[1]Henry Weekes [2] Everette Crump [3] Kenaz Whyte [4] Paul Ephraim [5] Kester Bailey [6] Dale Christian Appellants v The Queen Respondent [ECSC]
| Jurisdiction | Antigua and Barbuda |
| Judge | RAWLINS, J.A.,Justice of Appeal,Chief Justice [Ag.],Hugh A. Rawlins,Brian Alleyne, SC,Michael Gordon, QC |
| Judgment Date | 23 March 2007 |
| Judgment citation (vLex) | [2007] ECSC J0323-1 |
| Docket Number | CRIMINAL APPEALS NOS. 13, 14, 15, 16, 17 & 18 OF 2003 |
| Court | Court of Appeal (Antigua and Barbuda) |
| Date | 23 March 2007 |
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. Hugh A. Rawlins Justice of Appeal
CRIMINAL APPEALS NOS. 13, 14, 15, 16, 17 & 18 OF 2003
Mr. Dane Hamilton for the 1 st, 2 nd, 3 rd, and 4 th Appellants
Mr. Hugh Marshall for the 5 th Appellant
Mr. Jason Martin for the 6 th Appellant
Mr. Anthony Armstrong, Director of Public Prosecutions, with him Ms. Jo-Ann
Walsh, Senior Crown Counsel, for the Respondent
The 6 appellants were jointly charged, with 4 other persons who were acquitted by the jury, for the murder of Andrew Owen Douglas. They were also charged for kidnapping Douglas, Odebo Benjamin and Miguel Walcolm, and for causing grievous bodily harm with intent and for causing grievous bodily harm with intent to murder Odebo Benjamin and Miguel Walcolm. Douglas, Benjamin and Walcolm were taken, held and beaten by a number of persons in March 2002 and Douglas died as a result of the injuries that he sustained from that beating. The gravamen of the case for the Crown was that the appellants were responsible for the death of Douglas by those acts that were committed in furtherance of a joint unlawful enterprise.
At the end of her summation, the learned trial judge invited the jury to consider murder first. The jury found appellants, Christian, Weekes, Crump, Ephraim and Bailey guilty of murder. They were sentenced to imprisonment for life with hard labour. The appellant, Whyte, was convicted of manslaughter and sentenced to 25 years imprisonment. 1 They appealed on various grounds.
There were aspects of the submissions, which highlighted the legal principles that relate to joint unlawful enterprise. Those aspects of the submissions were made in a manner which seemed to question the sufficiency of the evidence to satisfy the ingredients of the offences for which the appellants were charged. Thus, for example, Mr. Hamilton, learned counsel for Whyte, Weekes, Crump and Ephraim, said that one issue that arises is whether there was a common plan by the appellants to capture, hold and inflict grievous bodily harm on Douglas, Odebo Benjamin or Miguel Walcolm. By extension he said the issue also requires a consideration of the question as to who inflicted the injuries that caused the death of Douglas. A second question, he said, was whether the injuries which Douglas sustained were inflicted pursuant to a common plan or design, and, if so, whether the appellant Whyte was the originator, designer or guiding force behind that plan. The third question, he said, was whether all of the persons who allegedly participated in the beating agreed or consented expressly or impliedly to the infliction of those injuries. A fourth question was whether the appellants all acted
together to achieve a common purpose or design to kill or to inflict grievous injury to Douglas.I think that these would have been the critical issues if the appellants complained that the trial judge erred by dismissing a no case submission that was made for them. However, at the end of the case for the prosecution at the trial, no case submissions were made only on behalf of 3 accused: Clairfoster Hunte, Kareem Frederick and Randy Simon. 2 Their no case submissions were overruled, 3 but they were eventually acquitted by the jury.
In the main, the appeals seek to impeach the directions of the learned trial judge to the jury on intention for the offence of murder. They also seek to impeach the directions on intention in joint unlawful enterprise. They also question the correctness of the directions on manslaughter in the context of joint unlawful enterprise.
Further grounds of appeal state that the learned trial judge did not adequately address the jury with respect to the evidence of some witnesses and did not adequately put the cases of the appellants to the jury. Kester Bailey complains, for example, that the learned trial judge misdirected the jury when she stated in the summation that, in his evidence, Bailey said that Police Officer Sergeant Burnette was "good" to him, when he had in fact said that the Sergeant was "rude" to him. He insisted that this was one aspect of the summation which shows that the judge did not properly consider or put his testimony or defence to the jury.
The appellants all complain that the trial judge erred in that she rendered no assistance to the jury in assessing the evidence in the case as it related to each of them. They contend that the judge erred because she failed to explain their various roles in the alleged joint unlawful enterprise and did not assess any evidence which indicated that any of them (the appellants) may have withdrawn
from such an enterprise. When the learned judge gave directions on this latter aspect of the case, she assessed the evidence only in relation to Clairfoster Hunte.The appellants Whyte, Weekes, Crump, Bailey and Ephraim further complain that the learned trial judge wrongly exercised her discretion when she permitted prosecution witnesses, Alex Davis and Arthur James, to be cross-examined as hostile witnesses notwithstanding that there was evidence that at the committal proceedings they had denied that they gave police statements voluntarily. In response, the learned DPP submitted that since these witnesses conducted themselves in the witness box in a manner that was decidedly adverse to the prosecution, the trial judge properly exercised her discretion to have them cross-examined.
Further, the appellants Whyte, Weekes, Crump, Bailey and Ephraim complain that they were severely prejudiced in their trial when the learned trial judge permitted one Javid Myers to be called into court only for a witness, Arthur James, to identify him (Myers) as the person who had witnessed a statement which James had allegedly given to the police. The same appellants also alleged that they suffered substantial prejudice during the course of that identification when Myers blurted out an exhortation to James, in the presence of the jury, to tell the jury the truth. The learned judge, they stated, did not refer to this remark in the course of the summation. In his submissions in response, the learned Director of Public Prosecutions conceded that this was a "procedural irregularity". He insisted, however, that it did not prejudice these appellants in a manner which denied them a fair trial.
The appellants also stated that the trial judge erred when she included caution statements given by other accused persons as a part of the evidence tendered by the prosecution. In reply, the learned Director of Public Prosecutions submitted that the caution statements were admitted into evidence without any objection from defence counsel. He said that after they were admitted, they became evidence for the consideration of the jury.
A brief background to the case will be first given as a precursor to considering the grounds of appeal.
The appellant, Kenaz Whyte, resides at Greenbay, St. John's. Persons from the surrounding area frequent and "hang out" in his yard there, which is known as Kemwah Yard. On the night of Saturday 9 th March 2002, there were about 8 persons in the yard when 2 men walked in. The appellant, Paul Ephraim, who was in the yard at the time said that the 2 men were Odebo Benjamin, who was armed with a gun, and Miguel Walcolm, who was armed with a cutlass. He said that there was a third person outside driving a get-away car. The intruders proceeded to rob everyone who was in the yard. A shot was fired during the robbery. The intruders made their get-away.
During the afternoon of Sunday 10 th March 2002, Kenaz Whyte was at Cooks Hill. He received a telephone call. It was from appellant Henry Weekes who informed him that the persons who committed the robbery were at a horse racing meet at the Cassada Gardens racecourse. Whyte walked from Cooks Hill to Perry Bay where he met Weekes. Weekes took Whyte by motor jeep to the Cassada Gardens racecourse. Appellants, Kester Bailey, Dale Christian and Ephraim were also in the jeep. When the jeep arrived at Cassada Gardens, Weekes parked it close to the ticket booth. After Whyte alighted from the jeep he met Odebo Benjamin who was leaning on one of the horse stalls. He spoke with Benjamin about the robbery in Kemwah Yard. He also pointed to Ephraim who walked over and said that Benjamin was one of the persons who carried out the robbery with Miguel Walcolm. Walcolm was close by.
The evidence for the prosecution is that Odebo Benjamin, the deceased, Douglas, and Miguel Walcolm were all assaulted and forced to go into the jeep at the racecourse. According to Whyte, however, the 3 men agreed to go voluntarily to Greenbay to clear their names. Whyte did not travel to Greenbay in the jeep which Weekes drove. In addition to the 3 men, Weekes was accompanied by appellants Dale Christian and Kester Bailey. Whyte travelled in another vehicle which Randy 'Chive' Simon (who was acquitted) drove. Clairfoster 'Sexy' Hunte (who was also acquitted), the appellant Ephraim and one Moses travelled in the vehicle which Simon drove. Both vehicles were driven to Kemwah Yard.
When the vehicle in which Whyte travelled arrived at Greenbay, Whyte stood outside his yard at a neighbour's place on the east side to await the arrival of the jeep, which was driven by Weekes, and which carried Benjamin, Douglas and Walcolm. When that jeep arrived the persons in it alighted and went into the yard. There was conversation between Whyte and Odebo Benjamin on the north side of the yard behind an old building. At that time Walcolm and the deceased Dou...
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