Edward Bailey v The Queen
| Jurisdiction | Barbados |
| Judge | Goodridge JA |
| Judgment Date | 17 December 2019 |
| Neutral Citation | BB 2019 CA 27 |
| Docket Number | Criminal Appeal No. 13 of 2016 |
| Court | Court of Appeal (Barbados) |
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
The Hon. Sir Marston C. D. Gibson, K.A, Chief Justice, The Hon. Kaye C. Goodridge, Justice of Appeal and The Hon. Margaret A. Reifer, Justice of Appeal (Acting)
Criminal Appeal No. 13 of 2016
The Appellant in person
Mr. Alliston Seale for the Respondent
Criminal Law - Murder — Appeal against conviction and sentence — Whether judge's interventions amounted to an obstruction of appellant's cross-examination of witnesses — Whether judge should have withdrawn case from the jury — Whether judge failed to adequately warn jury regarding witness testimony — Whether judge failed to adequately put defence of self-defense to jury — Whether judge failed to identify certain discrepancies and inconsistencies to jury — Whether judge failed to adequately present evidence to the jury — Evidence Act, Section 137(1) — Hooper v. R Criminal Appeal No. 18 of 2008 — Edwards and Haynes v. The Queen [2017] CCJ 10 — R v. Galbraith 73 Cr. App. R 124 CA — Pierre Lorde v. R (2006) 73 WIR 28.
On 9 April 2013, the appellant was arraigned on a charge of murdering Ricardo Small (the deceased) on 15 January 2009. He entered a plea of not guilty to that charge. At the trial, the appellant represented himself and Mr. Arthur Holder, attorney-at-law, appeared as amicus curiae. On 24 May 2013, the jury found the appellant not guilty of murder, guilty of manslaughter by a unanimous verdict.
On 13 December 2013, the appellant was ordered to serve 15 years 67 days in prison. He has now appealed against his conviction and sentence.
The prosecution adduced evidence in the form of photographs, the bullet extracted from the body of the deceased, the oral and written statements of the appellant and eyewitness accounts of the incident.
According to the prosecution's case, in the written statement attributed to the appellant, on 15 January 2009, the deceased had pulled a gun on him and had threatened to shoot him before the day was over. The appellant retrieved a firearm which he had hidden in a stash at Vauxhall and returned to the Blue Bar Block with it. The statement continued that the deceased had threatened the appellant a second time while in a minivan by pointing his finger at him and saying “Just now”.
Later that evening, the deceased was a passenger in the Route Taxi ZR-244 which was being driven by a Dayne Harewood. The deceased was seated in the front seat closest to the left side passenger door and a female passenger, Ms. Trisha Thomas sat between him and the driver.
As the vehicle made a stop in Gall Hill, Christ Church, the appellant approached the vehicle. The eyewitnesses, Mr. Harewood and Ms. Thomas testified that after a brief exchange of words between the appellant and the deceased, the appellant drew a firearm and shot the deceased, who was unarmed. The occupants of the vehicle, including the driver, exited the ZR van through the windows and door, while the deceased got into the driver's seat and attempted to move the vehicle. He failed in this attempt. The deceased then exited the vehicle and ran off with the appellant in pursuit. The appellant was still armed. The deceased ran into a building which housed a business known as Johnno's Pizza where he fell to the ground. The appellant remained on the outside of the building for some time before he left.
The deceased was transported to the Queen Elizabeth Hospital by ambulance where he was pronounced dead on arrival.
A post mortem conducted by Dr. Stephen Jones, Consultant Pathologist, on 16 January 2009, revealed that the deceased sustained 2 gunshot injuries. Dr. Jones' opinion was that death was as a result of gunshot injury to the abdomen with haemorrhage and shock.
The witness, Jamal Layne, testified that earlier that morning some men had come onto the block asking after the appellant in a hostile manner and that the deceased had been one of those men. Another witness, Shawn Yarde, testified that there was an ongoing feud between two groups of men and that the appellant had made threats within earshot of the deceased.
The appellant gave an unsworn statement and called 6 witnesses in his defence. He did not deny shooting the deceased but maintained that the shooting was done in self-defence.
According to the appellant's unsworn statement, on the day in question, he was on the Falcon Crest block when he was approached by the deceased and another man. The appellant and this man quarrelled and the appellant then left on a bicycle.
That afternoon, while the deceased was in a public service vehicle, he pointed his finger at the appellant and stated that before the day was over he was going to “gun” him down. Later, the deceased came up in another van, and pointed his hand through the window stating “Just now”.
Sometime in the evening, the appellant was sitting under a dunks tree when Route Taxi ZR-244 came up and stopped. The appellant took up a firearm which had been placed in the bush next to him and went across the road. The deceased who was in the vehicle leant to his right side and pulled out something with his left hand. The appellant on seeing the handle of a firearm got annoyed, pulled the gun out of his pocket and stated “Wuh happen you coming round me all the time so, boy? I ain't do you nothing or nothing so. Wuh happen you coming ‘round me all the time so”.
The appellant continued that he put the firearm at his side. He heard an explosion. The appellant spun around and saw the deceased raising a firearm towards him. He and the deceased shot at each other. The deceased ran down the road with the appellant behind him but he had no intention of doing anything to the deceased. After the deceased ran into Johnno's Pizza, the appellant left the area and went home.
The appellant's witnesses, Viril Harewood and Douglas Aurelien, testified that they saw the deceased with a firearm at the time the incident occurred.
By notice of appeal filed on 10 July 2013, the appellant appealed against his conviction. Subsequently, on 19 December 2016, a notice of appeal against his conviction and sentence was filed.
Case management orders were made in respect of this appeal on 7 June 2017 and 25 October 2017 respectively. Those orders were not complied with.
On 22 March 2018, Ms. Safiya Moore, who was then counsel for the appellant, sought an extension of time for the filing of grounds of appeal and written submissions. That extension was granted.
On 24 September 2018, Ms. Moore made an application to withdraw as counsel in the matter. She indicated that the appellant wished to deal with the appeal on his own and that there was no need for a reassignment of counsel by the Community Legal Services Commission. This was confirmed by the appellant who informed the Court that he was going to argue the appeal himself and requested an adjournment to prepare his submissions. The matter was adjourned to 21 November 2018.
The appellant argued 21 grounds in relation to his conviction and 2 grounds on sentence. We shall set out these grounds and discuss them below.
It is convenient to deal with these grounds together. The appellant has alleged that the judge erred in law by entering the arena and obstructing and deflecting his questioning of Mr. Dayne Harewood, Sgt Allen Bailey and Ms. Trisha Thomas and in so doing, assisted the Crown. In support of this submission, the appellant relied on Matthews & Matthews (1984) 78 Cr. App. R. 23.
The relevant legal principles which are applied by this Court when dealing with a complaint of improper interventions by a trial judge were set out at paras [11] and [13] of Colin Wooding v R, Criminal Appeal No. 2 of 2002 where Sir David Simmons CJ stated:
“[11] The question in any case where it is alleged that a trial judge improperly intervened in the trial must be answered both from the standpoint of the defendant (subjectively) and from the standpoint of a reasonable person who might have observed the trial (objectively). Thus, the trial must have been fair in the eyes of the bystander. Convictions will be quashed where judicial interventions have made it impossible for defence counsel properly to present the defence or have deflected counsel during cross-examination from his strategy and considered line of questioning.
[13] In determining whether judicial interventions may amount to material irregularities adversely affecting the fairness of a trial, it is important to analyse not only the quantity of interventions but the quality of those interventions. A large number of interruptions may, at first, put the court on notice that there may be a denial of justice, but the large number is not, per se, decisive- see Purchas LJ in Matthews & Matthews (supra) at p.32, “The critical aspect of the investigation is the quality of the interventions as they relate to the attitude of the judge… Essentially the investigation is whether it might reasonably appear that the appellant did not have a fair trial and, in particular, whether excessive judicial intervention may have created a real danger that the trial was unfair. The number of interruptions or questions are, by themselves, insufficient to give rise to unfairness. It is the quality of interruptions that counts.”
We have examined the interventions which are the subject of complaint against the background of the above principles. In our opinion, those interventions do not amount to obstruction of the appellant's cross-examination of the witnesses. Rather, they can be characterised as the judge managing the proceedings, preventing repetitive questioning and ensuring that the rules of...
To continue reading
Request your trial