Dwayne Omar Severin v The Queen
| Jurisdiction | Caribbean States |
| Judge | Hayton, J. |
| Judgment Date | 26 June 2018 |
| Court | Caribbean Court of Justice |
| Docket Number | CCJ Appeal No BBCR2017/003; BB Criminal Appeal No. 7 of 2014 |
| Date | 26 June 2018 |
Caribbean Court of Justice
Byron, P.CCJ; Saunders, J.CCJ; Wit, J.CCJ; Hayton, J.CCJ; Anderson, J,CCJ; Rajnauth-Lee, J.CCJ; Barrow, J.CCJ
CCJ Appeal No BBCR2017/003; BB Criminal Appeal No. 7 of 2014
Mr Douglas L Mendes SC, Mr. Andrew O G Pilgrim QC, Ms Naomi J E Lynton and Ms Kamisha Benjamin for the appellant
Mr Anthony L Blackman, Deputy Director of Public Prosecutions (Ag), Ms Krystal C Delaney, Senior Crown Counsel and Neville Watson, Crown Counsel for the respondent
Evidence - Identification evidence — Special circumstances — Informal identification parade — Turnbull direction.
Dwayne Omar Severin (Severin) and Jabari Sensimania Nervais (‘Nervais’), were convicted of murder and the mandatory sentence of death by hanging was imposed on each of them on 28th May 2014 and 21st February 2012 respectively. Both sought leave to appeal their conviction and sentence on the grounds that their convictions were unsafe and the mandatory sentence of death was unconstitutional. Severin and Nervais also sought leave to appeal as a poor person. We granted leave to appeal and leave to appeal as a poor person for both appellants and also ordered that the appeals against conviction would be heard separately and the appeals against sentence consolidated. We now turn to Severin's appeal against conviction.
On 7 May 2014 the appellant was indicted on the charge that he, on 30 November 2009 in the parish of St Philip, murdered Virgil Barton. On 28 May 2014 after a trial before a judge and jury he was found guilty and a mandatory death sentence was imposed. His appeal to the Court of Appeal was filed on 4 June 2014, heard on 23 March and 12 April 2016, and dismissed in a written judgment on 17 May 2017.
The appellant now appeals to the Caribbean Court of Justice on the following grounds.
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(1) The mandatory death sentence was unconstitutional.
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(2) The trial judge, who should have presented matters to the jury in a balanced manner, failed adequately to put the case of the defence before the jury.
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(3) The trial judge erred when he directed the jury in a manner that would have negatived the defence case and thus elevated the prosecution's case; and, where there were discrepancies in the evidence, directed the jury in terms which implied that the prosecution's witness, Judd Barton, was a credible witness.
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(4) The trial judge erred when he directed the jury that there were special circumstances supporting the identification in accordance with section 102 of the Evidence Act.
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(5) The trial judge erred when he failed to deal with the specific weaknesses of the prosecution's case in a coherent manner so that the cumulative impact of those weaknesses was fairly placed before the jury.
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(6) In light of the above there is a real likelihood that an injustice might have been done to the appellant and the conviction should therefore be quashed.
On Independence Day, 30th November 2009, the deceased, Virgil Barton (“Barton”), together with several family members and friends attended the St Philip Carnival. Sometime in the afternoon at Long Bay, St Philip, some of them became involved in a fight with some persons from The Crane, St Philip. Injuries were suffered by some of the fighters. Afterwards Barton and some of his family and friends went to King George V Park before going on for a “lime” in Lucas Street, St Philip, where most of the Barton family lived, though Barton's nephew, Judd Barton (“Judd”), lived walking distance away in Duncan's Land, St Philip. Later, around 9.45pm, two guys were observed walking towards them by Judd, who stared at them for about seven or eight seconds, having heard a rumour that some guys might be coming to “shoot up the block.” On coming closer the two guys each pulled out a gun and shot at Barton. He died on the spot, hit by six bullets, but Judd escaped by running away.
The next day, 1st December 2009, Judd gave a statement to the police identifying “Zephrins” as one of the shooters. Zephrins had “a black hoodie that just covering his tam but his face was out”, so Judd told the police he would be able to recognise him again if he saw him. The other guy had his head down under his hoodie so he could not be identified. It took a few days for the police to determine that the appellant was “Zephrins.” On 8th December 2009, as a result of information supplied by Judd and another person (who has not given any evidence), the police obtained a warrant to search the premises where the appellant was residing. They then reached the premises at around 4 am on 9th December 2009 and carried out a thorough search.
The police found a semi-automatic gun (a PT 111Millenium Model Taurus) and thirty-one rounds of 9mm ammunition for it in the deep upper recesses of a closet in the appellant's bedroom. Fourteen cartridge cases had been found at the scene of the killing and three of them were found after forensic testing to have been fired from the Taurus gun, while all the other 11 had been fired from a second gun. A bullet (or slug) identified as from the Taurus gun was also found at the scene as well as two deformed bullets that had similar characteristics to bullets test-fired from the Taurus gun, but the deformities meant there were insufficient individual characteristics to be sure that they had been fired from that Taurus gun. On the 12th December 2009, in an informal identity exercise the appellant was pointed out as the shooter by Judd, who had been told that the appellant might or might not be in the parade. The appellant was then formally charged with the murder of Barton.
The grounds for appealing the conviction all relate to the alleged weaknesses of the evidence of the key witness, Judd, as appeared from the submissions to us of Mr Pilgrim QC on behalf of the appellant. If Judd's evidence was correct, then it fatally undermined the appellant's defence that he was elsewhere at the time of the shooting.
Mr Pilgrim QC began by referring to s 102 of the Evidence Act which states as follows: “Directions to jury
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(1) Where identification evidence has been admitted, the Judge shall inform the jury that there is a special need for caution before accepting identification evidence and of the reasons for the need for caution, both generally and in the circumstances of the case.
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(2) In particular, the Judge shall warn the jury that it should not find, on the basis of the identification evidence, that the accused was a person by whom the relevant offence was committed unless
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(a) there are, in relation to the identification, special circumstances that tend to support the identification; or
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(b) there is substantial evidence, not being identification evidence that tends to prove the guilt of the accused and the jury accepts that evidence.
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(3) Special circumstances include
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(a) the accused being known to the person who made the identification; and
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(b) the identification having been made on the basis of a characteristic that is unusual.
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(4) Where
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(a) it is not reasonably open to find the accused guilty except on the basis of identification evidence;
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(b) there are no special circumstances of the kind mentioned in subsection (2)(a); and
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(c) there is no evidence of the kind mentioned in subsection (2)(b), the Judge shall direct that the accused be acquitted.”
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Mr Pilgrim QC in his oral submissions focused upon whether or not there were special circumstances within s 102(3)(a), the possible absence of street lighting to make difficult the night-time identification of the appellant and the informality of the identification exercise, making it easier than it should have been for Judd to pick out the appellant.
Judd thought he knew the appellant because he knew him by sight and by his name, having heard him called “Zephrins” in two recent circumstances where Judd had had a clear view of him. A week before Barton's death Judd first came across the appellant at a fete at Bayley's School where he had observed the appellant for a “good little while” and seen the appellant involved in a fight (“Zephrins and a couple of guys against this one guy”) when someone had called out to the appellant by the name of Zephrins. The night before Barton's death Judd had been at a “street jam” in Christ Church where he happened to observe the appellant for about ten minutes, though he “wasn't really checking for him”, not paying him much attention, and heard him called Zephrins. Thus, Zephrins' features were fresh in Judd's memory when, according to his evidence, for seven or eight seconds around 9.45pm he was looking at two persons bearing down on him and the other limers in Lucas Street before each of those persons pulled out a gun and shot at Barton.
We agree with the Court of Appeal that these circumstances can justifiably be special circumstances within s 102(2) and (3)(a), such circumstances needing to be such as to provide clear support for the reliability of the identification of the appellant. There is, indeed, reinforcement provided by the fact that Judd's identification of Zephrins led to one of the two guns involved in Barton's murder being found in Zephrins' bedroom, so tending to prove the guilt of the accused if the jury accepted such evidence (see s102(2)(b) above) as it did, the Court of Appeal rightly stating at paragraph 55 of the judgment that “It is clear that the defence with respect to the planting of the firearm by the police did not sit well with the jury and that in fact they plainly disbelieved him.”
We thus take the view that that there were special circumstances to support the reliability of Judd's identification of the appellant despite criticisms of the judge's summing up in relation to the lighting situation when Judd stated...
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