[1] Craig Smith [2] Clayton Francis [3] Noel Melvin [4] Marlon Phoenix Appellants v The Queen Respondent [ECSC]

• Jurisdiction: Antigua and Barbuda
• Judge: Baptiste JA,Justice of Appeal,Davidson Kelvin Baptiste,Ola Mae Edwards,Don Mitchell,Justice of Appeal [Ag.]
• Judgment Date: 25 June 2012
• Judgment citation (vLex): [2012] ECSC J0625-2
• Court: Court of Appeal (Antigua and Barbuda)
• Docket Number: HCRAP 2008/010; 2008/011; 2008/012; 2008/014
• Date: 25 June 2012

[2012] ECSC J0625-2

EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Before:

The Hon. Mde. Ola Mae Edwards Justice of Appeal

The Hon. Mr. Davidson Kelvin Baptiste Justice of Appeal

The Hon. Mr. Don Mitchell Justice of Appeal [Ag.]

HCRAP 2008/010; 2008/011; 2008/012; 2008/014

Between:

[1] Craig Smith

[2] Clayton Francis

[3] Noel Melvin

[4] Marlon Phoenix

Appellants

and

The Queen

Respondent

Appearances:

Mr. Cosbert Cumberbatch for Craig Smith, Clayton Francis and Noel Melvin

Mr. Ralph Francis for Marlon Phoenix

Mr. Anthony Armstrong, Director of Public Prosecutions, for the Respondent

Criminal appeal against conviction — Attempted murder — Joint enterprise — ID parade — Withdrawal from joint enterprise — Primary party departing from common design by unforeseen action — Conviction of offence of shooting with intent to cause grievous bodily harm where secondary party is unaware of the intent of primary party — Whether secondary party's realization of primary party's intent sufficient to found conviction — Nondisclosure

In an attempt to retrieve a car belonging to Noel Melvin from Jason Hope, the appellants drove to Gavin Paredes' home at Tyrells where Paredes was shot at by Marlon Phoenix, stabbed under his right arm by Craig Smith and hit on his head with an object by Melvin. Clayton Francis was in the car when Paredes sustained his injuries. Following this, they drove to Marlon Charles' home at Ramon Hill where Phoenix, Smith and Melvin confronted both Charles and Hope. Francis again remained in the car. Phoenix produced the gun and discharged two shots which resulted in Charles being shot in the chest.

The prosecution's case was that the appellants acted as part of a joint enterprise. Smith, Francis and Melvin knew that Phoenix had a gun, foresaw his intention to kill at both Tyrells and Ramon Hill and continued to participate in the joint enterprise with the knowledge of his intention and on this basis, they are all fully liable for the offences of shooting with intent and attempted murder.

Smith, Francis and Melvin denied that they were a part of any joint enterprise with Phoenix. They denied the prosecution's allegations that they had knowledge that Phoenix had a gun and that they were aware of his intention to kill. They claimed that Phoenix acted entirely on his own; Francis claimed that he was merely a bystander. Phoenix's defence was one of alibi. A jury found the appellants guilty of the offence of shooting at Paredes with intent to do him grievous bodily harm and the attempted murder of Charles on the basis of a joint enterprise.

The appellants appealed against their convictions on various grounds which included that the learned trial judge failed to point out adequately to the jury that attempted murder requires an intention to kill and nothing short of that intention to kill would suffice and that the learned judge misdirected the jury or failed to direct the jury adequately on the law relating to unlawful joint enterprise. Phoenix, in particular, allege that the learned trial judge failed to direct the jury about the need for special care when considering the evidence of a co-accused; he challenges the integrity and credibility of the identification parade and complains of a material irregularity regarding the alleged failure of the prosecution to disclose Francis's first statement which appeared not to have implicated him.

Held: allowing the appeal of Craig Smith, Clayton Francis, and Noel Melvin against their conviction for shooting with intent and quashing the conviction; dismissing Marlon Phoenix's appeal against his conviction for shooting with intent and upholding his conviction; dismissing the appeal of Craig Smith, Clayton Francis, Noel Melvin and Marlon Phoenix against their conviction for attempted murder and upholding their conviction, that:

• 1. In a joint enterprise, if a secondary party realizes (without agreeing to such conduct being used) that the primary party may kill or intentionally inflict serious injury, but nevertheless continues to participate with the primary party in the venture, that will amount to a sufficient mental element for the secondary party to be guilty of murder if the primary party, with the requisite intent, kills in the course of the venture unless (i) the primary party suddenly produces and uses a weapon of which the secondary party knows nothing and which is more lethal than any weapon which the secondary party contemplates that the primary party or any other participant may be carrying and (ii) for that reason the primary's party act is to be regarded as fundamentally different from anything foreseen by the secondary party. Applying this principle to the present case, there was no evidence presented at trial which showed that Smith, Melvin and Francis had knowledge of the gun in Phoenix's possession before he shot at Paredes. Moreover, no evidence was produced which showed that Smith, Melvin or Francis came to the realization that Phoenix may shoot at Paredes with intent to do him grievous bodily harm but they nonetheless continued to participate with him in the venture. Phoenix's action went outside the scope of the joint enterprise. In the circumstances, the conviction of Smith, Melvin and Francis for the offence of shooting with intent is unsafe and cannot be upheld.

  R v Powell and Daniels and R v English [1999] 1 AC 1 applied; R v Hyde [1991] 1 QB 134 applied; R v Rahmanand others [2008] UKHL 45 applied.

• 2. Smith, Melvin and Francis, armed with the knowledge of Phoenix's intent to recover the car by violence and knowing that Phoenix had shot at Paredes at Tyrells, nonetheless journeyed to Ramon Hill with him. There was a conversation in the car on the way to Ramon Hill about the gun. As such, they had the sufficient mental element to be liable and guilty for the actions of Phoenix. Smith, Melvin and Francis lent themselves to the enterprise and by doing so gave assistance and encouragement to Phoenix in carrying out the enterprise which then involved the intent to kill. Additionally, the learned trial judge gave proper and adequate directions to the jury concerning the intent for attempted murder. Accordingly, their conviction of attempted murder of Charles must be upheld.

  R v Powell and Daniels and R v English [1999] 1 AC 1 applied; R v Hyde [1991] 1 QB 134 applied; R v Rahmanand others [2008] UKHL 45 applied.

• 3. An accused who effectively withdraws before an injury is inflicted would not be guilty because he was not a party to and did not participate in any unlawful violence which caused the injury. This distinction was specifically put to the jury by the learned trial judge in reference to Francis' defence. In scrutinizing the evidence, Francis, at all material times, continued with the joint venture with the other appellants. After the shooting at Tyrells, he was aware that Phoenix possessed a gun and was prepared to use violence to recover the car from Hope. He was the one who identified the car in which Hope and Charles were in and who drove away the car in which two of the other appellants fled the scene with him after the Ramon Hill shooting. He never, at any point, abandoned the appellants and therefore it cannot be said that he effectively disengaged or withdrew from the enterprise.

  R v O'Flaherty et al [2004] EWCA Crim 526 applied.

• 4. The test for non-disclosure is whether, taking all the circumstances of the trial into account, there is a real possibility that the jury would have arrived at a different verdict. The statement allegedly made by Francis to the police about Phoenix's non-involvement in the incidents was never recorded. Consequently, there was no such evidence to be disclosed to the defence for the evidence to be placed before the jury. Even if such a statement was placed before the jury, the jury had the evidence of Smith and Hope identifying Phoenix as the shooter. In the circumstances, there was not a real possibility that the jury would have arrived at a different verdict.

  Mc Innes v Her Majesty's Advocate (Rev 1) (Scotland) [2010] UKSC 7 applied; Maureen Peters v The Queen Territory of the Virgin Islands HCRAP 2009/005 (delivered 1 ^st October 2010) applied.

• 5. An identification parade ought to be fair to the appellant. In this case the parade was not patently or materially defective and was conducted fairly. Furthermore, there was other cogent evidence pointing to Phoenix as the shooter.

  Mark Peters v The Queen Saint Vincent and the Grenadines Criminal Appeal No. 8 of 2000 (delivered 17 ^th September 2001) applied.

• 6. The trial judge clearly and properly directed the jury on the applicable legal principles pertaining to Smith's evidence in regard to Phoenix. In the circumstances there is no merit in the complaint regarding the directions of the learned judge.

Baptiste JA

1 This is an appeal against conviction. On 9 ^th June 2008, following a trial before a judge and jury, the appellants, Craig Smith, Clayton Francis, Noel Melvin and Marlon Phoenix, were convicted of the offences of shooting at Gavin Paredes with intent to do him grievous bodily harm and the attempted murder of Mario Charles. The incidents, which were related, occurred on 13 ^th October 2006 at Tyrells and Ramon Hill respectively and, on the Crown's case, constituted a joint enterprise on the appellants' part to retrieve a car belonging to Melvin which one Jason Hope had taken from Francis.

Background

2 The events leading to the appellants' conviction were triggered by a dispute between Hope and Melvin concerning an amplifier and a speaker belonging to Hope which Melvin had in his possession. This resulted in Hope seizing Melvin's car, which was at the time being driven by Francis, and driving away with it. At the time of the seizure, Hope was in the company of Paredes and was driving Paredes' car. After the seizure, Paredes drove home to Tyrells and...