1) Elvon Barry 2) Zoyd Clement 3) Kenton Phillip v The Queen
| Jurisdiction | Grenada |
| Judge | BARROW, J.A.,Justice of Appeal,Denys Barrow, SC,Michael Gordon, QC,Hugh A. Rawlins |
| Judgment Date | 14 May 2007 |
| Judgment citation (vLex) | [2007] ECSC J0514-2 |
| Date | 14 May 2007 |
| Docket Number | CRIMINAL APPEALS NOS.5, 9 AND 10 OF 2004 |
| Court | Court of Appeal (Grenada) |
IN THE COURT OF APPEAL
The Hon. Mr. Michael Gordon, QC Justice of Appeal
The Hon. Mr. Denys Barrow, SC Justice of Appeal
The Hon. Mr. Hugh A. Rawlins Justice of Appeal
CRIMINAL APPEALS NOS.5, 9 AND 10 OF 2004
Mr. Anselm Clouden for Elvon Barry
Dr. Francis Alexis for Zoyd Clement
Mr. Derrick Sylvester for Kenton Phillip
The Director of Public Prosecutions (Mr. Christopher Nelson) for the Respondent
The three appellants were convicted of the murder of Mrs. Omelia Roberts in her home in the early morning of 8th October 2002 in the course of a robbery. They were sentenced to terms of imprisonment ranging from life imprisonment to detention at the court's pleasure for a period not exceeding 15 years. They appeal their convictions and sentences.
Garvin Roberts and his brother, Damien, the sons of the deceased, were both asleep the Monday night in the living room of their home in Belmont, St. George's.Their little sister, mother and sister in law were in the house. The house had two bedrooms and the mother and little sister slept in one and the sister in law slept in the other. Garvin and Damien normally slept in the living room.
Sometime before one o'clock in the early morning of Tuesday, Garvin heard the dogs barking and he woke. He opened his eyes and saw a man inside the house, by the living room window, with a gun in his hand. The man looked outside and then walked to Garvin and put the gun to Garvin's neck. The man asked, "Where is the money"? Garvin said he did not know. The man then commanded Garvin to get up and open the door. Garvin did so with the man behind him with the gun at Garvin's neck. Garvin opened the sliding glass door, which leads onto the veranda and to the steps. The man took Garvin near the steps and said to come up. Garvin looked down and saw two men. These men came up the steps and the three brought him back inside the house.
The man with the gun told one of the others to wake up Damien. One of the men went and kicked Damian behind the head. Damien had been lying on the floor sleeping. The gunman knelt over Damien and put the gun to Damien's head. One of the men got up and went and stood by the door. When that one went and stood by the door, the gunman was near to Garvin and he asked Garvin, "Where is the woman"? Garvin answered in the room. The man standing by the door spoke; he said, "Go and kill the mother. Kick down the door."
The one with the gun went immediately. The gunman went to the bathroom door, opened the bathroom door and closed it back. The gunman then tested the lock on the sister in law's bedroom door. That door was locked. The gunman went to the mother's room door and Garvin said he heard that door "start banging". The gunman went inside the room and Garvin heard banging on the partition. Then he heard a loud explosive sound that sounded like a gunshot. He heard something fall to the ground from the direction of his mother's room. The gunman ran out into the living room and shouted, "Let's go". All three men ran outside, went down the step and ran to the main road.
After the men left Garvin went into his mother's bedroom and saw her lying on the floor, bleeding. The police were called. A doctor was also called who, pronounced the mother dead from a gunshot wound she received to the chest.
Garvin testified that throughout the time the gunman was in the house Garvin was able to see the gun. The gun was in the gunman's hand. He gave evidence as to the veranda light being on and shining through the sliding glass door, and he gave evidence that there was no obstruction to the window in the living room. He was not challenged on this testimony.
Damien Roberts confirmed what Garvin said. He testified that he was asleep on the living room floor on some cushions and he felt a blow to his head that woke him up. He looked around and saw three masked men. One was kneeling with a metal object on his, Damien's neck, the other was by the window and the third was by the entrance to the kitchen. The one who was kneeling by him went in the direction of the mother's room. That person had a metal object in his hand that looked like a gun. Damien demonstrated the manner in which the man held the object. He testified that the other two men were in a position to see this object. While Damien was trying to get up, the one who had been by the front door told Damien don't move otherwise he would shoot him.
Damien testified that after the person went to his mother's room he heard some scrambling and some banging coming from the mother's room. Then he heard a loud explosion that appeared to come from his mother's room. The man ran out of his mother's room and said, let's go and the two others followed. They jumped down the veranda and ran towards the main road. Damien testified as to the lighting in the house at the time and he testified that the men were wearing masks and all three of them were wearing latex gloves.
Oliver Williams was the driver of the vehicle that took the three appellants, whom he identified, along with others, to a spot near the Roberts' home. He testified to being engaged by one Sheldon Bain, known as "Dutch", to collect the men and to take them all to the spot. Williams testified that the three appellants and Dutch left his vehicle when he stopped at the spot, that he drove around for about 5 minutes and returned to the drop off spot. He said he met Dutch there and a few seconds later the three appellants came running towards the vehicle from a certain direction. Williams said the three men had objects that looked like masks and Kenton Phillip had a gun in his hand. Williams told of driving the men away from the spot and hearing the appellant Elvon Barry tell Dutch "We didn't get the money. Kenton shoot the woman and he shoot himself." Williams claimed to have seen Barry get the gun from Kenton Phillip and pass the gun to Dutch while they were in the vehicle.
Counsel for the defence cross-examined Williams vigorously to show that he was the organizer of the robbery and one of the three men who entered the home and participated in the enterprise. Sheldon Bain, who was tried and convicted along with the appellants, gave sworn evidence to this effect. The judge directed the jury that Oliver Williams was the main witness for the Crown and they needed to pay particular attention to his demeanour and credibility. In reviewing his testimony the judge pointed out the manner in which Williams testified and a number of instances where he lied or may have been doubted.
There was other evidence that confirmed that on the Monday night Kenton Phillip came to the house where the other two appellants were living and they all three went off. In fact the various statements that each of the three men gave from the dock put them all together up to the point where Williams stopped the vehicle at the spot near the Roberts' home so that, on their statements, there was no dispute about their presence near the scene, in the case of Elvon Barry, or outside the house, in the case of Zoyd Clement, or inside the house, in the case of Kenton Phillip.
The three men gave caution statements to the police. Each of them challenged the admissibility of his statement on the ground of voluntariness and the judge held a separatevoir dire in respect of each. The judge ruled that the statements of Elvon Barry and Kenton Phillip were voluntarily given and were admissible in evidence. However, the judge edited the statements to substitute letters for the names of co-accused that were mentioned in the statements to comply with the rule that what one accused said in an out-of-court statement about a co-accused may not be used as evidence against that co-accused. Subsequent to the admission of the statements into evidence each man made certain admissions in his dock statement, so that caution is no longer necessary.
In his statement Elvon Barry told how Kenton Phillip came to fetch him and Zoyd Clement, who is his brother. Barry told how they went to the Belmont area and down a track. On the way down the track Dutch pulled out a gun and showed Kenton Phillip how to operate the gun. Dutch pointed out the house to the three men and Dutch turned back. The three went on. Kenton Phillip climbed on the shoulder of Zoyd Clement and entered the house. Barry stated that he saw Kenton put the gun to a little boy's head and got him to open the door. Kenton then told them to come inside. Barry and Zoyd went inside and stood up in the hall and then Kenton went into the room. Barry heard like Kenton and someone were fighting inside. He heard a shot go off and he and Zoyd ran outside. When he looked back he saw Kenton running behind. He stated he saw the gun in Kenton's right hand and his left hand on top of the gun. Kenton's left hand was bleeding. He told of how they went back in the vehicle and their movements thereafter.
In his dock statement Elvon Barry gave a version of events that differed in key respects from his caution statement. He said when Oliver Williams stopped the vehicle in Belmont, Williams told Kenton and Zoyd "let's go" and they went with him. He did not go. About seven minutes later Barry said he saw the three coming back. He asked Kenton and Zoyd "where they come out" and they did not answer.
The statement Zoyd Clement allegedly gave to the police was ruled inadmissible. However, Zoyd Clement gave a dock statement in which he told of being awakened by his brother, Elvon Barry, who told him Oliver Williams wanted to see them. He saw Kenton and Dutch standing outside. They joined Oliver who told them to accompany him. When they reached Belmont Oliver told him and Kenton to accompany him...
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Peter Solomon Appellant v The Queen Respondent [ECSC]
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