Michael Mathew Swayne David Stephan Sandy Appellants v The Queen Respondent [ECSC]
| Jurisdiction | Caribbean States |
| Judge | SINGH, JA.,SATROHAN SINGH,Justice of Appeal,ALBERT REDHEAD,JOSEPH ARCHIBALD |
| Judgment Date | 16 July 2001 |
| Judgment citation (vLex) | [2001] ECSC J0716-4 |
| Docket Number | CRIMINAL APPEALS NOS. 13 & 14 OF 2000 |
| Court | Eastern Caribbean Supreme Court |
| Date | 16 July 2001 |
IN THE COURT OF APPEAL
The Hon. Mr. Satrohan Singh Justice of Appeal
The Hon. Mr. Albert Redhead Justice of Appeal
The Hon. Mr Joseph Archibald Justice of Appeal (Ag.)
CRIMINAL APPEALS NOS. 13 & 14 OF 2000
Mr Lloyd Noel associated with Mr Anselm Clouden for the first named Appellant
Mr Anselm Clouden for the second named Appellant
Mr Hugh Wildman for the Respondent with Mr Christopher Nelson
On July 6, 1994, Fabian Bishop (the deceased) died from a bullet wound at the base of his skull. On December 11, 2001, a mixed jury of twelve by a unanimous verdict convicted the appellant of the offence of theMurder of Fabian Bishop, contrary to Section 234 of the Criminal Code Cap. 76, Vol. 1 of the 1958 Revised Laws of Grenada. By their verdict, the jury found that the appellant intentionally caused the death of Fabian Bishop by unlawful harm. On December 13, 2000, St. Paul J sentenced the first-named appellant to Death. The jury failed to arrive at a unanimous verdict for the second-named appellant and St. Paul J ordered that he be "retried at the next sitting of the assizes".
The evidence presented by the Prosecution at the trial disclosed that on July 6, 1994, the first-named appellant borrowed a gun from one Derrick Christopher and, in company with the second-named appellant and one Pepee set out to rob a gas station in Tempe, Grenada, because he was "going through hard times". He had told Christopher he needed the gun "to collect some drugs".
However, on their way to the gas station, approaching the Mt. Gay Bridge, a vehicle approached them. The second-named appellant and Pepee ran and hid in the bushes. The first-named appellant approached the car that had stopped. As this appellant was about walking around the back of the car to get to the driver's side, the car took off at a speed. This appellant fired three shots from behind the car. Errington O'Neale heard the shots, went to the car and saw the deceased' body slumped in the driver's seat. The appellant David then told the second-named appellant and Pepee "like the man get shot or he playing dead".
The second-named appellant in sworn testimony before the jury, implicated the first-named appellant as above stated. His evidence somewhat corroborated the evidence of Derrick Christopher to a certain extent and established that he personally was only interested in robbing the gas station and that he knew nothing of, and had nothing to do with, the killing of Fabian Bishop.
The first-named appellant when confronted by the police, and before the jury, denied knowledge of the crime.
The Learned Trial Judge in his summation to the jury left it open to them to treat both Derrick Christopher and the second-named appellant as accomplices. He also gave the jury directions on the law ofaccomplices, corroboration, and joint enterprise.
The appeal before us initially concerned both appellants. They both contended that the verdict was irregular. The first-named appellant also contended in his grounds of appeal that the Trial Judge misdirected the jury on the law pertaining to Accomplices, Corroboration and Common Enterprise or Design and that he did not put the material in support of the defence of the first-named appellant to the jury adequately or at all. At the hearing of the appeal however, Mr Noel limited his challenge to the conviction on the grounds of1. Irregular Verdict. 2. The summing up was unbalanced and prejudicial because of the failure of the Judge to put or adequately put the material in support of the appellant's defence to the jury and (3) The verdict was unsafe and unsatisfactory.
At the commencement of the hearing of the appeal, Mr Clouden sought and obtained the leave of the Court, to withdraw the appeal of the second-named appellant, on the ground that that appellant had no right of appeal as he was not convicted of any offence. The appeal of the second-named appellant was therefore dismissed. The remainder of this judgment therefore deals with the appeal of the first-named appellant [the appellant].
In his summation to the jury, the Learned Judge, addressing the issue of the jury's verdict, directed them as follows:
"Now I tell you, the verdict must be that of all of you, all 12 of you. That means you must be unanimous on the question of murder, but you may return a verdict 10:2, 10:2, twelve of you, after two hours on the question of manslaughter. If after three hours you cannot agree you may come back to me and say so, I may give you further instructions or discharge you."
The transcript then showed the verdict in this form:
"Verdict—No. 1 Accused— Michael Mathew Swayne David; Unanimous—Guilty. No. 2 Accused— Stephan Sandy; Not unanimous—10:2 for Not Guilty"
Mr Noel challenged the accuracy of those notes and orally advised this Court as to his recollection of the verdict as follows:
"Are you agreed on a verdict?
We are not agreed.
What is your verdict against No. 1?
Guilty.
Are you unanimous?
Yes.
With regard to No. 2, are you agreed?
No. 10—2: Not Guilty."
In his grounds of appeal, the verdict is recollected as follows:
"The Foreman of the jury, when asked if the jury were agreed on their verdict, he said - - "We agree on one but not on the other."
The clerk then asked for the verdict on the No. 1 Accused, the appellant herein, the Foreman said "Guilty of Murder" — and he responded in the affirmative when asked if the jury were unanimous;
The clerk then asked for the verdict on No. 2 Accused, Stephan Sandy, the Foreman said - - "Not Guilty, 10 to 2;" — nothing else was asked of or said by the Foreman;"
The contention of Mr Noel was that his recollection was accurate as to what transpired at verdict stage of the trial. And, having regard to the "verdict direction" aforementioned given to the jury by the Learned Trial Judge, if his recollection were to be accepted,St. Paul J was bound by law to have given the jury further directions or to have discharged them as being "hung" and order a retrial of both appellants.
Mr Noel's argument was that, because both appellants were charged on one count on the indictment for having executed a Common Enterprise, the verdict could not have been severed when the jury said they were unanimous with respect to the first-named appellant but "hung" with respect to the second-named appellant,...
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