Charles et Al v R

• Jurisdiction: St Vincent and the Grenadines
• Judge: Alleyne, J.A.,Gordon, J.A.
• Judgment Date: 06 December 2004
• Neutral Citation: VC 2004 CA 19
• Docket Number: Criminal Appeal No. 16 and 17 of 2003
• Court: Court of Appeal (Saint Vincent)
• Date: 06 December 2004

Court of Appeal

Saunders, C.J. (Ag.); Alleyne, J.A.; Gordon, J.A.

Criminal Appeal No. 16 and 17 of 2003

Charles et al

and

Regina

Appearances:

Ms. Nicole Sylvester and Ms. Rochelle Forde for the appellant Charles.

Mr. Richard Williams for the appellant O'Garro.

Mr. Collin Williams, Director of Public Prosecutions [Ag.] and Ms. Sandra Robertson for the respondent.

Criminal practice and procedure - Murder — Appeal against conviction — Whether trial judge failed to give adequate directions on voluntariness of a caution statement, intoxication and its effects or possible effects — Evidence of one witness and identification evidence — Appeal against conviction of second appellant allowed — In relation to first appellant sentence remitted to the trial judge for consideration of all circumstances including any psychiatric report and for application of guidelines established in Mitcham and Others (St. Kitts and Nevis Crim. Appeals Nos. 10—12 of 2002).

Alleyne, J.A.

1 On 20th May 2003 the Director of Public Prosecutions issued an indictment against Leonard O'Garro and Ken Charles charging them with the murder of Ronald Lewis at Mount Wynne, Saint Vincent on 12th April 2002. The indictment also charged both appellants with wounding Shellean Gregg at the same time and place. The that commenced on 9th July 2003 and on 24th July the jury returned unanimous verdicts of guilty in respect of both appellants on both counts of the indictment The learned trial judge thereupon ordered social inquiry reports and psychiatric reports and on 31st July, after hearing submissions from counsel for both accused and the Director of Public Prosecutions, and evidence called on behalf of the appellants, and the evidence of the Probation Officer, passed sentence of death on both accused in respect of the first count, and 25 years imprisonment in respect of the second count. The appellants have appealed against conviction and sentence. The appeals were consolidated and heard together.

2 At the commencement of the hearing the matter of sentence was discussed. It was common ground that at the sentencing stage of the trial the Court did not have before it a psychiatric report in respect of the appellants. At the time of sentence this process was thought to be desirable but optional. Since then, with the decision in Mitcham and others St. Christopher & Nevis Criminal Appeals Nos. 10 - 12 of 2002, it is settled that in every case where the death penalty is sought by the prosecution, such a report must be considered.

3 In that case Chief Justice. Sir Dennis Byron laid out procedural guidelines in the following terms:

4 “Accordingly, I put forward the following as a procedural guide:

1

If the prosecution intend to submit that the death penalty is appropriate in the event that the accused is convicted of murder, then notice to that effect should be given no later than the day upon which the offender is convicted. The notice may be given immediately upon conviction in which case it may be given orally. In any event the notice should contain the grounds on which the death penalty is considered appropriate. [2] Upon conviction by the jury, and the Prosecution having given notice that the death penalty is being sought, the trial judge should, at the time of the allocutus, specify the date of a sentencing hearing which provides reasonable time for preparation. Where the Prosecution and the trial judge consider that the death penalty is not appropriate, a separate sentencing hearing may be dispensed with if the accused so consents and the offender may be sentenced right away in the normal fashion. [3] When fixing the date of a sentencing hearing, the trial judge should direct that social welfare and psychiatric reports be prepared in relation to the prisoner. The burden of proof at the sentencing hearing lies on the prosecution and the standard of proof shall be proof beyond reasonable doubt The trial judge should give written reasons for his/her decision at the sentencing hearing.” [4] At the outset, the learned Director of Public Prosecutions conceded that, in the event that the appeals against conviction were unsuccessful, the matter should be remitted to the trial judge for sentence in accordance with the guidelines. We will address this matter at the end of this judgment if it becomes necessary. The matter arises under the first ground of appeal in each case. [5] Also related to sentence was the second ground of appeal in each case; that the learned trial judge did not give full and proper consideration at sentencing (to) the effect of intoxication. Ground 4 in the appeal of Ken Charles, and ground 5 in Leonard O'Garro's appeal, complain that the sentences for each offence were excessive. These issues also we will deal with in due course if it becomes necessary. [6] Both appellants appealed against sentence on the ground that the sentences for each offence were excessive. A number of additional grounds relating to sentence were also filed. [7] The appellant Ken Charles appealed against his conviction on the grounds that (1) the learned trial judge's summing up was unfairly and excessively weighed against the appellant and in favour of the prosecution (ground 3), and (2) that the learned trial judge misdirected himself (and therefore the jury) on the issue of the police identification procedures and breaches of P.A.C.E. and the implications and inferences of fact and law that arise therefrom (ground 5). This appellant filed and argued amended grounds of appeal against conviction, as follows:

5 Ground 6. The learned trial judge in his summing up failed adequately or at all to direct the jury as it relates to intoxication and intent

6 Ground 10. A material irregularity occurred in the course of the appellant's trial rendering his trial unfair for and among the following reasons:–

• (a) The learned trial judge failed to leave the issue as to admissibility of the evidence relating to the identification parade of the appellant Ken Charles to the jury.

• (b) The learned trial judge erred in law in allowing the case to go to the jury in light of the quality of the identification evidence as it related to the appellant Ken Charles.

7 Ground 15. That the conviction was unsafe and unsatisfactory.

8 The appellant Leonard O'Garro appealed against conviction on the grounds that the learned trial judge's summing up was unfairly and excessively weighed against the appellant and in favour of the prosecution, and that the learned trial judge misdirected himself (and therefore the jury) on the issue of the police identification procedures and breaches of P.A.C.E. and the implications and inferences of fact and of law that arise therefrom. In addition on the 19th April 2004 the appellant filed additional grounds as follows:

• (1) The conviction is unsafe and unsatisfactory.

• (2) The trial judge failed to direct the jury adequately or at all on the issue of the voluntariness of the caution statement

• (3) The learned trial judge failed to direct the jury as to the issue of oppression negating the voluntariness of the caution statement

• (4) The learned trial judge at voir dire No: 4 failed to give adequate weight to the evidence of Kensley Dougan.

• (5) The learned trial judge failed to direct the jury as to the evidence of Kensley Dougan (JP) and the manner in which his evidence must be treated and its effect on voluntariness.

• (6) The learned trial judge failed to give any or any adequate direction regarding intoxication and its effect or possible effects on intention.

• (7) The learned trial judge erred in permitting the prosecution to lead evidence of the defendant's bad character and antecedents before the jury.

• (8) The learned trial judge sentenced the appellant to death having taken highly prejudicial and irrelevant material into consideration.

THE CASE OF KEN CHARLES IDENTIFICATION PARADE

9 Learned counsel for the appellant Charles dealt with grounds 5, 10 and 15 together. Grounds 5 and 10 related to the issue of the identification parade, and ground 15, that the conviction was unsafe and unsatisfactory. Learned counsel referred to the evidence of the witness Shelly Ann Gregg at page 13 of the record relating to the identification parade. This witness said she was told that the fellows she had identified in the photos may or may not be on the parade. There were about 14 or more men on the parade, and she identified the appellants O'Garro and Charles from among them, telling the police officer Walker that ‘those were the two guys who shot Ronald (Lewis) and me.’ learned counsel submitted that it is a well established principle that where photos have been shown to an identifying witness, that witness should not be called for the purpose of identifying the accused. Counsel cited the case of Peter David John Lamb (1980) 71 Cr. App. R. 198. The relevant facts of that case, as shown in the headnote, were that an album of Criminal Record Office photographs including that of the defendant was shown to the jury (not the identifying witnesses) without anything being said or done by the defence which called for it Lawton, L.J. referred to a Home Office circular which indicated, among other things, that ‘once a witness has made a positive identification from photographs, other witnesses should not be shown a photograph, but should be asked to attend an identification parade.’ Criticism was made by counsel for the appellant of the fact that after having made an identification from the photograph, the witness was allowed to confront the appellant in an identification parade. His Lordship referred to this as ‘unfortunate in the circumstances’, and referred to this and other issues as ‘all matters for the exercise of his discretion.’

10 In that case the prosecution's case had depended entirely on the issue of identification by three witnesses, while on the other hand the defence was alibi....