Smith v R

• Jurisdiction: Anguilla
• Judge: Baptiste, J.A.
• Judgment Date: 22 March 2010
• Neutral Citation: AI 2010 CA 4
• Date: 22 March 2010
• Court: Court of Appeal (Anguilla)
• Docket Number: Criminal Appeal No. 1 of 2008

Court of Appeal

Rawlins, C.J.; Edwards, J.A.; Baptiste, J.A. (Ag.)

Criminal Appeal No. 1 of 2008

Smith

and

R.

Appearances:

Mr. Thomas Astaphan and Mr. Colin Meade for the appellant

Mrs. Vernette Richardson and Ms. Edwards for the respondent

Criminal law - Murder — Appeal against conviction — Whether trial judge erred in failing to leave manslaughter to the jury as an alternative verdict — Identification — Material omissions by the trial judge.

The appellant was convicted of the murder of Clifford Christie and sentenced to life imprisonment. He appealed against his conviction on several grounds including that: (1) it was unsafe having regard to the failure of the trial judge to uphold the no case submission made at the close of the prosecution’ case; (2) the trial judge failed to direct the jury to consider the alternative count of manslaughter; (3) the jury failed to accept the directions of the judge on inferences that could be drawn on the evidence led in the trial and that where two or more inferences can be drawn from the evidence that the one favourable to the appellant should be accepted; (4) the jury failed to accept that they were bound in law to accept the inference that was raised by the response of the deceased who on being questioned by Sergeant Rogers for the third time as to who had injured him, replied “J.J. I want water”. The inference contended for by the appellant was that the deceased was referring to the prosecution’ star witness Jaiden Abbott as the person who had injured him.

The prosecution’ case was that Jaiden Abbott provided an eye witness account of the appellant stabbing Clifford Christie with a chrome knife in the back. Abbott was the only one who gave evidence of the stabbing and that the appellant had a knife. Two other prosecution witnesses stated that the appellant did not have a knife. The appellant denied having a knife and stabbing Christie, indicating that he was the peacemaker in the fight. He also stated that he did not see Abbott with a knife. It should be noted that the appellant also argued that the evidence of Abbott was not credible or reliable and he had lied to the police on a previous occasion.

Held: dismissing the appeal and confirming the conviction and sentence.

• 1. The evidence of the eye witness could not be described as out of reason and common sense, nor could it be said to suffer from inherent weakness or to be self contradictory but that the evidence was cogent with respect to all the material aspects of the case. The prosecution’ evidence taken at its highest is such that a jury properly directed could properly convict.

  R v. Galbraith [1981] 2 All E.R. 1060 applied.

  R v. Shippey [1988] Crim. L.R. 767 distinguished.

  R v. Pryer Sparks and Walker [2004] E.W.C.A. 1163 cited.

• 2. The trial judge is duty bound on the charge of murder to leave the alternative count of manslaughter to the jury if there is material before the jury to justify a direction that they should consider it. The duty to direct the jury on manslaughter arises if a jury might reasonably return a verdict of manslaughter on the whole of the evidence whether led by the prosecution or by the defence. Absent an evidential basis upon which to leave manslaughter to the jury as an alternative verdict, there was no error of law on the part of the learned judge.

  Mancini v. DPP [1992] AC 1 applied and R v. Muir [1995] 48 WIR 262 followed.

• 3. It was open to the jury to find from the evidence that it was the appellant who had stabbed the deceased. The inference contended for by the appellant that it was Abbott who had stabbed the deceased could not arise on the evidence or on the facts the jury could have found.

• 4. The trial judge should have directed the jury that even though the attack by the defence was on the credibility and reliability of Abbott’ evidence they nonetheless had to be sure that Abbott was telling the truth and was not mistaken about the identity of the person who had stabbed the deceased. The failure to do so constituted a material omission.

• 5. In view of the appellant’ denial that he inflicted the wounds on the deceased it would have been helpful for the trial judge to give the jury a specific direction as to how to treat his evidence. The trial judge should have pointed out to the jury that if they accepted his evidence or were unsure about it they should acquit him and that even if they rejected his evidence they would still have to be sure that the prosecution had proven his guilt.

• 6. While the omissions referred to above would have the effect of rendering the appellant’ conviction unsafe the court is satisfied that this is an appropriate case to apply the proviso. If the jury were properly directed they would have reached the same conclusion and returned the same verdict.

1 Baptiste, J.A. [AG.]: This is an appeal against a conviction for murder. In the evening of 10th November 2006, Clifford Christie (Christie) was fatally stabbed at the Ronald Webster Park in Anguilla. The stabbing stemmed from a brawl involving Christie, Jaiden Abbott (Abbott), Thelston Brooks (Thelston) and the appellant. In February 2008, the appellant was convicted of the murder of Christie and sentenced to life imprisonment.

2 Abbott was the main witness for the prosecution. He provided an eye witness account of the appellant stabbing Christie with a chrome knife in the back. The medical evidence confirmed that Christie died as a result of the loss of significant quantity of blood occasioned by stab wounds to the abdomen and back. The medical experts opined that the wounds were consistent with having been caused by a sharp bladed instrument such as a knife. Abbott was the only witness who gave evidence of the stabbing and was the only one who gave evidence that the appellant had a knife. Two other prosecution witnesses, Jordi Vanterpool and Yanique Hodge expressly stated that the appellant did not have a knife.

3 The incident which led to the stabbing occurred after a football match at the park. According to Abbott, Thelston and an unknown individual walked past Christie and himself. Christie turned back to Abbott, spoke to him and went down by Thelston and the other individual. Christie was talking to Thelston in the presence of the other individual. The appellant was approaching Christie and Thelston from the east. Thelston chucked Christie and Christie chucked him back. The appellant pulled a chrome knife from his waist and stabbed Christie. Abbott also gave evidence that he threw a bicycle at the appellant. The appellant fired stabs at him and chased him with the knife. He threw a chair at the appellant and jumped over a wall.

4 The appellant testified on oath. He was in the park with Jordi Vanterpool and Thelston. He and Thelston separated. Then he saw Thelston and an unknown person walking down the road. Thelston and the person passed Abbott and Christie. Then Christie said to Abbott “look the lil mother skunt there”. Christie turned around on his bicycle and went back down to Thelston. He chucked Thelston and they began fighting. The appellant further testified that he went to take Abbott and Christie off Thelston as they were boxing, kicking and choking him. He stated that Abbott started boxing him then burst off running. He ran after Abbott. Abbott threw a chair at him and jumped a wall. The appellant stated that he does not know anything about Abbott throwing a bicycle at him. The appellant denied pulling a knife from his waist. He denied having a knife in his hand. He denied stabbing Christie. He also denied firing stabs at Abbott.

5 In cross-examination the appellant was asked whether he saw Abbott with a knife during the fight. He replied “I don't know, ma'am. I ain't see him with nothing like that.” He stated that he did not see Christie with a knife nor did he see Thelston with a knife. In response to a question from the jury he replied that he did not see anyone with a knife.

6 Mr. Astaphan, learned counsel for the appellant, attacked the credibility and reliability of Abbott’ evidence. In cross-examination Abbott admitted that he lied to the police. That lie related to the statement he made in his police statement that he was on the scene when the police arrived. Mr. Astaphan tried to show that Abbott was not consistent in his evidence, for example on the issue as to whether he had changed his shirt when he went home. Mr. Astaphan made much of the evidence of the two prosecution witnesses who stated that the appellant did not have a knife. In cross-examination of the prosecution witnesses Mr. Astaphan also explored the lighting conditions at the park at the time of the incident. At the end of it all Mr. Astaphan felt confident enough to make a submission that there was no case to answer. That submission did not find favour with the learned judge. In rejecting the no case submission, the learned judge ruled that: “I am satisfied in taking a view of the evidence as a whole that there is a case to answer.” The appellant was eventually convicted, and filed a Notice of Appeal containing 7 grounds. Ground 4 which concerned the admitting into evidence of certain photographs was withdrawn. Additional grounds were also relied on by Mr. Astaphan when he argued the appeal.

GROUNDS OF APPEAL

7 The grounds of appeal are:

1

The conviction is unsafe based on the evidence led at the trial. 2. There is lurking doubt about the guilt of the appellant. 3. The trial judge erred in law in ruling against the no case submission made at the close of the case for the prosecution. 4. The trial judge erred in law in failing to direct the jury to consider the alternative count of manslaughter which was open for them to consider based on the evidence led by the prosecution. 5. The jury failed to accept the directions of the trial judge that where there are two or more inferences that can be drawn on the...