Nurse v The Queen
| Jurisdiction | Barbados |
| Judge | Simmons, C.J. |
| Judgment Date | 22 February 2007 |
| Neutral Citation | BB 2007 CA 5 |
| Docket Number | Criminal Appeal No. 34 of 2004 |
| Court | Court of Appeal (Barbados) |
| Date | 22 February 2007 |
Court of Appeal
Simmons, C.J.; Connell, J.A.; Inniss, J.A. (Ag.)
Criminal Appeal No. 34 of 2004
Sir Richard Cheltenham Q.C. and Ms. Verla DePeiza for the appellant
Mr. Eli Edwards and Mr. Elwood Watts for the respondent
Evidence - Unsworn statement from the dock — Directions to the jury — Trial judge omitted to direct jury on how to treat unsworn statement by the accused — Crown counsel made improper comment is summation to jury — Breach of s. 23(2)(a) of the Evidence Act — No curative intervention by the trial judge — Appeal allowed — Conviction of manslaughter quashed — Sentence set aside — Appellant spent six years in prison — No appropriate case for re-trial or application of proviso.
Criminal law - Manslaughter — Sentenced to 30 years imprisonment — Appeal against conviction and sentence — Directions to the jury — Good character — Direction on good character incomplete — No mention of appellant's propensity to violence with respect to good character — Appeal allowed — Conviction quashed — Sentence set aside — Appellant spent six years in prison — No appropriate case for re-trial or application of proviso.
Criminal practice and procedure - Manslaughter — Directions to the jury — Self-defence — Whether evidence of the deceased's bad character was relevant to self-defence issue — Judge's comments may have served to undermine defence — Appeal against conviction and sentence allowed — Conviction quashed — Sentence set aside — Appellant spent six years in prison — No appropriate case for re-trial or application of proviso.
The appellant was charged with the murder of Medford Ince (the deceased) committed on 14 January 2001. On 8 June 2004 he was convicted of manslaughter before Moore J and a Jury on a majority verdict (9:3) and sentenced to 30 years' imprisonment. He has filed 12 grounds of appeal against his conviction and sentence. Sir Richard Cheltenham Q.C. for the appellant, argued 8 grounds before us. Inter alia, they raise issues concerning the legal status and effect of an unsworn statement made by an accused from the dock and the treatment of such a statement by the trial judge; the adequacy of directions on an accused's good character; the issue of self-defence and the relevance of a deceased's bad character to that issue on a trial for murder.
The deceased met his death in very violent circumstances on 14 January 2001. But events on the day before had a direct bearing on the fatality. On 13 January 2001 there was a quarrel in the area of Ruby Tenantry, St. Philip. It involved Douglas Hurdle and his girlfriend and the deceased and his girlfriend. The police were called and they warned the deceased and his girlfriend to behave themselves and avoid trouble. When the quarrel was over, the parties were on hostile terms with each other but they went to their respective homes. Later that evening, however, Hurdle and the deceased resumed hostilities. The deceased stood on his chicken pen and threw “Molotov cocktails” at and on to Hurdle's house while Hurdle threw stones in the direction of the deceased's house. During the throwing of missiles, the appellant's brother, Troy, received burns to his left hand and left foot. Grass in the area of the houses was also singed. The “Molotov cocktails” were bottles filled with kerosene and paper was stuffed in the mouths of the bottles to make wicks. When the wicks were lit and thrown, the bottles caused a fire on impact. Troy was taken to a doctor and the police were called.
The next day the deceased was killed. At the trial, the prosecution called 5 eyewitnesses. Four were related to the deceased by blood and the fifth was his girlfriend. They were: Adora Walcott (mother), Tishara Ince (niece), Kodie Ince (nephew), Dennis Alleyne (brother), and Rosalind Alleyne (girlfriend). None of these witnesses saw the entire incident leading to the deceased's death and it was somewhat difficult to construct a coherent pattern from their evidence. However, we think that no disservice is done to the prosecution case, as told by the eyewitnesses if we summarise its essential features and effect. The picture that emerges from those witnesses is as related in the next paragraph.
The appellant was a coconut vendor who plied his trade from a stall at Ruby corner with other vendors. On the morning of 14 January 2001, the appellant was at his stall. He had with him a cutlass for the purpose of cutting coconuts. The deceased who was at home said that was going to buy a coconut. His mother advised him against going to the area where the appellant was. Nevertheless, he set off and told his girlfriend that he was going to speak to the appellant because they were “family” and he did not wish the appellant to get into any trouble. The deceased had a beer case with bottles in it. According to his girlfriend, the bottles contained kerosene from the previous evening. When he got within approximately 6 feet of the appellant, the deceased bent over to put down the beer case. The appellant suddenly rushed at him and began to chop the deceased several times about his head and body. The deceased received multiple injuries including seven severe injuries to his head from which he died. According to these witnesses, they did not see the deceased do anything to the appellant. On their evidence no issues of self-defence or provocation arose.
The prosecution led evidence, through Sgt. Bridgeman, of oral and written statements made by the appellant on 14 and 15 January 2001 under caution and, after being told of his right to an attorney-at-law, — a right which he declined to exercise. In those statements the appellant said several times that he was acting in self-defence, that the deceased had ‘troubled’ him first. For example, when Sgt. Bridgeman went to the appellant's home shortly after the incident and told him that he was carrying out investigations into the serious wounding of the deceased, the appellant replied: “I was defending myself.” On his way to the police station the appellant pointed out the area where the wounding took place and said: “It is there that it happened and them is the bottles he had to throw ‘pon me when I cut he with my cutlass.” At the police station, immediately before being asked whether he wished to give a written statement, the appellant said: “I ain't trouble he officer; he troubled me first and I defended myself.”
His written statement which was admitted in evidence without objection is as follows:
“Yesterday I did coming back from picking coconuts when I see Ninja near Linton shop. He tell me that just now I ain't going like he, ‘cause he gine hurt Dougie and he girl. I didn't answer he. I left and went home.
Afterwards I see Dougie and he girl Kerry-Ann walking going towards the bus stop. I left and went up by the bus stop, ‘cause Ninja and he girl was up there and I didn't want Dougie and he girl get in no noise. From the time Kerry-Ann get by the bus stop Ninja's girlfriend Annie started pelting at she. I then told Dougie and Kerry-Ann to come and I moved them away. Kerry-Ann then catch a van and went long. Later in the night I was by Mum's Variety and I see Ninja pelting bout bottles with gasoline and fire and one hit my brother and he catch fire. My brother called the police and it done there.
This morning cause he does see me and Dougie together, he involved me in the scene. I was by the stall by Linton shop selling coconuts. I see Ninja with a Banks' beer case and half the case had in bottles with diesel and cloth. He put down the case, tek out one of the bottles, tek a lighter out he pocket and started flicking the lighter to light it to throw ‘pon me. I had my cutlass that I was cutting coconuts with. I din give he chance to light it. I charged he with my coconut sword and hit he. I ain't know where he get hit, but the same time he fall down. I then start to cut he with the sword. I left the sword by the coconut stall and went home.”
The defence called three eyewitnesses who had given statements to the police but had not been called by the prosecution. The evidence of these witnesses tended to support the appellant's written statement and his statement from the dock — see para.[9]. A summary of the eyewitness evidence for the defence is to this effect. Elrita Greenidge said that she heard the deceased pass her shop quarrelling and speaking about “setting bombs and blowing up”. Andrew Ward and Adrian Lorde saw the deceased go to the area of the coconut vendors holding a beer case containing bottles with wicks. They heard him say that he had “a new mix — mentholated spirits and gasoline”. The deceased crossed the road and got to within 6 feet of the appellant. He still had the case of bottles with him. He then took a cigarette lighter from his pants pocket and started “flicking it”. At this action both Ward and Lorde ran away. But they said that they looked back and saw the deceased and the appellant on the ground scuffling and wrestling. They saw the deceased and the appellant get up and the deceased lashed at the appellant with the beer case and “barged him”. The appellant was lashing at the deceased with his cutlass and the deceased was stabbing at the appellant with a broken bottle. They said that the appellant was backing away but swiping at the accused with his cutlass. On the eyewitness evidence for the defence, there was one continuous incident during which the two men fought, fell, got up and attacked each other with some form of weapon. An issue of self-defence was raised on that view of the facts.
We turn now to the grounds of appeal in the order in which they were argued. However, for the purposes of the decision on this appeal, it will be necessary to discuss three of the grounds...
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