Huggins v R
| Jurisdiction | Barbados |
| Judge | Simmons, C.J. |
| Judgment Date | 27 March 2002 |
| Neutral Citation | BB 2002 CA 14 |
| Docket Number | Criminal Appeal No. 39 of 2001 |
| Court | Court of Appeal (Barbados) |
| Date | 27 March 2002 |
Court of Appeal
Simmons, C.J.; Chase, J.A.; Waterman, J.A.
Criminal Appeal No. 39 of 2001
Mr. A. Pilgrim and Mr. K. Robertson for the appellant.
Mr. C. Leacock Q.C., Director of Public Prosecutions, for the respondent.
Practice and procedure - Directions to the jury — Defence of accident — Whether the trial judge erred in law in failing to give any adequate directions on accident — Finding that the failure of the judge to define accident was not significant, though accident ought to have been defined — Consider Andre Orlando Best v. R., Court of Appeal, Barbados No. 18 of 2001 unreported
Practice and procedure - Directions to jury — Whether judge erred in law in failing to ascertain the difficulties faced by the jury on their return for further directions — Finding that the unsuccessful efforts to elicit from the foreman the problem encountered by the jury was not a material irregularity such as would lead to the conviction being quashed.
On July 19, 2001, the appellant was convicted and sentenced to death for the murder of Stephen Wharton (“the deceased”), committed on November 30, 1999. Independence Day is celebrated on November 30 th each year.
On that day in 1999, there were to be festivities in the Golden Rock area of Pinelands. A stage for live performances was set up and tape recorded music was being played. People began to congregate near the pasture on which the stage was set up. Vendors began to ply their different trades. One called Sheriff had a small shop from which he sold beer. Another, the deceased's brother, Neil Wharton, was selling fruit from his stall.
About 11.30 a.m. the deceased and at least three other persons were in a little group. The deceased was drinking a beer. A man from the group ran towards the back of the fruit stall and spoke to a man known as “Tone”. Then he ran towards the Golden Rock Senior Citizens' Home where the appellant was.
It was the Crown's case that at this point, the deceased's brother Neil saw the appellant tie a scarf around his head and go towards the deceased. Neil said that while the deceased was backing the appellant, the latter approached him from behind and shot him. After he was shot, the deceased ran and was pursued by the appellant who fired another shot. The deceased collapsed and fell by a post supporting an old shed.
Rhonda Hollingsworth-Hinds was the second eye witness for the prosecution. While reading the transcript of the proceedings at the trial it was difficult not to conclude that she was a reluctant witness but, when roused, was prepared to be difficult and argumentative with counsel for both the prosecution and defence. She readily volunteered her reputation as a petty thief well-known to the police but she insisted that she was at the scene of the crime on Independence Day 1999 and saw what happened.
Her account is that she was sitting on a plastic chair on the pasture with her young child. The pasture was near the Senior Citizens' Home. At the time when he was shot, she saw the deceased sitting on two old tyres. She testified that the appellant approached the deceased and shot him. The deceased got up and ran after he was shot pursued by the appellant who fired two more shots. She says she saw the deceased fall on the old shed.
It was revealed during the cross-examination of the eye witnesses that there had previously been violence between the deceased and the appellant, and indeed the deceased and his brother Neil. Neil admitted that the deceased had previously shot at him and also stabbed the appellant causing him to be hospitalised.
Nevertheless, the Crown said that on this particular occasion, the appellant deliberately without provocation or lawful excuse, killed the deceased in a cold-blooded murder.
Dr. Sree Ramulu, the Forensic Pathologist, found a gunshot wound to the deceased's back which perforated the left lung causing partial collapse of both lungs. Death was due to “blood and air in the chest cavity as a result of a firearm injury.” He recovered a distorted projectile in the region of the left collarbone.
The case for the defence rested primarily upon the unsworn statement of the appellant from the dock. It was as follows:
“On the 30th November, 1999 I went to Golden Rock to see Hamilton Lashley, about finalizing a project because I was building a barber shop. On arrival at Golden Rock, Mr. Lashley was not there as yet, so I sat down behind the wall and in between the stage on a bench waiting on his arrival. While I was there Stephen walked on the right side of me and came and stand up to the left and asked me why I don't keep the police from going to his mother's house. I looked at Stephen and say, ‘Why don't you leave me.’ He told me he is going to kill me and give the police something to look for him for. When he told me those words he put his hand to the right side of his back and when his shirt raised I saw a gun. I was scared for my life because he had already stabbed me up and I was in hospital. I tried to lick the gun out of his hand and my hand either connect with his hand or the gun. On connection I heard two explosions and he ran off of me. When he ran off he turned round like he was going to fire at me and raised his hand. I ran from there. On running from there I went home and told my mother that Stephen come and troubled me again and pulled a gun on me. I told my mother I would like to call the police. My mother get hysterical and like she couldn't understand what I was saying, that is how she appeared to me. I went and explained it to my aunt in Brittons Hill. While I was there I called home to tell my mum that I am by my aunt. My mum told me she just heard the news that Stephen had died. I told my mum, well, I never went and troubled him. He came and told me he is going to kill me, he took out the gun so I would like her to get a lawyer for me to go to the police station and on the 6th of December, 1999 I was accompanied to the Police Station by Miss Helga McIntyre and Andrew Pilgrim.”
That statement contained minimum evidence, in our view, to raise the issues of provocation, self-defence and accident. All three were put to the jury in the summation.
Counsel frames this ground of appeal in this way:
“The learned trial judge erred in law when he offered the jury an alternative opinion contrary to that given by the expert.”
He identifies page 78 of the transcript as the object of his criticism of the summation where the judge told the jury:
“One does not have to study physics to understand that when a projectile meets with resistance, it can be deflected from its course. So according to what structures the bullet encounters in its path in the body, it can change direction and so we cannot assume without considering the structures in the flight path, that a bullet must travel through the body in a straight line. We cannot assume that. And remember what Dr. Ramulu said, that he recovered a distorted projectile.
At any rate, you are the sole judges of the facts and where I appear to express any view of the facts, you are not bound by my opinion, unless you agree with it.”
Counsel's complaint is that it was not open to the judge to draw a conclusion that the projectile “bounced off any structure other than those described by Dr. Sree Ramulu in the absence of other evidence to the contrary.” In his submission the judge was offering an alternative expert theory on how the injury was caused and the possible flight path of the bullet and, coming as it did in the summation, the defence was not able to counter it.
Contrary to counsel's submission, however, there was an evidential basis for the judge's comment. Sergeant Graham Husbands, a Forensic Firearms Examiner of over 15 years' practical experience with firearms, had offered the unchallenged opinion that the bullet had “apparently struck some hard object during flight.” – p.35
Far from being an alternative theory, it was, we think, a comment which the judge was well entitled to make on the basis of the evidence for what it was worth. Immediately after his comment the judge did remind the jury that they were not bound by any expression of opinion by him.
We cannot agree that there was any prejudice to the appellant in the observation of the judge. Nothing in the case turned upon the distortion or otherwise of the projectile. Indeed none of the Crown's expert witnesses was cross-examined on this matter.
Furthermore, the test to be applied in a case where it is argued that the judge was wrong to express his opinion on aspects of the evidence was stated by Lord Lane in the Jamaican case of Mears v. R. (1993) 42 W.I.R. 284. His Lordship in delivering the advice of the Privy Council said at p.289:
“Their Lordships have to take the summing up as a whole and then ask themselves in the words of Lord Sumner in Ibrahim v. R. [1914] AC 599 at p. 615 whether there was something which deprives the accused of the substance of a fair trial and the protection of the law, or which, in general, tends to divert the due and orderly administration of the law into a new course, which may be drawn into an evil precedent in future.”
The Barbados Court of Appeal in Vincent Harewood v. R. (1994) 48 W.I.R. 32 followed that test.
It is always necessary to examine the totality of a summation to determine whether there have been excesses of judicial comment. Having carefully examined the summation in this matter and the occasions when the judge allowed himself the freedom to comment, we are satisfied that he did not exceed the proper bounds of judicial comment.
There is no merit in this ground of appeal and it accordingly fails.
It was argued that the judge had erred in law when he “offered excuses for the weaknesses in the quality of the evidence...
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