R v Shernyl Burns

• Jurisdiction: Montserrat
• Judge: Morley J
• Judgment Date: 18 May 2021
• Neutral Citation: MS 2021 HC 9
• Docket Number: CASE MNIHCR 2019/0006
• Court: High Court (Montserrat)

IN THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

CASE MNIHCR 2019/0006

Regina

and

Shernyl Burns

APPERARANCES

Mr Oris Sullivan, the DPP, for the Crown.

Mr Warren Cassell for the defendant.

RULING

On admissibility of interview

Morley J

1 I am asked during trial 1 commencing on 17.05.21 to rule on the admissibility of an interview in which Shernyl Burns admits to bringing cannabis several times onto Montserrat from Antigua hidden in KFC buckets in early 2019 to be passed on to his uncle, Ashel Bramble, who is currently serving a sentence interalia for being a cannabis dealer.

2 Burns is a talented cricketer, often travelling to Antigua, worried for his career, as a conviction will likely hamper his ability to travel and the propriety of his participation in international sport.

3 In March 2019, there was a major investigation concerning at least five persons importing cannabis onto Montserrat.

• a. Burns was arrested at 09.00 on 06.03.19, made no comment in interview that day on advice from Counsel Cassell, and the next, was charged with ‘drug trafficking’ at 10.00 on 08.03.19, and later that day, between 13.24 and 13.46, during 22mins, made full admissions.

• b. Apart from these admissions, there is considerable evidence against Burns by reference to whatsapp messages on the phone of his uncle brought to his attention in the first two interviews.

• c. The third interview, post charge, was said by the Crown to be volunteered, shortly after he talked with another lawyer, Counsel Marcelle Watts.

• d. On 17 and 18.05.21, a jury having been sworn on 17.05.21 to try two counts of drug trafficking, there has been a voir dire on why he confessed.

• e. The argument has been he was induced by a promise he would not be prosecuted but instead used as a Crown witness against his uncle, denied by the Crown, which the defence suggest ought to provide grounds for excluding the confession from the jury, and further to stay the case for abuse of the court's process.

• f. On 18.05.21, after consideration of the matter, the court ruled the confession would be admitted, promising written reasons which are these.

4 Of interest has been Burns gave evidence on the voir dire saying his confession was true, suggesting he is indeed guilty as charged.

5 At the voir dire, there has been Crown evidence from Detective Inspector Ottley Laborde, Chief Superintendent Albert Williams, and Detective Sergeant Keniel Murrain, Burns gave evidence in his defence, and the court proprio motu called Counsel Watts, available then to be cross-examined by both Crown and defence. To distil matters:

• a. The video of the interview was played to the court, and Burns appeared clear of mind, though nervous, seeming aware he was making admissions which would cause trouble for himself and others.

• b. Laborde said there had been no promise of immunity, also saying implausibly he had not known of Burns two earlier no comment interviews, and he had no idea why he volunteered the third interview nor what he might say.

• c. Williams said he had been briefed by Laborde and Murrain on the previous no comment interviews, was aware Burns had retained Counsel Cassell previously and it appeared now had Counsel Watts, was aware he would likely now make admissions, had no idea why, and there had been no promise made he heard.

• d. Murrain said he was unaware of any promise, and had been told by Williams Burns had volunteered a statement though does not know why.

• e. Burns said he was denied access to Counsel Cassell at about 07.00 on 08.03.19 by the cell-keeper reporting Murrain saying he had used his privileges, was later given his charge sheet by Murrain, and he was then told by Laborde Counsel Watts had been contacted to help by his mother or aunt. Next, he was taken to a room for an off the record conversation with Williams, Laborde, Murrain, and Inspector Wade, about how as an athlete it was in his best interests to make a statement, while they would ‘do their best’ so he would become a prosecution witness as he was not really who they wished to prosecute. He asked to speak to Watts, who later at the police station he said told him she would ask the DPP for immunity. Next, Laborde with Murrain said they could not get hold of Watts on the phone, but appeared to show a text from her on Laborde's phone he should cooperate. He then did so, in the third interview, and at that time was tired and in some confusion in his third day in an uncomfortable police cell with mosquitos and a sponge mattress on the floor.

• f. Watts said at the station Burns was very emotional and crying, she had gone there to see another client, was asked to check up on Burns by her good friend his aunt on St Kitts, he was not her client, he never told her of suggested immunity, and she did not say she would ask the DPP about it, but instead later at the magistrates court did ask the DPP about bail while present representing another. She had no conversation about Burns with Laborde, who is her brotherinlaw, nor ever sent a text suggesting Burns cooperate.

6 Broadly, as findings of fact, I am sure I can wholly rely on Counsel Watts, I am sure Burns has not been reliable as to what he told the court happened nor in particular as to what he told Watts at the station, but also, I am not sure I can rely on all I have been told by the police witnesses. Something caused Burns to confess. There is no detailed custody record to show who spoke to Burns when or where. In sum, I find it cannot be ruled out Burns was encouraged to consider his position as an athlete and cooperate, with mention the police would ‘do their best’ not to prosecute him, which in his emotional state post-charge he misunderstood as a promise, which it was not, but which the police anticipated was a mistake he might make.

7 The question arises whether exploiting he would make a mistake in emotion, if it reasonably may have occurred, is ground for excluding the confession.

8 There are two sources of law to consider concerning admissibility of confessions: the Judges' Rules 1912 (as amended 1964) and UK Police and Criminal Evidence Act 1984, the former in force locally, and the latter persuasive in the Commonwealth.

9 Turning to the Judges' Rules, they read that:

Principles

These rules do not affect the...