Sherfield Bowen Appellant v The Queen Respondent [ECSC]

• Jurisdiction: Antigua and Barbuda
• Judge: RAWLINS, J.A.,Barrow J.A.,ALLEYNE, C.J.,Hugh A. Rawlins,Justice of Appeal,Denys Barrow, SC,Brian Alleyne, SC,Chief Justice [Ag.]
• Judgment Date: 20 June 2007
• Judgment citation (vLex): [2007] ECSC J0620-2
• Court: Court of Appeal (Antigua and Barbuda)
• Docket Number: CRIMINAL APPEALS NO.4 OF 2005
• Date: 20 June 2007

[2007] ECSC J0620-2

IN THE COURT OF APPEAL

Before:

The Hon. Mr. Brian Alleyne, SC Chief Justice [Ag.]

The Hon. Mr. Denys Barrow, SC Justice of Appeal

The Hon. Mr. Hugh A. Rawlins Justice of Appeal

CRIMINAL APPEALS NO.4 OF 2005

Between:

Sherfield Bowen

Appellant

and

The Queen

Respondent

Appearances:

Sir Richard Cheltenham, QC, with him Mr. Trevor Kendall for the Appellant

Mr. Anthony Armstrong, Director of Public Prosecutions, for the Respondent

RAWLINS, J.A.

1 The appellant, Bowen, a lawyer and accountant by profession, was charged for the murder of Tessa Barthley. Ms. Barthley was shot in her neck on 16 ^th December 2003 outside Bowen's office at Nevis Street, St. John's. She died on 23 ^rd December 2003. Bowen was convicted of manslaughter on 22 ^nd February 2005 and sentenced to serve 5 years in prison. He appealed on grounds which seek to impeach the directions that the learned trial judge gave to the jury. The appeal alleges that the trial judge misdirected the jury on intention, accident, self defence, good character, provocation and manslaughter. The appellant insists that a reasonable jury properly directed on the law and the relevant issues of fact would have acquitted him rather than return a verdict of guilty of manslaughter.

2 In relation to the alleged misdirections on manslaughter, Sir Richard Cheltenham, learned Queen's Counsel for Bowen, stated that the judge erred, first, when he failed to put to the jury an alternative verdict of manslaughter arising from an unlawful and dangerous act leading to death. According to senior counsel, the judge should have left this alternative open to the jury because it arose from Bowen's evidence that the shot which killed Ms. Barthley was unintentionally discharged from the gun when he hit her with the same hand in which he held it. Sir Richard contended that while the judge left manslaughter to the jury as an alternative to murder on the ground of provocation, he erred when he did not consider that R v Von Starck1 and R v Coutts, 2 are authorities for the proposition that in a murder trial, a judge should leave all alternative defences reasonably available to an accused on the facts to the jury. Senior counsel said that this meant that the judge erred by failing to direct the jury on manslaughter arising from an unlawful and dangerous act in addition to the direction on the alternative of manslaughter on the basis of provocation.

3 In relation to the directions on provocation, Sir Richard complained that the trial judge erred in that although he directed the jury on the verdict of manslaughter as a result of provocation, his directions on provocation were seriously defective. This, he said, was because the judge did not emphasise, sufficiently, that it was for the prosecution to negative provocation and that any doubt on the matter should be resolved in favour of Bowen.

4 Bowen was convicted of manslaughter. In my view, therefore, the benefit which he could have received from good directions on an unlawful and dangerous act and on provocation would have been a conviction for manslaughter. I therefore think that it would be futile to insist, in the circumstances of this case, that the judge's failure to direct the jury on manslaughter as a result of an unlawful and dangerous act had any effect upon the verdict. If he had so directed, and the jury

found that the defence operated in favour of the appellant, the verdict would have been no different than it was. No injustice has therefore resulted and I would accordingly dismiss the appeal on these grounds. I shall, however, proceed to consider the appeal on the grounds of misdirections on intention, accident, self defence and good character. This would be better appreciated from the factual circumstances of the case.

The Facts

5 The gravamen of the case for the prosecution was that Bowen deliberately shot Ms. Barthley in response to an attack that she made upon him. The case for the defence was that the gun went off accidentally in the course of a struggle between Bowen and Ms. Barthley. I shall set out in more details the main aspects of the evidence for the prosecution, and, subsequently, the evidence that was tendered by and on behalf of Bowen.

Evidence for the prosecution

6 The prosecution called 29 witnesses at the trial. According to their evidence, at about 6:15 on the evening of 16 ^th December 2003, Ms. Barthley was speaking with one Moses Daniel in the yard of the Seventh-Day Adventist Church which is close to Bowen's law office. At the time, Bowen and one Keith Joseph were standing by Bowen's vehicle which was parked in the vicinity. The choir was rehearsing at the Church. Bowen went towards his office after Joseph left. This was at about 7:30 in the evening and the choir rehearsal had by then ended. In an incident, which then ensued, Ms. Barthley sustained the bullet wound in her neck from a licensed gun which Bowen was carrying.

7 Police Constable Rae Charles, Eusi Kingston and other members of the choir were standing outside the gate of the Church at the time. They heard what sounded like a firecracker. Shortly thereafter, Constable Charles went towards his vehicle which was parked in the vicinity of Bowen's office. He saw Bowen sitting on the steps of the building which housed his office. He saw Ms. Barthley lying on the ground not far from his motor car. Bowen had by then called the police and reported the incident to them. As a result of the report, Detectives Sergeant Arthur Edwards and Corporal Thomas Francis arrived at the scene outside of Bowen's office. Personnel from the Emergency Medical Services were there attending to Ms. Barthley. There was blood on her neck. The detectives spoke with Bowen. He handed over to Sergeant Edwards a black Pietro Beretta. 25 pistol which contained 8 rounds of ammunition. The police recovered a spent shell and other items from the scene of the incident. Bowen was detained. He was later arrested and charged with wounding Ms. Barthley. The charge was upgraded to murder when she later died.

8 Keith Joseph said in evidence that on 16 ^th December 2003, he conversed with Bowen outside of Bowen's office for about 45 minutes. He then went to Joe Mike's and, on leaving, he was about to open the door of his car when Bowen called him by telephone and informed him that "the lady get shot". He returned to Bowen's office and saw Ms. Barthley lying motionless on the ground outside. Bowen told him that she attacked him, choked him with his tie and bit his finger and she got shot. In cross-examination, after he refreshed his memory from his statement, Joseph said that he had told the police that Bowen told him (Joseph) that he (Bowen) tried to hit Ms. Barthley with the gun butt and the gun fired.

9 Constable Rae Charles was a member of the Seventh Day Adventists Church choir. His evidence was that at about 7:30 on the evening of 16 ^th December 2003, he was in the churchyard with other choir members, including Eusi Kingston and Moses Daniel, when he heard what sounded like a firecracker. When he approached his motor car which was parked in the vicinity of Bowen's office building he saw Bowen sitting on the steps. He also saw a woman lying on the ground. Someone asked Bowen what happened and he replied: "she bite me and I shot she". Eusi Kingston who arrived on the scene with Constable Charles confirmed this.

10 In his evidence, Police Constable Sean Wayne said that at about the time of the incident, he was driving in the vicinity of the Church when he saw the ambulance close to Bowen's office. He alighted from his car and saw a young woman lying on the street bleeding from the neck. He also saw Bowen who appeared to be worried. He asked Bowen what happened. Bowen said to him: "I was going to my office and felt someone grab me or hold me from behind and she got shot". Bowen pointed towards the woman who was lying on the ground and shook his head.

11 Police Corporal Thomas Francis said that he received the report of the incident by telephone from Bowen at about 7:44pm on 16 ^th December 2003. When he arrived at the scene the ambulance and emergency crew were there. Ms. Barthley was lying on the ground. Bowen handed over a pistol to him. Under cross-examination, he denied that Bowen told him that Ms. Barthley was shot "accidentally". Corporal Francis called Police Sergeant Arthur Edwards. Sergeant Edwards said that when he arrived on the scene, Bowen explained to him that he (Bowen) was walking towards his office when he felt a push from behind. He looked around and saw Ms. Barthley who said to him "me go kill you". He pushed her back and said to her "woman leave me alone". She then held on to his index finger and bit him. He took out his gun to strike her with it and a bullet went off and she was shot.

12 Inspector of Police Fitzroy Anthony said that Bowen told him that he (Bowen) drove up to his office to work. He met Keith Joseph outside and they spoke for about 45 minutes. He then ran towards his office. As he approached the first landing, someone accosted him and pushed him onto a bus. The person pushed a hand in his face and bit him on his finger. He thereupon reached into his pocket and took out the gun which he was carrying. The gun fired accidentally.

13 Assistant Superintendent of Police, Wilhelm Samuels, a qualified armourer, said he issued the gun and 25 rounds of ammunition to Bowen on 16 ^th November 2002 on the instruction of the Commissioner of Police. He said that the weapon had no

14 The medical evidence showed that Ms. Barthley died as a result of a firearm injury which she sustained to the upper part of her neck. The bullet entered one side of her neck and exited from the other.

Evidence for Bowen

15 In his defence, Bowen, who was the Antigua Labour Party's representative for the constituency in which Ms. Barthley and her mother lived, testified that he had a friendly...