Joyce Warner Appellant v The Queen Respondent

• Jurisdiction: Antigua and Barbuda
• Judge: JUDGMENT BYRON, C.J. (Ag.),MATTHEW J.A.(Ag.),Justice of Appeal
• Judgment Date: 15 September 1997
• Judgment citation (vLex): [1997] ECSC J0915-1,[1997] ECSC (VCT) J0915-1
• Docket Number: Criminal Appeal No.15 of 1996
• Court: Court of Appeal (Antigua and Barbuda)
• Date: 15 September 1997

[1997] ECSC J0915-1

IN THE COURT OF APPEAL

Before:

The Hon. Mr. C.M. Dennis Byron Chief Justice (Ag.)

The Hon. Mr. Satrohan Singh Justice of Appeal

The Hon. Mr. Albert N.J. Matthew Justice of Appeal (Ag.)

Criminal Appeal No.15 of 1996

Between:

John Earl Baughman

Appellant

and

The Queen

Respondent

Appearances:

Mr. G. Watt and Mr D. Hammilton for the Appellant Mr. C. Cumberbatch, Director of Public Prosecutions, for the Respondent

Criminal Law —Murder conviction —Death sentence —Inconsistencies between testimony and previous statements of key prosecution witness (an eye-witness) —Defence that deceased's death was accidental -Insurance policy taken out by appellant on deceased's accidental death a year prior to deceased's death —Question of motive —Whether the evidence supported a view that the deceased slipped and fell, or rather, that she was deliberately pushed and landed 99 feet to her death -Whether alleged deficiencies and imbalance in the trial judge's summing up were significant and of a material nature —The effect of, and legal directions regarding, lies by an accused — R v Lucas (1981) applied -Competency of certain witnesses to testify as expert witnesses —Whether there was need to give the directions called for in R v Platt [1981] CLR 332—Application of proviso to S. 40 of the Supreme Court Act. Appeal dismissed.

JUDGMENT BYRON, C.J. (Ag.)

1 I have read the judgment of Matthew J.A and agree with the conclusion he reached. I want to explain why I hold the view that this is an appropriate case to apply the proviso. I was not convinced, that the summing-up was imbalanced. I thought that the learned trial judge put the defence fairly, clearly and strongly to the Jury. While I agree that the case largely depended on the fortuitous circumstance that Philbert Jackson was on his balcony and virtually caught the Appellant in the act and his testimony was therefore important enough for the Judge to direct the Jury to treat it with especial care in the light of the fact that there were areas of his testimony which were inconsistent with his previous statements I thought that in the context of this case the inconsistencies were minor and peripheral. On the other hand there were factors which supported the reliability of his testimony, not the least being the fact that he came forward at once and was the person who raised the alarm by telephoning the Hotel to tell them what he had seen, and he was totally unconnected to the Appellant and the Deceased.

2 The issue of the "lies" was important because it formed part of the circumstantial evidence in the case. However, the error of the Judge which has been pointed out by Matthew J.A. was in my view minimised by his overall treatment of the subject. I also agreed with Matthew J.A. that the criticisms of the treatment of the expert evidence were diffused by the nature of the evidence itself and the fact that there was evidence to support the ruling that their professional qualifications allowed them to give evidence of their opinions on the matter they did. In short, I have formed the view that the criticisms of the summing up which were very eloquently and forcefully argued by learned counsel for the Appellant demonstrated no more than minor deficiencies which did not affect the justice of the case. I would therefore like to recount the circumstantial evidence which provided convincing support for the conclusion reached by the Jury.

3 The Appellant was the husband of the Deceased and they were vacationing together in Antigua and Barbuda. They were scheduled to leave Antigua on May 28, 1995. On the day before, that is May 27, the Deceased met her death. It was the Prosecution's case that the Appellant pushed her off the roof of the eight floor Royal Antiguan Hotel and that she fell 99 feet to her death. The Appellant contended that they were romancing and the Deceased was trying to pick up a love note he gave her which had fallen to the ground when she accidentally slipped and fell off the roof. The Prosecution presented the Appellant as a calculating person who prepared the stage for pushing the Deceased off the roof and for covering up his crime. The Appellant presented himself as a loving and devoted husband who was grief-stricken over his wife's accidental death.

1

The son of the Deceased gave evidence that his mother as afraid of heights and that it was highly improbable that under normal circumstances she would venture onto the roof of the hotel. On the other hand there was evidence that the Deceased, who was not normally a drinker, had heavily imbibed alcoholic beverages on the day of her death. 2. The son also testified that the marriage was only about five years old and had been deteriorating. From the background of his lifelong knowledge of her, he gave evidence of the way they behaved to each other, over that five year period, from which he drew that conclusion. Counsel for the Appellant criticized the conclusion as not following from the behaviour that was described, but the evidence was there and also the conclusion. On the other hand the Appellant gave evidence and called witnesses, consisting of taxi-driver and hotel staff, to show that during the vacation, which lasted about a week up to her death, they behaved like lovers. 3. Evidence was adduced that in the year before her death the Appellant used facilities at his workplace Honeywell Corporation to take out an insurance policy which included $200,000.00 on his wife's accidental death. Ms Williamson, an employee of the insurance brokerage firm dealing with that policy gave evidence that she received notification of claim for the death of the Deceased on behalf of the Appellant on 8th June, 1995, less than two weeks after her death and while the Appellant was in custody under suspicion for her murder, from a benefit representative of the Appellant's employers. The address to which she sent the claim forms as directed was not the matrimonial address of the Appellant and the Deceased, but another address in the same city where they lived. No explanation of this was offered on the evidence to rebut the inference of the insurance money being a motive, and the premeditation evinced by the arrangements for a new address to which the claim forms were to be sent. 4. After news of her death reached the family they entered the matrimonial home and were struck by the fact that her bunch of house keys were still in the house, but the keys could not fit the locks on the entrance doors to the house. Attention was drawn to the fact that the Appellant when asked about this circumstance by her son, admitted that he had changed the locks shortly before leaving on vacation but gave various stories at different times which raised the issue that he was lying about the reasons for changing the locks. It was contended by the prosecution that by lying about conduct which could have been innocuous the Appellant invited the inference that he was covering up conduct which pointed to his guilt. 5. The coincidence that Philbert Jackson was on the balcony of his house which overlooked the roof of the hotel created an eye witness. Jackson's evidence was that he heard a scream and when he looked in the direction from which it came he saw a woman going over the roof backwards, her breasts were pointing up and her legs were pointing up. The Appellant in his statements maintained that the Deceased had bent to pick up a love note that had dropped as he was giving it to her, slipped and fell over the roof, adding that as she fell from view she said "honey". Jackson's evidence was capable of rebutting the Appellant's allegation that she fell over as she was picking up the note on the rationale that if that was so she would have fallen forward and not backward as Jackson said. Additionally the scream rebutted the alleged use of the word "honey" as she went over. That evidence was advanced as indicating that she screamed in fear as the Appellant pushed her over the roof and that going over backwards was more consistent with being pushed than with falling after a slip. The Deceased's son also testified that when the Appellant was giving him an account of the incident on the night it occurred he had indicated that he would not like to know what her last words were. One could easily draw the inference that the evidence of "honey" was obviously given to support the loving relationship he was seeking to establish but it was highly unlikely to be believed by anyone. There were two other witnesses who gave evidence of hearing the scream in circumstances which support the evidence of Jackson and contradicts the account of the Appellant. 6. Jackson also testified that after he saw the body of the woman on the ground, he yelled and saw a man standing facing the edge of the roof over which the woman had fallen. It was his evidence that only after he screamed the man reacted by putting his hands on his head and pacing back and forth. Then he ran down the fire escape to the ground. 7. The evidence of the physical conditions on the roof, that it was dry, not slippery and there was a wall about sixteen inches high, reduced the likelihood of any one believing the Appellant's account of how the Deceased went over the roof. 8. The Prosecution called two engineers to give opinions that the position of the Deceased's body on landing on the ground some fourteen feet from the hotel was consistent only with her having been pushed and not falling free, although one of them qualified his opinion to the extent that if the body had hit the fire escape his conclusions would be annulled. There was evidence that after the scream there was a sound as if the body had hit the fire escape. Against this background the Appellant said in court that he saw the Deceased fall and saw her hit the fire escape. In his previous statements including long interviews with the police where his descriptions were very detailed he never...