Donnason Knights Appellant v The Queen Respondent [ECSC]
| Jurisdiction | Grenada |
| Judge | SATROHAN SINGH J.A,SATROHAN SINGH,Justice of Appeal,SIR VINCENT FLOISSAC,Chief Justice,C.M. DENNIS BYRON |
| Judgment Date | 16 September 1996 |
| Judgment citation (vLex) | [1996] ECSC J0916-1 |
| Court | Court of Appeal (Grenada) |
| Docket Number | CRIMINAL APPEAL No. 15 of 1995 |
| Date | 16 September 1996 |
IN THE COURT OF APPEAL
The Rt. Hon. Sir Vincent Floissac - Chief Justice
The Honourable Mr. C.M. Dennis Byron - Justice of Appeal
The Honourable Mr. Satrohan Singh - Justice of Appeal
CRIMINAL APPEAL No. 15 of 1995
Mr. Anselm Clouden for the Appellant
Mr. Keith Friday, DPP, Mr. Christopher Nelson Senior Crown Counsel with him for the Respondent
On August 2, 1995 the appellant was convicted by a jury beforeSt. Paul J of the offence of the murder of Cherrie-Ann Matthew, a school girl about 16 years old. He was sentenced to Death. He has appealed.
The case advanced by the prosecution was that the appellant was the boyfriend of the deceased Cherrie-Ann. On Sunday April 11, 1993 at about 4.30 p.m., with the aid of a gun and a "big knife", he abducted her and used these words "If I can't get Cherrie-Ann I am going to kill her and kill myself. No other one can get her". Cherrie-Ann was later seen at the Grenville Police Station at 10 o'clock that night. On September 8, 1993, the deceased was on her way to Court to testify in the case against the appellant with respect to this alleged abduction. On this day, at about 9 a.m., the appellant accosted her. He had his left arm around her neck with his right hand inside his jacket. The deceased was crying and trying to go towards Grenville but the appellant was barring her path. The deceased and the appellant then went on the Lime Kiln road into the bushes. Cherrie-Ann was not seen again. On Thursday, September 9, 1993, around minutes to 11 a.m. one Adrian Wharwood, heard Cherrie-Ann's voice coming from an abandoned house and saying at first "Oh God, Oh God, don't kill me, then "you go kill me"? He called the police. Around 11.30 a.m. on the said September 9th, 1993, one Wendy Thomas saw the appellant "running fast" from the direction of the abandoned house. The police having received Wharwood's report, went to the abandoned house around 11.27 a.m. and found Cherrie-Ann dead. Her body was still warm and she was fully clothed. There was no evidence that she was sexually assaulted but the police found three condoms which according to the forensic scientist Cheryl Priddee were positive for human spermatozoa. The fact of the finding of these condoms was not disclosed to the defence before trial. Four wounds were found on the body of the deceased and according to Dr. Rukmini Jayaram, Cherrie-Ann died from multiple injuries, laceration of the lung and massive haemorrhage. The blood group of the deceased was AB and on a knife found by the police near the appellant when he was captured there was also blood of the similar AB type. On Saturday, September 11th 1993, the appellant was captured in a house. He had three stab wounds in his left chest. The murder weapon, the knife, was found 1 —2 feet away from his left hand.
The theory of the case for the prosecution was that the appellant, in order to prevent the deceased from testifying at the abduction trial and because of his own innate jealousy, again abducted the deceased and killed her. He then attempted to commit suicide by inflicting the three injuries on his chest. The murder weapon however did not have evidence of the appellant's blood which was tested to be ORH positive.
The case advanced by the appellant was that the deceased on September 8, 1993 went voluntary with him to the abandoned house. There they spent the night until about 4 o'clock in the morning when they were attacked by a masked man with a cutlass in his hand. The appellant ran away. He went in a house. Around 5 p.m. the masked man again attacked him and that is how he received his injuries. His defence therefore is a denial of the crime.
In his appeal, the appellant challenges his conviction on issues that involve consideration by this Court of (1) the duty of disclosure on the part of the prosecution (2) the judge's directions on the requisite intent for the offence of Murder (3) the admissibility of so called prejudicial evidence (4) the admissibility of the depositions of an absent witness, the judge's directions to the jury thereon, the quality of that evidence and the method by which it was obtained (5) the propriety of the judge's directions on self-defence (6) adverse publicity.
On the issue of non disclosure, Mr. Clouden submits that there was a duty on the part of the prosecution and/or the forensic scientist to disclose to the defence the fact of the finding of the condoms at the murder scene and to hand over same to the defence for their own scientific investigation. Learned Counsel contends that this omission constituted a material irregularity in the course of the trial.
The law on the issue of "Disclosure" is more or less settled and not in dispute in this matter. As I understand this law, the prosecution has a duty at common law to disclose to the defence all relevant material, scientific or otherwise, which tended either to weaken or strengthen the prosecution's case or to assist or strengthen the defence case, whether or not the defence made a specific request for disclosure. This duty extends to and is also imposed on a forensic scientist who is an adviser to the prosecuting authority. "Relevant material" in this context, means material which may have some bearing on the offence charged and the surrounding circumstances of the case and which material is known to the prosecution and/or the forensic scientist. The Court of Appeal of England, inR v Livingstone (1993) CLR 597, says on this issue that "it was the duty of the prosecution in all cases where material, whether documentary otherwise, of relevance to the defence, came into their hands to make the defence a present of such material". It is also settled law, that failure to disclose what is known or possessed and which ought to have been disclosed, is an irregularity in the course of the trial [See R v Warde (1992) 2 AER 577 and R v Maguire (1992) 2 AER 433].
Before the jury in this matter, evidence was led to show that the dead body of Cherrie-Ann was found fully clothed, lying on a bed in an abandoned house.Three condoms containing spermatozoa were found 14 feet away from the bed. The issue to be determined is whether these three condoms were material in the case which could have strengthened or weakened the case for the prosecution and/or assist the case for the defence. The evidence disclosed no sexual interference with the deceased, her body was found fully clothed in tights, shirt, vest and bra, with no evidence of seminal stains and the house where the condoms were found was an abandoned house. In other words, the evidence led disclosed no nexus between the condoms and crime charged. Mr. Clouden contended that had the condoms been disclosed to the defence they could have had the sperm scientifically examined in order to determine that the blood grouping may not have been that of the appellant especially having regard to the defence that it was the masked man who killed Cherrie-Ann.
It is my considered opinion, that having regard to the circumstances aforementioned which show no nexus between the condoms and the crime charged, that the condoms or the finding of the condoms could have been of no evidential value to either side. Even if the sperm showed a different blood group to that of the appellant, the per se, would not be enough to qualify them as being disclosable material. It has to be remembered that the house in question was an abandoned building open to all and sundry and that there was no sexual molestation of the deceased. For these reasons I would conclude that despite the very able arguments of Mr. Clouden on this issue this ground of appeal is without merit.
On the issue of Intent, learned Counsel for the appellant contended that the judge's directions to the jury were "woefully inaccurate". Counsel argued that the judge did not tell the jury about the appellant's requisite subjective belief, about the degrees of probability and did not relate the law to the facts of the case.
In an appropriate case, a judge, in giving directions to a jury on the concept of intent in a case of murder, apart from reading to the jury the statutory definition of Intention, should explain to the jury in lawful that a lay jury could understand the meaning of the statutory definition. Involved in this explanation would be directions as to the requisite subjective belief and the degrees of probability. He should then relate this statutory definition and the explanation thereof to the facts of the case.Sir Vincent Floissac, C.J. in Hazel Emmanuel v The Queen, Criminal AppealNo. 5 of 1989 St. Lucia, in dealing with the concept of intent gave an example of an understandable explanation of this statutory definition which I recommended in Denis Alphonse V The Queen Criminal Appeal1 of 1995 St. Lucia that judges should follow. I do not propose to repeat it here.
In directing the jury, on this issue, the learned Judge said:-
"If you are satisfied that the accused man Donnason Knights inflicted the wounds as described by Dr. Jayaram on the deceased Cherrie-Ann Matthew, the Crown must go on to prove beyond reasonable doubt so that you feel sure at the time he inflicted the wounds on Cherrie-Ann Matthew he did so with the intention to kill her. In our law there must be an intention to kill, not merely to cause harm but to kill. If on the other hand you believe that he caused the wounds to the deceased as described by the doctor but he did not intend to kill her then you may return a verdict of manslaughter and not murder because in murder there must be that intention to kill.
You may ask yourselves, how are we to determine the man's intention and I tell you the intention of a man...
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