Tyrone DA Costa Cadogan Applicant v The Queen Respondent

JurisdictionCaribbean States
CourtCaribbean Court of Justice (Appellate Jurisdiction)
JudgeMr Justice David Hayton
Judgment Date04 Dec 2006
Neutral Citation[2006] CCJ 4 AJ
Docket NumberCCJ Appeal No AL 6 of 2006

[2006] CCJ 4 (AJ)

IN THE CARIBBEAN COURT OF JUSTICE

Appellate Jurisdiction

ON APPEAL FROM THE COURT OF APPEAL OF BARBADOS

Before

The Rt Honourable and The Honourables

Mr Justice de la Bastide, President

Mr Justice Nelson

Mr Justice Saunders

Mr Justice Wit

Mr Justice Hayton

CCJ Appeal No AL 6 of 2006

Between
Tyrone DA Costa Cadogan
Applicant
and
The Queen
Respondent
Appearances

Mr Alair Paul Shepherd QC and Mr Muhammed Tariq Uz-Zaman Khan for the Applicant

Mr Charles Leacock QC and Mr Roy Hurley for the Respondent

JUDGMENT of The Honourable Mr Justice David Hayton Delivered on the 4 th day of December 2006

1

This is an application for special leave to be granted to the Applicant to appeal against the decision of the Court of Appeal of Barbados, dated 31 st May, 2006, dismissing the Applicant's appeal from his conviction for murder, which carries the mandatory death sentence.

2

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. Counsel thus needs to raise an arguable case for this, highlighting points in his Notice of Application or in his skeleton argument, but not spending time on the lengthy examination of many cases which should be reserved to the substantive hearing, if any. No more than one to two hours should be needed for this.

The trial judge's directions on the intent for murder
3

Despite forceful, but courteous submissions, Mr Shepherd QC, leading counsel for the Applicant, failed to make out an arguable case against the reasoning of the Court of Appeal for upholding the trial judge's directions on the need for the jury to be satisfied that the accused intended to kill or cause serious bodily harm to the victim. Mr. Shepherd (relying on R v Nedrick1 and R v Woollin2 argued that the trial judge should have gone further to direct the jury that they were not entitled to find the necessary intent for murder unless they felt sure that death or serious bodily harm was a virtual certainty as a result of the Applicant's actions and that he appreciated that such was the case.

4

In our view, however, the Court of Appeal in a well-researched judgment correctly held that there was no need for such a direction. While the Applicant's

motive was to rob the victim, he armed himself with a 32 cms (14 inches) butcher's knife with a 25 cms (9 inches) blade. Evidence in his statement and in the witness box revealed cunning, coherent actions both just before and just after the robbery. The Applicant, nevertheless, alleged that at the time when he stabbed his female victim sixteen times with his long knife he did not know what happened after the first stab, “I just knew that the body got stab from me and I just froze for a while.” The basis for this assertion was that he had drunk a lot of alcohol and smoked two marijuana cigarettes, so that he was not in a position to appreciate that he was doing something where death or serious bodily harm was a virtual certainty.
5

We agree with the Court of Appeal's view that where there is evidence of a direct violent attack on a victim, as there was in this case, and where the accused has admitted in his sworn evidence that he was aware of what he was doing when he made his first stab with his butcher's knife, and where the trial judge has directed the jury to pay regard to all the relevant circumstances before and after the attack in order to decide if the accused intended to kill or cause serious bodily harm to the victim, there was no need for the direction on virtual certainty argued for by Mr Shepherd.

New grounds of appeal not raised before the Court of Appeal
6

Counsel who appeared for the Applicant at the trial and in the Court of Appeal was replaced for the purposes of the Application to this Court by Mr Alair Shepherd QC and Mr Tariq Khan, who have pursued new grounds of appeal. Mr Charles Leacock QC on behalf of the Respondent did not object to this.

Diminished responsibility
7

It was submitted that the trial judge should have put the issue of diminished responsibility to the jury and/or have advised the Applicant's counsel to pursue this defence to a murder charge, but, in the absence of medical evidence of some abnormality of mind substantially impairing the Applicant's mental responsibility, this submission is baseless. Section 4 of the Offences Against The Person Act (Cap 141) only prevents a killer from being convicted of murder “if he was suffering from such abnormality of mind, whether arising from a condition of arrested or retarded development of mind, or any inherent causes, or induced by disease or injury, as substantially impaired his mental responsibility for his acts or omissions in doing or being party to the killing. On a charge of murder it shall be for the defence to prove that the person charged is by virtue of this section not liable to be convicted of murder.”

8

It was then submitted that, in order to help establish a plea of diminished responsibility at this late stage, there should be admitted into evidence a preliminary opinion of a Consultant Psychiatrist, Dr George Mahy, dated 27th June, 2006. By section 29(1) of the Criminal Appeal Act (Cap 113A), “the Court may, if it thinks necessary or expedient in the interests of justice … (c) … receive the evidence, if tendered, of any witness.”

9

However, by section 29 (2) it is provided that:

“Without limiting subsection (1), where evidence is tendered to the Court under that subsection, the Court, unless it is satisfied that the evidence if received would not afford any ground for allowing the appeal, shall receive the evidence if

  • (a) it appears to the Court that the evidence is likely to be credible …; and

  • (b) the Court is...

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16 cases
  • Bennett v R
    • Caribbean Community
    • Caribbean Court of Justice (Appellate Jurisdiction)
    • 17 October 2018
    ...21 Act No. 22 of 2017. 22 See the test for special leave in criminal cases as mentioned in Cadogan v R (No. 2) (2006) 69 WIR 249; [2006] CCJ 4 (AJ) at [2] and R v Doyle (2011) 79 WIR 91; [2011] CCJ 4 (AJ) at 23 Act No. 6 of 2012. 24 [1988] Crim LR 767. 25 ibid, p. 767. 26 Criminal Appeal ......
  • Roderick Ricardo Went v The Queen
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    • 20 December 2018
    ...ineptitude or misconduct may have become so extreme as to result in a denial of due process. As this Court said in Cadogan v The Queen [2006] CCJ 4 (AJ) at [14] the Court will evaluate counsel's management of the case “with a reasonable degree of objectivity”. If counsel's management of the......
  • Paul Lashley John Campayne Appellants v Det. CPL. 17995 Winston Singh Respondent
    • Caribbean Community
    • Caribbean Court of Justice (Appellate Jurisdiction)
    • 9 June 2014
    ...stems from a similar error by the Privy Council in Balson v The State [2005] UKPC 2 at [36]. 2 [2006] 4 LRC 278 at [65]–[66]. 3 [2006] CCJ 4 (AJ) at 4 [2005] 4 LRC 259, 273–4 ; (2005) 66 WIR 319 at [39] 5 [2002] 1 Cr. App. R 12, 19 . 6 (2000) 59 WIR 451, 460 . 7 (1970) 16 WIR 342. 8 (19......
  • Da Costa Handel Marshall Applicant v The Queen Respondent
    • Caribbean Community
    • Caribbean Court of Justice (Appellate Jurisdiction)
    • 22 October 2013
    ...4 The relevant law with regard to an application for special leave to appeal in a criminal case is to be found in Cadogan v The Queen [2006] CCJ 4 (AJ); where Hayton J. laid down the principles applicable to an application of this kind. He said there: “The grant of special leave is … a matt......
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