Johnson v The Queen
| Jurisdiction | Barbados |
| Judge | Mason, J.A. |
| Judgment Date | 11 June 2010 |
| Neutral Citation | BB 2010 CA 18 |
| Docket Number | Crim. App. No. 17 of 2007 |
| Court | Court of Appeal (Barbados) |
| Date | 11 June 2010 |
Court of Appeal
Simmons, C.J.; Moore, J.A.; Mason, J.A.
Crim. App. No. 17 of 2007
Mr. Andrew Pilgrim and Miss Nargis Hardyal for the appellant
Miss Manila Renee for the respondent
Criminal law - Causing death by dangerous driving — Two counts — Convictions — Sentence of 12 months and 5 years to run concurrently — Appeals — Whether trial judge erring — Whether trial judge misdirecting jury — Entitlement to hearing within reasonable time — Inconsistency of verdicts — Two identical charges relating to same car in same accident in which two men died — Whether only lesser verdict should stand — Inconsistency of verdict not prejudicing appellant — Constitutional guarantee of fair trial within reasonable time considered with incident occurring in 2002 and appellant convicted in 2007 and appeal heard in 2009 — Order to set aside verdict on second count — Appeal dismissed and sentence varied.
On 18 July 2007 the appellant, Rennis Alexander Johnson, was tried before the High Court on two identical counts, namely:–
both counts contrary to section 81 (1) (b) (A) of the Road Traffic Act, Cap. 295.
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(a) that he on 1st day of July 2002 caused the death of Renaldo Gaskin by the driving of a motor vehicle on a road at a speed or in a manner dangerous to the public, having regard to all the circumstances of the case, and
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(b) that he on the 29th day of June 2002 caused the death of Dale Blades by the driving of a motor vehicle on a road at a speed or in a manner dangerous to the public, having regard to the circumstances of the case;
On 30 July 2007 the jury by unanimous verdict convicted him of dangerous driving on the 1st count and of causing death by dangerous driving on the 2nd count. He was sentenced on 21 November 2007 to terms of imprisonment of 12 months and 5 years respectively; to run concurrently. The appellant's driver's licence was cancelled with immediate effect and he was disqualified from obtaining another driver's licence for a period of 2 years from the date on which the terms of imprisonment ended. His driver's licence was to be endorsed with the particulars of the conviction.
On 29 June 2002 sometime after midnight, four friends, Dale Blades, Renaldo Gaskin, Kevin Jordan and Steven Sandiford, left the residence of Dale Blades to attend a karaoke session in St. Peter. They were travelling in two cars: Blades, Gaskin and Jordan in Gaskin's car, MU132, and Sandiford alone in his car, MN478. Sandiford drove ahead of Gaskin. Both cars were travelling in a northerly direction.
Shortly before 1:00 a.m. as the friends travelled along Walmer Lodge Road, Lower Black Rock, St. Michael near to the Lazaretto, a car, MC782, driven by the appellant and going in the opposite direction drove past Sandiford's car and collided with Gaskin's car. Blades died on the spot. Gaskin was taken to the Queen Elizabeth Hospital where he later succumbed to his injuries on 1 July 2002. Jordan sustained serious injuries. The appellant and his passenger were also injured as a result of the collision.
In order to establish the appellant's culpability, the prosecution relied on the evidence of Jordan, Kerry Holligan, a passenger in the appellant's car and Sandiford. Jordan's evidence was to the effect that he sat in the rear seat of Gaskin's car and behind Blades who sat in the front passenger seat. Gaskin's car was following Sandiford's. As Gaskin's car approached the area of the Lazaretto, he heard a voice say, “Wait, wha going on hey?” When he looked to see what was going on, he saw bright headlights. That was the last thing he remembered. He woke up in the hospital where he was a patient for six weeks. Jordan did not see a collision. He was not cross-examined.
Kerry Holligan, a lifetime friend of the appellant, told the court that on 28 June 2002 about 5:00 p.m. the appellant came to his home in his car and collected him. One Fidel was already seated in the car. They then went to Passage Road where they met Wayne White who accompanied them. On their way to Oistins they stopped by Weiser's. They remained at Oistins until around 11:00 p.m. While there, they bought fish and “were drinking beers”. After leaving Oistins they took Wayne White back to Passage Road and Fidel to Fitts Village in St. James.
On their way from Fitts Village and on reaching Batts Rock, he saw a car approaching them “on the same side of the road we were travelling on”. The appellant then “manoeuvred” his car to the right hand side to avoid a collision and in so doing, collided with another car which was travelling on its proper side.
Under cross-examination, he reiterated that the first car which passed the appellant's car before the accident, did so on the left side of their car. The effect of Holligan's evidence was that the appellant's car was travelling in a southerly direction towards Bridgetown on its left and proper side whereas Gaskin's car was travelling in the opposite direction on the right hand side of the road. The manoeuvre which Holligan said the appellant carried out would have meant that Gaskin's car attempted to pass the appellant's car on its left side.
Steven Sandiford stated that when he and his friends left Dale Blades' house, he was driving alone in his car and he was driving ahead of Gaskin's car. While driving along by the Lazaretto, he was approximately one and a half to two car lengths in front, when he saw an oncoming car travelling at “uncontrollable” speed. This car made a swerve towards his side of the road. He pulled to the left and “carried on his path”. When he looked in his rearview mirror to see whether his friends had also escaped he did not see any lights coming behind him. He “cleared” the corner and then turned around and went back.
When he did so, he saw the car that had passed him “colliding” with his friend's car “head-on”.
Under cross-examination he stated that the appellant's car made a “swerving sliding” motion towards his car. He denied that his and Gaskin's cars were drag racing. He also denied that his car passed the appellant's car on the appellant's left side. He stated that he saw the appellant's car for “a couple of seconds” and it was about 10 feet from him. He admitted that he did not hear the collision.
In re-examination he gave as his reason for not hearing the collision that he was not “studying that they would have collided”. It was “far from his mind.”
Station Sergeant Lewis' testimony was that on 1 July 2002 as a result of a report of an accident he went on duty to Walmer Lodge Road, St. Michael where he saw two cars facing in opposite directions. He conducted certain investigations and he also gave instructions to the police photographer who later arrived on the scene.
On 2 July he went to the Queen Elizabeth Hospital where he informed the appellant that he was conducting investigations into the accident where Dale Blades had died on the spot. He also told him that Renaldo Gaskin had died as a result of injuries sustained in the accident. He then served the appellant with notices of intended prosecution.
Station Sergeant Lewis arrested and charged the appellant on 2 October 2002 after his discharge from the hospital. The appellant was taken to the police station, informed that he was going to be interviewed about the matter and informed of his rights. He requested a telephone call to his lawyer and after this was granted he refused to give a written statement.
The appellant gave an unworn statement from the dock in which he stated that on the day in question he collected his three friends in his car and went to Oistins where he had some grilled fish and “a beer to go with that”. They left Oistins around 11:00 p.m. and he took two of the friends to their homes.
On his way going towards Black Rock, he passed Batts Rock junction and entered between the “cut rocks”. He was driving at about 50 to 60 kilometres per hour. He drove through the right hand corner and up the incline. As he cleared the corner he saw a pair of bright headlights coming towards him. He was unable to gauge the speed of the oncoming vehicle but, as it got closer, he realized that it was coming straight at him. He “pulled” to the right and the vehicle passed him on the left. There was a collision but he did not see the vehicle with which he had collided. He sustained a broken ankle and thigh and suffered an injury to his left eye. He was taken to the Queen Elizabeth Hospital where he remained for 5 weeks.
This statement, he maintained, was the statement which he had given to his lawyer and which he had suggested that Station Sergeant Lewis collect from the lawyer.
The appellant advanced eight grounds of appeal.
On this ground the appellant complained that the trial judge erred in law when she failed to warn the jury in accordance with section 137 of the Evidence Act, Cap. 121 that Steven Sandiford, to the extent that he had an interest to serve, was an unreliable witness.
Counsel submitted that this failure to warn the jury and to categorise Steven Sandiford as an unreliable witness was fatal to the conviction. He argued that against the background of the testimony given by Sandiford, he was either the cause of the accident or a witness to it. Counsel said that the evidence suggested that Sandiford was drag racing and overtaking a vehicle on the wrong side of the road. As a consequence Sandiford may have given false and implausible evidence in an attempt to protect himself from blame. Counsel's criticism therefore is that the judge should have given a specific warning to the jury.
Counsel referred to the two following instances in Sandiford's testimony which he considered to be in direct conflict with each other and therefore to be self-serving.
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