Nervais v The Queen

• Jurisdiction: Barbados
• Judge: Mason JA
• Judgment Date: 17 May 2017
• Neutral Citation: BB 2017 CA 9
• Docket Number: Criminal Appeal No. 2 of 2012
• Court: Court of Appeal (Barbados)
• Date: 17 May 2017

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL

Before:

The Hon Sandra P. Mason, the Hon. Andrew D. Burgess and the Hon. Kaye C. Goodridge, Justices of Appeal

Criminal Appeal No. 2 of 2012

Between:

Jabari Sensimania Nervais

Appellant

and

The Queen

Respondent

Mr. Andrew Pilgrim, QC in association withMs. Naomi Lyntonfor the Appellant

Mr. Charles Leacock, QC in association withMr. Lancelot Applewhaitefor the Respondent

Criminal Practice and Procedure - Appeal against conviction and sentence — Murder — Sentenced to death — Whether the judge erred in asking the jury to be fair to the prosecution — Whether the judge erred in law when she directed the jury that the evidence of a witness was corroborative of the prosecution's case — Whether the judge erred in disclosing to the jury her decision to admit the written statement of the appellant into evidence — Whether the sentence imposed was excessive.

DECISION

Mason JA

Introduction

1 This appeal first engaged the attention of this Court on 24 February 2015. On that occasion, Mr. Andrew Pilgrim QC, counsel for the appellant, informed the Court that he had been unable to comply with its order to file the requisite documents: grounds of appeal and submissions. The matter was then adjourned to 23 June 2015. However on that date, Mr. Lancelot Applewhaite, counsel for the respondent, was unwell. So too was one of the members of the appellate panel on the next adjourned date of 20 October 2015. Hearing of the appeal began on 7 January 2016 and was adjourned to 28 January 2016 to allow the Director of Public Prosecutions, Mr. Charles Leacock QC, to present submissions with respect to the death penalty on behalf of the respondent. Unfortunately, that date could not be kept. It was the date for the funeral of Mr. Applewhaite. Hearing resumed and concluded on 7 March 2016 when the Court reserved its decision.

2 On 21 February 2012, after a trial which lasted just over 2 weeks, the appellant was found guilty of the murder of Jason Burton on 17 November 2006. The appellant was subsequently sentenced to death. He has appealed that conviction and sentence.

Summary of Facts

3 On the evening of 17 November 2006, the deceased was plying his trade as a vendor from a booth in the area of Nazarene Gap, Jackson, St. Michael. There were several persons around, some patronising the deceased's business and others playing dominoes.

4 At about 9.30 p.m., an alarm was raised that some men dressed in black were approaching the area. This caused the persons congregated in the area to run away, the deceased among them. Shots rang out and as the deceased ran, he was struck by a bullet. He ran a little further until he met his uncle who was sitting on a chair by the road. The deceased spoke to his uncle who put him to sit on the chair but the deceased soon fell off the chair. He was dead.

The Prosecution's Case

5 This was mainly circumstantial.

6 A total of sixteen witnesses were called. Eight of these were police officers, one pathologist and one forensic scientist. Of the others, one was the deceased's father who identified the body, another was the deceased's uncle in whose presence the deceased died, another was present at the scene but had run away and hid after hearing the four shots, later to discover a bullet hole in his car. Two witnesses were tendered for cross examination by the prosecution after it was discovered that they had been present in the court at the start of the trial. They were however not cross examined.

7 The sixteenth witness, Jason Holder, testified that one night in November 2006, he saw the appellant whom he had known for only “a couple of years”. The appellant visited his home in St. Joseph in a car in the company of “a couple of fellows” and asked him for money to put gas in the car. The witness gave him $10.00.

8 Apart from this evidence by Jason Holder, the case against the appellant depended on oral admissions alleged to have been made by the appellant as well as a written statement said to have been made by the appellant to the investigating officers.

The Defence Case

9 The appellant gave an unsworn statement in which he denied knowledge of any criminal activity at Jackson.

10 The appellant told of being arrested by the police on 6 July 2007, taken to the police station and beaten while in custody. This arrest was in connection with a stolen car. The appellant stated that after it was accepted that the car although burnt by him that day, proved not to have been stolen, he was taken back to the station, questioned about “the man in Jackson” and then beaten. He was taken to his residence where a search for a gun was conducted by police officers. The appellant was then transferred to another station where he was charged “with an issue with my baby mother” and released.

11 The appellant was then prompted by counsel to relate the events of 17 November 2006. According to the appellant, on the day in question, he woke up late and went with his girlfriend to the beach until 4.00 p.m., then went to karaoke from 8.00 p.m. until 2.00 a.m. the next day.

12 On 18 August 2007, he was at home playing video games with his friend Richard until he started to feel sleepy. He went to bed and was later awakened by “men in masks with guns”. These men searched his bedroom and took him and Richard to the police station where he was assaulted and beaten and forced to “sign papers”. He was denied a phone call to his family in order to procure the services of a lawyer.

13 The appellant called two witnesses: a police officer to produce the Police Public Medical Journal in which there was a notation dated 8 July 2007 detailing complaints of pain by the appellant. A second notation dated 20 August 2007 indicated that after mental status examination, there was no evidence of psychiatric illness on the part of the appellant and he was considered fit to plead and to instruct counsel.

14 The second witness, Richard Alleyne, spoke of being at the appellant's house on 17/18 August where they played video games. After the appellant had gone to bed, he also fell asleep only to be awakened by noise and footsteps of a group of people who turned out to be police officers. He was searched and handcuffed and together with the appellant transported to the police station. There he heard the appellant being assaulted and beaten. A statement was later taken from Alleyne and he was released.

The Appeal

15 The appellant filed six grounds.

16 At the hearing, Mr. Pilgrim QC, who was not counsel at the trial, requested permission to begin his submissions with ground 4 which he asserted would “make it easier to traverse” the other grounds. This permission was granted. We will therefore consider the grounds in the order in which they were argued by Mr. Pilgrim QC.

Ground 4

17 On this ground, the appellant charged that the judge erred in asking the jury to be fair to the prosecution. His particular complaint was related to the judge's summation at page 484 lines 22 to 23 of the trial record:

“You must be fair to both sides; be fair to the accused and be fair to the prosecution as well”.

18 In his written submissions, counsel considered that this statement erroneously expanded the function of the jury and imposed on them the artificial duty to take into consideration what would be fair to the prosecution. He submitted that this consideration does not exist at law.

19 In his oral submissions, Mr. Pilgrim QC, stated that the direction to be fair to the prosecution suggested that there was a balance between the prosecution and the defence in a criminal trial; that there was some undefined personality in the prosecution who the jury needed to protect from unfairness; and that the jury was being asked to protect an interest in the trial other than the appellant who was the only person who is entitled to a fair trial.

20 Counsel submitted that the summation was unbalanced and essentially a direction to convict the appellant because where there was an opportunity to be neutral, those opportunities were avoided in favour of an opportunity to be critical of the defence or to be harsh on the appellant in one form or the other.

21 Mr. Pilgrim QC reiterated that the summation was unbalanced in that there was a tendency by the judge to give a reasonable direction and then spoil it by a statement which either denied the jury the opportunity to decide a material fact in the case or tainted the approach by sounding so prosecutorial that the jury were likely to feel that there was only one way to decide.

22 In support of this submission of the unbalanced nature of the summation and prosecutorial favouring, Mr. Pilgrim QC adverted to several passages. The first of these was page 493 lines 14 to 17 where the judge stated:

“From the statement given by the accused, it would seem that his will did not crumble because he is saying that he did not make the statements at all; it is therefore a question for you to decide”.

23 In Mr. Pilgrim QC's estimation, this presented a dichotomy for the jury in that they would now become unsure whether to accept defence counsel's address which focussed on oppression with regard to the written statement as opposed to the judge's suggestion that having stated that he did not give the statement, the appellant was not oppressed and this was “nothing to do with his will crumbling”.

24 Mr. Pilgrim QC next considered the issue of intention within the context of the oral statements of the appellant. He suggested that the judge's statement at page 477 lines 5 to 9 is a direct example by the judge in denying the jury the opportunity to decide a material fact:

“You must not convict this accused of murder unless you are sure that when the accused fired those shots in the direction of the men fleeing from under the mango tree at Trench Town in Jackson that he intended to kill those...