[1] Michael Matthew Swayne David [2] Stephen Sandy Appellants v The Queen Respondent [ECSC]
| Jurisdiction | Grenada |
| Judge | REDHEAD, J. A.,Justice of Appeal,Albert Redhead,Ephraim Georges,Justice of Appeal [Ag.],Denys Barrow |
| Judgment Date | 08 March 2004 |
| Judgment citation (vLex) | [2004] ECSC J0308-2 |
| Court | Court of Appeal (Grenada) |
| Docket Number | CRIMINAL APPEAL NOS. 5 AND 6 OF 2002 |
| Date | 08 March 2004 |
IN THE COURT OF APPEAL
The Hon. Mr. Albert Redhead Justice of Appeal
The Hon. Mr. Ephraim Georges Justice of Appeal [Ag.]
The Hon. Mr. Denys Barrow Justice of Appeal [Ag.]
CRIMINAL APPEAL NOS. 5 AND 6 OF 2002
Mr. Lloyd Noel for No. 1 Appellant
Mr. Anselm Clouden for No. 2 Appellant
Mr. Hugh Wildman for the Respondent
Both Michael David and Stephen Sandy were tried and convicted on 1 st July 2002 for the murder of Fabian Bishop. Michael David was sentenced to life imprisonment and Stephen Sandy, oddly in my view, was given an 18-year sentence. Nevertheless he has appealed against conviction and sentence. However, no argument was advanced on his behalf by learned Counsel against the sentence.
I shall deal first of all with the appeal of Michael David. Initially seven grounds of appeal were filed on his behalf on 12 th July 2002. Thereafter, on 2 nd September, 2002, two additional grounds of appeal were filed. Learned Counsel, Mr. Noel, was granted leave to argue the appeal as follows:
The original ground 1 and b of 1 in the additional grounds of appeal be argued together.
The original 2 and 4 as combined
The additional ground 1(a) and (c)
The additional ground 2
The original ground 6
The original ground 7
The first ground of appeal advanced on behalf of Michael David was as follows:
"In a joint trial of two or more persons, the evidence of any one of them, in a statement to the police, or in an unsworn statement from the dock is not evidence against the co-accused and although the Judge gave the jury a warning during his summation of the case against Swayne David his omission to repeat and emphasize that warning when he was dealing with the actual statements of Stephen Sandy – during Stephen Sandy's part of the summation – was so serious that it must have confused the jury, which must have resulted in the eventual verdict."
The learned trial Judge emphasized to the jury at the commencement of his summation that he was drawing a distinction between the case of Michael Matthew Swayne David and that of Stephen Sandy. He dealt with each case separately. He dealt with Swayne David's first.
The case against Michael David is based largely on an admission that he made to Derrick Christopher in the early hours of 7 th July 1994, that he, Michael David, had shot someone in a car at Mt. Gay with a gun which Christopher claimed that he lent David because he, David, said, he was going to collect some drugs.
The case against Stephen Sandy is based on a caution statement which he dictated to Inspector Mason. Stephen Sandy in that caution statement implicated Michael David.
The gist of that statement is that he was at his brother's residence on Green Bridge together with one 'Pepe'. Swayne David came and checked him. Swayne David told him "let us go and rob the gas station in Tempe." Swayne David showed him a gun. He, Stephen Sandy, Swayne David, and Pepe left to go and rob the gas station. They passed through Darbeau and went through Mt. Gay. While going through Mt. Gay about, two cars passed. They hid in the bush. "After the first car passed, Swayne got up and told us stay dey. I saw he went out in the road when the car reached about three or four feet away from him he point the gun at the car. The lights from the car was spotting on him. After that the car stop and he went around the car from the back, when he reach in the back of the car, the car drive off then he fired the gun behind of the car. When he fired the gun we came out from the bush and I asked him what he doing, when I asked him that he left and ran behind the car when he left and run behind the car, we were behind him when we reach by the car, Swayne say like the man got shot and he playing dead".
The learned trial Judge in directing the jury told them at page 19 of the record:
"Now, there is a very important aspect of this case I need to tell you about in relation to the case against Swayne David. That is, that the statement of Stephen Sandy that was tendered by Inspector Mason in this case, allegedly made by Stephen Sandy to Inspector Mason, seeking to implicate Swayne David that is the statement that was made out of Court and not in the presence of the accused Michael Matthew Swayne David, so it is not evidence against him and you must therefore disregard the statement when considering the evidence in the case against the No. 1 [appellant]. It is a simple safeguard put into the law to ensure that one accused doesn't seek to implicate the other one and get himself out of it. So then that statement has nothing at all to do with the No. 1 [Appellant]. You must therefore disregard it when you consider the case against Swayne David".
The learned trial Judge also told the jury that they should treat the unsworn statement of Stephen Sandy in the same manner as his caution statement to the police i.e. it is not evidence against Swayne David. This to my mind was a clear direction and no jury could possibly have been misled or be confused by it. However Mr. Noel submitted, "his [the Judge's] omission to repeat and emphasize that warning when he was dealing with the actual statement of Stephen Sandy - during Stephen Sandy's part of the summation – was so serious that it must have confused the jury, which resulted in the eventual verdict".
Mr. Noel in his written submission again repeated the allegation. I do not agree. (See paragraph 5). The learned trial Judge's warning was very clear. There was no ambiguity in the words used in the summing up by the Judge. The summing up was not capable of being misunderstood by any jury. If the jury understood the direction given to them by the learned trial Judge, and they must have understood it, there was no need to repeat it. 'Brevity in summing up is a virtue not a vice.' In my judgment a summing up that is repetitive is boring and achieves nothing.
It is generally desirable to give directions on the law at the beginning of the summing up. [See Archibald 2003 Ed para 4–376] That is what the learned trial Judge did in the instant case. Learned Counsel in support of his argument referred to Roger Jelliseau – Godfrey Bridgeman and The Queen (Criminal Appeal Nos. 10, 6, 11 of 1995 – Grenada).
I think it is pertinent to make the observation that Stephen Sandy made an unsworn statement from the dock before the jury.
The Court of Appeal in Jelliseau and Bridgeman followed the Privy Council case of Lobban v R. (1995) 2 AER 602.
In Jelliseau Matthew J. A. [Ag.] said at page 7:
"The Court is of the view that it is a serious misdirection not to make it abundantly clear to the jury that the statement, made by one co-accused is not evidence against another co-accused."
In Lobban (Supra) Lord Steyn delivering the opinion of the Board in the Privy Council at page 643 said:
"Inevitably, the legal principles as their Lordships have stated them result in a real risk of co-defendants in joint trials where evidence is admitted which is admissible against one defendant but not against the other defendants.
One remedy is for a co accused to apply for a separate trial. The Judge has a discretion to order a separate trial. The practice is generally to order joint trials. But their Lordships observe that ultimately the governing test is always the interests of justice in the particular circumstances of each case. If a separate trial is not ordered, the interest of the implicated co-defendant must be protected by the most explicit directions by the trial Judge to the effect that the statement of one co– defendant is not evidence against the other."
In the case at bar the learned trial Judge adequately fulfilled that duty by telling the jury emphatically that the statement made by Stephen Sandy is not evidence against Michael Matthew Swayne David and that they must disregard that statement when they are considering the case against Michael Matthew Swayne David. He told the jury so repeatedly.
Learned Counsel for this appellant argued that although the learned trial Judge said that he was dealing with the case against the appellant separately, when he dealt with the actual statement of Stephen Sandy – during Stephen Sandy's part of the summation -was so serious that it must have confused the jury. Mr. Noel contended that nowhere in the summing up in relation to Stephen Sandy did the learned trial Judge ever refer to the evidence of Stephen Sandy against the appellant and tell the jury that it was not evidence against the appellant, Michael David.
The record does show that when the learned trial Judge was making reference to the statement given by Stephen Sandy, the learned trial Judge did tell the jury then that allegation made in that statement by Stephen Sandy against his co-defendant Michael Matthew Swayne David was not evidence against him. Mr. Noel argued. The learned trial Judge did tell the jury at page 19 line 5 of the record:
"Now, there is a very important aspect of this case I need to tell you about in relation to the case against Swayne David. That is the statement of Stephen Sandy that was tendered……seeking to implicate Swayne David … it is not evidence against him and you must disregard the statement when you are considering the evidence in the case against the No. 1 accused. [Swayne David]"
In addition, as I have said earlier, the learned trial Judge gave clear and emphatic directions on this issue and in my opinion, there was no need for the learned trial Judge to repeat that warning every time. Mr. Noel contended under 1(b) in his additional ground said that the prosecution case against the appellant David was based solely on the evidence of Derrick Christopher "whose initial evidence was that the appellant [David] had...
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