Newton Spence Appellant v The Queen Respondent
| Jurisdiction | St Vincent and the Grenadines |
| Judge | Redhead J.A. (Ag.),C.M. DENNIS BYRON,SATROHAN SINGH,Justice of Appeal |
| Judgment Date | 03 February 1997 |
| Judgment citation (vLex) | [1997] ECSC J0203-3,[1997] ECSC (VCT) J0203-1 |
| Court | High Court (Saint Vincent) |
| Docket Number | CRIMINAL APPEAL No: 14 OF 1995 |
| Date | 03 February 1997 |
IN THE HIGH COURT OF JUSTICE
The Hon. C.M. Dennis Byron Chief Justice (Ag.)
The Hon. Satrohan Singh Justice of Appeal
The Hon. Albert Redhead Justice of Appeal (Ag.)
CRIMINAL APPEAL No: 14 OF 1995
Mr. O. Sylvester Q.C. Mr. E. Robertson
Mr. Dennie and Miss N. Sylvester for the Appellant
Mr. Cottle and Miss Bolers for the Respondent
Criminal Law— Murder conviction — Death sentence — Alleged misdirections on the effect in law of the non-disclosure and/or suppression of certain records/evidence — Whether there was in fact any suppression or non-disclosure by prosecution — Alleged breach of the fundamental rights provisions of sections 1(a) and 8 of the Constitution — Alleged mis-direction on the defence of self-defence, and the requirement of 'belief' therein — The subjective and objective elements thereof — Burden of proof — Alleged inadequate direction on the law of provocation — Criminal Code S. 162 — Burden and standard of proof required — The defence of accident — Whether proper direction given on law of causation — Criminal Code S. 168. Appeal dismissed.
The appellant was tried before a Judge and jury on an indictment for the murder of John Edwards. On 26th October, 1995 he was convicted of that offence and sentenced to suffer death by hanging. The appellant now appeals to this Court against his conviction and sentence.
The case for the Crown was that the appellant, who is a businessman is licensed to carry a fire arm.
On the 15th day of January, 1995 he was driving his van from Sandy Bay to Springs. On reaching Langlay Park junction, the Appellant stopped the van and the deceased entered the van.
In the van apart from the appellant, there were about ten (10) other persons including Junior Nero, a policeman who was dressed in plain clothes.
On reaching the George Town police station, the appellant brought the van to a stop and was having a conversation with a police officer who was standing in front of the police station.
The deceased then said to the van conductor, Chesley Stevens, "open the door! I don't like police." Chesley Stevens opened the van door and the deceased got out of the van. Chesley Stevens asked the deceased to pay his fare which was $1.00 but the deceased walked away without paying. Whereupon Chesley Stevens drew this to the attention of the appellant who said to the police officer, he was having the conversation with, "am going for the gentleman to pay my fare."
The appellant then drove his van in the direction where the deceased had gone. On reaching the deceased, the appellant called out to him to pay his fare. The deceased beckoned the appellant to come. The appellant left the vehicle according to Curtis Johnson with a gun in his hand. The deceased then went into a yard and according to Patricia Ellis, she saw the deceased run from Marie Lewis' front yard into her yard. She then saw the appellant come in Marie's front yard and shoot John Edwards with a gun.
The appellant returned to the vehicle and according to the passenger Junior Nero, the policeman in plain clothes, with a stone in one hand and a gun in the other. The appellant then said "call the police I shot him but I don't know where he got hit." The appellant said that he received a blow from a stone thrown by the deceased.
The deceased was found lying on his back with blood coming from his mouth. The police were summoned to the scene. At the scene the appellant said to P.C. John that Edwards had hit him with a stone and he shot him. The appellant handed over the gun to P.C. John who testified that it carried then four live rounds and a spent shell. The deceased was taken to the Georgetown Health Centre and examined by Dr. Varanny. The deceased was later that day transferred to Kingstown General Hospital where he was first seen and examined by Dr. Child between 5:00 and 6:00 p.m. on the same evening.
Dr. Child found that the deceased had punctured wound on the side of his neck and diagnosed that the deceased had a punctured trachea. Dr. Child formed the opinion that fluid had entered into his lungs.
Dr. Thomas, ear, nose and throat specialist was called to the hospital. Dr. Thomas examined the deceased about 6:30 p.m. The doctor found that the deceased had two wounds in the neck one on the left side and the other on the right side of the neck, an entry and exit wound. X-ray showed among other things emphysema i.e. air trapped under the skin. Oxygen was administered to the patient. The deceased was transferred to intensive care unit. The deceased was coughing up white stuff and blood stained material.
An endotrachal tube was passed through his mouth into his trachea. The deceased respiration was 28 per minute.
Dr. Thomas performed tracheostomy and inserted a size 8 trachea protext trachea tube. The deceased had a copius amount of fluid produced in his lungs. The fluid was sucked off so that he could breathe properly. Air was escaping from his windpipe under the skin.
John Edwards died on Tuesday 26th January, 1995 about some 18 hours after he was admitted to the Kingstown General Hospital.
Dr. Thomas performed the post mortem examination. He gave the cause of death as pulmonary oedema, medical emphysema and plural effusion. Dr. Thomas explained that these things were pressure of blood and vomitus in the lungs causing pulmonary oedema i.e. injury to trachea caused frotty fluid to be in the lung-bullet wound to his trachea. Patient died because of pulmonary odema caused by presence of blood and vomitus in his lungs.
Eleven grounds of appeal were filed on behalf of the appellant. At hearing of the Appeal, Counsel for the appellant sought and was granted leave to amend ground 3 of the grounds of appeal.
Learned counsel, Mr. Sylvester argued grounds 3.2 and 3.3 together. Grounds 3.2 and 3.3 as amended are as follows:-3.2 The learned trial Judge misdirected the jury with regard to the effect in Law of the non disclosure and/or suppression of:—
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(a) The medical evidence in support of the appellant's injuries which was tendered as Ex VJ(1) at the Preliminary Inquiry.
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(b) Some of the medical records of the deceased although they were subpoenaed or,
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(c) The X-ray of the deceased upon which the appellant relied to demonstrably substantiate that the cause of death was different to that stated by the Prosecution.
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(d) The spent cartridge.
The learned trial Judge was wrong in Law when she directed the jury after lamenting the absence of Exhibit V.J. 11 and by saying "what you have to do is to see if the evidence that have been brought here satisfies you of the guilt of the accused."
Since such direction violates the elementary principle that a trial must be fair to an accused in every respect and is a breach of the fundamental rights provisions of S1(a) and S(8)of the Constitution.
In arguing 3.2. Mr. Sylvester submitted that the appellant has an elementary right to a fair trial which depended upon the observance of natural justice. He referred to R v Hennessy 68 C.A.R 410 at 426.
Mr. Sylvester argued that the appellant was attacked, ambushed by the deceased and struck on the shoulder with a stone after the deceased had beckoned him to come for the fare and that the deceased was aiming another stone at him. The appellant reached for his gun which went off even before he could aim at the deceased.
Mr. Sylvester further argued that the punctured wounds on the deceased neck were consistent with wounds inflicted by a sharp instrument, an ice pick or a gun shot but not conclusively a gun shot wound as Dr. Child had given his opinion as to what caused the wound to be "punctured wound to side of neck, gunshot any sharp instrument e.g. ice pick."
Finally Mr. Sylvester argued that the appellant did not know if the shot he discharged struck the deceased but if it did, he contended that wounds which were seen on the body of the deceased were not fatal but that the deceased died as a result of abnormal treatment of the deceased by Dr. Thomas who cut the deceased throat.
Having regard to the evidence as a whole there was no room for the jury finding that an ice pick could have caused the injury to the neck. The jury had to find conclusively that the injury to the neck was inflicted by gunshot.
Mr. Sylvester submitted that it was vital to the defence which were four fold that the notes from the District Medical Doctor who was the first doctor to see the deceased, should have been put before the jury and the failure to do so amounted to a serious denial of a fair trial and a grave miscarriage of justice, for the doctor's evidence may have shown whether there was burning or powder at the wounds because according to the appellant when the shot was fired they were 10 feet apart.
The injury to the shoulders as disclosed by the medical report would have undoubtedly supported the defence that the appellant was in fact struck with a stone, so also the X-ray picture were vital to the defence according to Counsel.
The first observation I make is that the production of the doctor's notes in order to reveal whether there were powder burns on the deceased, I cannot see how this could be helpful to the appellant's case. It would in my view rather strengthen the prosecution's case.
Secondly there was no evidence to suggest that there were powder burns on the body nor was there any expert opinion and there could not have been any to indicate that powder burns ought to be on the body having regard to the fact that the Appellant said when he fired the shot, the deceased was approximately 10 feet away.
In my view the submission that the doctor's notes should have been produced to show whether there was burning or powder at the wounds was highly...
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