Kenute Lynch Appellant v The Queen Respondent

• Jurisdiction: St Vincent and the Grenadines
• Judge: Pereira C.J,Chief Justice,Mario Michel,Justice of Appeal,Paul Webster
• Judgment Date: 19 September 2016
• Judgment citation (vLex): [2016] ECSC J0919-2
• Court: Court of Appeal (Saint Vincent)
• Docket Number: SVGHCRAP2012/0006
• Date: 19 September 2016

[2016] ECSC J0919-2

EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Before:

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

The Hon. Mr. Mario Michel Justice of Appeal

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

SVGHCRAP2012/0006

Between:

Kenute Lynch

Appellant

and

The Queen

Respondent

Criminal appeal — Murder — Inconsistencies in evidence of prosecution witnesses — Whether sufficiently material to render verdict unsafe and unsatisfactory — Questions by jury — Whether proviso should be applied in the circumstances

Kenute Lynch ("the appellant") was arrested and charged for the murder of Maxwell John ("the deceased") and for the unlawful use of a firearm. It was the prosecution's case that the deceased was shot from behind by the appellant in plain view of several eye witnesses on 18^th July 2007. The deceased was hospitalised and subsequently discharged; he later developed medical complications. On 16^th October 2007, he succumbed to his injuries. Doctors found his cause of death to be directly related to the gunshot wound which he had received in July 2007.

The appellant disputed the prosecution's version of events and relied on the defence of alibi. He was found guilty on both counts and sentenced to 30 years imprisonment. He has appealed his conviction and sentence alleging that (i) during the trial the jury foreman was permitted to ask the appellant and other defence witnesses questions which were prejudicial to him and this accordingly rendered the trial unfair; (ii) various inconsistencies in the trial rendered the verdict unsafe and unsatisfactory; and (iii) the sentence, which began to run from date of sentence, was unduly harsh.

Held: dismissing the appeal against conviction and confirming the sentence of thirty years save that the sentence shall run from the date of remand, that:

• 1. While it is an established practice in the courts of the Eastern Caribbean for the trial judge to invite the jury to ask questions of witnesses if the jury is unclear about a particular matter and would like clarification on it from the witnesses, it is recommended that the foreman of the jury forward the questions in writing to the judge who, being familiar with the rules of evidence, would decide whether the question is a proper one for the witness to answer. Care must be taken to ensure that jury questions, if allowed, follow the correct procedure which would eliminate the danger of eliciting evidence which may be prejudicial to an accused. The trial judge clearly erred in allowing questions, which may have, in some instances, been prejudicial or at least inappropriate, to be put directly to the defence witnesses. Notwithstanding this error, it is highly unlikely that the jury would have returned a different verdict. The other evidence in the case was not discredited in any material respect. Further, there was compelling eye witness evidence. As such, it cannot be said that the trial was unfair.

  Maureen Peters v The Queen BVIHCRAP2009/0005 ( delivered 1st October 2010, unreported) followed.

• 2. In relation to the various inconsistencies, the question which this Court must ask itself is whether these inconsistencies are sufficiently serious in light of the other evidence adduced by the prosecution, to render the verdict unsafe. There was a significant amount of direct evidence given by the prosecution witnesses which accorded with each other. The strong eyewitness evidence coupled with the expert evidence was critical, and pointed only to the appellant as the shooter. Further, the learned judge drew all of these inconsistencies to the attention of the jury in his summation and instructed them on how to treat with these inconsistencies. The jury would have been fully aware of the inconsistencies. Accordingly, the verdict of guilty cannot be said to be unsafe and unsatisfactory.

• 3. The sentence imposed is not outside the range for this type of offence in the context of the circumstances of its committal. In arriving at a sentence however, a court should take into account the time the accused spent on remand. The learned trial judge gave no indication that the time the appellant spent on remand had been taken into account. Accordingly, the learned trial judge erred only to this extent as the sentence ought to have been recorded as running from the date of remand.

Pereira C.J

1 Kenute Lynch ("the appellant") was convicted of the murder of Maxwell John on 24^th February 2012 after being tried on an indictment containing four counts, two of which were withdrawn by the prosecution during the course of the trial. The two counts which remained were murder (contrary to section 159(1) of the Criminal Code1) and unlawful use of a firearm (contrary to section 185 of the Criminal Code). On 24^th February 2012 the appellant was found guilty on both counts, and on 24^th March 2012 he was sentenced to 30 years imprisonment on count 1 and 8 years on count 2, the two sentences to run concurrently. The appellant appealed against his conviction and sentence on 12^th April 2012.

Factual Background

2 On 18^th July 2007, Maxwell John ("the deceased") was shot from behind while he was in the company of his friend, Eddie Crooke ("Mr. Crooke"). The shooter approached the two men from behind and, allegedly in plain view of several eyewitnesses, pulled out a firearm from his waist, took aim and fired in the direction of the two men, fleeing the scene after the deceased had been hit. The deceased did not die instantaneously but some months later. Mr. Crooke, who, according to his own evidence, had bolted from where he was with the deceased at the sight of the shooter, returned to assist the deceased after he had fallen when shot. The deceased was taken to hospital and then was subsequently discharged. However, he later developed medical complications, was returned to hospital and eventually died, on 16^th October 2007. Doctors found his cause of death to be directly related to the gunshot wound which he had received in July 2007.

3 The prosecution alleged that the shooter was the appellant. At trial, the appellant relied on the defence of alibi. He gave evidence that he was at home with his mother and two nieces on the evening of the shooting, and that his mother had refused to let him leave the house after receiving news that the appellant's brother,

Evans Lynch, had been shot. She feared that the appellant would end up being shot too if he went out.

Grounds of Appeal

4 The appellant originally advanced seven grounds of appeal but relied on only three of the original seven, which are set out below:

• (1) The questions put to the appellant by the jury foreman and the answers elicited thereby were prejudicial to the appellant and therefore rendered the trial unfair and the verdict unsafe.

• (2) The verdict was unsafe and unsatisfactory, having regard to the inconsistencies in the evidence led by the prosecution witnesses.

• (3) The sentence was unduly severe.

5 I propose to deal with ground 2 first since the findings and discussion in relation to this ground have some bearing on the first ground of appeal.

Ground 2 – Whether the verdict was unsafe and unsatisfactory having regard to the evidence

6 The gravamen of the challenge on the part of the appellant rests on the assertion that the evidence led by the prosecution contained several inconsistencies. The two main prosecution witnesses who gave direct evidence at the trial were Mr. Crooke and Delroy Quashie ("Mr. Quashie"). Ms. Bacchus-Browne submitted that certain aspects of their accounts of what transpired on the night the deceased was shot were conflicting. She argued that these inconsistencies within the prosecution's own evidence rendered the verdict unsafe and the trial unfair.

7 The first inconsistency had to do with the direction which Mr. Crooke was facing when the shooter approached him and the deceased. At pages 24–26 of the transcript, Mr. Crooke testified that he was facing the deceased right before theshooter approached them and that the shooter came up from behind him (Mr. Crooke):

"BY MR. COLIN JOHN:

Q. Okay. Take us through the incident. Take us for-what you can remember about that incident.

… A. … Well we was there chilling. At the same time,

I was facing my friend – Q. Yeah.

A. — and we was there talking and thing. So, something tell me look back. At e same time—

…

Q. Okay, if you were facing – he come behind you or in front of you?

A. From behind me he come – come up.

…

THE COURT: From behind he what?

THE WITNESS: He come from behind, coming up. 'Cause my back been turn.

BY MR. COLIN JOHN:

Q. Okay. So, how did you get to see him?

A. After – well, he appear – so I look back at e same time. So when I look back, I saw him."

However, on pages 51–52 of the transcript Mr. Crooke gave the following evidence, which clearly seemed to suggest that he was facing the shooter from the very beginning, as he (the shooter) approached the two men:

"BY MR. COLIN JOHN:

Q. When you first — when you first saw Bahoo, how far was he from you?

A. Well he was just turning the gap coming up.

…

A. – I saw him coming up – more closer he get, I saw him."

8 Ms. Bacchus-Browne further submitted that there seemed to be quite a bit of confusion in relation to what happened after Mr. Crooke saw the shooter and ran away. Mr. Crooke said that he jumped away and landed over a short fence in trying to get away, then when he got up and started running again, he almost raninto the shooter and so had to 'spin back round' and head back the other way. She submitted that it makes no sense for him to say that he nearly bumped into the appellant after jumping over a fence while running away unless the shooter had followed him over the fence, which was not a part of the prosecution's case.

9 There was also an inconsistency in relation to whether Mr. Crooke heard the shot when it was fired by the shooter. At page 41 of...