Jeffrey Adolphus Gittens Appellant v The Queen Respondent

JurisdictionCaribbean States
CourtCaribbean Court of Justice (Appellate Jurisdiction)
JudgeNelson, Pollard, Saunders, Bernard, Wit, Hayton, Mr Justice Michael de la Bastide, The Honourable Mme Justice Bernard
Judgment Date11 Feb 2010
Neutral Citation[2010] CCJ 1 AJ
Docket NumberCCJ Appeal No CR 2 of 2009

[2010] CCJ 1 (AJ 1)

IN THE CARIBBEAN COURT OF JUSTICE

Appellate Jurisdiction

ON APPEAL FROM THE COURT OF APPEAL OF BARBADOS

Before

The Right Honourable and the Honourables

Mr Justice de la Bastide, President

Mr Justice Nelson

Mr Justice Pollard

Mr Justice Saunders

Mme Justice Bernard

Mr Justice Wit

Mr Justice Hayton

CCJ Appeal No CR 2 of 2009

BB Criminal Appeal No 10 of 2007

Between
Jeffrey Adolphus Gittens
Appellant
and
The Queen
Respondent
Appearances

Mr Ralph A Thorne QC, Mr Bryan L Weekes and Mr Satcha Subhas-Chandra Kissoon for the Appellant

Mr Alliston Seale and Mr Roy Hurley for the Respondent

JUDGMENT of The President and Justices Nelson, Pollard, Saunders, Bernard, WitandHaytonDelivered jointly by The Right HonourableMr Justice Michael de la BastideandThe Honourable Mme Justice Bernardon the 11 th day of February 2010

1

On 28 th June, 2007 the appellant was convicted in the High Court of Barbados of the murder of Lyndon Weekes arising out of an incident which occurred on 9 th October, 2004. He filed an appeal against the conviction and sentence, and on 3 rd April, 2009 the Court of Appeal quashed the conviction and substituted a conviction for manslaughter. A sentence of twenty (20) years was imposed.

2

The appellant sought from this Court special leave to appeal against the conviction and sentence of the Court of Appeal. After considering the oral and written submissions of both counsel for the intended appellant and for the respondent, this Court granted the intended appellant special leave to appeal against the sentence only.

3

The following issues were identified and formulated by the Court which ordered them to be addressed in the written submissions of the parties:

  • “(i) If the Court of Appeal did not comply sufficiently or at all with the Penal System Reform Act, then in what respect did it not so comply, and what, if any, consequences lie for such non-compliance?

  • (ii) If the Court of Appeal did not comply with the Penal System Reform Act, was the 20 year sentence outside the discretion given to them by the said Act or any other Act?

  • (iii) Was the sentence handed down by the Court of Appeal consistent with previous decisions of the Court? Why?

  • (iv) If the sentence was not so consistent, then what, if any, consequences lie?

  • (v) Any other issue which in the opinion of counsel is relevant to the disposal of the appeal.”

4

After mature consideration of the written and oral submissions of counsel for the appellant and for the respondent, the Court at the conclusion of the hearing of the appeal quashed the sentence of 20 years' imprisonment imposed by the Court of Appeal and remitted the case to the trial judge, Hon. Mr. Justice Worrell, or if he is unavailable, to another judge of the High Court, for a hearing on sentence. The Court also ordered that a pre-sentence report be prepared and submitted to the sentencing judge. Brief reasons for the decision were given by the President who indicated that full reasons would be given in writing later. These we now provide.

Factual Background
5

The undisputed facts in this case were that on 9 th October, 2004 the deceased, Lyndon Weekes, was waiting with his cricket gear at the “Boss Shop”, Four Roads, St. John, for a lift to a cricket match when the appellant arrived on the scene. A confrontation arose between them which resulted in a quarrel and a fight in which the deceased struck the first blow when he hit the appellant with a cricket bat. The appellant pulled a knife from his pocket and a struggle for the knife ensued. While being chased by the deceased the appellant picked up a rock, and turning around struck the deceased in his face thereby causing him serious injury from which he died on 13 th October, 2004. The three sources of direct evidence in this case were two eye-witnesses, Lewis Spooner and Keith Walcott, and a statement which the appellant gave to the police and on which he relied in his unsworn statement from the dock.

6

Some of the areas in which the evidence was contradictory or inconsistent, include the following:

  • (a) who initiated the confrontation? Was the blow with the cricket bat provoked by the appellant pointing his finger in the deceased's face?

  • (b) on what part of his body did the deceased strike the appellant with his bat?

  • (c) did the appellant draw his knife with the intention of stabbing the deceased or just to scare him?

  • (d) did the deceased also pick up a rock to hit the appellant, and

  • (e) did the deceased say to the appellant that he was going to kill him?

Decision of the Court of Appeal
7

The statement of the appellant given to the police and on which he relied in his unsworn statement at the trial raised the issues of self-defence and provocation which counsel in his grounds of appeal against the conviction alleged were not adequately addressed by the trial judge in his directions to the jury. The Court of Appeal approved of the trial judge's directions with regard to the law governing the defences of self-defence, provocation and lack of intention to kill or cause grievous bodily harm. The court, however, concluded that the conviction for murder was unsafe and unsatisfactory because of the judge's failure to review and analyse the evidence fully or adequately. He ought to have assisted the jury in relating the facts to the directions which he had given them on what in law would reduce murder to manslaughter, more particularly in the context of the law relating to “killing by fighting”, but he did not do so. As a result the Court of Appeal held that the appellant had not been given a fair chance of a verdict of guilty of manslaughter whether on the basis of provocation or of lack of the necessary intent for murder. From this analysis of the Court of Appeal's judgment it follows that all of the evidence which bore on provocation or lack of intent is relevant for the purpose of sentencing (since none of the evidence on these points is inconsistent with a conviction for manslaughter) and the conflicts in that evidence ought to be resolved before sentence is determined (see [23] and [24] below).

Analysis of the Issues
8

The appeal was argued on the issues identified by the Court in [3] notwithstanding that the notice of appeal was based on the single ground that the sentence was excessive. No argument was advanced with regard to Issue (ii), and so it is not necessary to comment on it. Having regard to the course which we decided to take i.e. to remit the case for sentence to the trial judge, we consider it unnecessary and inappropriate to address, except tangentially, Issues (iii) and (iv) which relate to the consistency or inconsistency of the sentence imposed with the tariff set for manslaughter by previous cases.

Non-compliance with the Act – First question of Issue (i)
Section 35
9

Section 35(2) of the Act provides as follows:

“(2) Subject to subsection (3), the court shall not pass a custodial sentence on the offender unless it is of opinion

(a) that the offence, … was so serious that only such a sentence can be justified for the offence; or

(b) where the offence is a violent or sexual offence, that only such a sentence would be adequate to protect the public from serious harm from the offender.”

Subsection (3) is not relevant to the present case, and need not be reproduced here.

10

The effect of sub-section (2) is that before imposing a custodial sentence the sentencing court must ask itself whether the seriousness of the offence justifies such a sentence and in the case of a violent or sexual offence whether such a sentence is necessary in order to protect the public from serious harm from the offender, and must answer at least one of those questions in the affirmative.

11

Subsection 35(4) provides:

“Where a court passes a custodial sentence it is the court's duty

(a) … to state in open court that it is of the opinion that either or both of paragraphs (a) and (b) of subsection (2) apply and why it is of that opinion; and

(b) in any case, to explain to the offender in open court and in ordinary language why it is passing a custodial sentence on the offender.”

In effect a sentencing court having formed the opinion required by sub-section (2), must in open court state what that opinion is and give its reasons for reaching it and must also explain to the offender in ordinary language why a custodial sentence is being passed on him.

Further under section 35(5) the court must cause reasons stated by it under subsection (4) to be specified in the warrant of commitment and to be entered in the record of the court.

12

At paragraph [42] of its judgment the Court of Appeal made this statement:

“In considering the appropriate sentence, we have taken into account the circumstances of the case, the provisions of the Penal System Reform Act, Cap. 139 and the two guideline judgments on sentencing for manslaughter, …. The courts must be unwavering in their denunciation and punishment of all forms of violence, which is inimical to the good order of society.”

The broad statement by the...

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