Foye v The Queen

• Jurisdiction: St Vincent and the Grenadines
• Judge: Baptiste, J.A.
• Judgment Date: 31 May 2010
• Neutral Citation: VC 2010 CA 3
• Docket Number: Criminal Appeal No. 8 of 2007
• Court: Court of Appeal (Saint Vincent)
• Date: 31 May 2010

Court of Appeal

Edwards, J.A.; George-Creque, J.A.; Baptiste, J.A.

Criminal Appeal No. 8 of 2007

Foye

and

The Queen

Appearances:

Mrs. Kay Bacchus-Browne for the appellant

Mr. Colin Williams, Director of Public Prosecutions with Mr. Carl Williams, Mr. Duane Daniel and Ms. Sejilla Mc Dowall for the respondent

Evidence - Admissibility — Dying declaration — Res gestae — Finding that dying declaration ought to have been excluded as there was no other evidence implicating the appellant.

Held: allowing the appeal, quashing the conviction and setting aside the sentence of life imprisonment:

• 1. A dying declaration at common law may be admitted where it is shown that the maker of the statement died; that a trial for his murder followed; that the statement related to the cause of his death; and that when making the statement he was shown to have had a settled hopeless expectation of death. These conditions were met in the instant case. However, a trial judge has a discretion to exclude the evidence of dying declaration if in his opinion it is so unreliable, meaningless or ambiguous that it would be unfair to invite the jury to consider it.

• R v. Lawson [1998] E.W.C.A. Crim. 1495 , applied.

• 2. When the prosecution's case depends on a dying declaration in circumstances in which the identification evidence cannot be relied on, the dying declaration should not be admitted in the absence of other evidence supportive of the correctness of the identification.

• 3. In the instant case, the identification evidence was unreliable as the shooting occurred at night in an unlit area so that Mr. Browne could not have seen who shot him. Further, there was no forensic evidence linking the appellant with the shooting, no motive for the crime and no other evidence supporting the correctness of the identification or otherwise connecting or implicating the appellant with the crime. In all the circumstances, the admission of Mr. Browne's statement had an adverse effect on the fairness of the proceedings and gave rise to the risk of a miscarriage of justice so that it ought to have been excluded. The learned judge accordingly erred in admitting Mr. Browne's dying declaration.

• Furbert and Another v. The Queen (Bermuda) [2000] 1 W.L.R. 1716 (Privy Council) , distinguished.

Baptiste, J.A.

1 This judgment concerns the reasons for allowing an appeal against a murder conviction where the prosecution's case depended exclusively on a dying declaration.

2 On the night of 2nd October 2004, Percy Browne (“Mr. Browne”) was shot soon after leaving a shop in Carriere, Saint Vincent. He succumbed to his injuries later that night. On 6th December 2006, Selwyn Foye also known as Kashie (“the appellant”) was convicted of murdering Mr. Browne. The prosecution's case rested exclusively on the dying declaration of Mr. Browne that Kashie had shot him.

3 The circumstances leading to the dying declaration are as follows: Mr. Browne left the shop at about 9:00 p.m. The direction in which he proceeded was dark. His home was not far from the shop. A couple of minutes after his leaving the shop gunshots were heard. No one witnessed what happened. Mr. Browne ran back towards the shop holding his stomach and bawling “murder, oh God! Help me, help me”. He fell before he reached the shop. Patrons from the shop transported him to the Levi Latham Health Clinic (“the clinic”). During the journey no one asked him what had happened neither did he proffer any information as to the cause of his injury or the author of his misfortune.

4 Police Constable Salem George arrived on duty at the clinic and inquired of Mr. Browne what had happened. Mr. Browne replied that Kashie shot him. He asked Mr. Browne whether he saw Kashie, Mr. Browne replied affirmatively. Mc.Vale Kydd, a male attendant at the clinic, said that Mr. Browne was lying and bawling “Kashie shoot me, Kashie shoot me. I going dead.” Mr. Browne's son, Leonard Dabreo, arrived at the clinic and saw his father lying on a bed with a wound. He did not ask his father how he came by his wound. He stated that he was confused.

5 From the clinic Mr. Browne was transported by ambulance to the Milton Cato Memorial Hospital. His son, Dabreo, accompanied him. He never asked his father anything during the journey. It was only after the ambulance driver spoke to him that he went into a room where his father was and asked...