Gregory August and Alwin Babb v The Queen

JurisdictionCaribbean States
JudgeMr. Justice Saunders, JCCJ,Mr. Justice Wit, J.CCJ.
Judgment Date29 March 2018
CourtCaribbean Court of Justice
Docket NumberCCJ Appeal Nos. BZCV2015/001 and BZCR2015/002
Date29 March 2018

Caribbean Court of Justice

Byron, P.CCJ.; Saunders, J.CCJ.; Wit, J.CCJ.; Anderson, J.CCJ.; Rajnauth-Lee, J.CCJ.

CCJ Appeal Nos. BZCV2015/001 and BZCR2015/002

Gregory August and Alwin Babb
and
The Queen
Appearances:

Mr. Eamon H Courtenay, SC and Ms. Iliana N Swift for the appellants.

Mrs. Cheryl-Lynn Vidal, SC, Mrs. Portia Staine Ferguson, Ms. Alleyna Cheesman and Ms. Stevanni Duncan for the respondent.

Constitutional law - Fundamental rights and freedoms — Constitutionality of a mandatory minimum life sentence for murder — Parole — Whether system of parole under the Parole Act was unconstitutional.

JUDGMENT SUMMARY
1

These are consolidated appeals filed in two separate matters by Gregory August (“August”) and Alwin Gabb (“Gabb”). Both men sought special leave to appeal from this Court after being unsuccessful in their appeals to the Court of Appeal. On April 20 and November 18, 2015, respectively, this Court granted August and Gabb special leave to challenge the constitutionality of the mandatory minimum life sentence for murder imposed on each of them pursuant to the proviso to section 106(1) of the Criminal Code [CAP 101.] of Belize. The Court also granted them leave to appeal as poor persons. As for August, he was also granted special leave to challenge his conviction on the ground that it was unsafe and his trial unfair, having regard to the trial judge's treatment of the inconsistencies of the prosecution evidence in his summation to the jury as well as the trial judge's failure to give a good character direction.

2

The issues relating to the constitutionality of the mandatory minimum life sentence for murder and the good character direction were not previously argued on appeal and, as such, August's case was remitted to the Court of Appeal for the determination of those issues. Further proceedings before the Court were also stayed pending the Court of Appeal's judgment. Gabb's appeal was also stayed pending the judgment. The Court of Appeal delivered its decision on November 4, 2016 in which it concluded that in light of the fact that August made an unsworn statement from the dock at trial, he was not entitled to the credibility limb of the good character direction. In relation to the propensity limb, the Court of Appeal took the view that although he was entitled to that limb of the good character direction, it would have been “inevitable” that the same verdict would have been returned. It also concluded that the mandatory minimum life sentence for murder without parole was unconstitutional to the extent that it was mandatory — being disproportionate, irreducible and thus inhumane and not allowing for the individualization of the sentence. The Court declared that the sentence was void and, consequently, sentenced August to 30 years' imprisonment, less the time he had already served.

3

This Court heard the appeals on March 31, 2017. However, a further case management conference and a further hearing were convened on May 15, 2017 and July 5, 2017, respectively, on account of the enactment of the Criminal Code (Amendment) Act, 2017 (“the CCA”), [Act No 22 of 2017.] the Parole Act, 2017 (“the PA”), [Act No 25 of 2017.] and the Indictable Procedure (Amendment) Act, 2017 [Act No 23 of 2017.] on March 29, 2017, mere days before the first hearing. The CCA and the PA were directly relevant to the appeals. The CCA repealed and replaced section 106 of the Criminal Code, under which the appellants were sentenced, and the PA repealed and replaced Part VI of the Prison Rules, which previously did not permit parole for persons convicted of murder, and created a new parole system. The Court took the view that these legislative changes were made to “correct the constitutional deficiencies identified by the Court of Appeal” in relation to the mandatory minimum life sentence for murder.

4

In argument before this Court, August maintained that his conviction was unsafe and his trial unfair, having regard to the failure of the trial judge to adequately deal with the inconsistencies raised on the prosecution case and the handling of the evidence as well as the absence of the good character direction. The Director of Public Prosecutions (“the DPP”) opposed this view. The DPP, however, conceded (as she did in the Court of Appeal) that August was entitled to have been treated as being of effective good character and thus entitled to the propensity limb of the good character direction. However, seeing that August did not give sworn evidence, he was not entitled to the benefit of the credibility limb of the direction.

5

In determining August's challenge to his conviction, the CCJ examined the proceedings in the trial Court and the evidence adduced there. On November 21, 2012, August was convicted of the murder of Alvin Robinson, a 73-year-old man who was differently abled, physically, and visually impaired. Mr. Robinson (“the deceased”) died as a result of being stabbed 9 times about the chin, cheek and neck. The prosecution's case was based entirely on circumstantial evidence. On May 23, 2009, sometime after 7 in the night, August and two other men (one only known as ‘Tunks’) went by bicycle to the premises where the deceased resided with other members of his family, including his two grandsons — Tyrone and Marlon Robinson. Members of the deceased's family along with some friends had gathered for drinks. While there, August was embroiled in two separate altercations where, without being provoked, he slapped Andrew Smith (a friend of the family of the deceased) and Tyrone in the face. During the first altercation, August referred to himself as “the boss”. After the second encounter, August returned to the verandah where the gathering was taking place. August left some time after with one of the two men who had accompanied him. Upon leaving, August threatened that he would return and that “uno wa see what wa happen”. August was dressed in a white t-shirt, with a grey shirt slung across his shoulder; 3/4 jeans pants and grey and red Nike tennis shoes. According to the evidence, none of the deceased's grandsons owned a pair of Nike tennis shoes.

6

Shortly after he left the Robinsons' premises, August and another man were seen travelling on bicycles from the highway across a neighbouring yard a half-mile away. The neighbour, Terrick Garbutt who is also Marlon's cousin, testified that he recognized August (who was some distance away and whom he could only observe from a profile view) and the other man riding their bicycles across the yard in the direction of a trail that could lead to the back of the deceased's house. Sometime after, Garbutt again observed August and the other man riding in the opposite direction, from the trail towards the highway. This time, August had a white cloth in his hand. Garbutt also testified that he had known August for some 8 years.

7

Police witnesses testified that they observed (a) footprint(s) on the night of the murder. The scene of crime technician, Robert Henry, however, testified that he could not process the scene that night because of poor lighting conditions, but that he returned the next day to do so. In processing the scene, Mr. Henry took a cast mould of a shoe print pointed out to him by one of the officers in the vicinity of the deceased's house. A blood sample was also taken from the deceased, post mortem.

8

On May 24, 2009, August turned himself over to the police, after hearing that he was being sought in connection with the murder. He was taken to the police station at which time ink impressions were made of his shoes. The shoes were also swabbed after it was suspected that they were blood-stained. Testimony was also given that a blood-stained t-shirt was found at August's house after police conducted a search the day after the murder. The shoes, t-shirt, ink impressions, swab, mould and blood sample were all submitted for forensic analysis. The analysis revealed that the blood from the swab, t-shirt and sample were all of type 0. At the trial, evidence was given that type 0 was the most common blood type in Belize. As for the shoe, shoe print and mould analysis, the evidence was that the shoe print found in the vicinity of the deceased's house, which was captured by the mould, “may” have been made by August's left shoe.

9

August gave an unsworn statement from the dock at trial. Although he admitted to having visited the premises on May 23, 2009, August denied killing the deceased. He stated that after leaving the premises, he went home, received his nightly 9pm phone call from his mother in New York and then fell asleep. He did not leave his home. He also denied that there was blood on his shoes or t-shirt. At the trial, it was asserted that August was being framed. This assertion was raised against the context that the police had taken August's shoes and t-shirt, but not August, to the crime scene, where blood was still present.

10

In his summation, the trial judge was keen to highlight that the case against August was one of circumstantial evidence and that to establish August's guilt beyond a reasonable doubt, all the pieces of evidence when combined should point to the singular conclusion of August's guilt. The judge also pointed out the difficult circumstances of the identification evidence given by Garbutt as well as the fact that Garbutt was related to Marlon, the grandson of the deceased. As to the forensic evidence, the judge directed that jury that “You can't work with maybe. These pieces of evidence, you must be sure of it.” General directions were also given on the credibility of witnesses, their powers of recollection and inconsistencies in the prosecution evidence. The trial judge also told the jury that the evidence given about the slapping incidents must only be used to place August at the scene, a fact which he already admitted.

11

The Court, after examining the cogency of the...

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