Selwyn Foye Appellant v The Queen Respondent [ECSC]

• Jurisdiction: St Vincent and the Grenadines
• Judge: BAPTISTE, J.A.,Justice of Appeal,Davidson Kelvin Baptiste,Ola Mae Edwards,Janice George-Creque
• Judgment Date: 31 May 2010
• Judgment citation (vLex): [2010] ECSC J0531-5
• Court: Court of Appeal (Saint Vincent)
• Docket Number: HCRAP 2007/008
• Date: 31 May 2010

[2010] ECSC J0531-5

IN THE COURT OF APPEAL

Before:

The Hon. Mde. Ola Mae Edwards Justice of Appeal

The Hon. Mde. Janice George-Creque Justice of Appeal

The Hon. Mr. Davidson Kelvin Baptiste Justice of Appeal

HCRAP 2007/008

Between:

Selwyn Foye

Appellant

and

The Queen

Respondent

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

Criminal Appeal – Murder – admissibility of hearsay evidence – res gestae – dying declaration – whether prejudicial effect outweighed probative value

Percy Browne was shot at about 9:00 p.m. on 2 ^nd October 2004, shortly after leaving a shop. The area where he was shot was dark and no one witnessed the shooting. Upon being shot, Mr. Browne ran towards the shop but collapsed and was taken to a health clinic by patrons of the shop. At the clinic, a police constable questioned him as to what had happened and he replied that "Kashie" shot him. When asked whether he saw Kashie, he replied affirmatively. A male attendant at the clinic also heard Mr. Browne bawling, "Kashie shoot me, Kashie shoot me. I going dead." Later that evening, Mr. Browne was transferred to the hospital. Upon arrival at the hospital, his son, who accompanied him, asked who had done that to him and he replied, "Kashie." Mr. Browne subsequently succumbed to his injuries. Selwyn Foye also known as Kashie ("the appellant") was charged with murdering Mr. Browne.

The prosecution's case rested exclusively on the statements of Mr. Browne that Kashie shot him. Counsel for the appellant objected to the admissibility of these statements on the grounds that they were strictly hearsay and not capable of falling within the principles of res gestae or dying declaration; and, that their prejudicial effect outweighed their probative value. The learned judge held a voir dire and ruled that the statements were admissible. The appellant was subsequently convicted of murder and sentenced to life imprisonment. The appellant appealed on the grounds that: (i) the learned judge erred in admitting the dying declaration; and (ii) the verdict was unreasonable and could not be supported by the evidence.

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] EWCA 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 WLR 1716 (Privy Council), distinguished.

REASONS FOR DECISION

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 2 ^nd 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 6 ^th 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...