BARBADOS 


[Unreported]


                                                                                               


IN THE SUPREME COURT OF JUDICATURE


COURT OF APPEAL


 


Criminal Appeals Nos. 8 & 10 of 2006


 


BETWEEN:


 


            IAN WENDELL GOULD                    Appellants


                                                OMAR MCDONALD SEALY            


                                      


                                                         AND                                                     


 


                                                 THE QUEEN                                       Respondent


                                                                       


 


BEFORE: The Hon. Peter D.H. Williams, The Hon. Sherman R. Moore and The Hon. Sandra P. Mason, Justices of Appeal.


        


2009:   26 and 27 October  


2010:     27 May        


 


Miss Rita L. Evans and Mr. M. Tariq Khan for the Appellant Gould


Mr. Marlon M. Gordon for the Appellant Sealy


Miss Manila Renée for the Respondent


 

DECISION

 


            PETER WILLIAMS JA


 


I.       INTRODUCTION


 


[1]        Five young men were charged with the murder of Gregory Marshall between 17 and 20 September 2002 at a Guiness promotion fête on Ellerton Pasture, St. George.


[2]        One of the accused, Renaldo Orlando Herbert, was successful on a submission of no case to answer and the jury were invited to return a verdict of not guilty of murder.  Fabian Kevin Leacock and Omar McDonald Sealy pleaded guilty to manslaughter on the third day of the trial; Leacock was sentenced to 8 years’ imprisonment and Sealy to 10 years’ imprisonment.  In respect of Irwin Andre Goodridge and Ian Wendell Gould, their submissions of no case to answer were upheld to the extent that they were each required to answer a charge of manslaughter and not murder.  However, on 14 October 2006, they were both convicted of manslaughter and Goodridge was sentenced to 5 years’ imprisonment and Gould to 7 years’ imprisonment.  In summary, Blackman J released one accused, two pleaded guilty to manslaughter and the other two had to answer reduced charges of manslaughter for which they were convicted.  On 3 and 6 March 2006, the four were sentenced to terms of imprisonment ranging from 5 to 10 years.  


[3]        Gould seeks leave to appeal his conviction and sentence and Sealy his sentence.  Gould’s appeal against conviction was filed a few days out of time.  We granted him leave to appeal out of time and leave to both appellants to appeal against sentence.


 


II.   THE FACTS


 


[4]        What was intended to be an evening of good entertainment ended in tragedy.  We adopt a statement of the facts with particular reference to Gould and Sealy as presented to the jury by Mr. Charles Leacock Q.C., Director of Public Prosecutions, at the opening of the trial.  On 17 September 2002, the featured artist and D.J. at the party was “Lil Rick” and he attracted a large crowd of young people, including the defendants and the deceased.  The deceased was from Chalky Mount, St. Andrew and the defendants were from Clifton Hall, St. Thomas.  There seems to have been some tension between the youths of these two areas.      


[5]        The defendant Leacock was seen running on Ellerton pasture away from the deceased, who was pursuing him.  Leacock fell and the deceased came towards him and pointed a gun at him.  The defendants saw what happened and they went to the assistance of Leacock and pursued the deceased who ran off.  The deceased was armed with a firearm and in retreating he discharged the firearm.  He was chased into a bushy area where he was caught by Herbert and the others who inflicted severe injuries on him.  He was the victim of a vicious gang attack in which sharp weapons were used. 


[6]        The injuries inflicted on the deceased were so serious that in the process Gould had two of his fingers amputated (according to the prosecution) by Sealy, who was in the process of injuring the deceased.  The defendants left the deceased on the ground injured while Gould was taken to the Queen Elizabeth Hospital.  The body of the deceased was not found until 20 September 2002 when it was in a decomposed condition.  An autopsy on the body found serious injuries, particularly to the head, the right arm at the point of the wrist which was almost completely severed and an injury to the right forearm which penetrated the bone.  Death was attributed to the very serious head injuries that were in the parietal and occipital regions of the skull that penetrated the full thickness of the skull.


           


III.  GOULD’S APPEAL AGAINST CONVICTION 


(a)    Grounds


[7]        Gould filed six grounds of appeal against conviction.  The grounds were in relation to the judge’s refusal: to order a separate trial of Gould, to exclude records of oral questioning, to warn the jury of the danger of relying on the oral statements, to reject the confession statement and to adequately put the defence to the jury.  The sixth cumulative ground was that the verdict was unsafe or unsatisfactory.


            (b)  Ground 2 – Separate trial           


[8]        It was the appellant’s contention that the judge failed in his duty to exercise his discretion either at the outset of or during the trial to direct that he be tried separately. Miss Evans in advancing the ground relied on section 6(3) of the Indictments Act, Cap. 136 and the case of R. v. Assim [1966] 2 Q.B. 249 CCA.  Reference should also have been made to a recent decision of this Court which considered the ground: Julian Oscar Francis v. R. (Criminal Appeal No. 10 of 2005, unreported decision of 28 February 2008).


[9]      Section 5 of the Act contains a broad, general authorisation of the joinder of charges in indictments as follows:


“5.   Subject to the rules, charges for more than one


offence may be joined in the same indictment.”       


 


            Rule 3 of the Schedule to the Act introduces the limitation:


“3.  Charges for any offences may be joined in the same indictment if those charges are founded on the same facts, or form or are part of a series of offences of the same or a similar character.”


 


[10]      Section 6(3) of the Act adds a safeguard by conferring on the judge a discretion as follows:


            “(3)  Where, before trial or at any stage of a trial, the court is of opinion that a person accused may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same indictment or that for any other reason it is desirable to direct that the person should be tried separately for any one or more offences charged in an indictment, the court may order a separate trial of any count or counts of such indictment.” (Emphasis added.)


 


[11]      The above provision is identical to section 5(3) of the (English) Indictments Act 1915. In commenting on section 5(3), Archbold 2010 at 1-166 states:


“It is submitted that section 5(3) includes the power to order separate trials of defendants who are jointly charged in one count because such a charge is joint and several and therefore alleges separate offences against the defendants: see DPP v. Merriman [1973] A.C. 584, HL.  In any event, the authorities show that the courts have a power to order separate trials against defendants who are jointly charged in one count and that the principles upon which the court acts in such cases are the same as those upon which it acts in respect of separate trials of separate counts.”  


 


[12]      The facts in Assim involved malicious wounding by one defendant of one victim and assault by the other defendant on another victim and are therefore not relevant to the circumstances of this case.  However, the decision of the English Court of Criminal Appeal, Lord Parker CJ presiding, did highlight the discretionary power of the judge and the fact that the question of joinder is very much a matter of practice.  The report states at page 258:


“The first point that becomes quite clear upon an examination of the authorities is that questions of joinder, be they of offences or of offenders, are matters of practice on which the court has, unless restrained by statute, inherent power both to formulate its own rules and to vary them in the light of current experience and the needs of justice.”


 


[13]      The legal principles applicable to a determination of whether to order separate trials of accused persons can be succinctly stated.  The court has a discretion whether to order separate trials of defendants who have been validly joined in one indictment.  The discretion derives from the Indictments Act or the court’s inherent power to control its own proceedings.  The discretion will generally be exercised in favour of a joint trial where the accused are charged in a joint count even if they are expected to blame each other for the offence; in such a case appropriate directions by the judge to the jury will often be sufficient to neutralise any perceived prejudice.  The general rule is that it is in the public interest to have a joint trial in order to save time and expense and to facilitate sentencing if the defendants are convicted.    None of the factors which militate against a joint trial such as very long and complicated proceedings was present; there were no special circumstances in this case to warrant a separate trial. Moreover, the Court of Appeal will not readily interfere with the exercise of the judge’s discretion unless it can be shown to have been exercised other than on the basis of the usual and proper principles.  These principles are well set out in Archbold 2010, 1-166 to 1-169; Blackstone’s Criminal Practice 2009, D11.77 to D11.80 and Commonwealth Caribbean Criminal Practice and Procedure by Dana S. Seetahal, 2nd Edition at page 95 to 96.  


[14]      It is important to note that no application was made in this case before trial or at any stage of the trial for a separate trial.  However, it was counsel’s contention that the judge should have ordered the jury to be discharged on the third day of the trial when Leacock and Sealy pleaded guilty to manslaughter.  An application was made to the judge by Gould’s counsel (not then Miss Evans or Mr. Khan) to have the jury discharged because of alleged prejudice to Gould in view of the guilty pleas of the two defendants.  However, the application was opposed by Mr. Leacock and refused by the judge. 


[15]      Miss Evans treated the application for discharge of the jury as if it were an application for a separate trial.  The judge correctly refused the application and was fully aware that he had to warn the jury not to be prejudiced in their consideration of their verdict on Gould by the guilty pleas of two of the defendants.


[16]      The factual basis presented in support of a separate trial was by no means clear.  Counsel submitted that in the “peculiar circumstances” of this case Gould had “lost” two fingers.  The evidence as to how he lost his fingers was subject to different versions.  Counsel thereby concluded that this was another “facet” causing some prejudice to Gould and having lost two fingers “put him in a more prejudicial position than any of the other accused”.  Counsel also took objection to the judge’s statement to the jury that “those who are on trial are those who put him [the deceased] where he is”.  However, we do not find any substance in this submission to warrant a finding that the defendant was prejudiced or embarrassed in his defence by a joint trial.


[17]      Miss Renée’s response was that the judge properly addressed the matter in his summation.  She referred to passages from the record at pages 456 and 495 as follows:


“Mr. Foreman, in considering the case against the accused man, you have, as I have told you, to keep the case against each accused separate and distinct.  You have to keep the evidence of each accused in a separate compartment, and in that context, let us consider the case of manslaughter in relation to Irwin Goodridge and Ian Gould separately, as we must.


 


...


It is the duty of the Crown to prove the guilt of each accused.  As I have told you, you must keep the evidence against each accused in a separate compartment.


 


...


 


Gould’s position is that his injury was sustained from an unknown assailant when he went to the aid of his brother, and he had no part in the death of Gregory Marshall.”


 


 


[18]      There was therefore no factual basis on which this ground could be maintained successfully and there is obviously no merit in the same.      


            (c)  Ground 3 – Oral statements


                  Ground 4 – Warnings on oral statements


                  Ground 5 – Confession statement


[19]      Mr. Khan argued the above grounds of appeal on the basis that they were interlinked and could conveniently be dealt with together.  They all involve points of law under the Evidence Act, Cap. 121 and on which this Court and the Caribbean Court of Justice have expressed opinions.  We will therefore be forgiven if our treatment of them is in the circumstances economical.                      


[20]      Counsel submitted that the judge failed to exclude records of oral questioning which the accused had not signed, initialled or otherwise marked contrary to section 73 of the Act, which provides:


“73. (1) Where an oral admission was made by a defendant to an investigating official in response to a question put or a representation made by the official, a document prepared is not admissible in criminal proceedings to prove the contents of the question, representation or response unless the defendant has, by signing, initialling or otherwise marking the document, acknowledged that the document is a true record of the question, representation or response.


 


(2)  In subsection (1), “document” does not include a sound recording or a transcript of a sound recording.”


 


            There was police evidence of oral admissions made by Gould which implicated him in the death of Marshall.  He said, for example, “[Marshall] fell down here and we started to cut he up”.  Gould also accompanied the police to Ellerton pasture and pointed out the area where the incident occurred. 


[21]      However, the first point to be made is that no document was produced to the court of any oral admission.  Secondly, the argument that a judge by granting an investigating official leave to refresh his memory from his notebook was tantamount to admitting into evidence the contents of a document rendered inadmissible by section 73 for lack of authentication has been rejected by the Caribbean Court of Justice in R. v. Francis (Julian Oscar) (2009) 74 WIR 109.


[22]      The CCJ explained clearly the manner in which section 73 was to be interpreted in the context of the other provisions of the Act.  It is helpful to quote the relevant paragraphs from the judgment delivered by de la Bastide P:


[15]  It was also argued that because the record made of the oral admission in the notebook was inadmissible under s 73(1) of the Evidence Act, not having been authenticated or acknowledged by the appellant, leave ought not to have been granted to Sergeant Catwell to refresh his memory from the notebook…


 


[17]  In our view the submission that the effect of s 73(1) is to preclude leave being given to refresh memory from an unauthenticated note of an oral admission, is clearly untenable.  The use of a document by a witness to refresh his memory is totally different from putting the document in evidence, and the two are governed by different rules.  The prohibition of one does not imply a prohibition of the other.


 


[18]  The only sanction imposed by s 73(1) for failure of a police officer to get a suspect who has made an oral admission to authenticate the note which the policeman has made of it, is to render the document containing the note inadmissible. Further, the absence (or presence) of authentication is not included by s 30(2) as one of the matters to be taken into account in determining whether leave should be given to a witness to refresh his memory.                     


[19]  The matter is put beyond doubt by s 137 of the Evidence Act.  That section requires a judge sitting with a jury to give the jury certain instructions whenever certain kinds of evidence are given.  Included in those kinds of evidence in s 137(1)(ii) is the following:


 


‘(d)  in criminal proceedings ...(ii) oral evidence of official questioning of a defendant, where the questioning is recorded in writing that has not been signed or otherwise acknowledged in writing by the defendant.’


 


One of the instructions which the judge is required to give to the jury in such a case is a warning that the evidence may be unreliable.  Here we have a provision in the Act which contemplates that there may be oral evidence given of oral admissions of which an unauthenticated record has been made.  The only way in which a judge and jury are likely to become aware of the existence of such a record, is as a result of it being used by a witness to refresh his memory, the record itself being inadmissible under s 73(1).


 


[20]      The policy of the Act appears to be to place on the trial judge the responsibility of ensuring by his directions to them that the jury are alive to the weaknesses of evidence of ‘verbals’ given by a police witness after reference to his unauthenticated notes.”


 


[23]      To Mr. Khan’s credit he did not dwell on this ground of appeal but moved to the related ground under section 137 of the Act that the judge failed to adequately and properly warn the jury that the unauthenticated oral statements may be unreliable.  He submitted that the warning given was superficial and cursory.                      


[24]      Counsel quoted the classic case on the interpretation of section 137 of Gill (Ian) v. R. (2003) 66 WIR 40.  Gill has been discussed and followed in a number of cases; the most recent is Eli Anthony Byron v. R. (Criminal Appeal No. 12 of 2007, unreported decision of 10 December 2009).  It is unnecessary to burden this decision with a recitation of the discussion in the cases.  However, one matter is worthy of comment. Since Gill was decided, section 137 was amended by creating a further condition to the requirement that the judge should give a warning and that new condition is that “a party so requests” a warning: Evidence (Amendment) Act, 2007-44.  It is not necessary for the purpose of this decision to consider the amendment and what constitutes a request.     


[25]      We have examined the passages in the summation that have been subjected to criticism and we can find no substance in this ground.  The section makes it clear that “it is not necessary that any particular form of words be used in giving the warning”: section 137(3).  The purpose of the section is to put the jury on guard in an effort to avoid wrongful convictions but the approach to the section should not be “overly technical”: Australian Principles of Evidence by Gans and Palmer, Second Edition (2004), at page 349.


[26]      The fifth ground of appeal was that the judge erred in law through his failure to refuse to admit evidence of Gould’s confession statement pursuant to section 77 of the Act when there was clear evidence that in obtaining his confession his constitutional rights under section 13(2) of the Constitution had been contravened in that he was not advised of his right to an attorney-at-law.  Section 77 of the Act was also commented on by the Caribbean Court of Justice in Francis at paragraph [51] as follows:


            “The first thing to notice about section 77 is that the fairness or unfairness to an accused of using evidence of confession must be determined by reference to ‘the circumstances in which the confession was made’.”  


 


            It was no doubt for this reason that counsel referred us to the passages in the record where Gould claimed that he was denied his constitutional right.  Counsel also cited the decisions of this Court on section 13(2) but he omitted to cite the two most recent decisions: Mascoll v. R. (Criminal Appeal No. 33 of 2004, unreported decision of 17 December 2008) and Gollop and Hinkson v. R. (Criminal Appeals Nos. 17 and 16 of 2006, unreported decision of 11 December 2009).   


[27]      Miss Renée provided three succinct answers to this ground.  First, the factual basis of the submission was not accurate; Gould stated that he had not been informed of his rights but all the other evidence contradicted this assertion and the jury obviously did not believe him.  Secondly, the jury received appropriate directions from the judge in order to make a proper determination of the admissibility of the confession.  Thirdly, in any event, it is not every breach of a constitutional provision requiring a suspect to be informed of his right to consult a lawyer that will automatically result in exclusion of a confession; the judge has a discretion under section 116 of the Act whether to exclude improperly obtained evidence.  The Privy Council explained the manner in which the discretion should be exercised in Allie Mohammed v. The State (1968) 53 WIR 444.   


(d)         Ground 6 – Failure to put defence adequately


Ground 7 – Verdict unsafe or unsatisfactory


[28]      Miss Evans dealt with the two remaining grounds of appeal against conviction.  The complaint made on behalf of the appellant that his defence was not adequately put to the jury is a perennial ground of appeal.  In this case there was no merit in the ground.  The judge stated that on the evidence and on the defence advanced the issues of prevention of crime and self-defence arose and he directed the jury properly on them.  It is also to be noted that at the end of his summation the judge asked counsel for Gould if there was anything further that he wished said in respect of his client’s case.  Counsel replied that he wished some further direction to be given to the jury on self-defence and defence of another which the judge gave.  Counsel was then asked if he was satisfied with the additional direction and he said that he was much obliged.     


[29]      We have found no merit in the substantive grounds of appeal and it follows that we are satisfied that the unanimous verdict of the jury convicting Gould of manslaughter was safe and satisfactory.


 


IV.       GOULD’S AND SEALY’S APPEALS AGAINST SENTENCE


(a)        Grounds and sentencing principles


[30]      Ground 1 of Gould’s appeal was that the sentence is too harsh and the sole ground of Sealy’s appeal was that the sentence is excessive. The basis on which the plea of guilty of manslaughter was accepted by the DPP on behalf of Sealy and on which the jury returned a guilty verdict of manslaughter on Gould is not known.  Nevertheless, the appellants participated in a violent and savage killing.  In the circumstances, the offence was so serious that the threshold for a custodial sentence had been reached: section 35(4) of the Penal System Reform Act, Cap. 139.


[31]      In determining the length of the custodial sentence, the court must take into account the aggravating and mitigating factors: section 37(3) of the Act.  In so doing we have been guided by the factors set out by this Court in R. v. Lorde (Pierre) (2006) 73 WIR 28.  There were strong aggravating factors in the instant case.  The deceased was brutally killed with a dangerous weapon; he was “cut up” with a “lens” (sword or cutlass).  His injuries were horrendous.  He was left to die.


[32]      The fact that the deceased was the aggressor and guilty of serious criminal conduct were strong mitigating factors.  He went to the fête armed with a gun and shot and killed a man and wounded another.  He then ran off shooting back into the crowd.  The appellants rely heavily on these circumstances as mitigating factors outweighing the aggravating factors and claim that the judge did not sufficiently take them into account.   


[33]      Both Gould and Sealy were young men at the time of the incident.  Gould was 24 and Sealy was nearly 22 years old.  Both came from unstable family backgrounds and both had a limited education; Gould went to live with his family in St. Vincent after completing the Common Entrance Examination but he received no further education in St. Vincent and lived in the mountains. Gould smoked marijuana (“pure sensi”) from aged 15 and he smoked “chalice” every day.  Sealy smoked marijuana regularly and admitted that he was smoking marijuana and drinking alcohol at the fête.  


[34]      Both Gould and Sealy were in custody for three and a half years pending trial.  The judge expressly took into account this fact.  The precise amount of credit to be given for the time spent in custody is still left open to the discretion of the judge, who does not have to state the credit he has given: Mark Rohan Jack v. R. (Criminal Appeal No. 9 of 2008, unreported decision of 30 January 2009) and Ricardo Deverne Griffith v. R. (Criminal Appeal No. 6 of 2007, unreported decision of 19 June 2009).


            (b)  Gould


[35]      The judge’s sentencing remarks addressed specifically to Gould were as follows:


“Gould, you, contested the matter.  Your probation report indicates a lack of remorse, which may be a matter of denial, and the maintenance of innocence with respect to the offence, notwithstanding that you lost two fingers by what may be termed ‘friendly fire’.  Moreover, in reviewing the totality of the evidence tendered in this case, it appears to me, albeit intentionally or otherwise, that you lied on the witness stand in giving your account of the circumstances in which you suffered the injury to your hand.  


 


In the circumstances, you have no previous convictions, and taking into account the period you have spent on remand, I am sentencing you to seven years’ imprisonment, and further recommend that you be provided with such psychological counselling as is available to assist you upon your release from prison to be absorbed into the community.


 


It is my further recommendation to the relevant authorities that on completion of your sentence, you be deported to your native St. Vincent.”


 


[36]      It seems to us that the 7 year sentence given to Gould fits closest into category 4 of the guidelines in paragraph [35] of Pierre Lorde.  This category provides for a contested trial where no intrinsically dangerous weapon was used (in this case it was not used by Gould himself) and there are mitigating features; the range is 8 to 12 years.  Gould cannot complain of a sentence of 7 years. 


            (c)  Sealy


[37]      The judge’s sentencing remarks addressed specifically to Sealy were as follows:


“Sealy, taking into account your guilty plea, the period spent on remand, but also recognising a previous conviction in 2001 that also involved violence, and your own role in arming yourself before you went out that day, I sentence you to 10 years’ imprisonment.  And I further direct that you be provided with drug counselling during your period of incarceration.”


 


[38]      The 10 year sentence given to Sealy also fits closest into category 4 of paragraph [35] of the Pierre Lorde guidelines.  The difference in the position of Sealy from that of Gould is that Sealy had carried the intrinsically dangerous weapon to the fête and used it. He would have deserved a much higher sentence had it not been for his guilty plea, though it did not come until the third day of the trial.  Similarly, Sealy cannot complain of a sentence of 10 years. 


[39]      Miss Renée submitted correctly that the appellants have no legitimate complaint against the sentences being excessive. She pointed out that the sentences of the four prisoners must be looked at collectively as this approach was one of the benefits to be derived from a joint trial which facilitated equity in the sentencing of many defendants convicted of participating in a joint criminal enterprise. The judge was generous in the length of sentence he imposed on the appellants; the sentences were not excessive.  


 


V.        DISPOSAL


[40]      This Court stated in Ryan Charles Ricardo Harewood v. R. (Criminal Appeal No. 18 of 2007, unreported decision of 16 September 2009) that the courts are conscious of the need to protect the public from serious harm caused by the misuse of firearms or offensive weapons.  Persons should be free to participate in an evening of entertainment without any fear of the possibility of thereby losing their lives.   


[41]      Gould’s appeal against conviction and sentence is therefore dismissed.  He is to serve his sentence of 7 years’ imprisonment from the date of imposition of the sentence on 3 March 2006 (not from the date of conviction as ordered).  Sealy’s appeal against sentence is also dismissed and he is to serve his sentence of 10 years’ imprisonment from the date of imposition of the sentence on 6 March 2006.    


 


 


 


Justice of Appeal


 


 


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