Connell Richardson Appellant v The Queen Respondent [ECSC]
| Jurisdiction | Anguilla |
| Judge | REDHEAD, J.A.,Albert Redhead,Justice of Appeal,C.M. Dennis Byron,Satrohan Singh |
| Judgment Date | 09 June 1997 |
| Judgment citation (vLex) | [1997] ECSC J0609-1 |
| Date | 09 June 1997 |
| Court | Court of Appeal (Anguilla) |
| Docket Number | CRIM. APP. NO.1 OF 1995 |
IN THE COURT OF APPEAL
The Hon. Mr. C.M. Dennis Byron Chief Justice (Ag.)
The Hon. Mr. Satrohan Singh Justice of Appeal
The Hon. Mr. Albert Redhead Justice of Appeal
CRIM. APP. NO.1 OF 1995
Mr. K. Lake; Mr. K. Potter & Ms. E. Hughes for the Appellant
Mr. K. DeFreitas; Mr. R. Scipio & Mr. S. Reid with him for the Respondent
Criminal Law— Murder conviction — Mandatory sentence of life imprisonment -Appeal against conviction based on purely circumstantial evidence — Whether certain items of evidence were relevant or properly admitted in law — Whether the evidence was sufficient to support/prove the mens rea of murder -Directions on what amounts to circumstantial and the manner in which circumstantial evidence should be treated by the jury —Teper v The Queen (1952) AC 480, 489 applied — Whether certain items of evidence of more prejudicial effect than of probative value — Exercise of judge's discretion —R v Sang (1979) H.L. referred to — Whether evidence of appellant's reaction to certain allegations made before trial properly admitted as being hearsay evidence — Shabir Ali 36 W.I.R. 410 P.C. considered — Proviso to S. 37, Supreme Court Ord. 1982 applied. Appeal dismissed.
The Appellant had an intimate relationship with the deceased Rose Hodge Gumbs who lived in Anguilla. In fact the Appellant lived with the deceased from 1989. The Appellant also lived in St. Martin where he had another intimate relationship with another woman. He visited Anguilla periodically. The Appellant's relationship with Rose Hodge Gumbs wasstrained, in so much so, that in November, 1993, one month prior to her death, she had gone to the police and made a report to the police, whereupon the deceased had had the Appellant's clothing removed from her house.
On the 16th December, 1993 the Appellant visited the deceased in Anguilla. On this visit the evidence is that the Appellant met the deceased at East End where she ran a bar. The deceased left the Appellant in the bar and went to work at Infirmary in The Valley. Her hours of work that day were from 3 p.m to 10 p.m. The Appellant left Anguilla at about 10:15 p.m by ferry, on the night of 16th December for St. Martin.
Rose Brooks an assistant at the infirmary, went to work on 16th December, 1993 at 9:45 p.m but did not meet the deceased at work but saw the deceased grey hand-bag under a bed. The deceased's daughter, Hazel Gumbs testified that her mother had left for work on 16th December, 1993 with that grey bag. She also testified that her mother had called her on the telephone at 6:00 p.m and at 8:00 p.m. From this evidence, if accurate, it is clear that the deceased was alive up to 8.00 p.m. on 16th December, 1993.
In the late afternoon of the 18th December, 1993 the deceased's partly clothed and partly decomposed body was discovered in some bushes in the Little Harbour area. The body showed marks of violence. Dr. Ramulu Kankipati, who performed the post mortem examination listed 17 injuries on the body. The pathologist opined that death was due "as paraysia as a result of ligatured strangulation." He explained that strangulation was caused by ligature around the neck.
The pathologist also concluded that there were signs of struggle and that after death the body was dragged for some distance.
The Appellant was charged and convicted for the murder of the deceased. He was given the mandatory sentence of life imprisonment.
At his trial the evidence led by the prosecution before the jury was purely circumstantial. He now appeals before this Court against hisconviction. The five grounds of appeal that were lodged and argued are as follows:
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1. The verdict under the circumstances of the case is unsafe and unsatisfactory and the conviction should be set aside.
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2. The Learned Trial Judge erred in law by wrongly exercising his discretion to admit certain pieces of evidence which bear no relevance to the case or the probative value of which was outweighed by its prejudicial effect on the trial of the accused.
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3. The Learned Trial Judge erred in Law by not properly directing the jury that there was no sufficient evidence to prove the accused had the mens rea necessary to support a conviction for murder.
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4. There was a material irregularity in the trial in that the Learned Trial Judge wrongly permitted the prosecution to exhibit certain items of clothing, which the prosecution failed to prove had any connection to the charge against the accused and in respect of which no proper chain of custody was proven.
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5. The Learned Trial Judge erred in Law by failing to properly direct the jury on what amounted to circumstantial evidence and the manner in which circumstantial evidence should be treated by the jury.
The evidence led by the prosecution was purely circumstantial evidence and in that regard Hazel Gumbs, a daughter of the deceased, testified that the deceased spoke to her at 6:00 p.m and then at 8:00 p.m on the night of the 16th December, 1993.
She also testified that at about 9:00 p.m that night she saw the Appellant come by her mother's house; "he came by both shack and big house."
She also gave evidence that the day before the incident the Appellant asked her about rope. In her testimony she said that the rope was kept in the shack.
There was evidence from John Connor, who had gone to the Infirmary to collect dog-food where the deceased worked, that he had seen the deceased at about 7:40 p.m at the infirmary and that as he was leaving the Appellant had driven up in his car to the infirmary.
The Appellant gave a voluntary statement under caution to the police. That statement was admitted in evidence without any objection from the defence. The Appellant admitted in that statement that he had gone to see the deceased at 8:00 p.m and 9:00 p.m. There was evidence presented to the jury from which they would have come to the conclusion that the Appellant was the last person to have seen the deceased alive.
Under ground 2 the defence argued that the evidence of Ambrose Richardson was highly prejudiced and had little or no probative value and argued that the Learned Trial Judge erred in admitting such evidence or wrongly exercised his discretion in doing so.
Learned Counsel also argued that the Learned Trial Judge ought to have deemed the evidence inadmissible, and should have employed his discretion in favour of the accused by excluding it.
D.P.P v CHRISTIAN 1914 - 1915) ALL E.R 63 (1914 - 1915) ALL E.R 63 at 69 .
R v SANG (1979) 2 ALL E.R 1228 to 1231 at 1243
SCOTT v R (1989) 1 A.C 1242 at 1256 - 1258 .
The references in the above cases in one way or the other say and clearly emphasize the view that the "Judge has a discretion to exclude evidence, which though technically admissible, would probably have a prejudicial influence on the minds of the jury, which would be out of proportion to its true evidential value" (Sang p. 1228)
In Scott at page 1256, Lord Griffiths referring to Lord Diplocks speech inR v Sangsaid inter alia:-
"A Trial Judge in a Criminal Trial has always a discretion to refuse to admit evidence if, in his opinion, its prejudicial effect outweighs its probative value …."
"The phrase "prejudicial effect" is a reference to the fact that although the evidence has been admitted to prove certain collateral matters, there is a danger that a jury may attach, undue weight, to such evidence and regard it as probative of the crime with which the accused is charged …."
The evidence which the defence objected to at the Trial was that given by Ambrose Richardson. The prosecution led evidence whereby Ambrose Richardson testified before the Jury, that just about after 7:00 p.m on the night of the 16th December, 1993 the Appellant came into his (Richardson's) bar and said "Ambrose give me a drink there, my mind is disturbed. I am going to kill somebody."
Richardson said he gave the Appellant the drink. The Appellant was at the bar for about 6 — 7 minutes. He then left.
In cross-examination Richardson told the Court, that there was another man at the bar by the name of Ken Hazel, when the Appellant walked in. He denied in cross-examination that he Richardson had drinks that day; when he was shown his deposition he said "it could be that I said I had drinks on 13/01/95 at the P.I."
In cross-examination Richardson also said, "what I say here today is the only thing the accused said to me that evening."
This evidence was led by the prosecution, in my view, to show the state of mind of the accused at the time in question. This was not a collateral issue.
It was relevant in my view as one of the links in the chain of circumstances. There was also evidence led by the prosecution in Joseph Gumbs, who is the son of the deceased. He testified that some time in November, 1993 the Appellant telephoned him. According to Gumbs the Appellant told him that he was looking for his mother that he knew where she was and he was about to kill her. Gumbs said that the Appellant told him where his mother was, then hung up the telephone. Gumbstestified that he drove to Paradise Apartments where the Appellant said his mother was. Gumbs said that when he got there the Appellant was approaching; this was about 10:10 p.m. Gumbs said that he saw his mother at the apartment. The Appellant drove off and he Gumbs followed him.
Mr. Lake argued that the evidence of Richardson was vague as the witness said that the Appellant said "I am going to kill somebody."
There was no evidence that he said he was going to kill the deceased.
Mr. Lake argued that this, having been said at a bar, it was unreliable and ought to be corroborated.
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