Edmund Gilbert Appellant v The Queen Respondent [ECSC]
| Jurisdiction | Grenada |
| Judge | REDHEAD, J.A.,Justice of Appeal,Chief Justice,Albert Redhead,Sir Dennis Byron,Ephraim Georges,Justice of Appeal [Ag.] |
| Judgment Date | 25 November 2002 |
| Judgment citation (vLex) | [2002] ECSC J1125-2 |
| Docket Number | CRIMINAL APPEAL NO.11 OF 2001 |
| Court | Court of Appeal (Grenada) |
| Date | 25 November 2002 |
IN THE COURT OF APPEAL
The Hon. Sir Dennis Byron Chief Justice
The Hon. Mr. Albert Redhead Justice of Appeal
The Hon. Mr. Ephraim Georges Justice of Appeal [Ag.]
CRIMINAL APPEAL NO.11 OF 2001
Mr. Lloyd Noel and Mr. Anselm Clouden for the Appellant
Mr. Hugh Wildman for the Respondent
Edmund Gilbert, popularly known as Bishop Edmund Gilbert, was a Minister of the Baptist faith for the past thirty-two years. He is a Retired Civil Servant having worked as a Tax Collector for the Government of Grenada for thirty-six years.
He was charged with and convicted on 12 th December, 2001 for the murder of fifteen year old Robby Ann Jeremiah. At a separate hearing to determine sentence on 17 th December, 2001 the Appellant was sentenced to death by hanging.
The Appellant now appeals to this Court against his conviction. Seven [7] grounds of appeal were filed on behalf of the Appellant. For the purpose of this appeal I think it is convenient to combine Grounds 1 and 2.
It was contended on behalf of the Appellant that the learned trial Judge erred in elaborating on a simple direction on intent and that he failed to give adequate directions to the jury on intention to murder as outlined in section 12 of the Criminal Code and as explained in Tench v R [1992] 41 WIR 103.
The learned trial Judge at pages 8 and 9 of the record stressed that it was for the prosecution to prove that the Appellant had the necessary intention to kill at the time of committing the alleged offence.
He explained what is meant by intention and illustrated this by examples.
At page 16 of the record the learned trial Judge told the jury:
"So, if also you come to the conclusion when you examine all the evidence and you feel sure in your mind that the accused on that morning on that night did kill the deceased you must still consider whether he did kill the deceased intentionally because the pathologist's evidence tends to show that there was some struggle there was some sign of that and in that way it also showed that the deceased was strangled to death.
The inference may well be that the accused did not intend to kill, might not have intended to kill, might have been a question where arising out of a struggle death resulted. So you also have to consider if you form the view from the circumstantial evidence that the accused did kill Robby Ann you will have to consider whether it was intentionally done. Because if it were not intentionally done that would not amount to murder, it would be merely manslaughter."
And at page 17 the learned trial Judge continued:
"If you come to the conclusion, however, that he killed Robby Ann, but he did not kill her intentionally, then that killing amounts to no more than manslaughter, and that is open to you. If you feel the accused on that night, did not set out to kill but was concerned about Robby Ann calling `up his name', spreading things about him and he wanted to get her to stop it and a struggle ensued and death occurred it is open to you to return a verdict of guilty of manslaughter.
At the end of the summing up on page 56 of the record the learned trial Judge reminded the jury that if they come to the conclusion, that the appellant killed Robby Ann but he did not intend to kill her then that verdict should be manslaughter.
In my opinion, the learned trial Judge was gratuitously generous to the Appellant because apart from adequately stressing that for the prosecution in order to establish murder must prove that the Appellant, if he killed Robby Ann, intended to kill her at the time of the killing, went much further than he was required. He told the jury if they concluded that the Appellant wanted Robby Ann to stop calling his name and that an argument or struggle ensued and death occurred it was open to them to return a verdict of guilty of manslaughter.
The Appellant made a statement from the dock. That was not part of his case. His defence was a straight denial. His defence was an alibi. He was not there. It was not part of the prosecution's case either. There was no evidential basis for this generosity.
Learned Counsel for the Appellant Mr. Clouden, in support of his contention on ground I relied on Regina v Woolin [1999] 1 Cr. App. R. 8 and Tench v R [1992] 41 WIR 103.
In Woolin the Appellant lost his temper and threw his three-month old son on a hard surface. The son sustained a fractured skull and died. The Appellant was charged with murder. The prosecution did not contend that the Appellant desired to kill his son or cause him serious injury. The issue was whether he had the intention to cause the child serious injury.
In summing up to the jury the learned trial Judge told them, inter alia, that if they were satisfied that the Appellant must have realized and appreciated that when he threw the child that there was a substantial risk that he would cause injury to it, then it would be open to them to find that he had intended to cause injury to the child and they should find the offence of murder proved.
The Appellant was convicted. The Court of Appeal dismissed his appeal. On appeal therefrom to the House of Lords.
Held, inter alia, allowing the appeal that where the charge is murder and in the rare cases where the simple direction is not enough, the jury should be directed that they are not entitled to infer the necessary intention unless they feel sure that death or serious bodily harm was a virtual certainty [barring some unforeseen intervention] as a result of the Defendant's actions and the Defendant appreciated that such was the case. The decision was one for the jury to reach upon a consideration of all the evidence. The use of the phrase "virtual certainty" was not confined to cases where the evidence of intent was limited to actions of the accused and the consequence of those actions. Thus, in the instant case the Judge by using the phrase "substantial risk" had blurred the line between intention and recklessness and hence between murder and manslaughter and as that misdirection had enlarged the scope of the mental element required for murder it was a material misdirection. Accordingly, the conviction for murder would be quashed and a verdict of manslaughter substituted.
In Tench, the Appellant had a row with his father and while the father was asleep struck him two blows to his head from which he died. The Appellant was charged with murder. At his trial he pleaded legal insanity. Evidence was given by a psychiatrist who had seen the Appellant eight months after the incident. He stated that the Appellant was mentally retarded and could not appreciate the full consequences of his acts. He said that he could not however speak as to the Appellant's sanity at the time of the incident. Other evidence called at the trial suggested that the Appellant was a normal person and was not mentally retarded. The learned trial Judge did not direct the jury on the possibility of bringing in a special verdict under section 1020 of the Criminal Code [guilty but insane]. The learned trial Judge also failed to mention the subjective test in relation to section 71 and her emphasis on the objective test in relation to section 72 gave the impression that the requisite intent for murder was objective, also she failed to direct the jury in relation to the degrees of probability in the context of sections 71 and 72 [of the Criminal Code of St. Lucia]. The jury found the Appellant guilty of murder and he appealed against his conviction.
Held, substituting a conviction for manslaughter for that of murder:
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[1] that the jury had clearly concluded from the evidence that the Appellant was not mentally retarded to the point of legal insanity at the time of the incident. Accordingly, the failure of the learned trial Judge to direct the jury adequately as to the possibility of bringing in a special verdict under section 1020 was not fatal to his conviction.
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[2] that the subjective test of intent predominated in sections 71 and 72 and it was a serious misdirection to have left the jury with the impression that the requisite intent for murder was objective.
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[3] that although the defence of legal insanity had not been made out to the jury's satisfaction, they might have accepted evidence of the Appellants mental retardation as affecting his foresight of the probable consequences of his acts. Accordingly, the learned trial Judge ought to have directed them on the degrees of probability envisaged by sections 71 and 72.
Sections 12[2] and 12[3] of the Grenada Criminal Code to which Mr. Clouden referred, correspond to Sections 71 and 72 of the St. Lucia Criminal Code.
The instant case is quite dissimilar to Tench and Woolin and is not one of the 'rare' cases where the simple direction on intent is not enough. It is also beyond doubt that what was held under the third limb in Tench bears absolutely no relevance to the case at bar.
The first and second grounds of appeal are therefore dismissed. I now deal with ground 5 of the appeal.
Under this ground [5] it was contended on behalf of the Appellant that the learned trial Judge erred in not giving a "good character direction".
Learned Counsel Mr. Clouden in his skeleton arguments submitted that it is settled law that where there is any doubt as to whether both limbs of the character direction apply, or whether it is thought that it may be necessary in the particular circumstances to modify a "character direction", it is desirable to canvass the proposed direction with Counsel before closing speeches. He argued that this was not done in the case at bar.
In support of this argument learned Counsel referred to R v Durbin [1995] 2 Cr. App. R. 154.
Mr. Clouden argued that the Appellant had put...
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