Appearances:

Mr. Shawn Innocent for the Appellant

Mrs. Victoria Charles-Clarke, Director of Public Prosecutions

2007: June 18;

2008: July 14.

Criminal Appeal – Murder – Section 178 of the 1992 Criminal Code – Appeal against conviction- whether unsafe or unsatisfactory – whether the procedure to file a fresh indictment was followed – whether appellant was prejudiced by the procedure adopted – withdrawal of witnesses by the prosecution – whether there was a fatal failure to give proper directions on self defence and provocation - whether appellant was given a fair trial

– Appeal against sentencing – Section 1097 (2)(b) and section 1097 (3) of the 2004 Criminal Code- whether sentence was excessive –

The appellant was convicted of murder and sentenced to an indeterminate sentence of life imprisonment. He appealed against his conviction on the ground that it was unsafe and unsatisfactory having regard to whether the procedure adopted by the prosecutor in filing a new indictment and removing the names of three witnesses was the correct procedure. The appellant further contended that the directions given to the jury by the trial judge failed to put his case of self-defence and that of provocation. He appealed against his sentence on the ground that it was unreasonable and wrong in principle and that the learned judge failed to exercise his discretion with regard to his character, circumstances of the case and the Social Enquiry Report which was submitted to Court. The prosecution’s case was that the appellant shot and killed St. Prix Matthew on the 25^th May 2002. The appellant argued that he was attacked by the deceased and those accompanying him and acted in self-defence.

Held, dismissing the appeal; affirming the conviction and sentence:

There can be two indictments in existence at the same time against the same person for the same offences or offences based on the same facts. A second indictment or information is not inherently bad by reason of the pendency of an earlier one for the same offence against the same person on the same facts.
Poole v R [1960] 3 All ER 398 applied.

The actions of the prosecution in relation to the three witnesses were within established legal principles.
R v Brown [1997] Crim. App. R 112 and R v Russell-Jones (Kenneth) (1995) 3 All ER 239 applied.

The test to be applied in self-defence is that a person may use such force as is reasonable in the circumstances if he honestly believes it to be in defence of himself or another. The trial judge did ask the jury to consider the appellant’s subjective belief and to judge him by what he was thinking at the time including if he thought he was in immediate danger.

Solomom Beckford v The Queen [1998] A.C. 130 applied.

JUDGMENT

[1] ALLEYNE CJ [AG.]: This is a judgment of the Court. This is an appeal by the

appellant CURVIN JEREMIAH ISAIE against his conviction for murder and an

indeterminate sentence of life imprisonment. The appellant was first indicted on

the 22^nd day of March 2005 on a charge that on the 25^th day of May 2002 about

4:20 p.m. at Assou Canal situated in the quarter of Gros Islet within the First

Judicial District of the State of St. Lucia he did commit murder by intentionally

causing the death of St. Prix Matthew by unlawful harm contrary to section 178 of

the Criminal Code of St. Lucia 1992.

[2] The appellant was tried before Edwards, J. as she then was, and a jury in the High Court between 4^th and 6^th July, 2005. On 6^th July, 2005 Edwards, J withdrew the case from the jury and declared a mistrial. She also ordered a retrial.

[3] This was because the prosecution failed to have in Court some of the witnesses who had given evidence at the Preliminary Inquiry, and whose names appeared on the back of the indictment. The witnesses were not present for examination by the prosecution or for tendering for cross-examination. After hearing submissions from both counsel, Edwards J. ordered a mistrial.

[4] The prosecution filed a fresh indictment on 11^th July, 2005. This indictment did not contain the names of the witnesses whose names were included on the first indictment, but who had not been produced for examination or cross-examination at the first trial. The prosecution also did not withdraw the first indictment prior to putting the appellant in the charge of the jury at the second trial.

The Facts

[5] The following are the essential facts in the case:

The Incident

On 25^th May 2002, St. Prix Matthew was shot in an area known as Assou Canal or “The Dig” in Grand Riviere. The appellant was arrested and charged for the murder. “The Dig” is an area along a river bank where a group of young men known as the Assou Canal gang normally congregated. The appellant is alleged to have been a member of the Assou Canal gang.

It is the case for the prosecution that at about 4 p.m. on 25^th May, 2002, the appellant and others of the Assou Canal gang were assembled at a spot near the river at Assou Canal. The deceased and his brother and cousin were walking from Piat in Grand Riviere along a short cut that leads to Corinth but passes through Assou Canal. The appellant allegedly got up from where he
was sitting, stood in the path of the deceased and his two companions and blocked their passage along the path.

The deceased then pushed the appellant who then pulled out a handgun from his waist, pointed it at the chest of the deceased and pulled the trigger. The deceased ran and fell into the river a short distance away. The appellant then cranked the gun a second time, pointed it at the deceased’s brother, but no ammunition was discharged. The appellant then ran away.

Proceedings

The appellant was committed for trial in the High Court on 28^th January 2005. He was indicted for murder on 22^nd March 2005. The case against him was adjourned on 4^th June 2005, 20^th June 2005, 27^th June 2005, 29^th June, 2005 before Redhead, J. His trial finally commenced before Edwards, J. on 4^th July, 2005. On 5^th July 2005 the indictment was amended to substitute section 178 with section 170 of the Criminal Code of St. Lucia, and the appellant was called upon to plead to the amended indictment. He pleaded not guilty.
The difficulty with locating witnesses was brought to the trial judge’s attention on 6^th July 2005 and after hearing counsel on both sides, the judge discharged the jury and adjourned the case to 14^th November, 2005.

On 12^th July, 2005 a new indictment was filed removing the names of three witnesses from the back of the indictment. A Notice of Handing Over of witnesses was filed on the same day. The Notice stated “This is to notify you that the following witnesses will not be called by the Prosecution at the trial and are therefore being offered as witnesses to the defence:

Elvina Modeste
Swandi Goddard
Jamal Marquis

[6] The matter came on for trial on 14^th November, 2005 and was adjourned to 5^thDecember, 2005. A further adjournment was granted on 12^th December, 2005 as counsel for the appellant did not appear. A new counsel was appointed by the Court and the case was adjourned to 27^th February, 2006. The trial finally commenced on that date before Redhead J. On 7^th March, 2006 the jury returned a unanimous verdict of guilty of murder against the appellant. On 27^th April, 2006 he was sentenced to an indeterminate term of life imprisonment by Redhead, J. following a sentence hearing.

The Appeal

[7] In relation to his appeal against conviction the main grounds of appeal were:

That the conviction was against the weight of the evidence.
The verdict is unsafe and unsatisfactory having regard to all the circumstances of the case, and the evidence led at the trial.
There was a material irregularity in the course of the trial which resulted in a miscarriage of justice
In the summing up, the learned trial judge failed properly and or adequately to put the appellant’s case to the jury.
The appellant was deprived of and for all intents and purposes did not receive a fair trial.

[8] In relation to his appeal against sentence, the grounds were:

The sentence of an indeterminate term of life imprisonment is excessive.
In passing sentence the learned trial judge failed to consider and properly apply the provisions of section 1097 (2) (b) and section 1097 (3) of the Criminal Code 2004.
In passing sentence the learned trial judge failed properly and or adequately to apply the judicial guidelines set out in Sections 1101, 1102 and 1097 of the Criminal Code 2004.
In sentencing the appellant to an indeterminate term of life imprisonment the learned trial judge failed to properly and or adequately apply the judicial guidelines on sentencing set out in the Criminal Code 2004.

[9] The grounds of appeal on both conviction and sentence were expanded and thoroughly and helpfully presented by learned counsel Mr. Shawn Innocent in his detailed skeleton arguments, and at the hearing of the appeal.

[10] In summary, the appellant’s contention as set out at pages 5 to 8 of his submissions, is as follows:

1. The complaint of the appellant arises from:

(i) the failure of the trial judge to deal adequately with and give a ruling on a question of law arising in the course of the trial, namely (a) whether the procedure adopted by the prosecutor in filing a new indictment and removing the names of three witnesses was the correct procedure (b) whether the prosecutor had properly exercised her discretion in failing to call these witnesses or have them present in court (c) whether the Court had the discretion to call these witnesses and (d) whether the appellant would be prejudiced by the procedure adopted by the prosecution (ii) the conduct of prosecuting counsel in the exercise of her discretion with respect to the calling of witnesses to testify at the trial and her failure to act as a minister of justice in her conduct of the prosecution’s case (iii) the directions given to the jury by the trial judge with respect to the appellant’s case and their approach to deciding the case generally which essentially invited the jury to return a verdict of murder (iv) the failure of the trial judge to properly and or adequately relate the facts of the case to the law on self-defence and provocation and the question of mistaken belief.

As to conviction, it is the appellant’s case that the directions given to the jury by the trial judge were confusing, misleading and did not properly canvass the defence of the appellant as presented at trial, the verdict of guilty of murder reflected a rejection of the plea of self-defence and provocation, which was unsafe and unsatisfactory.

Another complaint of the appellant is that the direction by the trial judge to the jury that the verdict that they could return depended on their decision with respect to which of the two versions of the facts they accepted, whether that
put forward by the prosecution witnesses on one hand or the defence witnesses on the other, resulted in unfairness to the appellant in so far as it invited the jury to reject outright credible evidence which may have been given by the “defence witnesses” who were formerly prosecution witnesses and not to judge the facts of the case based on the totality of the evidence at the trial. Essentially, counsel argued, the learned judge invited the jury to decide the issues of self-defence and provocation based on their acceptance or rejection of the prosecution’s case or the defence case.

The appellant also contends that in any event the verdict of guilty of murder as opposed to a complete acquittal or a verdict of manslaughter went against the weight of the evidence and is therefore perverse and for all intents and purposes unsafe and unsatisfactory having regard to all the circumstances of the case.
As to sentence, the appellant contends that the trial judge failed to take any or any proper approach in determining whether and what if any period of incarceration was required in the case of the appellant having regard to the sentencing provisions contained in Sections 1096 and 1097 of the Criminal Code 2004.
On the subject of sentencing the appellant contends that the sentence of an indeterminate term of life imprisonment on the conviction for murder was unreasonable and wrong in principle and was the result of the failure of the learned judge to properly exercise his discretion having regard to the factual circumstances of the case, the character and antecedents of the appellant and the matters contained in the Social Enquiry Report submitted to the Court.

[11] It is the appellant’s contention that the trial proceeded in a manner where it may properly be regarded as a case the outcome of which depended solely on the view which the jury formed of conflicting versions given by the prosecution witnesses on one hand and the defendant and the “former” prosecution witnesses called by the defence on the other. [Paragraph 1.10 page 5 Appellant’s Appeal].

[12] Two of the witnesses, Jamal Marquis and Swandi Goddard were interviewed by the appellant’s counsel on 2^nd March 2006. After the two witnesses had given evidence, counsel for the appellant submitted that the entire process of having the witnesses testify for the defence, as opposed to being tendered for cross-examination by the prosecution was unfair and prejudicial to the appellant especially in view of the manner in which the trial had already proceeded and the nature of the evidence led.

[13] It is important to note that on appeal, the appellant stated (at page 8 of the “Appellant’s Case”), that “the appellant agrees with the general course of events as outlined by the prosecution witnesses, save and except that the appellant disagrees with the general course of events of the two eyewitnesses…..”. Particulars of evidence given by the eyewitnesses are then given.

[14] The appellant did not testify at his trial, but gave a written statement to the Police. In his statement, he in essence raised self-defence when he shot the deceased, to the extent that he was either attacked by the deceased and those accompanying him, or he genuinely held the belief whether misleading or otherwise that he was being attacked. He also argues that the action of the deceased in pushing him amounted to provocation.

The Conduct of the Prosecution and the Indictment

[15] The appellant contends that the action of the prosecution in filing a fresh indictment without first withdrawing the first one was wrong. Also that the appellant was prejudiced by having three witnesses as witnesses for the appellant and not tendering them for cross-examination. The appellant asserts that he was prejudiced by the procedure adopted by the prosecution in relation to the indictment.

[16] We do not accept the argument presented by the appellant’s counsel that the action by the prosecution was an act “not calculated to further the course of justice but rather to manipulate the proceedings and obtain a conviction at all costs.” Indeed there is no evidence of this. The course of events from the time of the appellant’s arrest up to his conviction and sentence revealed some undesirable and unfortunate developments and delays. Any irregularity that there was, in our view, did not amount to misconduct on the part of the prosecution. There was nothing to suggest an oblique motive on the part of the prosecution. There is nothing in the record to support the suggestion by counsel of misconduct on the part of the prosecution. The learned Director of Public Prosecutions appeared herself at the hearing of the appeal. She was clear in her statements in relation to her professional conduct and that of her office in this case.

[17] Learned Counsel for the appellant relied on several authorities in presenting his appeal. Among these was the case R v Follett¹. This is a decision of the English Court of Appeal delivered by Lord Lane C.J. The case must be read against the background of it having been dealt with under a different statutory framework from that in Saint Lucia, and also against the background of a Practice Note which is not formally part of the law and practice of Saint Lucia.

[18] The case is of assistance, however, to the extent that it deals with a situation in which a second indictment is preferred, and the point of the validity of a fresh indictment was canvassed on appeal. Reference is made to the case Poole v R². This is a decision of the Privy Council which shows that there can be two indictments in existence at the same time against the same person for the same offences or offences based on the same facts.

[19] Their Lordships’ reason for dismissing the appeal before them was delivered by Lord Tucker who said [ct page 407].

¹[1989] ALL ER 995 ² [1960] 3 All ER 398

“Their Lordships are, therefore, satisfied that a second indictment or information is not inherently bad by reason of the pendency of an earlier one for the same offence against the same person on the same facts.”

In the case before the Court, we would apply the same principle as their Lordships

did in the case of Poole v R which was referred to in the case R v Follett.

[20] The point was also raised by learned counsel for the appellant that a second

indictment could not be preferred on the same committal. In support, he referred to

the case R v Alvin Dariah et al³. This case does not apply in the present one. It

is a decision of the High Court of St. Lucia, which deals with indictments and some

provisions of the Criminal Code of St. Lucia which also are applicable in the

present case. The statements of the learned trial judge in that case are clear. He

states [paragraphs 41 to 44] as follows:

“41. The power to file an indictment must be based on the committal. This is so obvious that to my mind [does] not worth repeating. This is the reason, in my view, that if the Magistrate fails or refuses to commit an accused person, the law gives the Director of Public Prosecutors the power to direct the Magistrate to commit (section 785 (3).

I have no doubt also that there can only be one indictment based on one committal. I find support for this view in section 760 Criminal Code 1992 which states as follows: “If the Magistrate holding a Preliminary Inquiry thinks that the evidence is sufficient to put the accused person on trial for the next practicable sitting of the Supreme Court…….”
If the accused is indicted on that committal, the charge against the accused person remains alive until it is disposed of by the Court or if the case is adjourned by the Court to another sitting.
Certainly, in my view, the law does not give to the Director of Public Prosecutor the power to prefer another indictment based on the same committal”.

[21] The facts and circumstances of the case R v Dariah are entirely different from

those in the case now before this Court. In Dariah’s case, the accused and four

other persons were indicted, and arraigned for murder. Instead of proceeding with

the trial, the Director of Public Prosecutions sent the case back to the Magistrate

to re-open it for the purpose of having another suspect committed so that he could

be indicted with the other five accused persons. That was clearly not permissible.

³High Court Criminal case No. 9 of 2004 (St. Lucia)

[22] The facts and circumstances in the present case are materially different, and the statements made by the learned trial judge at paragraph 43 of the judgment in the case of Dariah et al is applicable here. Edwards, J. had in fact on 6^th July 2005 adjourned the case to 14^th November, 2005, and given directions. The committal stood, and the new indictment was filed on 12^th July, 2005.

The Conviction

[23] In relation to the conviction, counsel for the appellant submitted that the directions given to the jury by the learned trial judge were confusing, misleading and did not properly canvass the defence of the appellant. He said that the verdict of guilty of murder reflected a rejection of the pleas of self-defence and provocation, which was unsafe and unsatisfactory.

[24] We do not agree with this submission. In summing up, the learned trial judge [page 81 lines 3-13] defined self-defence in accordance with the principle of law laid down in Solomon Beckford v The Queen⁴; that the test to be applied in self-defence, is that a person may use such force as is reasonable in the circumstances if he honestly believes it to be in defence of himself or another. He also related the law on self defence to the facts of the case [pages 81 to 84].

[25] The judge further explained to the jury what was reasonable force using the principles laid down in Palmer v R⁵. He also explained justifiable force in accordance with section 49 of the Criminal Code.

[26] Having considered the summing up and the directions given to the jury, we are satisfied that the directions to the jury were those the law requires. These included the directions to the jury that they should consider whether the action of

⁴ [1988] A.C. 130 ⁵ [1971] AC 817 at 832

the appellant was reasonably necessary in the circumstances (lines 9-25 page 832 of the Record). Also the judge asked the jury to consider the appellant’s subjective belief and to judge him by what he was thinking at the time including if he thought he was in immediate danger (page 84 line 17).

[27] It was also contended by learned counsel for the appellant that the actions by the prosecutor in relation to the three witnesses were a material irregularity and resulted in a miscarriage of justice.

[28] Several cases were cited by both counsel on the matter of witnesses that the prosecution is required to call as named on the indictment. In the case of Seneviratine v R⁶, the Court stated that it did not wish to lay down any rules to fetter the discretion of the prosecution, but did not approve of an idea that the prosecution must call witnesses irrespective of numbers and reliability or that the prosecution ought to discharge the functions of both defence and prosecution.

[29] The case Adel Muhammed Et Dabbah v The Attorney General of Palestine7 established that the matter of which witnesses to call is a matter of discretion for the prosecution with which the court will not interfere unless there is some oblique motive.

[30] The learned Director of Public Prosecutions also relied on the case R v Brown⁸, in which the case of R v Russel-Jones (Kenneth)⁹, another decision of the Court of Appeal of England was applied. Learned counsel for the appellant cited this case in his submissions. The cases differ on the facts.

[31] In R v Brown, the Court observed that appeals on the calling of witnesses named in an indictment by the prosecution is difficult “………. because they involve asking

⁶[1936] 3 ALL ER 36 pages 48-49⁷[1994] 2 ALL ER 139⁸[1997] Cr. App. R 112 ⁹[1995] 3 ALL ER 239

the court to review the exercise of the trial judge’s discretion, in circumstances

where the trial judge himself is reviewing the discretion of the prosecutor” [page

112-113]. The Court then set out seven principles of what prosecuting counsel

can and cannot do, as follows:

“(i) The prosecution has a discretion in deciding which witnesses it will rely on for the purpose of establishing a prima facie case, whether for committal proceedings or transfer and will serve their statements accordingly. It must disclose any potential material statement not served.

(ii) Counsel for the prosecution must have at court all witnesses whose statements have been served, whether as part of the depositions or as additional evidence, upon whom he intends to rely, unless any such witness is conditionally bound or defence agree that he need not attend because, for example, his evidence can be admitted.

(iii) Counsel for the prosecution enjoys a discretion whether to call or to tender a particular witness whom he has required to attend. Further, counsel may refuse even to tender a witness, notwithstanding that the witness’s statement has been included in the depositions; if he decides that the witness is unworthy of belief. Our adversarial system requires counsel for the prosecution to present a case against the defendant. He must always act in the interest of justice and to promote a fair trial, and his discretion must be exercised with those objects in mind. He should not refuse to call a witness merely because his evidence does not fit in exactly with the case he is seeking to prove. But he need not call a witness whose evidence is inconsistent with, or contrary to, the case he is prosecuting since such witness’s evidence will be unworthy of belief if his case be correct.

(iv): Counsel for the prosecution ought normally to call, or offer to call, all the witnesses who give direct evidence of the primary facts of the case unless the prosecutor regards the witness’s evidence as unworthy of belief.
(v): It is for counsel for the prosecution to decide which witnesses give direct evidence of the primary facts of the case. He may reasonably take the view that what a particular witness has to say is, at best, marginal.
(vi): Counsel for the prosecution is also the primary judge of whether or not a witness to the material events is unworthy of belief.

(vii) Counsel for the prosecution, properly exercising his discretion, is not obliged to offer a witness upon whom the Crown does not rely merely in order to give the defence material with which to attack the credit of other witnesses on whom the Crown does rely. The law does not insist that the prosecution are obliged to call a witness for no purpose other than to assist the defence in its endeavors to destroy the Crown’s own case. Such a course would merely serve to confuse the jury. The Crown’s obligation is to make such witnesses available to the defence so that the defence can call them if they choose to do so. The jury will then be clear that the evidence is led by the party who wishes to rely upon it and can be tested by cross-examination by the other party, if that party wishes to challenge the evidence”.

[32] We accept the principles stated as applicable in this case, and after a thorough review of the record, we are of the view that in the case before this court, the actions of the prosecution in relation to the three witnesses was within established legal principles, and in keeping, as the learned Director of Public Prosecutions submitted, with the directions as to the procedures to follow given by Edwards, J. on the adjournment of the case.

[33] It is also important to note that two of the witnesses in question Jamal Marquis and Swandi Goddard were in fact called at the trial. The prosecutor had indicated at the Preliminary Inquiry that she would not call the witnesses, as she found them unreliable. This she was entitled to do. It was the appellant who had insisted that he wished to call them. When called by the appellant, each of the two witnesses gave evidence different from what they had given to the Police. This, in the opinion of the Director of Public Prosecutions, clearly showed that they were unreliable, and bore out the position of the prosecution at the preliminary inquiry.

Sentencing

[34] On 7^th March 2006, the jury returned a verdict of guilty of murder against the appellant for intentionally causing the death of St. Prix Matthew by unlawful harm. On 27^th April, 2006 he was sentenced to an indeterminate term of life imprisonment.

[35] The case of Newton Spence v The Queen10 dramatically changed the law on sentencing in cases of murder in the Eastern Caribbean. Sir Dennis Byron, C.J. held in that case that the mandatory death penalty for the offence of murder constituted cruel and inhumane treatment and was unconstitutional. Before a person who is convicted of murder is sentenced, he should be given an

¹⁰ Crim. App. No. 20 of 1998; Crim. App. No. 14 of 1997

opportunity to be heard and it is the duty of the trial judge to consider two fundamental matters, namely the facts and circumstances surrounding the commission of the offence and the character and record of the convicted person. This decision was upheld by the Privy Council.

[36] Following the appellant’s conviction on 7^th March 2006, sentencing was adjourned for the submission of a Social Inquiry Report, and to hear submissions from both counsel. The sentencing hearing commenced on 21^st April, 2006. Written submissions were filed by counsel on both sides and both counsels addressed the Court. The Court also received a prepared report on the appellant from a Probation Officer.

[37] In passing sentence, the learned judge said [page 34 Appellant’s submission]

“You have taken the life of a young man, twenty-five years old, has not even begun life yet, a person with whom you had no problems……… I have listened to your counsel displaying mitigations to me [sic]. In my opinion, the only mitigating factor is that you have no previous conviction. Remorse, I don’t go on that because you seem to say that the gun went off accidentally, and having regard to the weighty evidence that could not have been the case you deliberately shot the man down, for what? These offences are very prevalent in society today, in Saint Lucia and I see --- I cannot sit here and send the wrong message. The law determines that you can face a term of life imprisonment. I will not send the wrong signal. It is my discretion whether I give life or not. In my discretion, I see, I do not think that you deserve anything else, but life imprisonment. You are sentenced to life imprisonment.”

[38] It is clear that the learned trial judge relied on the established principles on sentencing, all the steps as set out in the Newton Spence case and that he considered the appropriate and applicable provisions of the Criminal Code and properly exercised his discretion in sentencing properly. Whether or not a sentence of life imprisonment is imposed on a conviction of murder, in preference to the death penalty or a lesser term of imprisonment is a matter for the direction of the judge after considering all the relevant facts, including the mitigating and aggravating factors, as well as the circumstances in which the murder took place. The learned trial judge considered all the relevant factors and exercised a discretion which was properly his. We see no reason to disturb the exercise of the judge’s discretion, and we would dismiss the appeal against sentence. Similar sentences have been upheld in several cases, including Wilson Exhale v R¹¹; Berthill Fox v The Queen12; Mervin Moise v R¹³; Fabian Sylvester and Shaka Deshong v R¹⁴.

[39] There is no basis on which to vary the sentence passed by the learned trial judge and this ground of appeal is dismissed.

BETWEEN:

THE QUEEN

Before: