Sheldon Bain v The Queen
| Jurisdiction | Grenada |
| Judge | Thom JA,Paul Webster,Davidson Kelvin Baptiste |
| Judgment Date | 01 November 2019 |
| Neutral Citation | GD 2019 CA 3 |
| Date | 01 November 2019 |
| Docket Number | GDAHCRAP2016/0007 |
| Court | Court of Appeal (Grenada) |
EASTERN CARIBBEAN SUPREME COURT
IN THE COURT OF APPEAL GRENADA
Before: The Hon. Mr. Davidson Kelvin Baptiste
The Hon. Mde. Gertel Thom
The Hon. Mr. Paul Webster
GDAHCRAP2016/0007
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
Civil practice and procedure Appeal against conviction and sentencing — Whether judge erred in refusing to order separate trials resulting in the appellant suffering grave prejudice since he was implicated in the statements of the co — accused — Whether judge erred in not upholding the no — case submission on the second limb of R v. Galbraith — whether judge misdirected the jury on the case against the defendant since there was no evidence in support of the direction given — Whether judge erred when he applied principle in Chin Wing-Siu v. R in relation to mental element required for an accessory — Whether judge's summation was unbalanced as judge made comments which were prejudicial to applicant's defence — Whether judge erred in admitting opinion evidence since the opinion was on a matter which was outside witness' area of expertise — Whether judge failed to adequately direct jury on circumstantial evidence — Whether sentence of eighty years' imprisonment was manifestly excessive as it was in effect a natural life sentence — Whether judge based sentence on an erroneous conclusion of fact and failed to take into account certain mitigating factors — Whether judge failed to give credit for time appellant spent on remand.
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 coaccused 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 coaccused 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 weight of his evidence. In all the circumstances, the judge did not err in allowing Professor Vigoa's evidence.
Furthermore and in the alternative, Professor Vigoa, having conducted the postmortem examination, gave evidence which, in his expert opinion, was consistent with his finding that the deceased was in a lower position than the gun. This was within his purview as a pathologist. Accordingly, there is no merit in the contention that the evidence of Professor Vigoa was not within the limits of his expertise as a pathologist.
R v Robb (Robert McCheyne) (1991) 93 Cr. App. R. 161 considered; The State of Trinidad and Tobago v Boyce [2006] UKPC 1 considered; Myers v R [2015] UKPC 40 considered; R v Hodge (2010) 77 WIR 247 considered.
8. There is no duty on a judge to give the jury special directions on circumstantial evidence. A judge is however required to make clear to the jury that they must not convict unless they are satisfied of the accused's guilt beyond reasonable doubt. The judge did so on several occasions throughout the summation and therefore cannot be faulted in this regard.
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