Yourrick Furlonge Appellant v The Queen Respondent [ECSC]

• Jurisdiction: Antigua and Barbuda
• Judge: Blenman JA,Justice of Appeal,Chief Justice,Louise E. Blenman,Dame Janice M. Pereira, DBE,Davidson Kelvin Baptiste
• Judgment Date: 27 January 2014
• Judgment citation (vLex): [2014] ECSC J0127-1
• Court: Court of Appeal (Antigua and Barbuda)
• Docket Number: ANUHCRAP 2009/0006
• Date: 27 January 2014

[2014] ECSC J0127-1

EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Before:

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

The Hon. Mr. Davidson Kelvin Baptiste Justice of Appeal

The Hon. Mde. Louise E. Blenman Justice of Appeal

ANUHCRAP 2009/0006

Between:

Yourrick Furlonge

Appellant

and

The Queen

Respondent

Appearances:

Mr. Dane Hamilton, QC, with him, Mr. Dane Raimon Hamilton Jr. for the Appellant

Mr. Anthony Armstrong, Director of Public Prosecutions, with him, Ms. Shannon Jones for the Respondent

Criminal appeal against conviction and sentence — Murder — Identification evidence — Recognition — Unsworn statement given from dock by appellant — Summing-up — Whether directions on identification/recognition given to jury by learned trial judge adequate — Whether good character direction given to jury by learned trial judge adequate — Whether conviction unsafe and unsatisfactory — Whether sentence excessive

The deceased was stabbed on the morning of 6 ^th August 2007 while he was with a group of friends during J'Ouvert, a part of the Carnival celebrations in Antigua. He later died while at hospital, as a result of his injuries. Two of the prosecution witnesses who had an unobscured view of the incident recognised the person who stabbed the deceased as the appellant; one of the witnesses had known him (the appellant) for not more than a year, and the other, for around a month. The witnesses were also able to give a description of the clothing that the attacker was wearing, which matched up with the clothing that the appellant confirmed he had been wearing at the time of the incident. The identification/recognition evidence of these two witnesses was central to the prosecution's case.

On 2 ^nd April 2009, the appellant was convicted of murder. In his sentencing judgment, the trial judge found that there were no mitigating factors but that the aggravating factors were that the offence was a serious one, that the appellant was not acting in self-defence, he had not been provoked, he was not remorseful, and he had, throughout the trial and after the conviction, maintained his innocence. On 13 ^th May 2009, the trial judge sentenced the appellant to life imprisonment.

Held: dismissing the appeal against conviction, and allowing the appeal against sentence to the extent that the sentence is reduced to 20 years imprisonment with 2 years to be deducted for the time spent on remand, that:

• 1. A trial judge is not required to slavishly use the words set out in the case of R v Turnbull1 in directing a jury on identification/recognition evidence. All that is required is for the judge to use words which assist the jury in their approach to the assessment of the evidence; it will suffice if the judge's directions comply with the sense and spirit of the Turnbull guidelines. Merely paying lip-service to the guidelines will not be enough nor will it suffice to give a general warning without detailed references to any particular circumstances that may have affected the accuracy of the witness's observation. The trial judge's directions ought to underscore the strengths and weaknesses of the prosecution's case to the jurors. In the present case, the trial judge's directions in relation to this issue were adequate.

  Mills and Others v R (1995) 46 WIR 240 applied; Leroy Langford and Another v The State [2005] UKPC 20 followed.

• 2. While it may have been prudent for the trial judge to address the jury on the allegations that were put to the appellant in the Question and Answer interview about his purchasing a ticket to leave the country, his not doing so did not result in any prejudice to the appellant, bearing in mind the strong recognition evidence in the case.

• 3. The learned trial judge's directions on good character were proper and there was nothing in the Question and Answer interview which could have undermined or taken away from these directions. In this regard, there was no miscarriage of justice.

  Teeluck v State of Trinidad and Tobago [2005] UKPC 14 applied.

• 4. The learned trial judge adequately summed up the evidence led by the defence. The appellant's defence of alibi had been highlighted to the jury during the summing-up on numerous occasions and was therefore properly put to the jury by the learned judge.

• 5. The trial judge erred in failing to take into account any of the mitigating factors which were present in this case, in sentencing the appellant. At the time of the incident, the appellant was 26 years old, had no previous convictions or run-ins with the law, was gainfully employed, was qualified, and had a good work ethic. These mitigating factors, when weighed up against the aggravating factors, were substantial enough to warrant a reduction in the sentence from life imprisonment.

Blenman JA

1 This is an appeal against conviction and sentence. Mr. Yourrick Furlonge, the appellant, was convicted on 2 ^nd April 2009 and sentenced to life imprisonment on 13 ^th May 2009 for the murder of Jason Pryce, the deceased.

Background

2 On the morning of 6 ^th August 2007, during Carnival celebrations in Antigua, more specifically, at 'J'Ouvert', the deceased and some other friends were at an area known as Independence Drive in the vicinity of High Street. Whilst there, he sustained two stab wounds to his back.

3 Central to the prosecution's case was the recognition of the appellant as the person who inflicted the stab wounds. Three witnesses testified on behalf of the prosecution in relation to the incident; however two witnesses, namely Vandoss Yannick Leonard Daawuud and Andrew Dabrio, gave direct evidence in relation to the incident. Each of their testimony placed the appellant at the scene of the crime and as the individual who committed the murder. In particular, Daawuud testified that he knew the appellant 'not for more than a year'. On the morning of the incident, he was 'jamming' in a carnival band with a group of boys, which group included the deceased and Dabrio. The J'Ouvert finished on Independence Drive. The group came to a standstill on the corner of Independence Drive. This was about 12:00 p.m. There was a truck passing as they stood there. At one point, he saw the appellant run from behind the passing truck into the group of boys and stab the deceased in his back, below his neck, with a long silver blade knife. The deceased and the appellant then ran in separate directions. The entire incident lasted 'not more than 20 seconds'.

4 Daawuud testified that he was a couple of feet away from both the deceased and the appellant when he saw the appellant stab the deceased. He saw the appellant's 'whole body from his face downwards'; he saw that the appellant was dressed in a white shirt and long blue jeans pants; there was nothing blocking him from seeing the appellant. Prior to that morning he could not recall the last time he saw the appellant. At the time of the stabbing the deceased's back was facing the appellant; the deceased was unarmed and the appellant was unprovoked. Under cross-examination, Daawuud testified that when the band in which he was 'jamming' with stopped on Independence Drive he was standing alone and the deceased was a couple of feet away from him. He said that the area where he was standing did not have 'any crowd of people other than me and the group of boys' and that no one in the group was drinking anything. Daawuud maintained that he was not mistaken in his recognition of the appellant.

5 Dabrio gave evidence that he knew the appellant for 'maybe a month'. He testified that he saw the appellant twice that morning. The first time was before the incident; at that time, Daawuud, the deceased and Dabrio were standing on High Street talking to some girls. At one point, he noticed the appellant, dressed in a white T-shirt which was painted up by the band and a blue bandana around his neck, passing going downtown. He (the appellant) turned and looked at the group and smiled and clapped 'as if he was happy to see us'. Dabrio said that there was nothing blocking him from seeing the appellant. The second time he saw the appellant was when the group of boys were walking on their way home after J'Ouvert; this was about 12:00 p.m. Dabrio testified that he saw the appellant stab the deceased in his upper back with a wooden handle knife. He saw the appellant's back, his head, and the side of his face. At that point he was standing about 15 feet away from both the deceased and the appellant. Similar to Daawuud, there was nothing blocking him from seeing the appellant stabbing the deceased. Dabrio testified that, 'I don't know exactly where he [Daawuud] was, but he was maybe either behind of [sic] me or beside of [sic] me'. His testimony also supported Daawuud's testimony, in that neither the deceased nor any of the boys attacked the appellant and that the appellant was unprovoked at the time of the stabbing.

6 Under cross-examination Dabrio said that, at the time of the stabbing, there were about 10 other people apart from their group in the vicinity. In addition, Dabrio stated that he had one beer to drink and the other members of the group drank beers as well. Dabrio further testified that, 'when he [the appellant] stab [sic] Jason, he looked at Jason and then he ran. That took about five seconds'.

7 The appellant presented an alibi defence at trial. He gave an unsworn statement from the dock stating that he did not stab the deceased even though he was at the J'Ouvert 'jamming' with some friends that morning. He called two witnesses, Kirk Richards and Sirmarley Martin, who testified on his behalf. Richards gave evidence to the extent that the appellant was with him and his friends, which included Martin, throughout the entire J'Ouvert and that after the J'Ouvert festivities they, including the appellant, went to Richards's home. It was about 10:00 a.m. when they got to Richards's home. Richards further...