Sheldon Bain v The Queen

• Jurisdiction: Grenada
• Judge: Thom JA
• Judgment Date: 08 November 2019
• Judgment citation (vLex): [2019] ECSC J1108-1
• Docket Number: GDAHCRAP2016/0007
• Court: Court of Appeal (Grenada)
• Date: 08 November 2019

[2019] ECSC J1108-1

EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Before:

The Hon. Mr. Davidson Kelvin Baptiste Justice of Appeal

The Hon. Mde. Gertel Thom Justice of Appeal

The Hon. Mr. Paul Webster Justice of Appeal [Ag.]

GDAHCRAP2016/0007

Between

Sheldon Bain

Appellant

and

The Queen

Respondent

Appearances:

Mr. Cajeton Hood for the Appellant

Mr. Christopher Nelson, QC, the Director of Public Prosecutions, and Ms. Crisan Greenidge, Crown Counsel for the Respondent

Criminal Appeal — Appeal against conviction and sentence — Discretion to order separate trial — Whether learned judge erred in refusing to order separate trial of jointly indicted accused — No case submission — Whether learned judge erred in dismissing no case submission — Whether inconsistencies in evidence rendered prosecution case tenuous — Directions to jury on drawing inferences — Directions on defences not raised by evidence — Whether judge erred in failing to direct jury on defence of manslaughter — Joint enterprise — Whether miscarriage of justice occasioned by judge's failure to direct jury in accordance with R v Jogee and Ruddock v The Queen — Whether judge's summation favoured the prosecution — Whether judge erred in allowing opinion evidence based on pathologist's practical experience in ballistics — Whether sentence excessive — Time spent on remand — Whether period for which convict escaped from prison and was incarcerated in another jurisdiction should be counted as time spent on remand

The appellant, Sheldon Bain, along with Kenton Phillip (“Kenton”), Elvon Barry (“Elvon”), and Zoyd Clement (“Zoyd”) was convicted on 7 ^th April 2004 for the murder of Omelia Roberts. On 25 ^th June 2004, Kenton was sentenced to life imprisonment, Elvon to 18 years imprisonment with hard labour, and Zoyd, who was 17 years old at the date of the offence, was sentenced to be detained at the court's pleasure for a period not exceeding 15 years, the said sentence to be reviewed at intervals of 5 years. The appellant was not sentenced at the same time with the others as he had escaped from Her Majesty's Prison on 8 ^th April 2004, the day after he was convicted. He was arrested in Saint Vincent and the Grenadines, returned to Grenada in November 2015 and was sentenced to 80 years imprisonment on 11 ^th March 2016 after a sentencing hearing.

At trial, the Crown's case was that the appellant, along with Kenton, Elvon and Zoyd, went to the home of Omelia Roberts in Belmont on the evening of 8 ^th October 2002 to rob her of a certain sum of money. In the course of the robbery, Omelia Roberts was shot and killed by Kenton. The Crown relied on the evidence of their main witness Oliver Williams (“Oliver”) who was familiar with all four men.

The appellant's defence was a complete denial of the Crown's case except so far as him being in the company of the co-accused men and Oliver on the evening of the murder.

The appellant appealed his conviction and sentence. The issues arising in this appeal can be broadly summarised as follows: (i) whether the learned judge erred in refusing to order separate trials and whether the manner of editing the statements of the co-accused men concealed his identity; (ii) whether the learned judge erred in refusing to uphold the no case submission; (iii) whether the learned judge erred in his direction to the jury on the mental element required for an accessory; (iv) whether the learned judge failed to give adequate directions on the alternative verdict of manslaughter; (v) whether the learned judge's summation was wholly inadequate and erroneous; (vi) whether the learned judge erred in admitting the expert evidence of a pathologist on a ballistic issue; and (vii) whether the sentence of eighty years was excessive in the circumstances.

Held: allowing the appeal in part; dismissing the appeal against conviction and affirming the conviction of the appellant for the offence of murder; allowing the appeal against sentence to the extent that the sentence of eighty years' imprisonment is varied to thirty-eight years, six months and nine days' imprisonment, that:

• 1. Section 126 of the Criminal Procedure Code provides the court with a discretion to order separate trials on the application of an accused or the Attorney-General. The appellant applied on the ground that the statements under caution of his co-accused contained evidence which was inadmissible and prejudicial to him. Though a critical factor to be taken into account, it must be weighed against the public interest that joint offenders should be tried jointly. In this case, the interest of justice and the fairness of the trial could be protected by editing the statements and giving explicit directions to the jury that the evidence in the statements is not evidence against the accused, which the learned judge did. Clear directions were also given to consider the evidence of each accused separately and that there were four separate cases. There were no exceptional circumstances in this case to justify separate trials. It follows then that there is no basis for this Court's interference with the exercise of the learned judge's discretion as it did not exceed the generous ambit within which reasonable decision makers may disagree. Furthermore, any possibility of prejudice suffered by the appellant would have been neutralised by the detailed directions the learned judge gave the jury on the inadmissibility of the evidence of the co-accused against the appellant and of which there has been no complaint by the appellant.

  Section 126 of the Criminal Procedure Code, Cap. 72B, Revised Laws of Grenada 2011 considered; Dufour and Others v Helenair Corporation Ltd and Others (1996) 52 WIR 188 applied; R v Lake (1976) 64 Cr App Rep 172 applied; R v Hayter [2005] UKHL 6; Lobban (Dennis) v R (1995) 46 WIR 291 applied;

• 2. Where the prosecution's evidence is so tenuous that a jury properly directed could not properly convict on it, it is the duty of the judge, on a no case submission, to stop the case. The inconsistencies in Oliver's evidence, which formed the basis for the appellant's no case submission, related to peripheral issues which could not be said to undermine the prosecution's case. The prosecution's case was also not made tenuous by the fact that Oliver could be characterised as an accomplice or as a person with an interest to serve, as the learned judge gave adequate directions to the jury on evidence of an accomplice and emphasised that Oliver's evidence was uncorroborated. The appellant's argument that the judge ought to have upheld the no case submission, must fail.

  R v Galbraith [1981] 2 All ER 1060 applied.

• 3. There was no direct evidence from the Crown against the appellant that he had provided the gun. This was an inference which the Crown was asking the jury to draw having regard to their evidence. When the conduct of the appellant is considered as a whole, it was open to the jury to draw such an inference. It is true that the learned judge could have told the jury that there was no direct evidence that the appellant provided the gun. However, the jury having heard all of the evidence would have known that no one testified that the appellant provided the gun, and they were adequately directed on the drawing of inferences.

• 4. A judge is required to direct the jury on any possible defences that arise on the evidence led at the trial, whether or not the evidence on those defences come from the defendant's case or from the prosecution's case. The judge is required to do so even where the defendant for tactical reasons does not rely on a defence. On the evidence at the trial, the issue of manslaughter in relation to the appellant did not arise. There was therefore no duty on the judge to leave the issue of manslaughter to the jury.

  R v Hopper [1915] 2 KB 431 applied; Von Starck (Alexander) v R (2000) 56 WIR 424 considered.

• 5. The fact that the judge gave a Chang Wing-Siu direction, gives rise to the need to determine whether there was evidence that the appellant shared the common intention to kill or cause grievous bodily harm to the victim in accordance with Jogee and Ruddock. In all the circumstances of this case, it was appropriate to conclude that the appellant had the necessary conditional intent for the use of the gun to kill or cause grievous bodily harm if necessary in the course of the robbery. This was within the scope of the plan to rob to which the appellant agreed and gave his support to the very end. Accordingly, the judge's direction in relation to the mental element of joint enterprise did not occasion a miscarriage of justice.

  R v Jogee and Ruddock v The Queen [2016] UKSC 8; [2016] UKPC 7 applied.

• 6. It is settled law that a judge has a duty to present the case to the jury in an impartial manner. The judge must put the case for both sides fairly. It is impermissible for a judge to give a jury the impression that he favours the prosecution's case over the defendant's case or vice versa. Upon a review of the summation as a whole, the judge treated both the evidence of the prosecution and defence in an even-handed manner. It is evident that the judge gave a balanced summing up, and that the appellant was not deprived of the substance of a fair trial.

  R v Nelson [1997] Crim LR 234 applied; Harewood (Vincent) v R (1994) 48 WIR 32 considered; Mears (Byfield) v R (1993) 42 WIR 284 considered.

• 7. It has long been recognised that experience and knowledge in an area is sufficient to make opinion evidence admissible even where a witness has no formal qualification in the area. While Professor Vigoa was a pathologist, and not a ballistic expert, as a result of his experience of over 34 years in the field of pathology, the learned judge was entitled to admit the evidence. The jury hearing his evidence would have also taken both his formal qualification and experience into account when evaluating the...