Patrick Lovelace Appellant v The Queen Respondent [ECSC]

• Jurisdiction: St Vincent and the Grenadines
• Judge: RAWLINS, J.A.,Justice of Appeal,Hugh A. Rawlins,Michael Gordon, QC,Denys Barrow, SC
• Judgment Date: 09 October 2006
• Judgment citation (vLex): [2006] ECSC J1009-3
• Court: Court of Appeal (Saint Vincent)
• Docket Number: CRIMINAL APPEAL NO.33 OF 2004
• Date: 09 October 2006

[2006] ECSC J1009-3

IN THE COURT OF APPEAL

Before:

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

The Hon. Mr. Denys Barrow, SC Justice of Appeal

The Hon. Mr. Hugh A. Rawlins Justice of Appeal

CRIMINAL APPEAL NO.33 OF 2004

Between:

Patrick Lovelace

Appellant

and

The Queen

Respondent

Appearances:

Mr. J.H. Bayliss Frederick, Mr. Sharaz Aziz and Ms. Vynnette Frederick for the Appellant

Mr. Colin Williams, Director of Public Prosecutions, with him Ms. Sandra Robertson, Crown Counsel for the Respondent

RAWLINS, J.A.

1 The appellant, Patrick Lovelace, was convicted and sentenced to death for the murder of Lokeisha Nanton. When the case came for hearing before this Court in February 2006, Mr. Aziz, learned Counsel for Lovelace, raised the issue of the accuracy of the Record of Appeal on an Application to produce the tape recordings taken at the trial. This Court traversed the case to permit Counsel for Lovelace to have a copy of the tapes and for an amended Record to be prepared by mid-April 2006. Nothing materialized from the arrangements that were made with the court office to copy the tapes. Counsel for Lovelace nevertheless filed new grounds of appeal and the appeal proceeded on them.

2 The actual Notice of Appeal contained 2 grounds of appeal. The first ground stated that the DNA evidence did not implicate Lovelace. However, this did not appear in the new grounds of appeal which Counsel was permitted to argue. This was a wise omission because the DNA evidence was neutral. It did not implicate nor exonerate Lovelace. It did not point to another person. Ms. Brydson, the DNA Analyst, informed the Court that although her tests revealed the presence of semen and spermatozoa on vaginal swabs taken from Lokeisha and on items of her clothing, the spermatozoa was insufficient and environmental factors had so degraded the semen and spermatozoa that it was not possible to obtain a positive result from them. The decision by the prosecution to call the DNA expert to give the DNA evidence notwithstanding this was in keeping with the procedural guidelines stated by Alleyne, JA, as he then was, in Daniel Dick Trimmingham v The Queen. 1

3 The second original ground contained in the Notice of Appeal stated that the defence was not allowed to put its defence adequately at the trial. This ground was modified in ground 6 of the 9 new grounds of appeal which state as follows:

• 1. The learned trial judge erred in rejecting the no case submission made on behalf of the accused at the end of the prosecution's case.

• 2. In relation to these proceedings there is no adequate and/or accurate record of appeal, which reflects the true and correct proceedings at first instance.

• 3. The learned trial judge's directions in law as regards corroboration were confusing and would not have assisted the jury in dealing with the evidence of an accomplice.

• 4. Having regard to the current record of appeal it can safely be said that there would be a lurking doubt thereby rendering the conviction unsafe.

• 5. The learned trial judge by her conduct was likely to or tended to show bias in favour of the prosecution at the early stages of the proceedings.

• 6. The Defence was not allowed to put or adequately put their defence during the trial having regard to evidence available at the locus in quo.

• 7. The learned trial judge erred in that she failed to give adequate directions to the jury as regards recognition and Turnbull guidelines.

• 8. The closing speech made by the Director of Public Prosecutions on behalf of the Queen was unfair and he sought to discredit the Defence by asserting his credibility.

• 9. The trial judge erred in that she failed to direct the jury properly or at all on the issue of good character.

4 Mr. Aziz did not pursue ground 7, which related to the Turnbull or identification direction, in the appeal proceedings.

5 Grounds 2 and 4 raised the issue of the accuracy and adequacy of the Record of Appeal. Mr. Aziz submitted, in effect, that the Record is so inaccurate that it does not permit the defence to properly pursue the appeal. This, he said, was prejudicial to Lovelace's appeal because the material which was necessary to pursue the appeal on grounds 5 and 6, and material showing the behaviour of Ramona Caruth, the only eye-witness produced by the prosecution, that could go to discredit her evidence are not reproduced in the Record.

6 An examination of the Record does not indicate that the trial judge acted to the prejudice of Lovelace during the trial. There is nothing that shows that the defence was not permitted to put its case in relation to what transpired at the visit to the locus in quo. The Record only shows that the Court rose at 9:30am on 14 ^th December 2004 to visit the locus and that Court resumed at 9:50am. It was announced in Court earlier that morning that Ramona Caruth was not available to attend because the Police did not locate her. The Record does not show that the defence asked the Court to permit them to ask any question as a result of the visit to the locus.

7 Mr. Williams, the learned Director of Public Prosecutions, insisted that while there are minor typographical errors, they are not of a serious nature to mean that there is no proper Record on which the appeal could proceed. This Court is not in a position to determine whether this is the case or otherwise. I think that there was adequate time within which to amend the Record. Grounds 2, 4, 5 and 6 are therefore redundant. The live grounds are therefore ground 1, the no case submission; ground 3, the directions on corroboration; ground 8, the Director's closing address to the jury and ground 9, the good character direction. First, however, the facts in some detail in order to provide a necessary background against which these grounds will be considered.

The facts

8 The deceased, Lokeisha Nanton was a 12 year old schoolgirl at the time of her death. She played in the Sion Hill Steel Orchestra. Her mother, Francita Nanton, operated a shop in the vicinity of the place where the band practiced. She last saw Lokeisha alive at about 9:00pm on the night of 1 ^st July 2002, shortly after Lokeisha's band practice. According to the evidence of Yolanda Baptiste, on that same night, she (Yolanda) was with Ramona Caruth, one Shanda and Lovelace at a street party at River Road. They were having drinks when, at about 9:00 o'clock, Ramona left them and returned a few minutes later with Lokeisha. Lovelace bought drinks for them all. Lokeisha left some 15 minutes later. Ramona left with her. Lovelace left some minutes later and did not return until about midnight. Ramona returned about 20 minutes later. Lokeisha did not return. Her nude, lifeless body was discovered early the following morning — 2 ^nd July 2002 — in a yard on the route to her home. Her neck was tied with a piece of shirt to a limb of a mango tree. The body was in a semi-kneeling position. What appeared to be blood was oozing from her nostrils and ears. She died from strangulation. The DNA test and the test by the Pathologist found evidence of violence and recent sexual intercourse.

9 Ramona's evidence is that when she left with Lokeisha on the night of 1 ^st July 2002, they got into a passenger bus from which they disembarked at the Sion Hill junction. They were walking towards Lokeisha's home when she heard Lovelace calling her. He caught up with them and asked her (Ramona) to "set him up" with Lokeisha. She (Ramona) objected and told him that Lokeisha was under age. Lovelace followed them, grabbed Lokeisha by the throat and dragged her under a mango tree. She (Ramona) fought with Lovelace and pulled Lokeisha's hand to get her away from him. She did not succeed. Lovelace tore off Lokeisha's clothes and had sexual intercourse with her. When he got up off Lokeisha, she (Ramona) noticed that Lokeisha was not moving. After Lovelace threatened to do to her what he had done to Lokeisha, she assisted him to lift up Lokeisha as he tied her to the tree. Lovelace left the scene.

10 According to Ramona, after Lovelace departed, Lokeisha's hands were still shaking. Lokeisha asked for her (Ramona's) help. She tried to help her, but she was unable to untie the shirt because it was tied tightly. She left Lokeisha hanging and returned to town where she had left the group. Lovelace was there. They went to Slick's Bar. Lovelace bought barbecue for them. Ramona, Yolanda and Shanda had a wining dance contest. Lovelace adjudged Shanda the winner. He subsequently sent Shanda home by taxi. Ramona, Yolanda and Lovelace then went to Yankee's Bar, where she bought drinks for Yolanda and herself with money that Lovelace had given her. Yolanda went into one of her friend's car to sleep. Ramona sat on a bench with Lovelace. They conversed. She was chilly. He gave her a coat which she put on. They left by van together at about 6:00am on 2 ^nd July 2002 and travelled to the house in which Lovelace lived with one Brindsley Peters at Cedars. That day was her 16 ^th birthday and Lovelace gave her gifts. Peters also gave her gifts. She actually went with Peters to the Hotel where he worked with Lovelace to collect 2 of the gifts. She heard of the discovery of Lokeisha's body while she was travelling back to Kingstown by bus that morning.

11 Ramona said that when she arrived at the Kingston bus terminal, she approached a Police Officer and informed him that she knew about Lokeisha's murder. She gave a statement to the Police, and 4 subsequent statements on various dates in which she implicated some 6 other persons but not Lovelace. She gave different versions of the murder. This, she said, was in an attempt to cover up for Lovelace, because she loved him and was also afraid of him. She remembered his threat at the time when he raped Lokeisha and tied her to the tree. She asked the Police to put her into protective custody because she feared for her life....