Hewitt v R
| Jurisdiction | Barbados |
| Judge | Waterman, J.A. |
| Judgment Date | 06 July 2004 |
| Neutral Citation | BB 2004 CA 18 |
| Docket Number | Criminal Appeal No. 28 of 2002 |
| Court | Court of Appeal (Barbados) |
| Date | 06 July 2004 |
Court of Appeal
Williams, C.J. (Ag.); Waterman J.A.; Williams, J.A.
Criminal Appeal No. 28 of 2002
Mr. N. Keith Simmons and Mr. Branford McG. Taitt, for the appellant.
Mr. Charles Leacock, Q.C. and Mrs. Wanda Blair, for the respondent.
Practice and procedure - Appeal against conviction and sentence — Appellant convicted of manslaughter and sentenced to 16 years imprisonment — Trial judge properly took into account the fact that a firearm was used in the commission of the sentence — Offence justified a custodial sentence of 16 years — Appeal dismissed — Sentence affirmed.
The appellant was charged with murdering his girlfriend Audrey Hintizen (“Audrey”) on 29 July, 2000. At the July Assizes of 2002 he was convicted of manslaughter and sentenced to 16 years' imprisonment on 18 July, 2002. His appeal is against conviction and sentence and 6 grounds of appeal were filed on his behalf.
The facts are that on Friday night 28 July, 2000 the appellant and Audrey were at Copacabana night club in the Bay Street area of the City of Bridgetown. He was drinking in one corner of the Club with his friends and she was in another corner with her friends. About 2 a.m. on 29 July, the deceased made arrangements with one Wayne Clarke, alias “Salt Bread”, to get transportation to take her home. He arranged for a taxi; the taxi came and pulled up in Combermere Street just off Bay Street and Clarke sat in the taxi waiting for Audrey. About 2.45 a.m. Clarke saw Audrey coming towards the taxi with the appellant quickly pursuing her. As Audrey got quite near to the taxi the appellant started remonstrating with her, as if he wanted to beat her. There was a quarrel between the two of them. Clarke then got out of the taxi to stop the appellant from beating Audrey. He gave evidence that he was backing the appellant and was facing Audrey when he heard an explosion. He then heard Audrey scream and he saw her fall to the ground. Clarke immediately ran back to the taxi and was driven straight to Central Police Station where he reported the matter.
At about 3.45 a.m. Sergeant Leacock and other police officers responded to the report. Sergeant Leacock conducted police investigations at the scene, where he saw the appellant and invited him to accompany them to Central Police Station. Police Constable Clarke took command at the scene where the body was, and the scene was restricted. Police Constable Boyce, the police photographer, arrived about 6.45 a.m. and he took photographs.
Dr. Andrew Murray also visited the scene that morning where he examined Audrey's body and pronounced her dead. His evidence is that he saw an injury to her chest. The body was then removed and on the same day the appellant was taken to the police station where he was interviewed by police officers Leacock and Lynch.
The appellant made an oral statement to Sergeant Lynch which he recorded in his official police notebook. This is what he said: “Sergeant I shot that woman by accident.”
At 3.30 p.m. the same day, the appellant gave a written statement, to the admissibility of which no objection was taken. The written statement is as follows (page 88):
“Last night when I leave Copa I went through Beckwith Street and I saw my girl Audrey walking towards Saltbread and I shout she. I then walk towards Audrey. Saltbread who did sitting in a taxi, then get out of it. I had a gun in my hand because I see a man who did shoot me in my finger and I did not taking any chances. Saltbread then hold on to Audrey and I hold she hand. Saltbread and I had a struggle for the gun I had. The gun then went off and shoot Audrey accidental. She then dropped to the ground and I pick she up and she dead in my arms. I drop the gun and I don't know where it is. I sorry that it happen.”
The appellant subsequently directed police officers Lynch and Gill to an area at the junction of Beckwith Street and Bay Street and said, “this is where I shoot Audrey and drop the gun”. He was cautioned. Then about 4 feet away from the street pole he pointed to another area and said, “this is where I pick up Audrey and she dead in my arms”.
At the trial the appellant made an unsworn statement from the dock in which he gave this version of the events (pages 68–69):
“On the night in question, sir, me and Audrey sleep at the same house, we get up about minutes to 8, sir. We went to the bathroom together. We bathe one another, sir. When we done bathe one another, sir, we dress. Audrey call a taxi. We get in the taxi and leave the house. We went to Combermere Street. I get out de taxi in Combermere Street, sir, and walk Audrey to Bay Street to Copacabana. We get upstairs Copacabana, sir, Audrey went behind the bar put down she bag and some keys she had fuh de house.
I leave Audrey and went back in Combermere Street. Fifteen minutes later I went back in Copacabana to check Audrey when I get back upstairs, sir, the bartender tell me Audrey now left and gone down the step. I leave Copacabana and went back down the step. I went back in Combermere Street. When I got back to Combermere Street I spoke to one of my friends by the name of Hendy. He tell me Audrey now gone ‘round the corner to go back on Bay Street. I walk and went ‘round the corner.
Before I get to the four-cross I did see a fellow that a time back, years back, in Chapman Lane he did shoot me. I saw him with an object in his pocket and he did reaching for his pocket. The same time when I look to the bottom of de gap I see Audrey and “Salt Bread” and Audrey got “Salt Bread” holding. I went and I tell “Salt Bread” let go Audrey hand and let me get Audrey offa de road and “Salt Bread” resist to let go Audrey hand. I had a gun in my hand, “Salt Bread” snatch at de gun, me and he had a struggle then I see Audrey, Audrey did gine to fall to the ground, sir and I catch Audrey. I let go everything I had in my hand, sir, and catch Audrey and try to revive Audrey, sir. Couple minutes after, sir, Audrey count-out in my hands, sir. I try stopping a car to carry Audrey to the hospital and de man drive along and left me on de sidewalk with Audrey. I stay with Audrey until the police come. That was it, sir.”
The evidence of the forensic pathologist, Dr. Stephen Jones, revealed that there was an entry wound to the front of the chest of the deceased lateral to the left nipple and that the entry wound appeared to be a gunshot wound and that it traversed through the body. It penetrated the right ventricle of the artery into the lower lobe and exited at the back. Death was attributed to shock and haemorrhage as a result of the gunshot injury to the chest.
The appellant's defence was that the deceased was shot accidentally. Accident was an issue at the trial and was dealt with at length by the trial judge in his summation.
The Grounds of Appeal as stated in the record are:
- That the learned trial judge failed to assist the jury in identifying, applying and assessing the evidence in relation to his direction of law on inconsistencies and discrepancies particularly in relation to the evidence of Wayne Clarke. 2. That the learned trial judge failed to adequately put the case for the defence to the jury. 3. That the learned trial judge erred in law by failing to direct the jury to bring a formal verdict of not guilty. 4. The verdict was against the weight of the evidence. 5. The verdict was unsafe and unsatisfactory. 6. The sentence was excessive.
Counsel complains that the trial judge failed to assist the jury in identifying, applying and assessing the evidence in relation to his directions of law on inconsistencies and discrepancies particularly in relation to the evidence of Wayne Clarke. In support of his submissions counsel cited Fuller v. The State (1995) 52 W.I.R. 424, Abdulla and Others v. The State (1971) 17 W.I.R 266 and The State v. Mootoosammy and Budhoo (1974) 22 W.I.R. 83.
Counsel has drawn to the Court's attention in particular the discrepancies and inconsistencies in the evidence of Wayne Clarke at pages 57, 58, 62, 63, 80 and 98 of the record, which dealt with his account of what transpired between the appellant and Audrey just prior to her death.
The learned judge told the jury (at pages 80–81) how they should deal with discrepancies and inconsistencies:
“I must also give you a direction on dealing with discrepancies and inconsistencies. If you find that a witness has lied before you on oath, you should reject his evidence entirely. The reason is, that a witness who lies to you on oath on any particular matter, is capable of lying to you on the rest of his evidence and would therefore be unreliable. If on the other hand, you find that a witness has not deliberately lied to you but was mistaken or confused, on any particular matter, you should nevertheless look at the whole of the evidence to determine where the truth of the matter lies and what weight or value you place on the witness' evidence.
When I come to read the evidence, you may wish no doubt to bear in mind and to look carefully, certainly at all the evidence, but particularly no doubt at the evidence of Salt Bread and indeed also that of the accused.
I must also direct you in dealing with inconsistencies. This occurs where one witness says one thing and another witness says something different in respect of the same matter. Where you find a contradiction on the same subject matter, you should apply the same test I mentioned earlier to determine if a witness is lying or if he is merely mistaken or confused.”
The learned Judge after carefully reviewing the evidence of Wayne Clarke (at pages 98–106) then analysed (at pages 106–107) Clarke's evidence for the benefit of the jury as follows:
“So there you have the evidence of “Salt Bread” and Mr. Foreman and you members, you have to make what you can...
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