragraphs are relevant: A barrister must discharge his duties to his client, the court, members of the public and his fellow members of the profession with integrity and in accordance with this Code. ... It is the simple elementary provisions of this Code. (ii) Not to engage in conduct (whether in pursuit of his profession or otherwise) which would bring discredit upon him or upon the legal profession or otherwise diminish public confidence in the administration of justice;... A barrister has a duty to uphold the interest of his client without regard to his own interest or to any consequences to himself or to other person(s)... A barrister must never knowingly assist or encourage any dishonesty, fraud, crime, or illegal conduct nor advise his client as to how to violate the law... A barrister shall not - (i) knowingly assist or permit his client to do anything which the barrister considers to be vexatious, dishonest, fraudulent or otherwise contrary to law; (iv) knowingly attempt to deceive a court or influence the course of justice by offering false evidence, mis-stating facts or law,... Save with the consent of counsel of the opposing side or of the court, a barrister may not communicate directly or indirectly with a witness, whether or not the witness is his client, concerning the evidence he has given or may give, once the witness has begun to give evidence until the trial or other proceedings in which he is to be called have concluded; A barrister shall observe these rules in the spirit as well as to the letter."

35. At the heart of this appeal lie paragraphs 7 and 58. A barrister's duty fearlessly to represent the interest of his client is trumped only by his duty to the court, which he must not mislead. Putting forward or helping to put forward evidence that he knows or believes to be false would plainly come into this category as well as being a criminal offence. There are, in my judgment, dangers, particularly in a small community with a fused profession, of barristers becoming too close to their clients. This case may be an example. It is to be noted that paragraph 58 of the Code restricts a barrister's communication with a witness on either side but only once the witness has started to give evidence until it had been concluded. It is often said that there is no property in a witness but I find it surprising that in a case such as the present in which the witness had already given evidence for the prosecution but there is to be a retrial counsel for the defence may communicate with him about his evidence without the consent of the prosecution. I anticipate that paragraph 58 was drafted without the situation in the present case in mind. A meeting of the kind that took place on 14 September 2014 is always going to be fraught with danger and it would surely have been better, if it was to be conducted in the interests of justice, for a representative of the prosecution to have been present. The bottom line is that the rule, as drafted, did not prevent the Respondent from speaking to Thomas on 14 September and however unwise he was to do so he was entitled to do so and rely on the provision in paragraph 7 provided he did so in a honest state of mind.

36. On what basis could the jury draw an adverse inference as to the Respondent's state of mind at the meeting on 14 September and subsequently at the trial? There was clearly evidence of a conspiracy between Hewey and Reid-Anderson from the calls and messages between them and the offer of money to Thomas to change his evidence. But what of the Respondent's participation in it? Mr. Mahoney relies on Reid-Anderson's answer in cross-examination that by referring to "our lawyers" in the voice note of 4 July 2014 he meant the Respondent but I am not satisfied the jury must infer from this that the Respondent was a party to the conspiracy. The same is true of the voice note on 12 September 2014.

37. I have considered with care the transcript of the conversation of the meeting on 14 September 2014. What seems to me to be significant is that at no point did the Respondent clearly put words into Thomas' mouth that he knew it wasn't Hewey on the bike or how he knew Hewey. The relevant information came from Thomas. The details of the conversation at the meeting seems to me to be equally consistent with a barrister honestly asking questions on the instruction of his client in accordance with paragraph 7 of the Code as it is with the Respondent being party to an agreement to get Thomas to give false evidence at the retrial.

38. Could the jury rule out the innocent inference? Whilst it was extremely foolish of the Respondent to have agreed to meet Thomas without first having notified the prosecution, which would no doubt have led to the presence of a prosecution representative, he did at least make a secret recording of the conversation. This seems to me to be inconsistent with a guilty state of mind and to be something that the jury would have to have had in mind when considering what inference to draw from the meeting.

39. Nothing that happened between the meeting on 14 September and the trial seems to me to take the case any further. The Crown's case is that when Thomas was cross-examined by the Respondent, Thomas "perjured himself as planned". But the question is whether the Respondent was a party to the plan. Two new features emerged in the story at the stage. The first was the reference to a person nick-named "Fire" and the second reference to Passa Passa Sundays. Both were introduced by questions in cross-examination by the Respondent. How did the Respondent know to raise these matters with the witness? Counsel ordinarily and appropriately acts on the instruction of his client. The Respondent's evidence was that he could not remember precisely when and in what circumstances he received the information. This again is evidence from which the jury would, along with the evidence in the rest of the case have drawn one of two inferences, one consistent with guilt the other innocence.

40. Mr. Mahoney submitted that the whole of the evidence in the case was open to more than one interpretation. But he further submitted that it was for the jury to consider what inferences to draw in the light of the whole of the evidence. The judge in the ruling that is under appeal correctly described the test she had applied at the close of the prosecution case: "Whether a reasonable jury could, on one possible view of the evidence, reject all realistic possibilities consistent with innocence and entitle them to reach an adverse inference."

41. She agreed that the issue of an adverse inference arose from a combination of factual circumstances including the interpretation of key passages of the discussion at the September meeting which the jury could interpret as the Respondent trying to influence Thomas to change the evidence he would give at the trial.

42. By the time she gave her ruling under appeal the jury had heard evidence from the defence including that of the Respondent. The new factor in the case was the introduction of the Barrister's Code of Professional Conduct and his contention that he was acting in a professional capacity as he was obliged to do. She noted that the relationship of barrister and client is not necessarily dependant on legal aid and that there was nothing intrinsically wrong in the Respondent seeing or being in touch with Hewey prior to the grant of legal aid. A barrister acts on his client's instructions and is entitled to discuss defence strategy with him. She had in mind Mr. Mahoney's point that the Respondent must not be allowed to hide under the rubric of acting under instructions and his submission that this was a matter for the jury. She also noted that Hewey did not condemn the Respondent in any way, directly, indirectly or by implication.

43. In conclusion she said the Respondent was duty bound to take on Hewey's case without regard to his personal view of the charges and was duty bound to take his instructions of which it was not his duty to determine the truth or falsity. His duty included testing and probing the prosecution's evidence. Hewey's evidence was that he instructed the Respondent to get in touch with Thomas who had certain information that was pertinent to his defence. He was duty bound to follow this through in preparation for the trial.

44. She said that the Respondent's evidence was that his direct contact with Thomas was of his own choosing and that no adverse inference was to be drawn from Reid-Anderson arranging the location and guiding the Respondent to it. The meeting had not breached the Code because the trial had not begun.

45. The judge concluded by saying there was no evidence the Respondent was aware of what Hewey may have known or intended in the context of the prosecution's case against them. She said: "Having assessed what could be determined from the recording, bearing in mind counsel's duty, the mere fact that Mr. Worrell asked Mr. Thomas if he could say something could be interpreted at face value to be preparation for the very testing of evidence that defence counsel is bound to do in a trial. The same thing could be said of other things said or partially said in the recording, by Mr. Worrell."

46. The judge heard the evidence which we have not. Plainly, after the conclusion of the evidence she would have been giving thought to how she was going to sum the case up to the jury and in particular how to approach the case against the Respondent. She said in her ruling: "The jury would have to be directed about the duty of Mr. Worrell as counsel. The court cannot see how a jury, properly directed as to the duty of counsel, could reject Mr. Worrell's duty as inconsistent in the circumstances with innocence. As to the questions asked of Mr. Thomas in the recording, the jury would have to be directed that in interpreting what was said by Worrell, in the event two inferences can be drawn from the context, it is their duty to draw the one that is favourable to the Defendant."

47. As she concluded there was a wholly innocent interpretation of the facts that a reasonable jury could not reject she was obliged to stop the case and did so in respect of all three counts in the indictment. In my judgment the judge was correct in her approach and contrary to the submissions of Mr. Mahoney did not trespass across the boundary into assessing the credibility of the Respondent's evidence. It is true that she considered the evidence of the Respondent but not as regards its credibility. His evidence was relevant because it put his position in context in relation to the duties of counsel. She also touched on other evidence but only to the extent of dealing with Mr. Mahoney's arguments in respect of it.

The Three Counts

48. Although there were three counts in the indictment, the reality of the Crown's case against the Respondent was the charge of conspiracy. For practical purposes the other counts stood or fell with it. There is, however, one other matter that should be mentioned with regard to count 6, the allegation of perjury. The allegation here was that the Respondent, together with Hewey and Reid-Anderson, counselled or procured Thomas to give false evidence.

49. Section 120(2) of the Criminal Code Act 1907 provides: "A person cannot be convicted of committing perjury, or of counselling or procuring the commission of perjury, upon the uncorroborated testimony of one witness as to the falsity of any statement alleged to be false."

50. This provision mirrors, although not in identical terms, the English provision in Section 13 of the Perjury Act 2011. It was argued that there was no corroboration of Thomas' evidence that he had given false evidence. The Crown's contention was that where there is a confession of falsity that confession need only have been uttered in the presence of at least one other witness or to be evidenced by some other form. As the confession was evidenced in the present case by Ms. Donawa there was adequate corroboration. The judge accepted this submission having been referred to R v Peach [1990] 2 ALL ER 966 and R v Carroll (1994) 99 Cr App R 381, 384. These authorities make it perfectly clear that the judge was right to accept Mr. Mahoney's submission in the present case that there was compliance with s120(2). The point is, however, academic in the light of the judge's ruling there was no case on any of the counts against the Respondent to be left to the jury.

51. I would dismiss the appeal.

Postscript

52. Quite apart from the question of criminal liability two questions arise that are worthy of comment. First, should the meeting of 14 September 2014 have taken place at all and second was the discussion at it permissible? Paragraph 58 of the Code as drafted covers only a witness in the course of giving evidence. It does not, at least on a literal interpretation, cover a witness who had given evidence in an earlier trial and is expected to give evidence in re-trial. It may be asked what difference there is between such a witness and one who had made a statement to the police and is waiting to give evidence at the trial. It seems to me that the ambit of paragraph 58 could usefully be considered by the Bar Council.

53. On the second point, in R v Momodou and Limani [2005] 2 Cr App R 6 para 61 the English Court of Appeal made clear that training or coaching witnesses in criminal proceedings is not permitted and that this is the logical consequence of the well-known principle that discussion between witnesses should not take place and that statements or proofs of one witness should not be disclosed to any other witness. I do not think the position is any different in Bermuda. Even on the most innocent interpretation, what occurred at the meeting on 14 September 2014 seems perilously close to having breached this principle, if not having crossed the boundary.

Baker, P

I agree Bernard, JA

I agree Kawaley, JA (Acting)