Chin v R

• Jurisdiction: Antigua and Barbuda
• Judge: Blenman JA
• Judgment Date: 05 April 2017
• Neutral Citation: AG 2017 CA 5
• Docket Number: ANUHCRAP 2012/0005
• Court: Court of Appeal (Antigua and Barbuda)
• Date: 05 April 2017

Court of Appeal

Pereira, C.J.; Blenman, J.A.; Webster, J.A. (Ag.)

ANUHCRAP 2012/0005

Chin

and

R

Appearances:

Mr. Dane Hamilton, QC, with him, Mr. D. Raimon Hamilton for the appellant

Mr. Anthony Armstrong, Director of Public Prosecutions, with him, Mrs. Shannon Jones-Gittens for the respondent

Criminal practice and procedure - Appeal against conviction and sentence — Murder — Life imprisonment — Whether the judge failed to direct the jury on good character resulting in the trial being rendered unsafe — Whether the judge failed to properly direct the jury on lies — Whether the judge failed to adequately direct the jury on circumstantial evidence — Whether the judge failed to adequately direct the jury to disregard the prosecution's comments on the insurance policy — Whether the conviction was unsafe and unsatisfactory — Whether the sentence of life imprisonment imposed was unduly severe and unlawful in all of the circumstances.

Held: dismissing the appeal and affirming the conviction; ordering that the sentence of life in prison be varied to a sentence of 25 years in prison; and that Jay Marie should serve a minimum of 20 years before her sentence can be reviewed by the Court, that:

• 1. On the issue of giving a good character direction, the first general rule is that a direction on the defendant's good character is to be given where a defendant has a good character and has testified or made pre-trial statements (credibility limb). The second general rule is that a direction as to the relevance of good character to the likelihood of a defendant's having committed the offence charged is to be given whether or not he has testified or made pre-trial answers or statements (propensity limb). A defendant who has no previous convictions or cautions recorded against him or her is entitled to both the credibility and propensity limbs of the good character direction. Although Jay Marie was entitled to a good character direction and none was given by the judge, such a failure does not automatically render the verdict unsafe. In the case at bar, the circumstantial evidence that was led by the prosecution was very compelling, coherent and cogent and it all pointed to Jay Marie as the shooter. Accordingly, this failure of the trial judge did not render her conviction unsafe.

  R v. Hunter [2016] 2 All ER 1021 applied; Gilbert v. R [2006] UKPC 15 applied; Mark France and Rupert Vassell v. The Queen [2012] UKPC 28 applied; Bally Sheng Balson v. The State [2005] UKPC 2 applied.

• 2. In cases where the Crown relies on circumstantial evidence, there is no inflexible rule that requires a trial judge to give any formulaic direction on circumstantial evidence. In these cases, no duty rests on the judge in addition to directing the jury that they could only convict if the prosecution has proved the case beyond a reasonable doubt. In the present case, the learned judge's summation was fair, careful and balanced. The judge brought home to the jury that they must consider all of the circumstantial evidence and that they could not find Jay Marie guilty unless they were satisfied of her guilt beyond a reasonable doubt. While it is accepted that there were different parts of the summation in which the judge could have or should have said things differently, the omissions were minor and not sufficient to undermine the safety of the conviction. It is therefore an unfair criticism to assert that the judge did not properly direct the jury on how they should assess the circumstantial evidence.

  Daniel (Marlon), Archibald (Curtis), Garcia (Anino) and Marshall (Curtis) v. The State (2007) 70 WIR 267 applied; McGreevy v. Director of Public Prosecutions (1973) 57 Cr App R 424 applied; Daniel Dick Trimmingham v. The Queen [2009] UKPC 25 followed.

• 3. Notwithstanding that the trial judge, rather than giving a full Lucas direction, gave a modified one in that he omitted to tell the jury that if they are of the view that Jay Marie told lies and that they are proved to have been told through a consciousness of guilt the lies may support the prosecution's case against her, that omission on the judge's part could have only been favourable to Jay Marie. It could not have prejudiced her. In no way could or did the learned judge's failure to give the full Lucas direction render the conviction unsafe.

  R v. Lucas [1981] QB 720 cited; R v. Burge and Pegg [1996] 1 Cr App R 163 cited.

• 4. The fairness of the trial was not impacted by the inappropriate comments of prosecuting counsel concerning the insurance policy since the trial judge dealt with these comments adequately. What an appellate court is required to do is not second guess the trial judge but examine all the circumstances and seek to determine whether or not the judge's treatment of the evidence and trial rendered the conviction unsafe. In the case at bar, the learned trial judge quite properly and appropriately corrected the improper comments of the prosecution during its cross-examination and closing address and in so doing nullified any effect they may have had during the summation. Therefore, the judge cannot be justifiably criticised since there was nothing unfair in the trial as a consequence of his treatment of the prosecution's comments.

• 5. The learned trial judge received evidence in mitigation in favour of Jay Marie which clearly indicated that she was industrious and hard working in addition to having shared a close relationship with Raymond even post-divorce. In addition, she had no previous convictions and at the date of the sentence she had spent time in custody. In the circumstances, the sentence of life in prison was excessive; a term of 25 years in prison is an appropriate substitute for the sentence imposed by the learned trial judge, with a review of this sentence to be done on Jay Marie's completion of a period of 20 years.

Blenman JA

1 The appellant, Mrs. Jay Marie Chin (“Jay Marie”), was convicted of the murder of her ex-husband, Mr. Raymond Chin (“Raymond”), and sentenced to life imprisonment. She has appealed against both the conviction and sentence. The appeal is strenuously resisted by the Crown.

BACKGROUND

2 Jay Marie and Raymond shared a relationship for several years which eventually culminated in their marriage. Initially, their marriage appeared to be harmonious and they had a very close relationship. For reasons unknown, they eventually divorced. However, they continued to have a close relationship which included enjoying each other's company. In fact, even though they were only recently divorced, shortly before the incident they had travelled together from Miami to Antigua and Barbuda. When he was in Antigua and Barbuda it appears that himself and Jay Marie operated as if they were a couple even subsequent to their divorce. Jay Marie owned Jay Chin's Variety Store which was located at upper Church Street, St. John's Antigua and Raymond frequented Jay Chin's Variety Store. On28thNovember 2009 around 5:00 p.m., he was shot several times and killed while he was inside of Jay Chin's Variety Store. The indisputable evidence indicated that at the time of the shooting Jay Marie and Raymond were present at the store. Jay Marie in her statements to the police maintained that she was outside in a toilet/bathroom located at the rear of the building which housed Jay Chin's Variety Store, when Raymond was shot and killed.

3 The Crown's case was based entirely on circumstantial evidence since there was no eyewitness to the shooting. The Crown led evidence through several witnesses who testified to having heard what sounded like “explosions” or a volley of gun shots coming from within Jay Chin's Variety Store and seeing Jay Marie come from inside of the store (out of which the shots emanated) and that she was speaking on her cell phone. It is noteworthy that the store had only one point of exit and entrance and the windows were heavily barricaded. Within a few seconds of the shooting, several persons gathered on the scene of the shooting and no witness testified to having seen anyone leave Jay Marie's Variety Store other than Jay Marie, neither did they see anyone running away from the crime scene. Two of the Crown's witnesses testified that Jay Marie had reported to them that she was at the back of the store when an unknown man wearing a hoodie and dressed in black (whilst she was in an outside bathroom) shot and killed Raymond.

4 The Crown had asked the jury to accept that Jay Marie told lies when she said that it was an unknown man in “a black hoodie” who had shot Raymond. However, the main thrust of the Crown's case was based on circumstantial evidence through its witnesses that led the jury to only one conclusion namely that Jay Marie was the shooter.

5 As alluded to earlier, several defence witnesses testified to the fact that Jay Marie and Raymond shared a very loving relationship. This appeared to have persisted even after their divorce. Importantly, Jay Marie had no previous convictions and even though she elected not to give evidence on oath she had provided the police with statements. In addition, she made a statement from the dock in which she stated that for the ‘eight and a half years being with Raymond Chin I never had violence. I never had no kind of violence whatsoever. … We did our shopping together. We did everything together.’ [Record of Appeal Vol. III, p. 849, lines 9-11 and 25, and p. 850, line 1.] There is no doubt that she was entitled to have the benefit of a good character direction. Then defence counsel who appeared on her behalf did not invite the Court to give directions on good character and the judge did not give a good character direction.

6 During cross-examination of the defence witnesses, Crown Counsel who then appeared questioned some of the witnesses with a view to establishing that Jay Marie had a motive to shoot Raymond, namely, that she stood to benefit from an...