Worrell v The Queen
| Jurisdiction | Barbados |
| Judge | Moore, J.A. |
| Judgment Date | 19 June 2014 |
| Neutral Citation | BB 2014 CA 12 |
| Docket Number | Criminal Appeal 19 of 2010 |
| Court | Court of Appeal (Barbados) |
| Date | 19 June 2014 |
Court of Appeal
Gibson, C.J.; Moore, J.A.; Burgess, J.A.
Criminal Appeal 19 of 2010
Mr. Shiraz Aziz and Mrs. Angella Mitchell-Gittens Attorneys-at-Law for the appellant
Mrs. Donna Babb-Agard, QC., Deputy Director of Public Prosecutions for the respondent
Evidence - Good character — Whether judge under a duty to raise issue of good character — Appeal dismissed — Evidence Act, Cap. 121, s. 92.
This is another of those unfortunate cases in which a 15 year old boy has lost his life senselessly, as we say in Barbados, “Before he had seen a star pitched”; and a 19 year old boy will spend his formative years in hopeless solitude, his future, if not ruined, certainly looking bleak, reflecting on a senseless act, and hopefully resolving not to repeat it while, as Oscar Wilde put it in the Ballad of Reading Gaol, “Looking wistfully at the day”.
On 9 June 2010, the appellant was found guilty of manslaughter before Worrell J and a jury and on 27 May 2011 was sentenced to 9 years imprisonment. He had been indicted jointly with Janus Merton Mayers for the murder of Greg McDonald Taylor on 9 January 2007. During the course of the trial the prosecution withdrew the charge against Mayers and the jury returned a formal or directed verdict of not guilty.
On 30 December 2006, the deceased, Greg McDonald Taylor (Greg), with his father's permission, attended a fete known as “Teen Bash” at the Olympus Cinema at Sheraton Mall at Adams Castle, Christ Church. Greg left home in the company of some friends, including Kevin Blaggrove and Troy DaCosta (Troy) and his cousin, Tamisha Wilkinson.
The show ended about midnight. Greg and his party left the Olympus Cinema and while they were walking in front of Courts, a furniture store, and the building housing the offices of Fedex Express, another group of boys approached them. One of those boys pushed Troy and slapped him in the face. Troy retaliated by slapping the boy.
A fight ensued between the two groups of boys. During the fight Greg was kicked and cuffed about his body. Shem Parris (Shem) who was a member of the group that included Greg testified that he saw the appellant strike Greg on his head with a bottle. Greg collapsed and some of his friends tried to assist him by wrapping something around his head, which was bleeding profusely. Shem knew the appellant because they had attended the same school at the same time.
Greg was eventually transported to the Queen Elizabeth Hospital by ambulance where he underwent emergency surgery. After surgery he was transferred to the Surgical Intensive Care Unit where he died at 5:40 a.m. on 9 January 2007.
Dr. Stephen Jones, Consultant Pathologist at the Queen Elizabeth Hospital, conducted a post-mortem examination on Greg's body. Dr. Jones recorded, inter alia, the following findings: “a sutured laceration on left side of scalp with an area of contusion and abrasion; a depressed and comminuted and compound fracture of left parietal bone which extended into the bone just above the ear and towards the floor of the cranial cavity and subdural haematoma”. The cause of death was recorded as severe traumatic head injury. Dr. Jones testified that the injury was consistent with having been inflicted with a blunt object such as a bottle. He testified further that the injury could not have been caused by a cuff.
The matter was reported to the police and they commenced investigations. On 1 January 2007 Sergeant 1196 Dudley Walrond recorded a statement from Shem. Later that day he went on duty to the residence of the appellant who subsequently accompanied Sergeant Walrond to the District “C” Police Station where he was interviewed by the said Sergeant Walrond in the presence of P.C. 462 Adrian Price. During the course of the interview the appellant made several oral statements under caution. The following record of that interview is taken from the evidence of Sergeant Walrond as recorded at page 121 line 23 to page 125 line 1:
“About 1225 hours that same day in the presence of Sergeant 462 Price, I reminded the accused Worrell about the report made by Gregory Taylor, and I again told him that I was about to commence my interview with him and it was still his right to consult privately with an attorney-at-law if he so desired. The accused replied. “I talk to my lawyer yesterday and he told me to make no statements til court.” In the presence of Sergeant 462 Price, I asked the accused Worrell what he could say about the report made to the police by Gregory Taylor, and cautioned him. He replied, “All I could tell you is that I was in the group.” In the presence of Sergeant Price, I then asked the accused Worrell if he wanted to give a written statement in connection with the matter and cautioned him. He replied, “No”. I then told the accused Worrell that I was going to ask him a series of questions and I cautioned him and told him that this caution applied to all the questions that I was going to ask, and I told him that I was going to record the questions and the answers at the same time.
Question: Who are the others that were in the group that you mentioned?
Answer: Jujus Mayers, Charles Prescod and Jason Welch.
Question: Who in the group was fighting with Greg Taylor?
Answer: Me.
Question: Did you hit Greg Taylor on his head?
Answer: No.
Question: Do you know who struck Greg Taylor on his head?
Answer: I know it was not me.
Question: Were you present when Greg Taylor was struck on his head?
Answer: I was out there.
Question: Do you know what Greg Taylor got struck with?
Answer: No.
Question: Did you throw any rocks?
Answer: Yes. I pelt a rock. Everybody was pelting rocks. I hit somebody that had his hair plait and he fell down.
Question: Do you know who you hit with that rock?
Answer: No.
Question: Do you know Greg Taylor personally?
Answer: No. All I could tell you is that he ran at me with a knife
Question: Can you describe this knife?
Answer: No.
Question: You were identified by a witness as the person that struck Greg Taylor on his head with an object whilst two other fellas were holding him.
Answer: I was the first fella in the group to be spotted out by the fella that went to school with me.
Question: Do you know this fella that identified you?
Answer: I don't remember he name but he was a year under me and when the school closed down, he went to Deighton.
Question: What school are you referring to?
Answer: Louis Lynch.
Question: What do you mean by, ‘went to Deighton’?
Answer: Deighton Griffith School.
Question: Did you go to Deighton Griffith School?
Answer: No. I was already done.
Question: Do you want to initial my notes in my notebook?
Answer: No because that might be the same thing as a statement.
At the trial the appellant gave the following unswom evidence:
“Good Morning, my name is Julian Worrell, I am 22 years old. On the 1st January 2007 I was 19 years old. That night I attended a “Teen Bash”. After the “Teen Bash” was finished, me and my friends were leaving. Whilst we were leaving, when I get ‘round by the FedEx wall I see a fella run at me with a knife. I was by myself at the time. I end up scuffling with this fella. Whilst scuffling with this fella, I saw a fella run at me, so I push away this fella I was scuffling with and ran cross the car park. I was scuffling with this fella and whilst scuffling with this fella, another fella run at me with a knife. So I push away this fella that I did scuffling with and ran across the car park opposite the FedEx wall. While I was scuffling with this fella, I did not have anything in my hands or on me. When I left him he was still good and he was still standing. A little whilst after, I was still ‘cross the car park and when the fight cool down, I went back ‘cross part my friends were. Where part I ran from, part I was scuffling with the fella. And when I was back ‘cross there I see a fella’ pon the ground, he did look like the fella I did fighting with but I am not sure, and after that I went long”.
There are five grounds of appeal filed on the appellant's behalf. We discuss them seriatim, below.
On the first ground of appeal it was contended on behalf of the appellant that the judge was in error when he failed to direct the jury on the issue of good character. Counsel submitted that it is up to defence counsel and, furthermore, good practice, to ensure that the judge is made aware that the defendant relies on his good character and that it is something which the judge ought to raise and clarify with prosecution and defence counsel in the case. Counsel's final written submission was:
“That having seen and heard the witnesses, including Shem Parris, and in particular listening to the closing speech of Ms. Babb-Agard Q.C., the jury ought to have been guided by the trial judge on how to assess the witness' credibility, by giving to the jury a proper “good character” direction, the failure of which was a fundamental and fatal flaw to the proceedings”.
Such a direction he said, was most important because it related to the appellant's credibility and his lack of propensity to commit crime, especially the type of crime for which he was charged. Counsel relied on R v. Vye, R v. Stephenson and R v. Wise 97 Cr. App. Rep 134; Jagdeo Singh v. The State PC Appeal No. 54 of 2004 and Patrick Lovelace v. The State, Criminal Appeal No. 17 of 2009 (St. Vincent & Grenadines) OECS Court of Appeal.
On this ground, counsel for the respondent submitted that the judge was under no duty to give a good character direction because the defence did not rely on the issue of the appellant's good character during the course of the trial. Counsel relied on Mervin Weekes v R, Criminal Appeal No. 4 of 2000 (Unreported) ( Weekes) and Sealey & Anor v. The State (Trinidad and Tobago) [2002] UKPC 52 ( Sealey).
The statutory basis for adducing...
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