Cummins v R

• Jurisdiction: Barbados
• Judge: Simmons, C.J.
• Judgment Date: 13 July 2004
• Neutral Citation: BB 2004 CA 19
• Docket Number: Criminal Appeal No. 56 of 1995
• Court: Court of Appeal (Barbados)
• Date: 13 July 2004

Court of Appeal

Simmons, C.J.; Waterman, J.A.; Williams, J.A.

Criminal Appeal No. 56 of 1995

Cummins

and

R

Appearances:

Mr. Andrew Pilgrim for the appellant.

Mr. Charles Leacock Q.C., Director of Public Prosecutions, and Mr. Douglas Frederick for the respondent.

Practice and procedure - Appellant indicted on 3 counts — Appellant sentenced to three concurrent terms of life imprisonment — Appeal against conviction — Appeal against sentence — Imposition of a long custodial sentence is justifiable on the basis of the seriousness of the offence — Appellant's conduct warranted custodial sentences — Sentences imposed by the trial judge were and are proportionate to the gravity of the offences — Trial judge's omission to inform counsel of his intention to impose sentences merited a variation of the sentences.

INTRODUCTION

Simmons, C.J.

1 This is an appeal in which the appellant alleges in his ground of appeal against conviction that counsel at his trial, Mrs. Zarina Khan, failed to carry out his instructions and, as a result, he was convicted and sentenced to 3 concurrent terms of life imprisonment. Alternatively, the ground of appeal against conviction alleges that counsel caused a plea of Guilty to be entered against him under circumstances of duress. The appellant also appeals against the sentences. He was indicted on 3 counts; that on 10 October 1994 he kidnapped a 10 year old girl, contrary to section 30 of the Offences Against the Person Act, Cap. 141, wounded her with intent to do serious bodily injury contrary to section 16 of the same Act, and raped her contrary to section 3(1) of the Sexual Offences Act, Cap. 154. This appeal has been inactive for many years. The reasons for the inordinate and inexcusable delay in disposing of it are not clear to this Court. We shall deal with the facts later but, first, we shall try to explain the delay in disposing of this appeal earlier.

THE HISTORY OF THE APPEAL

2 The appellant was convicted on 8 November 1995 and sentenced on 9 November 1995. He filed his Notice of Appeal on 16 November 1995. On 20 February 1998 the then Chief Justice, Sir Denys Williams, certified the appeal as one fit for legal aid under the provisions of the Community Legal Services Act, Cap.112 A. Mr. Randall Worrell, attorney-at-law, was assigned as counsel to argue the appeal on 13 May 1997. For reasons not known to this Court, the assignment was subsequently changed and Mr. Andrew Pilgrim has been the attorney-at-law on record for the appellant since 14 September 1998. According to the Court's file, the appeal was listed for hearing on 17 November 1998 and the Court of Appeal requested a psychiatric report on the appellant from Dr. Richard Corbin. There was a further adjournment on 9 December 1998.

3 On 4 occasions between 8 February 1999 and 6 July 1999, the appeal came on for hearing. It was adjourned on each occasion until 6 July 1999 when it was adjourned sine die. So far as we can ascertain, on that date, Mr. Pilgrim indicated to the Court that he had instructions that, on his arraignment, the appellant had pleaded Not Guilty to the charges and there was some confusion which was not reflected in the record. The reason for the adjournment sine die was to allow the record to be checked and leave was granted for the filing of various affidavits by the appellant, Mrs. Khan and Mr. Leacock, the Director of Public Prosecutions, who appeared at the trial. No further action seems to have been taken to prosecute the appeal for the next 3 years. The appellant and Mr. Pilgrim wrote letters in 2003 requesting that the appeal be re-listed. It was set for hearing on 18 February 2004 when it was adjourned at the request of the appellant. It was finally heard on 2 June 2004.

4 It is again not clear to us whether the record of appeal was submitted to the trial judge (who had by that time retired) for him to consider its accuracy in accordance with the practice recommended by Megaw, L.J. in Pitman v. Southern Electricity Board [1978] 3 All E.R. 901, followed by Crane, C. in The State v. Solomon (1982) 33 W.I.R. 149 and approved by the Barbados Court of Appeal in ( Theophilus Pile v. R. Criminal Appeal No.61 41993, unreported decision of 9 May 1996). However, we need to say a few words about the record of appeal.

THE RECORD OF APPEAL

5 Prior to October 2000, records of appeal did not reflect the use of technology. Notes of evidence were taken by the trial judge in his own handwriting. Since October 2000 all that has changed. Court reporters transcribe the proceedings verbatim aided by computers.

6 The record of appeal, which purports to be a reproduction of the judge's notebook, contains: (a) the charges and the entry of pleas of Guilty thereto; (b) the legal appearances; (c) the arraignment; (d) the outline of the facts by Mr. Leacock; (e) a note that the allocutus was put and that the appellant made no response; (fl a summary of Mrs. Khan's speech in mitigation; (g) the sentences and the reasons therefor.

THE APPELLANT'S COMPLAINT

7 The appellant sent a document in his own handwriting to the Registrar of the Supreme Court (erroneously dated 17 March 1995, but more likely 17 March 1996 or thereafter) in which he complained that he had pleaded Not Guilty to the 3 charges, that there was confusion and that the judge told him that he thought he had heard him plead Guilty, and told Mrs. Khan “I thought I heard your client plead Guilty”. He said that she walked over to him in the dock and asked him what he was doing and he said he was pleading Not Guilty. Mrs. Khan is alleged to have asked “On what grounds?” and the appellant said that an argument ensued between himself and Mrs. Khan. He says he insisted on pleading Not Guilty, but Mrs. Khan walked away and began her plea in mitigation after which he was sentenced. He set out a list of questions addressed to Mrs. Khan. This document was sent to Mrs. Khan by Mr. Pilgrim by letter of 14 September 1998. He advised her that the appeal was set for hearing on 18 September 1998 and that he required her prompt response. She was unable to reply before 9 October 1998 and in her response she answered all of the questions of the appellant. This correspondence has been reduced to affidavits filed pursuant to the leave granted on 6 July 1999. They bear directly upon the main issue in this appeal.

(i) APPELLANT'S AFFIDAVIT

8 Although dated last in time (12 July 2002) the appellant's affidavit is basically a reproduction of his earlier document addressed to the Registrar and referred to in the preceding paragraph. Inter alia, the appellant deposes:

• “9. I was taken to Court on the 8th November 1995 and was arraigned before Mr. Justice Elliot Belgrave. The Director of Public Prosecutions appeared for the Crown and Ms. Zarina Khan appeared as my Attorney. The counts of kidnapping, sexual assault and wounding with intent were read and I pleaded not guilty to each of the three counts.

• 10. After this the judge read his notes of the proceedings and then asked me “Do you have anything to say before I pass sentence on you?” To my confusion and astonishment I said “What do you mean pass sentence, I plead not guilty to each count.” To which the judge replied that he thought he had heard me plead guilty and asked “Are you changing your plea?”

• 11. As I was about to respond to the questions the judge interjected by calling upon my attorney and saying “Ms. Khan I thought I heard your client plead guilty?”, to which she replied “Well sir.” and walked over to me and asked me “What are you doing?” I then replied “I am pleading not guilty” and she asked on what grounds was I pleading not guilty.

• 12. We then had an argument in which I consistently reiterated to her that I intended to plead not guilty.

• 13. She then walked away and addressed the Court in what I later found out was her plea in mitigation rather than informing the Court as to my plea of not guilty to each of the three counts.

• 14. At all times my instructions to my attorney were that my intention was to plead not guilty to each count and in this respect she failed to follow my instructions.

• 15. I then forwarded a number of questions to Ms. Khan for her response, namely:

  • a. Can you remember my instructions to you on the mentioned date when you were representing me?

  • b. Didn't I distinctly tell you that it is my intention to plead not guilty?

  • c. Didn't I plead not guilty?

  • d. Do you think that I would change my mind from my original plea and not inform you?

  • e. When you returned to me whilst I was in the dock didn't I tell you that I had pleaded not guilty and I don't understand what is happening and that it is still my intention to plead not guilty?

  • f. Why did you allow the proceedings to continue even though what was going on was contrary to my wishes?

  • g. Wasn't it an error on your part to have proceeded contrary to your client's wishes?

  • h. Didn't I tell the Court that I never wanted to plead guilty at all?

  • i. Wasn't my plea clear to you?

  • j. Can you remember what I'd said when I discovered to my amazement that the trial wasn't going as it was supposed to go when the Accused pleads not guilty?

  • k. Can you remember that I said the second time that I'd pleaded not guilty?

• 16. Ms. Khan responded to me by means of a letter dated the 9th October, 1998 and addressed to Mr. Andrew Pilgrim, the qttorney-at-law retained to prosecute my appeal, which letter is now shown to me and marked ‘A.’

(ii) MRS. KHAN'S AFFIDAVIT

9 Mrs. Khan had represented the appellant at the preliminary inquiry and at the trial. So far as material to this appeal, she deposed as follows:

• “4. In relation to paragraph 6 of the Notes, I say that when the charges were read to the accused, I heard him plead guilty to all three charges as did the judge, Mr. Judge, Mr. Elliot Belgrave.

• 5. I further state that when the judge, Mr. Elliot Belgrave asked the accused...