Carlton Bedminster Careem Bedminster v The Queen
| Jurisdiction | Antigua and Barbuda |
| Judge | Baptiste J.A,Justice of Appeal,Chief Justice,Davidson K. Baptiste,Hugh A. Rawlins,Errol Thomas |
| Judgment Date | 15 December 2010 |
| Judgment citation (vLex) | [2010] ECSC J1215-1 |
| Court | Court of Appeal (Antigua and Barbuda) |
| Docket Number | HCRAP 2008/002 |
| Date | 15 December 2010 |
IN THE COURT OF APPEAL
The Hon. Mr. Hugh A. Rawlins
Chief Justice
The Hon. Davidson K. Baptiste
Justice of Appeal
The Hon. Errol Thomas [Ag.]
Justice of Appeal
HCRAP 2008/002
HCRAP 2008/003
Mr. Hugh Marshall Jr. for Carlton Bedminster
Mr. Steadroy Benjamin for Careem Bedminster
Mr. Anthony Armstrong, Director of Public Prosecutions for the Respondent
Criminal Law-Attempted Murder-appeal against conviction-whether unsafe-whether the judge erred in law when directing the jury on the meaning of attempted murder-Joint enterprise-whether the judge erred in law when directing the jury on joint enterprise-Identification evidence-whether the judge should have withdrawn the case from the jury as the identification evidence was poor-recognition cases-whether the judge misdirected the jury in his summation on identification evidence-whether fatal to conviction-whether the judge misstated the facts and misdirected the jury on the facts-what is the effect of inconsistencies on the reliability of evidence of the virtual complainant-Alibi defence-whether the judge gave no directions to the jury on the unsworn statement which contained the defence of alibi of the appellant-what is the requisite intent for attempted murder-whether a special warning on intent was needed-
The 1st and 2nd appellants were convicted of attempted murder and were sentenced to five and seven years respectively. The case against the appellants proceeded on the basis of a joint enterprise. The prosecution's case was that the appellants were the sole occupants of the car which was deliberately driven at the virtual complainant while he was sitting on a culvert. The car struck him in the stomach and flung him a few feet backwards into a fence. The virtual complainant stated that the appellants emerged from the car both armed with cutlasses while two other prosecution witnesses stated one had a cutlass and the other a piece of wood. The 2nd appellant rushed the virtual complainant with the cutlass and flung a chop towards his head. In shielding himself with his hand the virtual complainant sustained a chopped thumb. The appellants fled the scene leaving behind the car. The 1st appellant appealed against his conviction on the ground that it was unsafe and unsatisfactory having regard to the fact that the learned judge erred in law in directing the jury on joint enterprise as well as to the meaning of attempted murder. He further contended that the judge erred in law by not withdrawing the case from the jury on the basis that the quality of the identification evidence was poor and in misdirecting the jury in his summation on identification evidence. Other grounds alleged were that the judge misstated the evidence, misdirected the jury on the facts and gave no directions to the jury upon the unsworn statement of the 1st appellant. The 2nd appellant appealed against his conviction on the ground that the judge failed to direct the jury adequately on what are the legal requirements of attempted murder. The virtual complainant did give evidence that he had known the appellants for about one year before the incident. The 1st appellant made an unsworn statement raising an alibi defence while the 2nd appellant in his unsworn statement denied driving the car that was involved in the incident on the day and also denying that he tried to chop the virtual complainant.
Held: allowing the appeal and quashing the conviction of both appellants and setting aside their sentence and ordering that both appellants be retried.
1. That the learned judge adequately summed up to the jury the evidence from which a joint enterprise could be inferred; the fact that it could be formed on the spur of a moment; nothing needed to be said and it may be inferred from the behaviour of the parties. He made it very clear that mere presence at the scene of a crime was insufficient to prove guilt. But if the jury found that the appellants were at the scene of the crime and did by their presence encourage the other in the offence, they both would be guilty. On the evidence presented by the prosecution, the jury could conclude that the two appellants were not merely present but by their actions encouraged each other in the commission of the crime. The appellants were the only occupants in the car which drove at and struck the virtual complainant and when the car stopped, they both emerged from it armed and chased the virtual complainant. The second appellant flung a chop towards the head of the complainant.
2. Having regard to the principle that a summation has to be looked at as a whole the learned judge gave a proper direction on the issue of presence at the scene of the crime in the context of joint enterprise liability and having done so turned to define attempt. Given the facts and circumstances of this case and the issues involved and having regard to the judge's direction on the aspect of presence at the scene of the crime in joint enterprise liability, there is no confusion or error of law in the directions given by the learned judge.
3. That this was clearly a recognition case as the appellants and the virtual complainant were no strangers to one another. The fact that only one witness had identified the appellants as being present does not make the quality of the identification evidence poor; it was not based on a fleeting glance encounter. The quality of the evidence presented was such that the jury could safely be left to assess its value even though there was no supporting evidence of identification.
R v Turnbull (1976) 63 Cr. App. R 132 , R v Breslin 80 Cr. App. R 226 and R v Levy [2006] EWCA Crim. 3063 cited.
4. That the learned trial judge brought to the jury's attention the fundamental requirement of the special need for caution before convicting on the identification evidence, he instructed the jury as to the reason for such a need and instructed the jury that an apparently convincing witness can be mistaken.
5. That it was incumbent upon the learned judge to tailor his summing-up so that the jury could clearly appreciate and weigh the strengths and weaknesses of the identification evidence in reaching their verdict. In this case it became even greater as the virtual complainant was the only person to recognize or identify the appellants. The cumulative effect of the inconsistencies in the evidence and the inadequate assistance given by the learned judge to the jury in relation to the identification would render the conviction unsafe.
Langford & Anor v The State (Dominica) 2009 UKPC 20 and Fuller v The State (1995) 52 WIR 42 (1995) 52 WIR 42 at 433 applied.
6. That there was no infringement of the hearsay rule neither did the appellant suffer any prejudice when the learned judge directed that the virtual complainant said that "he had seen these persons from time to time around. In fact he had some friends who knew them"
7. In giving a character direction to the jury the learned judge tied in the unsworn statement which raised the defence of alibi and essentially told the jury that they should consider what weight should be given to it bearing in mind the good character of the accused. Consequently the 1st appellant suffered no injustice by the judge not directing the jury that if they believe the unsworn statement or had doubts about it they should acquit. It would not have been possible for the jury to reject the alibi and either believe or have doubt about the unsworn statement.
8. That nothing has been presented to persuade this court that this is one of the rare cases in which the simple direction on intent would be insufficient. It seems unlikely that the jury would have lost sight of the evidence that the car was driven at the virtual complainant and of both appellants emerging from the car armed after it came to a stop and chasing the virtual complainant. These circumstances do not fall into an exceptional category requiring a special direction on intent.
R v Nedrick 83 C.A.R. 267 at 270 applied.
This is an appeal by brothers Carlton and Careem Bedminster against their conviction and sentence for the offence of attempting to murder Kevin Norde on the 10th October 2005. They were convicted on 6th March 2008 and sentenced to five and seven years imprisonment respectively on 19th March 2008. The case against the Bedminsters proceeded on the basis of a joint enterprise. The prosecution's case was that they were the sole occupants of a motor car which was deliberately driven at Norde sometime after 4 pm on Monday 10th October 2005 while he was sitting on a culvert. The motor car rushed over the speed bump which was a little distance from the culvert, struck him in the stomach and flung him a couple feet backwards into a wire fence. The Bedminsters emerged from the vehicle which had gotten stuck in the culvert. They were both armed. Norde's evidence is that they were both armed with cutlasses while two other prosecution witnesses stated that one of the persons they saw had a cutlass and the other, a piece of wood. Careem rushed Norde with the cutlass and flung a chop towards his head causing him to duck and put up his left hand. He sustained a chop on his thumb. The Bedminsters eventually fled the scene leaving the car behind. Norde was the only witness who identified the Bedminsters. He stated that he knew them for about a year before the incident.
Carlton made an unsworn statement in which he raised an alibi defence. He stated that on the day in question he was at work at Royal Bank. He left work and went to his residence at Clarke's Hill. From there he went to Herbert's Estate where he also resided and stayed there until the following morning. He also calledan alibi witness. Careem also made an unsworn statement denying that he was driving the car that was...
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