George Thomas v The Queen

• Jurisdiction: Antigua and Barbuda
• Judge: Mr. Davidson Kelvin Baptiste,Mde. Louise Esther Blenman,Mde. Margaret Price Findlay
• Judgment Date: 04 July 2022
• Neutral Citation: AG 2022 CA 005
• Docket Number: ANUHCRAP2018/0018
• Court: Court of Appeal (Antigua and Barbuda)

BETWEEN:

George Thomas

Appellant

and

The Queen

Respondent

BETWEEN:

Joel Kwame Seraphin

Appellant

and

The Queen

Respondent

Before:

The Hon. Mr. Davidson Kelvin Baptiste Justice of Appeal

The Hon. Mde. Louise Esther Blenman Justice of Appeal

The Hon. Mde. Margaret Price Findlay Justice of Appeal [Ag.]

ANUHCRAP2018/0018

CONSOLIDATED WITH

ANUHCRAP2018/0006

THE EASTERN CARIBBEAN SUPREME COURT IN THE COURT OF APPEAL

Criminal appeal — Appeal against conviction and sentence — Murder — Whether the witness statement of Mr. Nibbs was inadmissible and/or ought to have been excluded — Whether the learned judge erred in directing the jury on how to treat the hearsay statement of Mr. Nibbs — Whether the learned judge failed to direct the jury on how to treat evidence of bad character — Whether the learned judge failed to direct the jury properly on how to treat the interview of Mr. Seraphin — Whether there was a failure to call relevant alibi evidence — Whether the summing up on credibility was unbalanced resulting in unfairness to Mr. Thomas — Whether the sentence was excessive as the learned trial judge took too high a starting point in calculating the sentence — Whether the learned trial judge failed to state what, if any, mitigating and aggravating factors he considered in arriving at the sentence — Whether the learned trial judge, in arriving at the sentence, considered things which he ought not to have taken into account — Whether the learned trial judge did not take into account the issue of the pre-trial delay in arriving at the sentence — Whether the learned trial judge failed to take into account the conditions of detention at Her Majesty's Prison in arriving at his decision — Whether the learned trial judge failed to take into account Mr. Thomas’ conduct while on remand at Her Majesty's Prison as a mitigating factor in arriving at the sentence — Whether the learned trial judge failed to take into account Mr. Thomas’ time spent on remand — Whether the disparity in the sentences of the two (2) appellants warrants a reduction in Mr. Thomas’ sentence — Whether the sentence of Mr. Seraphin was given on the wrong factual basis — Whether the learned judge took irrelevant matters into account in sentencing Mr. Seraphin — Whether the learned judge failed to take relevant matters into account in sentencing Mr. Seraphin — Whether the conditions of Her Majesty's Prison breached Mr. Seraphin's right to human dignity and subjected him to cruel, inhumane and degrading punishment — Whether the sentence of twenty-five (25) years imprisonment was manifestly excessive considering the circumstances as a whole — Whether the disparity of sentence between Mr. Seraphin, Mr. Nibbs and Mr. Chapman was too great and thereby disproportionate.

Held: dismissing Mr. Thomas’ appeal against conviction and allowing his appeal against sentence to the extent indicated at paragraph 198, and allowing Mr. Seraphin's appeal against sentence to the extent indicated at paragraph 198, that:

Mr. Thomas:

• 1. It is a matter of the discretion of the learned judge as to whether a deposition or witness statement should be tendered in evidence. However, this discretion only arises after the statutory conditions have been satisfied. Given the evidence led by the prosecution prior to its application for Mr. Nibb's evidence to be read into the record being made, the learned judge was entitled to conclude that Mr. Nibbs was indeed beyond the jurisdiction of the court. Furthermore, there was sufficient evidence before the learned judge to support his ruling that the requirements of section 37 of the Evidence (Special Provisions) Act 2009 had been satisfied. Accordingly, the learned judge did not err in the exercise of his discretion in allowing the evidence of Mr. Nibbs to be read into the record.

  Section 37(c) of the Evidence (Special Provisions) Act, 2009 Act No. 5 of 2009, Laws of Antigua & Barbuda applied; Henriques and Carr v R (1991) 39 WIR 253 followed; Knights (Donnason) v R (1998) 53 WIR 125 followed.

• 2. A trial judge has a duty to direct or inform the jury that they have not had the benefit of hearing the witness give their evidence nor have they had the opportunity to observe the witness give their testimony, where applicable. The jury must also be warned that the evidence has not been tested by way of cross-examination and the need to take that into consideration when assessing how much reliance can be placed on the evidence contained in the witness statement. The judge gave a truncated but proper direction as to how the jury ought to have treated with Mr. Nibb's witness statement and there was no element of unfairness with his directions in this matter.

  Henriques and Carr v R (1991) 39 WIR 253 followed.

• 3. A jury must have an appreciation of all the relevant surrounding circumstances of a crime. A jury cannot come to a conclusion in a vacuum, that is without knowing what the prosecution alleges led to the commission of the crime. The learned judge brought to the attention of the jury the circumstances surrounding the commission of the offence, as he was required to do. He fully explained the background to the commission of the offence and placed all the evidence in context so as to ensure that the jury would have an appreciation of the circumstances in which the Crown alleged that the offence was committed. Therefore, the learned judge's directions cannot be faulted in this regard.

  D. C Ormerod, David Perry, Peter Murphy, John Phillips, Brian Henry Leveson: Blackstone's Criminal Practice 2017, Oxford University Press, 2017 considered; R v Pettman [1985] Lexis Citation 1520, (2 May 1985, unreported) followed.

• 4. It is a well-established principle of law that where a confession of a co-defendant is admitted into evidence, it is only evidence against the maker of the statement. Where the admission of evidence which was admissible against one defendant but not against his co-defendant, resulted in the real risk of prejudice to the co-defendant, the judge should ensure that the interests of the co-defendant are protected by explicit directions to the jury to the effect that the statement of one co-defendant was not evidence against the other. The learned judge ought to have stated clearly and unequivocally that the statement of Mr. Seraphin was evidence against Mr. Seraphin alone and not against Mr. Thomas, this he failed to do. However, the summation in its entirety, the directions relative to the offence, the burden and standard of proof and other salient aspects of the summation, as well as, the strength of the prosecution's evidence against Mr. Thomas, all taken together lead to the conclusion that there was no miscarriage of justice in this case. A jury properly directed would have inevitably arrived at the same verdict of guilty.

• Lobban v R [1995] 2 All ER 602 followed; D. C Ormerod, David Perry, Peter Murphy, John Phillips, Brian Henry Leveson: Blackstone's Criminal Practice 2017, Oxford University Press, 2017 considered; Roger Jelliseau et al v The Queen Grenada Criminal Appeals 10, 6, 11 of 1995 followed; Jevone Demming v The Queen [2020] ECSCJ No. 1 (delivered 14 ^th January 2020) followed.

• 5. There is nothing in the record to suggest that the judge deprived Mr. Thomas of the opportunity to call his alibi witness. Indeed, the judge adjourned the matter in order for the proper arrangements to be made to accommodate the witness. It is through no fault or error of the judge that the witness failed to attend court on the adjourned date to give her evidence.

• 6. Having regard to the judge's summation as a whole, the complaint that he failed to sum up the defence fairly cannot be sustained. All of the issues which were vital to the defence, the arguments, the evidence and the alibi were properly placed before the jury and addressed by the learned judge.

  Deshawn Stoutt v The Queen BVIHCRAP2009/003 (delivered 21 ^st November 2011, unreported) followed.

• 7. An appeal court does not alter a sentence merely because it might have passed a different sentence. If a sentence is excessive or inadequate to such an extent as to satisfy this Court that when it was passed there was a failure to apply the right principles, then this Court will intervene. In examining the facts associated with this murder, the judge was entitled to take into account all of the surrounding circumstances. Having regard to the totality of the evidence it was open to the judge to conclude that the starting point for sentencing Mr. Thomas was life imprisonment.

  R v Ball (1951) 35 Cr App Rep 164 followed; Newton Spence et al v The Queen St. Vincent & the Grenadines Criminal Appeal No. 20 of 1998; St. Lucia Criminal Appeal. No. 20 of 1997 followed; R v Sargeant (1974) 60 Cr App Rep 74 followed; Desmond Baptiste v The Queen St. Vincent & the Grenadines Criminal Appeal No.8 of 2003 followed.

• 8. The learned judge, at the completion of his analysis, concluded that the aggravating factors outweighed those tendered in mitigation and concluded that a life sentence was appropriate. The learned judge also stipulated a minimum period which Mr. Thomas must serve before being eligible for review. This fulfils the objectives of punishment and deterrence but also allows for rehabilitation. No fault can be found in the reasoning of the learned judge in this regard.

  Renaldo Anderson Alleyne v The Queen (2019) CCJ 06 (AJ) followed; Nicholas et al v The State Cr. App. Nos. 1-6 of 2013 (delivered 17 ^th December 2013, unreported) considered; Mervyn Moise v The Queen [2005] ECSCJ No. 52 (delivered 15 ^th July 2005) followed; Section 6 of the Offences Against the Person (Amendment) Act, 2013 Act No. 13 of 2013, Laws of Antigua and Barbuda applied.

• 9. The learned judge had the advantage of seeing and hearing Mr. Grant Beggs testify, and was in a position to assess his credibility. Mr. Thomas has not shown this Court that the learned...