Andrew Parker v R

JurisdictionTurks and Caicos Islands
JudgeTurner JA
Judgment Date29 February 2024
Neutral CitationTC 2024 CA 2
Docket NumberCR-AP 6 & 7/2021
CourtCourt of Appeal (Turks and Caicos)
Between:
Andrew Parker

and

Shavez Musgrove
Appellants
and
Rex
Respondent
Before:

The Hon. Mr. Justice K. Neville Adderley, JA, President (Ag.) (Presiding)

The Hon. Mr. Justice Stanley John, JA

The Hon. Mr. Justice Bernard Turner, JA

CR-AP 6 & 7/2021

IN THE COURT OF APPEAL

Rape — Kidnapping — Robbery — Possession of Imitation Firearm — Taking a Motor Vehicle without authority — Appeal against Conviction and sentence — Evidence — Admissibility — DNA Evidence — Intimate Samples — Use of previously collected Intimate Samples — Whether the Trial Judge erred in refusing to exclude DNA Evidence — Submission of No Case to Answer — Whether the Trial Judge erred in refusing the submission of No Case to Answer — Procedural Irregularities — Whether the trial was unfair due to procedural irregularities — Directions to the jury — Misdirection — Whether the Trial Judge misdirected the jury

Cases considered:

Delancy and others v R 2020 TCACA 22; R v Alan Grant 2008 EWCA Crim 1890; ( R v Galbraith 73 Cr. App. R. 124 CA); R v Jogee and R v Ruddock 2016 UKSC 8 & UKPC 7; R v Lawrence (Stephen) [1982] A.C. 510; R v Robert Ogden 2013 EWCA Crim 1294; R v Sang 1980 A.C. 402; S and Marper v United Kingdom (2008) ECHR 1581; The Queen v Albert Rosa De La Rosa BVIHC 22/2014; R v Tsekiri 2017 EWCA Crim 40.

Appearances:

Ms. Sheena Mair, for the Appellant Musgrove

Ms. Lara Maroof, for the Appellant Parker

Ms. Mickia Mills, for the Respondent

Turner JA
1

The Appellants Andrew Parker and Shavez Musgrove were convicted on 3 rd December 2021 after a trial by jury before His Lordship Mr. Justice Carlos Simons, on an Information charging them as being concerned, together with others (who were not before the court), with:

  • 1) 3 counts of rape, contrary to section 29 of the Offences Against the Person Ordinance, chapter 3.08;

  • 2) 3 counts of kidnapping, contrary to the common law;

  • 3) 2 counts of robbery, contrary to section 10(1) of the Theft Ordinance chapter 3.10;

  • 4) 3 counts of Possession of Imitation Firearm with Intent to Cause Fear, contrary to section 22(1) of the Firearms Ordinance, chapter 18.09; and

  • 5) a single count of Taking a Motor Vehicle without authority, contrary to section 14(1) of the Theft Ordinance chapter 3.10.

2

On the 8th December 2021, they were each sentenced as follows:

Effectively therefore, taken together, each of the two appellants was sentenced to a term of imprisonment of 25 years.

  • 1) 15 years imprisonment for each of the three counts of rape, to run concurrently;

  • 2) 10 years for each of the three counts of kidnapping, to run concurrently with each other but consecutively to the 15 years for rape;

  • 3) 10 years for each of the two counts of robbery, to run concurrently with the 10 years for kidnapping;

  • 4) 15 years for each of the three counts of possession of an imitation firearm with Intent to Cause Fear, to run concurrently with the 15 years for rape, and

  • 5) 3 years for taking a motor vehicle without authority, to run concurrently with the 10 years for kidnapping.

3

Each of the two appellant's filed a Pro Se Notice of Appeal against conviction in the Court of Appeal on 12 th December 2021.

4

Amended grounds of appeal were filed by counsel on behalf of the appellant Parker on the 11th of September 2023. Those grounds read as follows:

  • 1) The learned judge erred in refusing the submission of no case to answer in circumstances in which there was simply no evidence upon which a properly directed jury could safely convict.

  • 2) The Learned Judge fundamentally misdirected the jury in relation to the forensic DNA evidence in the following ways:

    • i. By advising the jury that the appellant's DNA was found in the vehicle used to commit the crimes which was contrary to the evidence of the forensic scientist;

    • ii. By failing to remind them of the evidence of the forensic scientist that there was only slight support for the assertion that the appellant's DNA had contributed to the sample; iii. By failing to advise the jury on how to approach the DNA evidence and it's relevant to determining their verdict.

  • 3. The learned judge as directed the jury on the issue of alibi and its significance to that deliberations

  • 4. Alternatively, the appellant seeks leave to appeal the sentence of 25 years imprisonment on the ground that the sentence is manifestly excessive in all the circumstances.”

5

It is not readily apparent from the record if, or when counsel on behalf of the appellant Musgrove applied for or filed amended grounds of appeal, however the grounds upon which his appeal was advanced were as follows:

  • 1) The Learned Judge erred in refusing to exclude the DNA evidence.

  • 2) The Learned judge erred in refusing the no case to answer submission.

  • 3) The trial was unfair due to a number of procedural irregularities and nondisclosure/absence of evidence.

  • 4) The learned judge failed to direct the jury properly on the law relating to the offences, the evidence and the defence case.

  • 5) The sentence imposed was manifestly excessive.”

6

The appeal was heard on 19 th October 2023 and upon the completion of submissions by counsel on behalf of each of the Appellants, counsel on behalf of the Respondent very properly conceded that the appeal of the appellant Parker should be allowed and his conviction and sentences quashed. The court upon that concession and after a consideration of the evidence, for the reasons contained hereafter, allowed the appeal of Parker and set his convictions and sentences aside, with no order for a retrial.

7

After consideration of the submissions on behalf of the appellant Musgrove, I consider that the appeal of Musgrove must be allowed, for the reasons which follow.

Factual Background
8

The incidents the subject of the charges took place on the evening of the 18th July 2017. At around 11:30pm. that night, the three Complainants hereafter referred to as C (a female) F, (a female) and P (a male) were together in a black Chevrolet jeep coming from a nightclub in downtown, Providenciales and headed to the home of C in Boddle Way, Blue Hills. Upon driving into the yard, P exited the vehicle to relieve himself. Shortly thereafter, three masked men (the assailants), dressed in black and armed with guns ran from the street into the yard. Two entered the vehicle in the back and pointed the guns at C and F. P was forced back into the vehicle.

9

One of the assailants sat in the driver's seat and demanded money. He took the handbag belonging to C and passed it to one of the assailants in the back who emptied it onto the ground and took a cell-phone, $900 cash and a bank card belonging to C.

10

The driver/assailant then drove the vehicle away with the three complainants together with his two assailants. He drove to the First Caribbean Bank on the Leeward Highway where C was forced to withdraw cash from the ATM cash machine. She was only able to withdraw $20, since she only had a few dollars in her account.

11

Thereafter he drove to the Lower Bight, where C was forced to purchase condoms from a store in “Brother Will's Plaza”. She purchased a packet of Trojan Fire and Ice condoms. He then drove to an area known as Grace Bay Village where additional items were taken from the complainants and C and F were each sexually assaulted by each of the assailants. The sexual assaults took place both outside and inside of the vehicle, the assailants using the condoms earlier purchased. One of the assailants then forced P to have sex with F.

12

After the sexual assaults (the subject of the rape charges), the complainants were driven away in the vehicle by the assailants, along the Highway and eventually pursued by a police vehicle. The vehicle came to a stop and the assailants made good their escape.

13

Neither of the Appellants was identified by the Complainants but, vaginal and body swabs were collected from the Complainants. The vehicle was also swabbed, as were a number of items recovered from the location at Grace Bay Village where the sexual assaults took place.

14

On 31 st July 2017 the swabs were sent to DNA Labs Florida (the Lab).

15

The appellant Musgrove was arrested at Parrot Cut on 6 th November 2017 and on 7 th November 2017 he consented to provide the police with a sample of his DNA, which was later collected.

16

The appellant Parker was arrested by the police at his workplace on 9 th November 2017 and he consented to provide a sample of his DNA to the police, which was later collected. That resulted in a buccal swab being sent to the Lab on 15th November 2017.

17

The Crown's case against both appellants depended solely on the DNA evidence of the forensic scientist, there being no identification of either of the appellants, nor any confessions or admissions to the commission of any of the offences charged. No DNA evidence incriminating either appellant was obtained from any vaginal swab of any of the complainants, there being evidence of the use of condoms by the assailants.

18

The DNA evidence in relation to Parker came from swabs of the gear stick of the vehicle.

19

In relation to Musgrove, the DNA evidence came from swabs of portions of a torn condom box, found at the scene at Grace Bay Village; and from swabs of a torn condom box recovered from the trunk area of the vehicle, said to have been one of the loci in the vehicle where sexual assault took place.

20

The case was prosecuted on the basis that the various pieces of a condom box recovered from the vehicle and from the location where the vehicle was said to have been parked at Grace Bay Village were all a part of one torn up condom box, which was the box which C had been forced to buy; however there was no evidence led to show that the pieces were scientifically proven to have constituted one box, or that anyone had attempted to put the pieces together to determine if in fact they constituted pieces which fit...

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