Daniel Dick Trimmingham Appellant v The Queen Respondent [ECSC]

• Jurisdiction: St Vincent and the Grenadines
• Judge: ALLEYNE, J.A.,Justice of Appeal,Albert Redhead,Brian Alleyne, SC,Michael Gordon, QC
• Judgment Date: 22 June 2004
• Judgment citation (vLex): [2004] ECSC J0622-1
• Court: Court of Appeal (Saint Vincent)
• Docket Number: CRIMINAL APPEAL NO. 26 OF 2003
• Date: 22 June 2004

[2004] ECSC J0622-1

IN THE COURT OF APPEAL

Before:

The Hon. Mr. Brian Alleyne, SC Justice of Appeal

The Hon. Mr. Albert Redhead Justice of Appeal

The Hon. Mr. Michael Gordon, QC Justice of Appeal

CRIMINAL APPEAL NO. 26 OF 2003

Between:

Daniel Dick Trimmingham

Appellant

and

The Queen

Respondent

Appearances:

Mrs. Kay Bacchus-Browne for the Appellant

Mr. Colin Williams, Director of Public Prosecutions [Ag.]; Ms. Sandra Robertson and Ms. Candace Wiley for the Respondent

ALLEYNE, J.A.

1 On the evening of Wednesday 28 ^th January 2003, in the Carriere mountains, Mesopotamia, Albert 'Bertie' Browne was murdered and beheaded, his body was buried in a contour and his head stuffed in a banana root on an adjoining plot of land. The Appellant was convicted of the murder on 10 ^th November 2003, and sentenced to death on 17 ^th November 2003. He has appealed against his conviction and sentence.

2 The grounds of appeal were (1) the verdict is unsafe having regard to the evidence; (2) the failure of the prosecution to disclose or acknowledge the Forensic Analyst's report which contained exculpatory evidence re the accused or evidence which tended to contradict the case for the prosecution is fatal to the conviction which must be quashed. The failure to admit the report into evidence was highly prejudicial to the defence and the conviction must be quashed; (3) the learned trial Judge misdirected the jury when he told them that the defence is saying that the absence of the murder weapon alone should create doubt, and that the absence of blood on the murder weapon does not take away anything from the prosecution's case and that the cutlass was lying in the open not hidden and that weather conditions removed the blood, in the absence of or contrary to the evidence; (4) that the sentence is unduly severe.

3 Learned Counsel for the Appellant argued ground 2. She drew attention to the evidence of Felix Browne, who may be described as the prosecution's 'star witness' and claimed to be an eye-witness to the crime. He alleged in his evidence that using the cutlass of the deceased the Appellant cut or sliced the throat of the deceased, allowed his blood to run out, cut the flesh around the deceased's neck, and when he reached the bone he hacked the bone, he held the deceased head by the ears and rested it on the bank of the contour. This witness said the Appellant used the cutlass to cut off the deceased's jersey, took off his pants and put the severed head in the pants, put the deceased in the hole in the ground which he had dug with the cutlass, used the cutlass to cut the deceased's belly, and covered the body with sand which he dug. The Appellant then, according to this witness, took the head to a different place and buried it in an old banana hole. This witness gave evidence that about a week later he showed the police the cutlass the Appellant had thrown over a bank into some bush. He said in cross-examination that the cutlass had blood on it. He also showed the police where the body and the head were buried.

4 Station Sergeant Willis Caesar gave evidence of recovering a cutlass which had what appeared to be blood stains on it. He went to Jamaica with certain exhibits, namely a cutlass, a khaki pants, a pair of brown slacks, one brief, samples of deceased's blood, and five pieces of cloth for forensic testing. He said Corporal Simmons collected the exhibits from Jamaica and handed them to him sealed. He kept them in his possession. He was shown a cutlass which he identified and tendered. Learned Counsel for the Appellant objected. The record shows that the prosecution at that stage stated that there was 'no analyst report in respect to cutlass'. The defence presented an Analyst's report which apparently Counsel had earlier received in a letter from a Crown Counsel in the Department of the Director of Public Prosecutions. The record shows that at that stage the prosecutor said that 'in that regard' he will not put in those items into evidence. The trial continued. In cross-examination this witness reaffirmed that Felix Browne had taken him to where he retrieved the cutlass. He said it appeared to have bloodstains on it. This witness, who claims to have headed the investigation team into this crime, said that no Analyst's report was given to him, he did not inquire about the Analyst's report, and he has never seen an Analyst's report in relation to this matter. All this took place in the presence of the jury. In the event, the trial proceeded to a conclusion without the exhibits of the cutlass and other material matters being in evidence. The learned Director of Public Prosecutions informed us that he had not up to that point in the trial been aware that there was an Analyst's report, and that there was no copy of such a report on his case file.

5 In his defence the Appellant elected to give evidence on oath. He denied participation in the murder of the deceased and alleged that Felix Browne had confessed to him that he had killed his uncle. He recounted in great detail the story allegedly told him by Felix Browne. At the end of his testimony learned Counsel is recorded as having said to the Court 'That is our case. We are not calling any witnesses. Before I sit down —I apply for the certificate of analysis to be put in...