Pinder v R
| Jurisdiction | Caribbean States |
| Judge | Nelson, J.CCJ |
| Judgment Date | 28 June 2016 |
| Court | Caribbean Court of Justice |
| Docket Number | CCJ Application No BBCR2016/001; BB Criminal Appeal No. 18 of 2010 |
| Date | 28 June 2016 |
Caribbean Court of Justice
Nelson, J.CCJ; Hayton, J.CCJ; Rajnauth-Lee, J.CCJ
CCJ Application No BBCR2016/001; BB Criminal Appeal No. 18 of 2010
Mr. Marlon Markland Gordon and Ms. Safiya Moore for the applicant
Mrs. Donna Babb-Agard Q.C. and Mr. Elwood Watts for the respondent
Criminal practice and procedure - Application for special leave to appeal under section 8 of the Caribbean Court of Justice Act, Cap 117 — Manslaughter — 15 years — Whether there was a realistic possibility of a miscarriage of justice if leave was not given for a full hearing.
On May 19, 2016 this Court heard two applications by Mr. Shawn Pinder (hereinafter referred to as “the applicant”) for special leave to appeal to this Court under section 8 of the Caribbean Court of Justice Act, Cap 117 and for special leave to appeal as a poor person pursuant to Rule 10.17 of the Caribbean Court of Justice (Appellate Jurisdiction) Rules. The Court refused both applications and promised to give its reasons later. We publish those reasons now.
These applications derive from the applicant's conviction for manslaughter in connection with the death of Arden Puckerin (hereinafter referred to as “the deceased”) on August 26, 2004. The applicant and a co-accused were charged with the murder of the deceased and remanded in prison on September 2, 2004. Their trial commenced on January 22, 2010. By the end of the trial the applicant was the lone accused. He was found guilty of manslaughter on April 30, 2010 and was sentenced to 15 years' imprisonment on June 2, 2010. His appeal against conviction and sentence was heard by the Court of Appeal in November 2014 and was dismissed on January 13, 2015. It is from that decision that the Appellant sought special leave to appeal and to appeal as a poor person by way of notice dated January 4, 2016.
The test for special leave in criminal appeals was first propounded by this Court in Cadogan v. R (No. 2), (2006) 69 WIR 249; [2006] CCJ 4 (AJ) at [2]. where Hayton JCCJ stated that the ‘grant of special leave is, of course, a matter of discretion. However, if there is a realistic possibility of a miscarriage of justice if leave is not given for a full hearing, then leave will be given.’ In R v. Doyle, (2011) 79 WIR 91; [2011] CCJ 4 (AJ) at [4]. Nelson JCCJ reiterated this test in the following terms:
Generally, this Court will only intervene in criminal cases in circumstances where a serious miscarriage of justice may have occurred in the court below or where a point of law of public importance is raised and the applicant persuades the Court that if not overturned a questionable precedent might remain on the record. In such a case, the grant of leave to appeal is not necessarily an indication that the Court agrees with the point, but only that the point of law is arguable.
The applicant must therefore persuade this Court that a potential miscarriage of justice or a genuinely disputable point of law arises out of the decision appealed from in order to qualify for the grant of special leave.
The applicant contended that he was entitled to special leave because his trial was unfair, being contrary to section 18(1) of the Constitution and that his sentence of 15 years was excessive and unlawful. On both points, counsel for the applicant repeated the same arguments deployed before the Court of Appeal. In response leading counsel for the Crown, Mrs. Babb-Agard Q.C., contended that the applicant's arguments had been heard and rightly rejected by the Court of Appeal. Therefore, special leave should be refused.
The argument on unfairness was divided in two parts: one relating to the amendment of the indictment at an advanced stage of the prosecution and the other, concerning failure to discharge the entire jury after some members were observed conversing with a discharged juror.
The applicant had been jointly charged with the murder of the deceased along with a co-accused on the basis that they were engaged in a joint enterprise. The co-accused, at the close of the prosecution case, made a successful no-case submission and was discharged. The prosecution then sought and obtained leave of the trial judge to amend the indictment to leave the applicant as the sole accused.
The applicant contended that permitting amendments at such a late stage were prejudicial to him because: (i) it changed the basis of the case he had to meet in midstream from joint enterprise to circumstantial evidence, (ii) the discharge of his co-accused might lead the jury to conclude that he was not discharged because he was guilty and (iii) late amendments might well work injustice and should not be allowed; a proposition which he derived from R v O'Connor [1997] Grim LR 516.
Mrs. Babb-Agard Q.C. for the Crown contended that the trial of the applicant had been fair and he had suffered no injustice by the amendment. Circumstantial evidence, she noted, was not the only plank on which the Crown relied after the discharge of the co-accused. There was other evidence implicating the applicant including his own oral statements which placed him on the scene of the murder of the deceased and ran contrary to his defence of alibi. According to the Crown, the judge was not therefore obliged to discharge the jury and order a fresh trial in the wake of the successful no-case submission because enough evidence remained implicating the applicant in the murder of the deceased.
The Court finds no merit in the applicant's submissions under this head. Taking together the first and third limbs of arguments presented, it is important to bear in mind the sequence of events at the trial. As noted by the Court of Appeal, after the co-accused was discharged on March 17, 2010, the trial continued against the applicant. Six (6) weeks later, on April 27, 2010, immediately before the judge began his summation the prosecution sought and obtained leave to amend the indictment by removing the name of the co-accused. The new indictment was read to the applicant and he repeated his not guilty plea.
Both parties conceded that it might have been preferable if the amendment had been made earlier. However section 6 of the Indictments Act [Cap 136 of the Laws of Barbados] makes it clear that a judge can grant an amendment of the indictment at any stage of the trial ‘unless having regard to the merits of the case the required amendment cannot be made without injustice’
We agree with the Court of Appeal that whether an accused is prejudiced by a change in the focus of the case from joint enterprise to circumstantial evidence depends on ‘what further facts are divulged, whether or not the case remains essentially the same after the discharge is made and whether the case against the remaining ones can be proved without reference to the one(s) discharged. [ Criminal Appeal No. 18 of 2010 (unreported) delivered on November 24, 2015 at [23]] Further, the judge in his summing-up properly directed the jury ‘to banish’ from their minds any evidence which might link the co-accused to the applicant and to concern themselves solely with the applicant.
In those circumstances, the Court of Appeal rightly concluded that the situation which emerged after the co-accused was discharged was to all intents and purposes the same as if the application to amend the indictment had been made earlier. During the ensuing six (6) weeks after the successful no-case submission, no reference was made to the co-accused. The evidence led did not alter the facts of the case or introduce new facts. Nor was the charge upon which the applicant was arraigned altered. The applicant's defence to that charge continued to be that of alibi; a defence which the jury rejected. The jury accepted the evidence which placed the applicant on the scene where the deceased was assaulted and stabbed with a knife. They were also convinced that the applicant, who was the only person at the scene in possession of a knife, killed the deceased.
These circumstances can be distinguished from those in R v. O'Connor. [Ibid, O'Connor (n 3)] In O'Connor, the managing agent of a company owned a fishing vessel that sank at sea killing all six crew members. He was charged on an indictment containing six counts alleging manslaughter of each of the crew members. The particulars of the offence alleged criminal negligence in respect of the sinking of the vessel and in respect of the adequacy of life-saving...
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