Elroy Howe v The Queen [ECSC]

• Jurisdiction: St Vincent and the Grenadines
• Judge: CECIL LEWIS, C.J (Ag),Acting Chief Justice
• Judgment Date: 21 September 1972
• Judgment citation (vLex): [1972] ECSC J0921-2
• Court: Court of Appeal (Saint Vincent)
• Docket Number: Criminal Appeal No 7 of 1972
• Date: 21 September 1972

[1972] ECSC J0921-2

IN THE COURT OF APPEAL

Before:

The Honourable the Acting Chief Justice

The Honourable Mr. Justice St. Bernard

The Honourable Mr. Justice Bishop (Ag. J.A)

Criminal Appeal No 7 of 1972

Between:

Elroy Howe

and

The Queen

E. Robertson for the Appellant

The Attorney-General (A. Warner, Q.C.) and

Miss M. Joseph (Legal Assistant) for the Crown

The Judgment of the Court was delivered by—

CECIL LEWIS, C.J (Ag)

1 The appellant having been convicted of the murder of Erlin McGuire and sentenced to death on March 9, 1972 has now appealed against his conviction. One of the grounds of appeal urged on his behalf is as

2 follows:

"That the Learned Trial Judge erred when in the course of his summing up he put the accused's character and previous convictions before the jury. The learned trial judge said:

'In addition to all that some or all of you may have been present, not too long ago when the accused was convicted of another criminal offence: but you should not allow any knowledge that he is a convicted person to prejudice your minds in any way against him but arrive at your verdict in keeping with your conscience and the facts to which you have heard the witnesses depose.'"

3 The words to which objection has been taken occur in a passage beginning on the first page of the judge's summing up, in which he delivered a warning to the jury that in arriving at their verdict they should act only on the evidence heard in court. This is the passage:

"Now in a comparatively small community such as ours, it is difficult if not impossible for you not to have heard something about this case before you took your seats in the jury box ; but in these criminal cases whether loss of life is involved or not the trial is based on the evidence which you hear from the jury box within the four walls of this Court. In all these cases, trial is not by newspaper, or by gossip, or by hearsay, or by any other means but by the evidence which you hear in this Court. You will not be influenced by any prejudice against the accused, or by any sympathy for the deceased, or for those whom the deceased has left behind. You will not allow any appeal to your emotions to affect you by conjecturing that what the Defence alleges took place at the hospital may well have taken place in respect of you, or in respect of any one close and dear to you. You will exclude from your minds anything which you have heard or read so that, finally, you can with a clear conscience return a verdict according to the evidence in this matter. In addition to all that, some or all of you may have been present, not too long ago, when the accused was convicted of another criminal offence; but you should not allow any knowledge that he is a convicted person to prejudice your minds in any way against him but arrive at your verdict in keeping with your conscience and the facts to which you have heard the witnesses depose to and apply the law to those facts as I direct you."

4 The exact facts which led the trial judge to use the words complained of are not known and neither counsel is in a position to give the court any assistance in the matter. In fact counsel for the appellant informed the court that he was not present in the court below when the conviction of the appellant referred to by the trial judge took place. This court can thereforeonly infer from the judge's remarks what might have happened which made it necessary for him to use the words which have been the subject of criticism by counsel for the appellant.

5 From the judge's remarks it is clear that he was satisfied that some or all of the jurors impanelled to try the charge against the appellant, may have been present in court when the appellant was convicted of another offence and that that conviction had taken place recently. It is common ground that this conviction was for the offence of rape. It must also be assumed that the trial judge was satisfied that the information which came to the knowledge of the jury was prejudicial to the appellant, hence his warning to them.

6 The question which arises therefore is whether the action which he took to remove the prejudice from the minds of the jury was the proper one in the circumstances.

7 Counsel for the appellant contended that no one could be certain to what extent the words of the warning might have affected the minds of the jury, but he submitted that their prejudicial effect might have been such as...