Roderick Ricardo Went v The Queen
| Jurisdiction | Barbados |
| Judge | Goodridge JA |
| Judgment Date | 20 December 2018 |
| Neutral Citation | BB 2018 CA 12 |
| Date | 20 December 2018 |
| Court | Court of Appeal (Barbados) |
| Docket Number | Criminal Appeal No. 2 of 2014 |
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
The Hon. Sir Marston C. D. Gibson, K.A., Chief Justice, The Hon. Andrew D. Burgess and The Hon. Kaye C. Goodridge, Justices of Appeal
Criminal Appeal No. 2 of 2014
Mr. Dennis Headley for the Appellant
Mr. Oliver Thomas for the Respondent
Criminal practice and procedure — Subsubject: Murder — Voir dire — Admissibility of confession — Whether defence attorney improperly conducted trial — Due process — Right to a fair trial — Uncontested confession statements — Whether a retrial should be ordered — Length of time between offence and order of retrial.
On 7 April 2003, police officers received a report that there was a foul odour coming from the residence of Floretta Hyland situated at No. 25 Mayport Lane, Pine, St. Michael.
The officers went to the residence where they observed that the house was closed. They called for Ms. Hyland. There was no response. Sgt Sedley Maynard noticed that a window was open. He gained entrance to the premises by putting his hand through the window and unlocking the door. He saw what appeared to be blood on the lock and on the curtains at the windows.
After opening the door, the odour became stronger as Sgt Maynard walked towards a bedroom at the back of the house. There, he saw the partially decomposed body of Ms. Hyland on the floor of the bedroom and what appeared to be blood under her head. One of the drawers in a chest of drawers was open.
The police medical officer, Dr. Andrew Murray, was summoned to the scene. PC Richard Bailey, the police photographer, arrived and took photographs of the body and the surroundings. Other police officers were also present and processed the scene.
Investigations into the death of Ms. Hyland were conducted but they did not bear fruit.
Seven years later in July 2010, at about 11.00 a.m, police officers led by Sgt Leslie Arthur of the Cold Case Unit, Criminal Investigations Department, went on duty to the Edgar Cochrane Polyclinic in Wildey, St. Michael. Sgt Arthur saw the appellant at the clinic. When asked by Sgt Arthur why he was at the polyclinic, the appellant said that he was there because he had the flu and that he had received medication from the clinic, which he handed over to the officer.
Sgt Arthur then informed the appellant that he was carrying out investigations into the murder of Ms. Hyland and invited the appellant to accompany him to the District “A” Police Station.
According to Sgt Arthur, when the appellant was interviewed under caution about the matter, he told him “I killed “Flo” officer, I did want money and we scuffled and I killed her.” The appellant gave a written statement about the incident which was recorded by Sgt Arthur and witnessed by Sgt Murray. The appellant was later charged with murder.
On 18 March 2014, the appellant appeared before Worrell J and was arraigned on a charge that sometime between 3 April and 7 April 2003, he murdered Floretta Hyland. He pleaded not guilty to the charge. The appellant was represented by Mr. Keith Simmons QC and Mr. Alvan Babb.
The trial took place on 18, 19, 20, 25, and 26 March 2014. The prosecution case rested on the oral and written statements which were said to have been made by the appellant.
On 19 March 2014, Mr. Simmons QC informed the judge that the defence was objecting to the oral statements and the alleged written confession on the grounds that:
-
(i) the oral statements were never made by the appellant; and
-
(ii) the alleged written confession was had in circumstances which were most unfair to the appellant in that he was seriously unwell and had been taken from the polyclinic by police officers.
The judge then conducted a voir dire. The police officers gave their evidence. They testified that the appellant had made the oral statements attributed to him and that he had dictated the written statement voluntarily. They also stated that no force or violence was used in order to obtain the statement which was recorded in accordance with the Judges' Rules.
The appellant gave an unsworn statement. He said that on the day in question, he was feeling “real sick, I was coming down with something like pneumonia.” He also said that the police came, took him to the station and charged him with murder.
Dr. Shafiq Kapadia testified that he had attended to the appellant at the polyclinic. Dr. Kapadia's evidence was that the appellant had presented with complaints of coughing, cold, congested nostrils and chest feeling tight.
On examination, the doctor found that the appellant did not have a fever, his pharynx was red and inflamed and his chest was clear. There was no evidence of wheezing. Dr. Kapadia prescribed a one week course of antibiotics, amoxicillin, paracetamol, mequilon and a nasal spray. The doctor found no signs of pneumonia nor did the appellant make any such complaint to him.
In the doctor's opinion, even though the appellant was suffering from the condition which he had, under normal circumstances, if he had to be interviewed by the police, the appellant would still be of sound mind to give coherent explanations to the officers. Further, the appellant would have been physically well enough to do so even without medication.
According to p 161 of the record, defence counsel then conferred and the following exchange occurred between counsel and the judge:
“MR. SIMMONS, QC: Yes, sir. We have discussed it and if you intend to go forward on the evidence of the doctor, really and truly, that's it and the voir dire is out.
THE COURT: The voir dire is out then?
MR. SIMMONS, QC: Yes, Sir.
THE COURT: You withdraw your application, then?
MR. SIMMONS, QC: Yes.
THE COURT: Okay. Very well.
Mr. Watts?
MR. WATTS: Accepted, My Lord. My friend is always a fair person in the courts, My Lord.
THE COURT: Yes. Very well. Okay. Well we will proceed. We can't (sic) have the jury back now then since the voir dire has come to a premature end, then--in any event, I understand your position is that you've withdrawn your objection and your application.
MR. SIMMONS, QC: Yes. Yes.”
The trial continued. There was no objection by defence counsel to the admission into evidence of the oral and written statements. The defence strategy focused on cross-examination of the police witnesses about the absence of DNA and fingerprint evidence and the quality of the investigations generally.
On 31 March 2014, the appellant was found guilty of murder and sentenced to death.
On 1 April 2014, the appellant completed a notice of appeal in which he stated that he was appealing against his conviction and sentence. That notice was filed on 8 April 2014.
The appeal was first listed for hearing on 7 December 2015, but was adjourned at the request of Mr. Dennis Headley, counsel for the appellant. On 4 May 2016, Mr. Headley requested a further adjournment. Subsequent dates were set and other adjournments followed.
On 29 March 2017, Mr. Headley filed amended grounds of appeal and an affidavit sworn to by the appellant.
On 30 March 2017, when the appeal came on for hearing, Mr. Headley apologised for the late filing of the amended grounds of appeal. He pointed out that the appellant had made certain allegations concerning the legal representation which he had received during the trial.
Mr. Headley was reminded that, in keeping with the guidelines set out by this Court in Mervin Tyrone Weekes v The Queen, Criminal Appeal No 4. of 2000 ( Weekes), the Registrar of the Supreme Court was required to send a copy of the appellant's affidavit with the attached waiver to the appellant's former counsel, Mr. Keith Simmons QC and Mr. Alvan Babb, so that counsel could make any response deemed necessary.
On 5 July 2017, Mr. Simmons QC filed an affidavit in response, setting out his position in relation to the allegations raised by the appellant.
The appellant has challenged his conviction on the following grounds:
“1. That under all the circumstances of the case the verdict is unsafe and unsatisfactory.
2. As a consequence of Defence Attorneys' conduct of the trial, the Defendant did not receive a fair trial. (See Appellant's Affidavit and attached waiver of legal professional privilege).”
In his affidavit of 29 March 2017, the appellant set out in detail the basis of his complaint. We consider it important to reproduce the salient parts of that affidavit below:
“7. I am unhappy by the manner in which the trial was conducted on my behalf. I believe that my defence to the charge of murder was not put to the court in front of the jury or at all and as a consequence I did not receive a fair trial.
8. As a result of my contention at paragraph 7, I have agreed to a waiver of legal professional privilege between me and my former legal counsel. I mark and attach as Exhibit RRW1 copy of that waiver.
9. I saw Mr. Keith Simmons Q.C on about four (4) occasions between the years 2011 and 2014 when the trial started. I first met Mr. Keith Simmons Q.C on or about the year 2011 when he visited me at H M Prison, Dodd's in the parish of Saint Philip and told me that he was my lawyer.
10. I met Mr. Simmons on a second occasion after I obtained pre-trial disclosure in the case and we spoke at greater length. I told Mr. Simmons that I did not kill “Flo”. I further told Mr. Simmons that I had received unfair treatment at the hands of police officers who put plastic wrap over my face, that I could not breath (sic) as a result of this, and that I had a cold at the same time which made things worse; additionally, Sergeant Harte told me that I could either do “this” the “easy” or the “hard” way. I told...
To continue reading
Request your trial