Stanford v The Queen
| Jurisdiction | Barbados |
| Judge | Goodridge, J.A. |
| Judgment Date | 16 December 2015 |
| Neutral Citation | BB 2015 CA 23 |
| Docket Number | Criminal Appeal No. 17 of 2011 |
| Court | Court of Appeal (Barbados) |
| Date | 16 December 2015 |
Court of Appeal
Gibson, C.J.; Burgess J.A.; Goodridge, J.A.
Criminal Appeal No. 17 of 2011
Mr. M. Tariq Khan, Ms. Carol-Ann N. Best and Ms. Alexandria Thomas for the appellant.
Mr. Alliston Seale for the respondent.
Criminal practice and procedure - Appeal against conviction and sentence — Manslaughter — 18 years and 29 days — Whether the judge erred when she failed to ascertain the difficulties faced by the jury after she called them back from deliberating when they had not reached a verdict — Whether the judge erred in that she undermined the appellant's case by failing to mention all the issues and facts relating to the defence of accident in her summation — Whether the judge failed to mention the Crown's witness' admission during cross-examination — Whether the judge erred by failing to give a balanced summation of the defence's case by placing too much weight on the element of provocation to the detriment of the defence's complete defence of accident and self-defence — Whether the judge erred in law by withholding the defence of self-defence from the jury despite defence counsel having brought it to the judge's attention — Whether the verdict was unsafe and unsatisfactory in the circumstances — Whether the sentence was excessive.
On 15th June, 2008 sometime after midnight, Matthew Joseph (the deceased) suffered a gunshot wound while at Bush Hall, St. Michael. That wound was fatal. The appellant was arrested and charged with his murder. On 14th June, 2011 he pleaded not guilty to that charge. At the conclusion of the trial on 23rd June, 2011, the jury returned a verdict of guilty of manslaughter. On 15th August, 2012 Kentish, J. sentenced the appellant to 18 years and 29 days imprisonment, full credit having been given for the time spent on remand.
On the night in question, the appellant was the conductor of motor vehicle registration number ZR-259 which was driven by Philip Small alias “Agony”. The deceased was the conductor of motor vehicle registration number ZR-289 which was driven by Corey Lovell.
Shortly after midnight, both vehicles were at the junction of Lenister Road, Bush Hall, St. Michael, where ZR-259 was collecting passengers who had attended a cavalcade held at the National Stadium. Motor vehicle ZR-259 was parked in front of ZR-289.
At about ten minutes past midnight, the deceased left his vehicle and approached ZR-259. A scuffle ensued between the deceased and the appellant. Philip Small got out of motor vehicle ZR-259 and ran around the van with a gun in his hand. The appellant said “Gimme that” whereupon he took the gun from Small, turned around and shot the deceased. The deceased ran off followed by the appellant who shot at him again. The body of the deceased was later discovered by Kenrick Reeves in Reeves' backyard.
The appellant elected to give an unsworn statement in which he stated that, while he was putting passengers inside his vehicle, the deceased came and stood in the van's doorway. A passenger brushed against the deceased and he started to curse. The appellant told the deceased there was no need for that type of behaviour, whereupon the deceased chucked him and punched him in the head.
According to the appellant, they started to struggle and he ended up with his back against a wall with the deceased on top of him. “Agony'' held the deceased around his waist and pulled him away. The deceased then made a grab at his waist and the appellant saw “Agony” and the deceased struggling for a gun. The appellant tried to get the gun away from them and during the struggle the gun discharged. People started running in all directions. As the appellant opened the front door of his van to go inside he heard another explosion. He became afraid, got out of the van, ran across the road and went home.
The appellant denied having a gun at the material time or shooting anyone. He stated that the gun discharged accidentally while “Agony”, the deceased and he were struggling for it. He called no witness.
The appellant filed seven grounds of appeal against his conviction and sentence. We set out the grounds and discuss them below.
This ground is introductory in nature. It simply states that the appeal is against conviction and sentence. Nothing further needs to be said about it.
On this ground it is alleged that the sentence is “too excessive”. It is appropriate to deal with this ground after consideration of the other grounds relating to the conviction.
It is the contention of Ms. Thomas, counsel for the appellant, that the judge erred when she failed to ascertain the difficulties faced by the jury after she called them back from deliberating when they had not reached a verdict.
She submitted that the failure to ascertain whether the jury needed clarification or assistance on any point makes it impossible to properly comprehend whether their difficulties were resolved or not as these were not articulated at any given point in time. She relied on Berry v. R. (1992) 41 WIR 244; Springer (Neverlaine) v. The Queen, Criminal Appeal No. 17 of 2005 and Goldbourne v. The Queen, JM 2010 CA 101.
Mr. Seale, counsel for the respondent, submitted that there was nothing improper about the judge recalling the jury as she was merely complying with the provisions of section 42 of the Juries Act, Cap. 115B. It was also his submission that the cases cited by Ms. Thomas were not of assistance having regard to the facts in this case.
The record reveals that shortly before the jury retired the trial judge instructed them in the following terms:
“…. if at any stage of your deliberations you wish to have any part of that evidence checked or read back to you, that can be arranged. You will do this through your foreman, who will let one of the marshals know and the Court will reassemble for that purpose.
Secondly, if you would at any stage of your deliberations like me to repeat or elaborate upon any direction of law which I have given you, please do not hesitate to ask. It is fundamental that you understand the principles which you are required to apply and if you have any doubt about these principles then you are not only entitled to ask for further assistance but you should ask for it, and the procedure is the same as I have just outlined to you. You will indicate through your foreman that you require such assistance and a note signed by the foreman indicating the problem causing you difficulty should then be handed to the marshal who will pass it to me. Upon receiving such a request I shall discuss the matter with the Director of Public Prosecutions and counsel for the accused and the Court then reassemble for the purpose of assisting you.”
This Court recognises that these instructions to the jury accord with the procedure outlined by Lord Lane, C.J. in Gorman [1981] 1 WLR 545.
The jury retired at 1.46 pm and were recalled by the judge at 4:09 pm, after some two hours and twenty minutes of deliberations. The following exchange then ensued:
“THE CLERK: Mr. Foreman, please answer yes or no. Have you reached a verdict upon which you are all agreed?
MR. FOREMAN: No ma'am.
THE COURT: Is it likely that you will reach a verdict on which you are all agreed?
MR. FOREMAN: At this point it is hard to decide, ma'am.”
The judge then proceeded to ask the jury to retire once again and seek to reach a unanimous verdict, but if they could not agree, she could accept a majority verdict. They retired again at 4:13 pm and returned at 5:00 pm when they delivered a verdict of guilty of manslaughter: eleven agreed and one dissented.
In our judgment the cases relied upon by counsel can be distinguished on the facts. Those cases dealt with circumstances where the jury had indicated to the judge that they needed clarification or assistance which was not provided. This was not the case here. What the cases show is that a judge is under a duty to assist a jury which has indicated that they need the judge's help.
There is nothing in the record which indicates that the jury sought any clarification or assistance on any issue or requested further directions. The extract referred to earlier shows that the jury's sole difficulty was that of reaching unanimity as indicated by the foreman's response. In the face of the judge's clear directions as to how they should seek assistance from the Court and the fact that no such request was made, we cannot agree with counsel that the judge erred as she contends. We hold that this ground cannot be sustained.
It is contended in this ground that the judge erred in that she undermined the appellant's case by failing to mention all the issues and facts relating to the defence of accident in her summation. In addition, it was contended...
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