Jay Marie Chin Appellant v The Queen Respondent

• Jurisdiction: Antigua and Barbuda
• Judge: Blenman JA
• Judgment Date: 05 April 2017
• Judgment citation (vLex): [2017] ECSC J0405-1
• Court: Court of Appeal (Antigua and Barbuda)
• Docket Number: ANUHCRAP2012/0005
• Date: 05 April 2017

[2017] ECSC J0405-1

EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Before:

The Hon. Mde. Dame Janice M. Pereira, DBE Chief Justice

The Hon. Mde. Louise Esther Blenman Justice of Appeal

The Hon. Mr. Paul Webster Justice of Appeal [Ag.]

ANUHCRAP2012/0005

Between:

Jay Marie Chin

Appellant

and

The Queen

Respondent

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 appeal — Murder — Good character direction — Failure of trial judge to give jury good character direction — Lucas direction — Whether trial judge failed to properly direct jury on lies — Circumstantial evidence — Motive — Whether trial judge failed to adequately direct jury on circumstantial evidence and comments made by prosecution on possible motive for killing — Whether conviction rendered unsafe as a result — Whether sentence of life imprisonment unduly severe

The appellant, Jay Marie Chin ("Jay Marie"), had maintained a close relationship with her ex-husband Raymond Chin even after they were divorced; they continued to enjoy each other's company and behaved as though they were still a couple. Jay Marie owned the store Jay Chin's Variety Store in Antigua, and Raymond was known to frequent the store. On 28 ^th November 2009 at around 5:00 p.m., Raymond was shot repeatedly and killed inside the variety store. There were no eyewitnesses to the shooting and the prosecution's case at trial was based entirely on circumstantial evidence. Jay Marie disputed that at the time of the shooting she was present inside the store. The Crown presented several witnesses who were in the vicinity of the store at the time of the shooting. They testified that they had heard what sounded like a series of gunshots, at which point several of them continually observed the store up until only Jay Marie emerged from it, holding a mobile phone and indicating that Raymond had been murdered. The witnesses gave evidence that at no point did they see anyone apart from Jay Marie come out from the variety store, between the time the shooting began and the time when she exited the building. Jay Marie maintained that she was in a toilet/bathroom located at the rear of the building which housed the store at the time of the shooting and that it was someone else who had killed Raymond, an unknown individual in a "black hoodie". The variety store had only one door through which persons could enter and leave. The store windows were heavily barricaded. Jay Marie had no previous convictions, and even though she had elected not to give evidence on oath, she had provided the police with statements in which she denied that she was the person who shot Raymond.

At trial, defence counsel did not invite the court to give directions on Jay Marie's good character and the trial judge did not give the jury a good character direction. Furthermore, during cross-examination of the defence witnesses, prosecuting counsel sought to establish that Jay Marie had a motive for committing the crime, namely to benefit from an insurance policy, even though the prosecution led no evidence to substantiate that allegation. Counsel also made this suggestion during the prosecution's closing address. The trial judge addressed the prosecution's comments both during the cross-examination of the witnesses and in his summation to the jury. The Crown had asked the jury to accept that Jay Marie had lied when she said that it was an unknown man in a "black hoodie" who had shot Raymond. Jay Marie maintained her innocence throughout the trial.

Jay Marie was found guilty of murder and was sentenced to life imprisonment. She appealed her conviction and sentence, contending that the conviction was unsafe and ought to be set aside. She argued that the learned trial judge erred in: failing to direct the jury on good character; failing to properly direct the jury on lies and circumstantial evidence; and in failing to adequately direct the jury to disregard the prosecution's comments on the insurance policy. In relation to sentence, Jay Marie contended that the sentence imposed by the trial judge was unduly severe.

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.

Introduction

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...