Bolden and Cumberbatch v The Queen
| Jurisdiction | Barbados |
| Judge | Moore, J.A. |
| Judgment Date | 27 May 2010 |
| Neutral Citation | BB 2010 CA 12 |
| Docket Number | Crim. App. Nos. 4 and 5 of 2007 |
| Court | Court of Appeal (Barbados) |
| Date | 27 May 2010 |
Court of Appeal
Waterman, J.A.; Williams, J.A.; Moore, J.A.
Crim. App. Nos. 4 and 5 of 2007
Mr. Arthur Holder in association with Mr. Kendrid R. Sargeant for appellant Dwayne Bolden.
Mr. Andrew Pilgrim in association with Dr. Lenda Blackman for appellant Ryan Cumberbatch.
Mrs. Wanda Blair for the respondent.
Criminal law - Joint enterprise — Manslaughter — Deceased shot while resisting appellants' attempt to rob him — Conviction — Sentence — 18 years imprisonment — Appeals — Whether convictions unsafe and unsatisfactory — Whether trial judge erring in law — Whether jury adequately directed on law of joint enterprise — Failure of grounds of appeal — Appeals dismissed.
Dwayne Adelbert Bolden (Bolden) and Ryan Adrian Cumberbatch (Cumberbatch) were indicted for the murder of Erskine Marshall on 2 August 2002. They pleaded not guilty to the offence. On 23 February 2007, they were found guilty of manslaughter and on 28 March 2007 sentenced by Reifer, J. to 18 years' imprisonment. They have both appealed their conviction and sentence.
On 2 August 2002 at 7:00 p.m. Deborah Lorde and members of the Salvation Army Youth Group went to clean the Salvation Army Church at Long Bay, St. Philip. At 8:30 p.m. Lorde and her son were cleaning the bathroom when she heard a noise which sounded to her like pebbles being thrown onto galvanized iron roofing. At first she thought nothing of it but soon realised that the other members of the youth group had become concerned, so she decided to close the church.
While closing a window, a young female member of the youth group saw something outside. She spoke to Lorde and they went outside and saw a man lying on the ground entangled in a bicycle. One of the group fetched a flashlight and another went to a neighbour and called the police and ambulance. With the aid of the flashlight Lorde approached the man. She did not know who he was. She spoke to him but he merely groaned and made no other audible response. When the ambulance arrived the man who was later identified as Marshall had succumbed to his injuries.
It is the prosecution case that the appellants met on the 2 August 2002 and devised a plan to rob the deceased. One of the appellants armed himself with a gun and they both went across to the church and hid. The appellant who was armed with the gun approached Marshall, who was shot whilst resisting what seemed to have been an attempt to rob him.
There was no eye witness to the incident. The prosecution case was based on oral and written statements made by the appellants to the police. The appellants were first detained by the police for questioning on the 5 August 2002. On that occasion they were interviewed and they each gave movement statements indicating their whereabouts on the night in question. The movement statements were to the effect that they had nothing to do with Marshall's death and that they were elsewhere when the shooting occurred. The appellants remained in custody for approximately five days and were released without charge. Police investigations continued and on 8 November 2002, four months after the initial interviews, the appellants were again detained for questioning.
At the trial David Rouse, retired police officer, testified that in the year 2002 he had been a police constable and had assisted in the investigations into the death of Marshall. On 8 November 2002, at approximately 6:00 am. he had gone on duty to Bolden's residence. He informed Bolden that he was investigating Marshall's death and as a result there were issues that the police needed to speak to him about. Bolden was asked to accompany the officers to the Central Police Station and he did so voluntarily. On arrival to at the police station Rouse began an interview with Bolden and handed him his previous statement, which he confirmed was the statement he made on 5 August 2002.
On completion of the interview with Bolden, Rouse saw Anthony Maynard (a person considered by the police to be a person of interest) at the station and spoke to him. Maynard made a statement to him in the course of which he said:
“The night that the man get shoot in Long Bay, I was walking through the back and I see Dwayne and ‘Space Cadet’ pass me on a green BMX bicycle. ‘Space Cadet’ was riding and Dwayne was sitting on the handle. Dwayne had a black ‘Adidas’ hat and ‘Space Cadet’ had on a ski mask. Dem passed me and I keep walking and about five minutes later, I heard a gunshot.”
Appellant Cumberbatch is known by the nickname “Space Cadet”.
In the presence of the police Maynard repeated his statement to Bolden who replied, “No, Anthony. No, Anthony. You ain't see me.” Maynard then left the room and rouse resumed his interview with Bolden. Bolden was handed a copy of Cumberbatch's statement, which he read. To this he responded to saying, “Cadet like he stupid or something. He is who shoot the man, I only rob he.”
Bolden then proceeded to give his version of the events and under caution by Rouse he dictated the following confession statement:
“About two months ago, I was home. It was night time and I hear ‘Space Cadet’ shouting for me. I come out of the house and he tell me, “Let we talk.” So we sit down on the well and he tell me that he see a man with a fat bassy out ‘cross de road by de shop and to let we go and rob he. ‘Space Cadet’ showed me a small black gun without a spin barrel and tell me that he gine stick up de man with it. So he and I walk cross Long Bay Road and I had a bicycle walking with. When we reach by the church I give the bicycle to he and he hide it in de grass… We hide by the church for about five minutes and then ‘Space Cadet’ run out and I run out behind he and I see a man walking a bicycle. He had on a white shirt. I see that it was a man that used to sell barbecue chicken by the shop. ‘Space Cadet’ point the gun at the man and say “Pass de money.” The man say, “I ain't got no money” I then see the two of them start to scuffle and ‘Space Cadet’ had the gun in his right hand and all of sudden I hear “brax” and the man say “Aye I get shoot” and he fell down on the ground.
When he was on the ground ‘Space Cadet search through he pockets with both hands and then say, “Come along.” I run and take up the bicycle and me and he run ‘cross the pasture and stopped and ‘Space Cadet’ give me two hundred dollars in Barbados money made up of two hundred dollar bills. He tell me that he get a ring, a chain and a phone and that the two hundred dollars did from de man. I was bummy because of how de scene play so I went home”
At the police station P.C. Cameron Gibbons interviewed Cumberbatch who when cautioned made the following written statement:
“On the 2 August dis year about 5:30 in the evening I was home by my mother sleeping. Dwayne come and shout me. He was on a green mountain bike. He tell me that he got a ‘settee’ to carry me on. He tell me come and go down de road, we went down by Dwayne house and breeze ‘til it get dark in the pea trees by de well. He tell me dat he got a man to rob and we gine breeze in de bush by de church. I ask he who de man. He tell me de Barbecue Man from up de road. He tell me dat it is that sort of time. We get on de bicycle. I ride. Dwayne was on de bicycle handle. We went in de bush by de church and stash off. We wait about 20 minutes in de bush. I see de man coming down de road on a bicycle. Dwayne say this is de man. He tell me let we go. I tell he no because he had de gun. He rush de man, tell he stop and pass de money. De man get off the bicycle and struggle wid Dwayne for four minutes. I hear a shot went off. De man stumble back and drop on de ground. Dwayne searched the man quick and tek off he jewelery. He tek de money out de man pocket. We get on the bicycle and left through de track by de church and we went by Dwayne house. De man was on the ground and he bicycle was a short distance from he.”
At the trial Sgt. Gibbons testified that in the year 2002 he had been a police constable and recalled that he had gone to Cumberbatch's residence on 8 November 2002. On arrival there he identified himself to Cumberbatch and informed him that he was in receipt of information that he was involved in Marshall's death. Cumberbatch was cautioned. During the course of the investigation Cumberbatch made a number of oral statements including, “Top Man, I got a call that wunna got Dwayne, he must be talking,” and “Top man, wunna mussey got new evidence”. Cumberbatch was then arrested on suspicion of committing the offence of murder and cautioned. He was taken to the Criminal Investigation Department at Central Police Station.
The appellants denied taking part in the incident which led to Marshall's death. They both stated that they were elsewhere when the incident occurred and they each relied on the defence of alibi. Further, the appellants contended that the written statements attributed to them by the prosecution were fabricated and their signatures were appended to the statements only after the use of force by the police.
During the trial Bolden made an unsworn statement:
“My name is Dwayne Bolden. I live in Long Bay, St. Philip. On 5 August 2002, a police came to my house and told me that they want to talk to me about a man that get kill in Long Bay. They took me to District ‘C’ Police Station and questioned me for about 20 minutes. The police took me to Oistins Police Station. The police keep me at Oistins from the 5 August 2002, until Friday 9 August, and keep asking me questions, if I know about the death of the man that get kill in Long Bay, St. Philip, Erskine Marshall. I told them that I do not know nothing about the man that get kill in Long Bay. I was in Lynches by a man name ‘Claw’ shop the whole evening. During that time...
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