Lovell v The Queen
| Jurisdiction | Barbados |
| Judge | Moore, J.A |
| Judgment Date | 23 October 2013 |
| Neutral Citation | BB 2013 CA 7 |
| Docket Number | Criminal Appeal 10 of 2008 |
| Court | Court of Appeal (Barbados) |
| Date | 23 October 2013 |
Court of Appeal
Moore, J.A.; Mason, J.A.; Burges, J.A.
Criminal Appeal 10 of 2008
Mr. Andrew Pilgrim, Q.C., Mr. Arthur Holder and Mrs. Kristin Turton for the appellant
Mr. Charles Leacock, Q.C., Director of Public Prosecutions and Mrs. Wanda Blair for the respondent
Criminal Law - Manslaughter — Appeal against conviction — Directions to the jury.
The appellant, Andrew Leroy Lovell, was charged that he, on 27 July 2005, in the parish of St. James in this Island, murdered Daniel May. On 6 March 2008, the appellant's trial commenced before Goodridge, J. sitting with a jury and on 12 March 2008 he was convicted of manslaughter. On 7 April 2008 he was sentenced to 22 years imprisonment. It is from that conviction and sentence that he has appealed to this court on eleven grounds.
On 15 July 2005 the deceased, Daniel May, a 19 year old English visitor arrived in Barbados for a 2 week holiday with his parents, Lindsay and Ann. They were staying with a relative, Clarke Curly, at his home at Prospect in the parish of St. James. On the evening of 27 July 2005 they all went out to dinner and returned home shortly after 10.00 p.m. One of them went upstairs while the others remained downstairs. Two men, one armed with a gun then entered the house. The appellant went upstairs and the other man remained downstairs. The appellant confronted the householder who had gone upstairs, took some money from him and returned downstairs. Meanwhile the members of the household who remained downstairs were struggling with the other man. It was during that struggle that the appellant returned downstairs and shot the deceased twice in his back thereby inflicting the fatal injuries.
On this ground counsel contended that the Learned Trial Judge erred in law by failing to direct the jury in accordance with section 41 (1) of the Juries Act, Cap 115B in that she allowed the jury to remain in deliberation for a period in excess of 3 hours, contrary to the said section.
Counsel for the appellant cited Alleyne v. R Criminal Appeal No. 9 of 1999 (unreported) given on 10 May 2001. That case was decided before section 41 was amended to empower the judge to extend the time for deliberation. That case is however not relevant because the jury there had exceeded the three hour limit and there is nothing in that decision to indicate whether the Court of Appeal had made allowance for the return journey to the court room.
At line 16 on page 301 of the record the jury retired at 11.30 a.m., at line 32 of the said page they were recalled at 1.56 p.m. They sought further directions from the court and having received those directions, the jury again retired at 2.08 p.m. and returned to the court room at 2.37 p.m — page 306 lines 19 and 22. The jury were away from the court room for a total of 2 hours and 57 minutes. When allowance is made for two return journeys from the jury room, the time spent in deliberation must be less than 2 hours and 57 minutes.
In any event a jury should not commence its deliberations until it is safely ensconced in the jury room. It follows, therefore, that some time must be allowed for the return journey. We think ten minutes reasonable for that journey. In the instant case there were two such journeys. For these reasons we find no merit in this ground.
This ground states that “the Learned Trial Judge erred in law by misdirecting the jury in relation to the written statement of the appellant”. In the course of her summation, while directing the jury on the written statement of the appellant at page 252 lines 15 and 16 of the trial record, the following appears: “however, that statement represents the truth of what took place”. Counsel for the appellant contended that “the judge unequivocally usurped the function of the jury as it related to a determination of fact and that was brought clearly into perspective when the jury returned into court and asked for further directions on the written statement.” Counsel submitted that it was a misdirection which amounted to a material irregularity. In support he cited Kilgour v. R (1960) 2 WIR 506.
Counsel for the respondent submitted that no irregularity occurred and even if there was an irregularity, it caused no injustice to the appellant. Counsel said that the punctuation as it appears is capable of creating only a minor blemish. Counsel also submitted that even though we are bound by the record, when the judge's direction on the statement is read in its entirety it is clear that the particular extract relied on by counsel for the appellant was the result of a typographical error. In support of his submissions counsel for the respondent referred the court to five places in the summation where the judge gave directions on the statement.
The offending words, “however that statement represents the truth of what took place”, appear in the following direction at page 252 lines 8 to 32 of the trial record:
“Now, the accused is alleged to have made a written statement to the police, and that statement is evidence in this case. As regards the contents of that written statement, it is for you to say whether you accept that the accused did in fact make the statement, and if you find that the accused did make the statement, then it is for you to determine the probative value of the statement and to assess what weight, if any, you will give to the statement, However that the Truth Statement Represents of What Took Place. In determining what weight you will give to the statement, you will bear in mind, and have regard to the circumstances in which the written statement was said to have been obtained from the accused. You will recall the evidence of the police officers that no threats or promises, or no force was used against the accused to obtain the statement.
You have seen the manner in which the officers gave their evidence, and it is for you to determine whether you consider them to be witnesses on whose testimony you can rely in determining whether the statement was made in the circumstances as attested. If you have any doubt whatsoever that the statement was made by the accused, you will resolve that doubt in favour of the accused, and with regard to the written statement. Objection was also taken to the written statement and the oral statements on the ground that the accused man was not allowed to consult with an “attorney-at-Law”. (Emphasis added).
Also at page 297 lines 5 to 9 and 13 to 19, respectively, of the trial record the judge gave the following direction:
“With regard to the written statement, you must look at all the evidence and you must look at all the circumstances in which the accused is said to have given that statement, and seek to determine where the truth of the matter really lies.”
“The accused, however, says that he did not make those statements, and that the written statement was signed by him after he had been beaten by the police officers. The accused man also told you he know nothing about this case; he did not go to Hummingbird Lane; he has nothing to prove, so the prosecution must prove that he was at Hummingbird Lane and that he fired those shots.”
At page 298 lines 8 to 17 of the trial record immediately before the jury retired the judge gave the following direction:
“Mr. Foreman and members of the jury, if you believe that the oral statements and the written statement do not represent the truth, or that they were not made by the accused, or that he was not told of his right to an attorney or I beg your pardon. He was not allowed to consult with an attorney-at-law, or that the written statement was obtained through oppressive conduct by the police, or that the statements are unreliable, then you will find the accused man not guilty, or if you are in doubt you must also find him not guilty.”
We are bound by the record but when the judge's directions on the statement are read together and the summation is taken as a whole it seems unlikely that the judge would have uttered the word “however” and that it is more likely a typographical error. However, in our opinion the words complained of were subsumed in the clear directions of the judge and their effect could not have been such, if uttered, as would have made it reasonably probable that the jury would not have returned their verdict of guilty: R. v. Wright, 58 Cr. App. R. 444. We find no merit in this ground.
This ground alleges that “the Learned Trial judge failed to warn the jury of the breach of the Judges Rules and the consequences that flowed therefrom in relation to the written statement of the appellant”. The appellant wrote the certificate prescribed by the Judges Rules at the end of his statement as follows:
“I have read the above statement and I have been told that I can correct, alter or add anything I wish. This statement in true. I have made it of my own free will”. (Emphasis added)
Counsel for the appellant contended that the appellant wrote the word ‘in’ deliberately to draw attention to the fact that it was not a voluntary statement and when that act of the appellant is combined with the error in the date of the statement (the date had been changed from 05-07-28 to 05-07-31), “it brings into contention breaches of the Judges Rules and that a court at first instance ought to have drawn them to the attention of the jury”. Counsel also said that the police wrote the statement before taking the appellant into custody and had to change the date to comply with the date on which the statement was signed. Counsel submitted that the judge's failure to direct the jury on those things was a violation of the principles of a fair trial. Counsel relied on Peart v. R (2006) 68 WIR 372.
In his written submissions counsel for the respondent drew attention to various pages in the...
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