Kallus Rogers Appellant v The Queen Respondent [ECSC]
| Jurisdiction | Anguilla |
| Judge | BARROW, J.A. [AG.],Justice of Appeal [Ag.],Chief Justice [Ag.],Denys Barrow, SC,Brian Alleyne, SC |
| Judgment Date | 27 June 2005 |
| Judgment citation (vLex) | [2005] ECSC J0627-1 |
| Court | Court of Appeal (Anguilla) |
| Date | 27 June 2005 |
| Docket Number | CRIMINAL APPEAL NO.1 OF 2004 |
IN THE COURT OF APPEAL
The Hon. Mr. Brian Alleyne, SC Chief Justice [Ag.]
The Hon. Mr. Michael Gordon, QC Justice Of Appeal
The Hon. Mr. Denys Barrow, SC Justice Of Appeal [Ag.]
CRIMINAL APPEAL NO.1 OF 2004
Dr. Henry Browne, Ms. Nicole Sylvester and Mr. John Cato for the Appellant
Mr. Evans Welch and Ms. Dawn Richardson for the Respondent
This appeal raises questions as to the circumstances in which it can be fair to try a legally unrepresented accused for murder. The appellant was convicted by the majority verdict of a jury on 11th February 2004 for the murder of Judith Wach and sentenced to life imprisonment.
In the early morning hours of Saturday, 14th September 2002 Beryl Felsher, the owner of a house in Cul-de-Sac, in which her friend Judith Wach was staying with her, woke to find a young male standing over her bed with a gun and asking for money. She went to get her wallet and then started yelling for her friend, Judith. The intruder ran. At no time was the intruder visually identified. Ms. Felsher did not locate Judith Wach in the house. She went to get help. The police came. The body of Judith Wach was later found in the nearby sea.
The pathologist gave the cause of death as asphyxia as a result of manual strangulation. He testified that there was evidence of forceful vaginal penetration. There was also evidence of multiple blunt force trauma to the head and the back of the body and there was evidence of terminal aspiration of sand and water.
Before mid-day on 14th September 2002 the police brought the appellant to the station. Later that day the police conducted a search at the premises where the appellant lived along with others, including a brother, a sister and her male friend, and his mother. The police took possession of one pair of blue jeans pants the legs of which were rolled to the knee; the pants were wet and had sand in some areas. The police also took a pair of sneakers on one of which appeared to be bloodstains; a greenish T-shirt with brown staining at the front; and a pair of multicoloured short pants1 with what appeared to be bloodstains just under the front waist—band.
On the following day, Sunday 15th September, the appellant was interviewed. The police made a record of the interview including the alibi that the appellant gave and his answer as to how his jeans pants were wet. He was asked about the shorts that the police took from his place of residence. He became very aggressive at that point, according to the police, and then took out a pair of boxers from his pocket and stated these were the boxers he had.2 On the Monday morning, 16th September 2002, the police released the appellant from detention. On 27th September, as a result of further inquiries and the report of a forensic analysis, the police arrested the appellant and charged him with murder.
It is clear that the case against the appellant stood or fell with the evidence of the forensic expert. The evidence of the expert was that she examined the items that the police took from the appellant's residence as well as samples taken from the deceased comprising fingernail clippings and scrapings, pubic hair combings and control samples of pubic hair, different vaginal and rectal swabs, and samples of blood and blood swatches. No sample was taken from the appellant.
On the greenish shirt the expert stated that she found blood, semen and a mixture of blood and semen. On the pair of jeans pants the expert found semen on the front and also on the back. On the shorts the expert stated that she found blood on both the inside front and the outside front and semen on the front. On the underpants the expert stated that she found blood, semen and a mixture of blood and semen on the front. On the foot of sneakers the expert stated that she found blood. The witness clarified that all of the blood that she found was human blood.
The expert testified that she performed DNA testing on all of the samples that she received. She testified that the DNA profile of the deceased was found on the shorts that she tested. The expert also testified that that profile was found in a mixture of blood and semen on the underpants. The expert testified that the probability of more than one person having the same DNA profile would be three persons in a hundred billion persons.
The Grounds of appeal were that the verdict was against the weight of the evidence, that the Appellant was denied a fair trial and that the Appellant was denied his right to be legally represented. The last mentioned being the foundational ground it is appropriate to deal firstly with that ground.
The circumstances in which the Judge proceeded with the trial without the appellant being represented must be set out in some detail. The trial started onWednesday 4th February 2004 when the plea was taken.3 Immediately after the plea was taken Mr. Patterson advised the Court that he had been assigned to represent the appellant, that he had accepted the assignment and that fairly shortly after the assignment he had visited the appellant to take full instructions. Mr. Patterson stated that the appellant informed him that the appellant had had consultations with a lawyer, Mr. Cato, to obtain representation by Dr. Henry Browne, another lawyer, with whom Mr. Cato sometimes works. Mr. Patterson stated that the appellant informed him that Dr. Browne would be representing him and that it was the appellant's desire that Dr. Browne should represent him. Mr. Patterson stated that he took the requisite steps of mentioning the matter to the Registrar and the Prosecution and also, as a professional courtesy, of mentioning it to Dr. Browne. Mr. Patterson then stated to the Court that he needed at that point to have it clarified whether the appellant wished to have Mr. Patterson represent him or not.
The following exchange then took place:
"THE COURT: Very well. Thank you.
Mr. Patterson. Will you put Mr. Rogers back in the dock. Mr. Rogers, on the charge of murder, this is indictment number 6 of 2003 the very first indictment that was put to you. Do you have a lawyer?
THE DEFENDANT: No Ma'am.
THE COURT: Yes.
Now, Mr. Patterson is willing to accept the assignment to represent you as your Counsel in this matter. Do you consent to Mr. Patterson representing you in this matter?
THE DEFENDANT: No.
THE COURT: Are you then prepared, Mr. Rogers, to represent yourself in this matter?
THE DEFENDANT: I can't represent myself, the Government got me in here innocent.
THE COURT: The Government has provided by way of legal assistance by assigning to you a qualified Counsel to represent you. You have just told this Court that you are rejecting that.
THE DEFENDANT: Ma'am, them can't just jump up and give me a lawyer. They got to give me a lawyer who I satisfied with.
THE COURT: Mr. Rogers, if you want a lawyer with whom you personally are satisfied, that is the system whereby you pay to retain those services. That is when the Constitution gives to you that right of selection which you exercise.
At this point what you are telling this Court is that you are not prepared to represent yourself and you are not prepared to accept Counsel that has been provided to assist you. So those are your choices. That you are either prepared to proceed with a lawyer of your choice.
MR. ASTAPHAN: I rise amicus and also I have a third party interest in that I represent the family of the deceased. My rising is amicus, My Lady, to ask your Ladyship whether or not you ought to consider this proposition that crossed my mind. Given the nature of the proceedings whether it would be safe to ask the Accused, given his disposition towards the person assigned by the system, whether there was Counsel at the Bar, other than that Counsel and myself for obvious reasons, with whom he would be comfortable so that that Counsel can be then given the assignment. And I will say why it cross my mind, My Lady, if you would permit me. So that it does not appear on the record that the Accused is being told take it or leave it given the nature of the offence. You see, My Lady, once you have exhausted all of those possibilities then the Accused cannot at any time in the future complain. Maybe you might want to consider that, My Lady.
THE COURT: Yes. Very well Mr. Rogers, is there any other member of the Bar whom you would consent to providing to you legal representation in this matter?
THE DEFENDANT: Ma'am, who I want deal with me is Henry Browne, nobody else. Government got me in there they going deal wid that.
THE COURT: Have you told Mr. Henry Browne that you would like him here?
THE DEFENDANT: Yes, Ma'am.
THE COURT: And he is not here today?
THE DEFENDANT: No.
THE COURT: Has he agreed to represent you, Mr. Rogers?
THE DEFENDANT: He agree yes, but he talking about the money wha them putting up for the case.
THE COURT: So he has not agreed then?
THE DEFENDANT: Well, de man say he ain't getting the money, he ain't dealing wid it.
THE COURT: Very well.
Yes, so the person whom you would wish to select is Doctor Henry Browne, who is not accepting the matter because of money considerations as you say. Is that correct?
THE DEFENDANT: Yes, Ma'am.
THE COURT: An assignment has been made with regard to legal assistance provided by the Government for Mr. Patterson whom you reject, is that correct?
THE DEFENDANT: Yes, Ma'am.
THE COURT: And you tell us that you are not prepared to represent yourself in the circumstances of the nature of the case. Is that correct Mr. Rogers?
THE DEFENDANT: Yes, Ma'am.
THE COURT: And there is no other member of the Bar, this is of the entire Anguilla Bar not only those persons present here today, but no other member of the Anguilla Bar practicing before this Court whom you would...
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