Anjay Charles Appellant v The Queen Respondent

• Jurisdiction: St Vincent and the Grenadines
• Judge: Webster JA,Dame Janice M. Pereira, DBE,Chief Justice,Mario F. Michel,Justice of Appeal
• Judgment Date: 06 April 2017
• Judgment citation (vLex): [2017] ECSC J0406-2
• Court: Court of Appeal (Saint Vincent)
• Docket Number: SVGHCRAP2013/0016
• Date: 06 April 2017

[2017] ECSC J0406-2

EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Before:

The Hon. Dame Janice M. Pereira, DBE Chief Justice

The Hon. Mr. Mario F. Michel Justice of Appeal

The Hon. Mr. Paul Webster Justice of Appeal [Ag.]

SVGHCRAP2013/0016

Between:

Anjay Charles

Appellant

and

The Queen

Respondent

Appearances:

Ms. Kay Bacchus-Browne for the Appellant

Mr. Carl Williams for the Respondent

Criminal appeal — Murder — Joint enterprise — Sole defendant — Eyewitness evidence — Mental element in joint enterprise — Trial judge's directions to the jury — Section 21 of the Criminal Code — Whether verdict unsafe and unsatisfactory on the evidence — Nondisclosure of witness statements by prosecution

The appellant, Anjay Charles, was the sole defendant tried on a nine count indictment containing three counts each of murder, unlawful use of firearm and possession of firearm with intent to commit an offence. The case against the appellant was that he and other persons went to Lowmans Hill armed with guns and murdered three men. The prosecution led evidence directly implicating the appellant including evidence that he was seen running with a gun in his hand from the area where gunshots were heard. The appellant presented an alibi defence stating that he was working at his cousin's garage in Chauncey on the day of the murders. He also gave sworn evidence at the trial to the same effect. The jury returned unanimous verdicts of guilty on all nine counts.

The appellant appealed his conviction and sentence alleging, inter alia, that the lone eyewitness evidence did not identify him as one of the persons who shot the men; that he cannot be convicted of acting in concert with two other named men because they were acquitted of the murders of the three men; that the learned Director of Public Prosecutions failed to disclose vital witness statements to the defence despite being asked several times thereby rendering the trial unfair and hampering the defence; and that the sentence imposed is excessive.

Held: dismissing the appeal and affirming the conviction and sentence, that:

• 1. When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each is deemed to have committed the offence. There need not be evidence as to how he or she participated in the unlawful activity. The case against the appellant was that he participated in the commission of the agreed unlawful purpose and he is therefore deemed to have committed the offence of murder. The Crown did not have to prove that he shot any of the three men. Proof that he was present at the scene of the crime with the requisite knowledge was sufficient to secure his conviction for murder. Further, the directions by the trial judge on the mens rea for murder combined with the direction on the actus reus for a person involved in the joint enterprise, would have been sufficient to alert the jurors that in order to find the appellant guilty of the offence of murder, they had to be sure that he participated in the shooting of three deceased men and that he did so with the intention that death or serious bodily harm would have been inflicted by those participating in the killings.

  Section 21 of the Criminal Code, Cap. 171, Revised Laws of Saint Vincent and the Grenadines 2009 applied; Teiko David Jamel Furbert et al v The Queen [2000] UKPC 12 applied.

• 2. The prosecution can proceed against one of several co-principals or an accessory without joining the principal. If two persons commit a crime as a part of a joint enterprise and the police apprehend only one of them, the prosecution can proceed against that person if they have evidence to show that he was involved in the joint enterprise with the person who remains at large. The essence of the case against the appellant was that he went to the scene of the crime with two other men, shots were fired and three men were killed and he was seen leaving the scene running with a gun in his hand, followed by another man who also had a gun in his hand. The Crown's case was not based on a theory that the appellant shot any of the men. He was charged and proceeded against as being involved in an unlawful joint enterprise with other persons that resulted in murder and it does not matter whether he participated as principal or as an accessory.

  Hui Chi Ming v The Queen [1992] 1 AC 34 applied.

• 3. The evidence of the acquittal of the two men of the murders of the same victims is irrelevant to whether the prosecution can proceed against the appellant. The verdict reached by a different jury (whether on the same or different evidence) in the earlier trial is irrelevant and amounts to no more than evidence of the opinion of that jury.

  Hui Chi Ming v The Queen [1992] 1 AC 34 applied.

• 4. The law as to the duty of disclosure requires the Crown to disclose to the defence any material of which it is aware that would tend either to materially weaken the Crown's case or materially strengthen the case for the defence. Non-disclosure by itself does not automatically lead to the conclusion that trial is unfair. The significance and consequences of the non-disclosure must be assessed. If the undisclosed statement is substantially the same as the evidence given by the witness in court it is unlikely that the fairness of the trial of the defendant would have been impacted. However, if the undisclosed statement is substantially at variance with the evidence given by the witness in the trial, the reviewing court may treat the non-disclosure as being unfair to the defendant and quash the conviction. In the instant appeal, counsel for the prosecution advised the Court that no statements were being withheld by the prosecution and that in any event there was no evidence withheld that was exculpatory. The prosecution was therefore not obliged to disclose any additional statements to the defence. Moreover, it was open to the defence, having requested statements before the trial, to apply to the judge for a disclosure order. Such an application was not made and this Court cannot speculate on the contents of the statements that are said to have been withheld. In the circumstances this ground of appeal fails.

  Maureen Peters v The Queen BVIHCRAP2009/0005 (delivered 1st October 2010, unreported) followed; McInnes v Her Majesty's Advocate (Rev 1) (Scotland) [2010] UKSC 7 applied; R v Foxford [1974] NI 181 applied; Berry (Linton) v R (1992) 41 WIR 244 applied; Young v The State [2008] UKPC 27 applied.

• 5. The appellant was convicted of the murder of three persons who were killed by firearms in what appears to be a premeditated and violent attack on the men. There is nothing in the record or in counsel's written and oral submissions to suggest that the learned trial judge erred in any way in imposing the various sentences for which the appellant was found guilty, or that the sentences were excessive or unreasonable. This ground of appeal therefore fails.

1 Webster JA [AG] : In June 2013 the appellant, Anjay Charles, was tried by a judge and jury on an indictment containing three counts of murder contrary to section 159(1) of the Criminal Code, 1 three counts of unlawful use of a firearm contrary to section 185 of the Criminal Code, and three counts of possession of a firearm with intent to commit an offence contrary to section 19(1)(a) of the Firearms Act. 2 The jury returned unanimous verdicts of guilty on all nine counts. The appellant was sentenced to 25 years imprisonment on each count of murder, 10 years imprisonment on each count of unlawful use of a firearm, and 8 years imprisonment on each count of possession of a firearm with intent to commit an offence. The sentences were ordered to run concurrently. On 25 ^th October 2013, the appellant was granted an extension of time to appeal against his conviction and sentence.

Factual Background

2 On 9 ^th August 2007 three men, Omoro Bowens, Reuben Small and Javon Antoine, were shot and killed at Lowmans Hill, Saint Vincent and the Grenadines. The case against the appellant was that he and other persons went to Lowmans Hill armed with guns and murdered the three men. The medical evidence is that Messrs. Bowens and Antoine were shot once each and Mr. Small was shot four times, three of the bullets entering the back of his head. The day after the killings the appellant was approached by the police but he ran away and was not found. It turned out that he had gone to Saint Lucia where, on his evidence, he was charged with illegal entry and spent time in prison. In the meantime two other men, Rodney Roberts and Jason Henry, were charged with the murders of the three men and were acquitted. The appellant returned to Saint Vincent and the Grenadines in or about October 2009 and in March 2010 he was arrested and charged with the murders of the three men. He gave the police a written statement in which he denied any involvement in the killing of the men and said that he was working at his cousin's garage in Chauncey on the day of the murders. He also gave sworn evidence at the trial to the same effect.

3 I will set out the facts of the case in greater detail when I deal with the grounds of appeal.

Grounds of Appeal

4 The appellant originally advanced three grounds of appeal. After the appeal was assigned to counsel, Ms. Kay Bacchus-Browne, she applied for and was granted leave to amend the notice of appeal to include additional grounds. The grounds of appeal in the amended notice are:

• (1) The verdict is unreasonable and cannot be supported by the evidence presented in court.

• (2) The learned Director of Public Prosecutions failed to disclose vital witness statements to the defence, despite being asked several times thereby...