Eugene St Romaine v The King
| Jurisdiction | Caribbean States |
| Judge | Taylor-Alexander J |
| Judgment Date | 29 December 2023 |
| Judgment citation (vLex) | [2023] ECSC J1229-1 |
| Docket Number | CASE NO: SLUCRD2009/0007 |
| Court | Eastern Caribbean Supreme Court |
Her Ladyship Justice Taylor-Alexander
CASE NO: SLUCRD2009/0007
THE EASTERN CARIBBEAN SUPREME COURT
(CRIMINAL JURISDICTION)
Ms Kelly Thomson together with Linton Robinson of Counsel for the Crown
Mr. Alberton Richelieu of Counsel for the Defendant
Taylor-Alexander J;, The Defendant is on trial on an indictment for the Murder of his 13 year old daughter Verlinda Joseph (the Victim). She was found murdered on the 2 nd of December 2002, in a heavily forested area yards away from the home she shared with the Defendant. She was discovered lying on her back, with her skirt hiked up above her waist, her panties missing, her left breast and external genitalia exposed, with froth emanating from her mouth. At the close of the Crown's case, the Defendant applied to have the case withdrawn from the jury, on grounds that if the Defendant is convicted on the tenuous evidence presented by the prosecution, it will result in a conviction that is unsafe.
It is accepted that a crucial element of the Crown's case, is expert testimony of DNA testing that concludes that there was a statistical match of semen of the Defendant found high in the vagina and on the cervix of the victim. This was the evidence of Yvonne Cruickshank a Jamaican forensic scientist whose deposition evidence found semen on the genitalia of the victim and Christine Ann Kimber, a UK forensic scientist, who conducted LCN/DNA testing on the semen found and concluded that there was a statical match of 1 in 1 billion, that the semen belonged to the Defendant. Neither of the scientists were available to give oral evidence at the trial and their deposition evidence was read into the record by other scientists who worked with them at the time of the testing and in the case of Chistine Ann Kimber her evidence was read by Jonathan Whittaker who had supervised her work during the testing. The Crown's case is that the DNA evidence establishes motive for the Defendant to have committed the murder and the other evidence or witnesses who saw and interacted with the Defendant near the scene of the crime on the 2 nd of December 2002, is evidence of the opportunity that the Defendant had to commit the murder.
Both parties filed written submissions and both were given the opportunity to amplify their written submissions at the hearing and to respond to each other's submissions. I delivered an oral decision concluding that there was a case for the Defendant to answer and the trial continued. I promised written reasons for my decision and the following is in fulfillment of that promise.
The gravamen of the Defendant's submissions is this:-
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(a) If it is accepted that the DNA profile found on the swabs from deep within the vagina and on the cervix of the victim was a statistical match to the Defendant's DNA profile, there are other explanations that account for that match, the more plausible being that the victim was sexually assaulted by the Defendant. The Crown's evidence cannot establish the time of the deposit of this DNA whether it was during the commission of the offence of murder or at another time and without evidence to establish the time at which the DNA was deposited, a jury may unnaturally and without more convict the Defendant by concluding that the deposit of the DNA coincided with the victim's murder and that it was the Defendant who killed the victim. ( The First Submission)
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(b) The Low Copy Number (LCN) DNA testing that matched the Defendant's profile to the semen found in the remnants of the cervical swab, is an inherently unreliable test which was suspended on or about 31 st December 2007. Given its unreliability, evidence of this testing, should not be left for a jury to conclude on. ( The Second Submission)
R v Galbraith [1981] 2 All ER 1060, continues to be the leading authority on the judicial officer's approach to a submission of no case to answer. In the course of his judgment in that case, Lord Lane CJ explained the test thus:-
“How then should the judge approach a submission of no case'? (1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case. (2) The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence.
(a) Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case.
(b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness's reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury. There will of course, as always in this branch of the law, be borderline cases. They can safely be left to the discretion of the judge.”
The second limb of the test in R v Galbraith [1981] 2 All ER 1060, is far less straightforward than the first limb, and the authors of Blackstone's Criminal Practice 2019 at Paragraph at D 15.67 submit that it has to be understood in the context of the practice that developed after the passing of the Criminal Appeal Act 1966, s. 4(1)(a) (now Criminal Appeal Act 1968, s. 2(1)) of England, of inviting the judge to hold that there is no case to answer because a conviction on the prosecution evidence would be ‘unsafe’. That form of submission reflected the power given to the Court of Appeal by first the 1966 and then the 1968 Act to quash a conviction on the basis that it was, in the court's opinion, ‘unsafe or unsatisfactory’ (but, since the Criminal Appeal Act 1995, Part I, came into force, simply ‘unsafe’). This approach inevitably involves the court considering the quality and reliability of the evidence, rather than its legal sufficiency, and therefore involved the court carrying out the assessment of evidence and witnesses that would otherwise be the exclusive prerogative of the jury.
The Defendant has grounded his submission under the second limb as reformulated and has invited the court to conclude that the Crown's evidence is unreliable and a conviction on it would be unsafe. To avoid a miscarriage of justice the case should be withdrawn from the jury.
The Crown's case depends on the acceptance by the jury of a set of circumstantial events. This is not of itself unusual as criminal evidence often depends on a combination of circumstances no one of which would result in a conviction or more than a mere suspicion but taken together may create a stronger conclusion of guilt. In this case, DNA evidence is a substantial strand in the Crown's string of circumstantial evidence without which its case collapses.
It is submitted by the Crown that their case, taken at its highest is sufficient for a tribunal of fact, properly directed to arrive at a verdict of guilty. The evidence presented by their witnesses is that on the morning of Monday 2 nd December 2002, the victim left her home, sent by her father to the house of a nearby seamstress who was tasked with altering her school uniform. She was last seen by witnesses walking along a track in the direction of her house after leaving the seamstresses' home. There are few homes along the track to the victim's house and those persons who lived along the track, saw the victim as she went to the seamstresses' house and back, but no one else was seen traversing the track that day. Later that morning at around 11:30 am, the Defendant claimed to have discovered the body of the victim in an isolated bushy area approximately 150 feet away from the home he shared with the victim. The body of the victim bore marks of violence and sexual assault. A post-mortem examination revealed manual strangulation being the cause of death.
Forensic evidence detected DNA on exhibit PSE 36 that was confirmed to be semen and from which a full STR profile was obtained of a single male contributor which matched the profile of the Defendant. Exhibit PSE36 is a swab of the cervix of the victim. The Crown submits that the evidence and all the surrounding circumstances support the proposition that the sexual assault and murder of the victim arose out of a continuous transaction and about the same time. The facts that support this include:
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(a) the medical injuries which were sustained including bruising on the introitus and labia
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(b) the victim's missing panty
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(c) the victim's exposed breast and vagina
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(d) the presence of semen on the outside and inside of the victim's body when examined post mortem.
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(e) The fact that there was no transfer of semen onto the skirt she was wearing.
The Crown submits that it is not a quantum leap for the jury to infer that the person who sexual assaulted the victim was also the person who murdered her. They accept that semen can survive inside a vagina for 72 hours, and the semen could have been deposited at an earlier time, as one possible version of events the jury is entitled to accept, they submit however that the stronger inference is that the semen was deposited at the time of the physical assault and murder of the victim.
The following evidence presented by the Crown is not challenged by the Defendant:-
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(i) The location and way the body of the victim was found.
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(ii) The evidence of the civilian witnesses namely (i) Priscilla St. Helene who said that the victim came to her home that...
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