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    Home » Judgments » Court Of Appeal Judgments » Evanson Mitcham et al v Director of Public Prosecutions

    1
    SAINT CHRISTOPHER AND NEVIS
    IN THE COURT OF APPEAL
    CRIMINAL APPEAL NOS. 10, 11 AND 12 OF 2002
    BETWEEN:
    [1] EVANSON MITCHAM
    [2] VINCENT FAHIE
    [3] PATRICE MATTHEW
    Appellants
    and
    THE DIRECTOR OF PUBLIC PROSECUTIONS
    Respondent
    Before:
    The Hon. Sir Dennis Byron Chief Justice
    The Hon. Mr. Albert Redhead Justice of Appeal
    The Hon. Mr. Adrian D. Saunders Justice of Appeal
    Appearances:
    Dr. H. Browne with Mr. H. Benjamin for the Appellants

    The D. P. P., Mr. D. Merchant, with Mr. V. Warner for the Respondent

    2003: July 21; 22;

    November 3.

    JUDGMENT
    [1] BYRON, C.J.: I have read the Judgment of Saunders, J.A. and concur with the
    conclusion and reasoning. The procedure employed by the trial Judge in imposing
    sentence after the pleas for mitigation were advanced does not seem an
    appropriate manner of giving effect to the new procedure that should be adopted
    upon a conviction for murder. It does not accord with the tenor of what was
    outlined in the consolidated cases of Hughes and Spence. I think there is a need
    for detailed procedural guidelines to be provided by this Court, and the time has
    come for us to do so. Already, the OECS Bar Association has discussed the 2
    matter and has helpfully submitted views to me on the matter. We have discussed
    the issue and have agreed on procedural guidelines.
    [2] Accordingly, I put forward the following as a procedural guide:
    If the prosecution intend to submit that the death penalty is appropriate in
    the event that the accused is convicted of murder, then notice to that
    effect should be given no later than the day upon which the offender is
    convicted. The notice may be given immediately upon conviction in which
    case it may be given orally. In any event the notice should contain the
    grounds on which the death penalty is considered appropriate.
    Upon conviction by the jury, and the Prosecution having given notice that
    the death penalty is being sought, the trial Judge should, at the time of the
    allocutus, specify the date of a sentencing hearing which provides
    reasonable time for preparation. Where the Prosecution and the trial
    Judge consider that the death penalty is not appropriate, a separate
    sentencing hearing may be dispensed with if the accused so consents and
    the offender may be sentenced right away in the normal fashion.
    When fixing the date of a sentencing hearing, the trial Judge should direct
    that social welfare and psychiatric reports be prepared in relation to the
    prisoner.
    The burden of proof at the sentencing hearing lies on the prosecution and
    the standard of proof shall be proof beyond reasonable doubt.
    The trial Judge should give written reasons for his/her decision at the
    sentencing hearing.
    [3] The procedures followed in this case did not include providing Mitcham with notice
    that the death penalty would be sought against him, nor were the other Appellants
    given notice of the sentencing hearing or other information. In the circumstances
    I would order that the matter of sentencing must be remitted to the trial Judge so
    that the procedural guides I have set out may be followed as far as is practicable. I
    would suggest that in this case, the prosecution, as soon as possible, give notice
    in relation to Mitcham. Having not earlier imposed the death sentence upon either
    Fahie or Matthew, it would be inappropriate for the trial Judge to revisit the
    sentences passed on them so as to increase the penalty originally imposed to
    death sentences. It would be for Counsel and the trial Judge to determine whether
    there is any need to revisit those sentences at all.3
    [4] In light of the foregoing the convictions of all three Appellants should be affirmed
    and the matter remitted to the trial Judge for sentencing.
    Sir Dennis Byron
    Chief Justice
    [5] SAUNDERS, J.A.: Arlene Fleming used to sell barbecue chicken at the top of
    Marshall Alley in Basseterre. She was there shortly after midnight on 3rd February,
    2001 when three masked men approached her. One of the men demanded
    money. He held on to her apron. Although he was armed with a gun she resisted.
    Vernal Nisbett was seated close by on a wall. Nisbett came to her assistance. The
    gunman stepped back and fired a shot. Nisbett was mortally wounded. The three
    masked men then ran off.
    [6] Evanson Mitcham, Vincent Fahie and Patrice Matthew were jointly tried for the
    murder. The prosecution’s case was that they were engaged in a joint enterprise.
    When arrested, Fahie and Matthew gave caution statements. They made certain
    admissions. Mitcham made no statement save to tell the police that at the material
    time he was at home. None of the men testified before the jury. Nor was any
    witness called by any of them. They were all convicted. Mitcham was sentenced to
    death. Fahie and Matthew were given life sentences. The men have appealed
    their convictions and sentences.
    [7] Before this Court, Counsel argued that there was insufficient legally admissible
    evidence against Mitcham. Counsel submitted that the trial Judge was wrong to
    have disallowed a no case submission made at the trial. As regards Fahie and
    Matthew, Counsel submitted that their respective caution statements did not
    disclose evidence of a joint enterprise. Counsel also took issue with the trial
    Judge’s directions to the jury on the issue of manslaughter.4
    [8] The case against the Appellants was somewhat complicated as a matter of strict
    law. The trial Judge had ruled that the admissions made by Fahie and Matthew in
    their caution statements should be treated as evidence only against the respective
    maker. Every effort was therefore made to edit the statements so as to reduce if
    not eliminate the risk of prejudice to the co-accused. In determining the respective
    appeals, it is best to assess the position first of Fahie and Matthew before
    examining the position of Mitcham.
    Vincent Fahie’s Caution Statement
    [9] In his caution statement, Fahie admitted that on the night in question he was in the
    company of a group of persons. The size of the group eventually dwindled to
    three, including himself. One of the three declared an intention to rob Ms. Fleming.
    Fahie was aware that one of the three was armed with a gun. He said that he and
    his companions proceeded towards Ms. Fleming but he dawdled a good distance
    behind the others. He heard some talking, and then a “Baw”. Then he saw a man
    fall down. He said he was shocked because he never knew that was intended. He
    said the persons ran and after a while he too began to run. He met up with the
    others by a bridge at Greenlands. One of the others gave him the gun to hide and
    they all then ran down the road.
    [10] On the Sunday following the murder, Fahie took police officers to a ghaut at
    College Housing. He unearthed a black Glock gun. About 20 feet further down the
    ghaut, Fahie showed the officers a black Glock magazine and a plastic bag
    containing four 9 mm. cartridges. Fahie also produced and gave to the police a
    long khaki pants. A black “Knicks” tam, with two eye holes cut into it, fell out of the
    right foot of the pants. Forensic experts later determined that a cartridge case
    found at the scene of the shooting had been discharged from the Glock gun that
    was produced by Fahie. Further, the khaki pants was found to have contained
    evidence of gun shot residue.5
    Patrice Matthew’s Caution Statement
    [11] Matthew admitted that he was present on the night of the murder. Shortly before
    arriving on the scene he had been given the gun to hold. Matthew was present
    when it was suggested that he and others should go and stick up Ms. Fleming.
    According to him, he said he wasn’t going. In fact, he did go. And before going he
    admits changing into clothing provided by a companion. He and the others
    proceeded to the place where Ms. Fleming was selling her barbecue chicken.
    While on their way, said Matthew, he was accused of being coward. The gun was
    taken from him. Matthew said he was present and saw when Ms. Fleming was
    accosted. Her assailant was the person to whom Matthew had passed the gun.
    This person demanded money from Ms. Fleming. Matthew claimed that at this
    point he suggested to his companions that they should leave. He said that he
    heard the gun being cranked and at that juncture he started to leave. He saw
    when Nisbett was fatally shot. He then ran ahead of his companions who also ran
    off.
    The Mens Rea of Fahie and Matthew
    [12] The prosecution led no evidence that either Fahie or Matthew said or did anything
    at the scene of the crime. Counsel’s attack on their convictions went towards proof
    of their mens rea and towards the Judge’s directions on manslaughter. Defence
    Counsel invited us to find that the prosecution were unable to establish that Fahie
    and Matthew were part of a common design and/or that each intended to kill or to
    cause grievous bodily harm.
    [13] Baptiste, J. directed the jury along the following lines:
    “The Prosecution must make you feel sure that the accused persons had
    intention to kill or cause grievous bodily harm. Grievous bodily harm
    means really serious bodily injury……..In order to reach that decision you
    must pay regard to all the relevant circumstances including what was said
    and what was done…………………..”6
    I pause here to note that, for reasons that I shall explain later, in relation to Fahie
    and Matthew, this was a somewhat favourable direction to the jury, given that the
    prosecution’s case was one of a joint enterprise. The Judge also told the jury:
    “It is for you the jury to decide in every case whether what was done was
    part of the joint enterprise or went beyond it and was in fact an act
    unauthorised by that joint enterprise. The normal principles of criminal
    liability in joint enterprise apply in cases of unlawful killing so that, a
    person who takes part in a joint enterprise which results in the unlawful
    killing of the victim and who is a party to the acts of the person who carries
    out the killing is guilty of either murder or manslaughter.
    In order for such a person to be guilty of murder, three elements must be
    proved. 1. A common unlawful joint enterprise. 2. That what was done by
    the person who carried out the killing was within the scope of that
    common joint enterprise. 3. That the action must have been seen as a
    possible result of that unlawful joint enterprise. Where, however, two or
    more persons embark on an unlawful enterprise and goes on to commit
    something beyond the contemplation or foresight of the others, those
    other persons are not in law responsible for the act of the person”.
    The Judge then went on further to explain in classic fashion the meaning of a joint
    enterprise and then said, after reviewing the evidence:
    “With respect to ..[Fahie and Matthew].. you have to be sure that they
    knew or foresaw that [Mitcham], based on the Crown’s case, would or
    might use a gun with the intention of killing or causing grievous bodily
    harm and that with that knowledge or foresight of his intention they
    continued to take part in the joint enterprise.
    [14] It is my view that on the evidence presented, the jury had ample material before
    them to return guilty verdicts against both Fahie and Matthew. No one of course
    recognised them at the scene of the shooting. They were masked. The evidence
    against them was, however, much more than what was contained in their
    respective caution statements. The eye witnesses to the murder testified that the
    three masked men came on the scene together. They all ran off after the fatal
    shot. Other witnesses saw three men running in the area shortly after the shot was
    heard. In relation to Fahie, the discovery of the gun and the items of clothing went
    towards confirming his participation in the crime. As to Matthew, he described as
    being in his possession at one time during that night, a black Glock 9 mm. It was
    established by other evidence that such a gun was indeed used to commit the 7
    murder. When the content of the respective caution statements is juxtaposed
    against all the other evidence in the case, the inescapable inference is that Fahie
    and Matthew were among the three men involved in at least a common design to
    commit armed robbery.
    [15] It is true that in each of the caution statements there are to be found passages that
    might, in a vacuum, suggest a change of heart or a withdrawal from or an intention
    not to be a part of a common design to rob. For example, as previously mentioned,
    Fahie said that he lingered behind while the others proceeded to the place where
    Ms. Fleming was selling her barbecue. He said that when the others got to the top
    of the alley he was still behind. He said he was shocked when he heard the “Baw”
    because he didn’t know that was intended. Similarly, Matthew in his statement
    says that when the idea was mooted that they should go and stick up Ms. Fleming,
    he told his companions that he was not going. He nonetheless donned a long
    sleeve shirt that was handed to him. He also said in his statement that he started
    to go up the alley and then he turned back. It was, he says, at this point that he
    was accused of being afraid and the gun was taken from him. At the scene of the
    crime, while his armed companion was accosting Ms. Fleming, Matthew said he
    told his friends, let’s go. He said that he had actually started to leave when Nisbett
    was shot.
    [16] Some of these self-serving passages from Fahie and Matthew do not quite square
    with the corresponding bits of evidence given by the eye witnesses. Arlene
    Fleming for example testified in this vein: She saw the masked men approaching
    from a distance of about 30 feet. The gun man was in front. The men all came up
    the alley. The gun man approached her, held on to her apron and demanded
    money. All this time the other two men were standing behind her, one on the right,
    one on the left. As soon as the shot was fired these other two ran off in the Soho
    direction. 8
    [17] John Foster was another eye witness. Immediately before the shooting he was on
    the scene chatting with Arlene Fleming and the deceased. Foster’s evidence was
    that all of a sudden three men appeared. They appeared from down the alley. He
    saw the gun man approach the lady and try to put his hands in her apron. Foster
    said that he concentrated on the gun man. But he testified that the other two guys
    were standing at the back of Ms. Fleming, “not far, just basically behind her.
    Vernal Nisbett was basically the same distance to Arlene, about six feet”.
    [18] A less sympathetic picture of the degree of involvement of Fahie and Matthew is
    presented in these eyewitness accounts. The jury must have preferred the eye
    witness accounts. The law on withdrawal from a common design was set out in
    Antonio Becerra et al v. R.1 It is not enough to evince a mental change of
    intention or a physical change of place. One cannot lay down rigid guidelines to
    cover every situation. Generally however, if one desires to withdraw from the
    common plan, then, where reasonable and practicable, there must be timely
    communication of the intention to abandon the common purpose. Unequivocal
    notice must be served on the others involved that if they proceed with the plan
    they are doing so on their own. It cannot be said here that either Fahie or Matthew
    unambiguously signaled any such intention. However reluctant and timorous they
    regarded their own conduct that night, given the evidence disclosed at the trial, the
    jury were entitled to take the view that down to the end they remained part and
    parcel of the common design to commit armed robbery.
    [19] Counsel also submitted, on behalf of Fahie and Matthew, that the prosecution had
    failed to establish the requisite mens rea for murder. In my view, that submission
    cannot succeed. Once the jury had formed the view that these men had embarked
    upon a common design to rob and that they were both fully aware that a 9 mm.
    firearm was to be used in the robbery, it can hardly be said that they did not
    foresee the risk of really serious bodily injury resulting in the course of the robbery.
    1 [1975] 62 Cr. App. R. 2129
    See: Chan Wing-siu et al vs. The Queen2 and Alexis Prince et al vs. The
    State3. The Judge’s directions, quoted at paragraph 10 above, were adequate for
    this purpose. Later in the summation, the Judge dealt with the case against Fahie
    and Matthew separately. The Judge reminded the jury of the contents of the
    Appellants’ caution statements and instructed the jury that mere presence at the
    scene was not enough to prove guilt.
    [20] The question as to the requisite mental element for the conviction of secondary
    parties in cases where there is a joint criminal enterprise was discussed recently in
    the House of Lords case of R. vs. Powell et al4. All the members of the House
    agreed with the leading speech delivered by Lord Hutton who carried out a
    thorough review of all the authorities. Lord Hutton concluded that participation in a
    joint criminal enterprise with foresight or contemplation of an act as a possible
    incident of that enterprise is sufficient to impose criminal liability for that act carried
    out by another participant in the enterprise. This remained the law in cases where
    the crime charged was murder and in spite of the fact that the law requires of the
    principal party a specific intent to kill or cause really serious harm.
    [21] The jury in this case needed to determine that Fahie and Matthew had
    contemplated that in carrying out the robbery, death or really serious harm could
    possibly have resulted. From their verdict, the jury must have been so convinced.
    As was said by Sir Robin Cooke in Chan Wing-siu, it would indeed be rare for a
    party to know that a lethal weapon is to be carried along on a criminal expedition
    and not contemplate the possibility of the use of that weapon resulting in at least
    really serious harm.
    [22] Jurisprudential difficulties have been raised regarding the perceived anomaly that
    results from the law as posited above. See the remarks of Steyn, L.J. in Powell.
    The intent required by the law of the secondary party to a murder differs from the
    2 (1984) 3 A.E.R. 877
    3 Dominica Crim. App. No. 12 of 1992 4 (1998) 1 Cr. App. R. 261, H.L. (E).10
    specific intent that is essential for the principal offender. To a great extent this
    anomaly is framed within the context of the varying levels of culpability of the
    secondary and the primary parties allied with the mandatory nature of the penalty
    for murder in England. Now that, in this jurisdiction, the automatic death penalty for
    murder has been ruled unconstitutional and Judges currently retain a measure of
    flexibility in the sentencing of those convicted of murder, it is open to trial Judges
    to ameliorate the consequences of the perceived anomaly by imposing sentences
    that are appropriate to each offender. As Lord Hutton observed however, there are
    very good public policy reasons for maintaining this dichotomy in the requisite
    mens rea.
    [23] Counsel also submitted that the trial Judge’s directions on the possible verdict of
    manslaughter were deficient; that the Judge erred in failing to direct the jury on the
    issue of manslaughter and the real possibility that the Appellants had no mens rea
    in relation to the crime of manslaughter.
    [24] The Judge directed the jury in these terms:
    “In relation to manslaughter, the common intention means either that the
    defendants each intended to cause some injury but not to kill or cause
    really serious injury or that the defendant whose case you are considering
    knew that there was a real possibility that one or more of his codefendants
    would cause some injury to the victim but would not kill or
    cause really serious injury and nevertheless took part in the enterprise”.
    I find nothing wrong in that direction. I would therefore dismiss the appeals of both
    Fahie and Matthew.
    Evanson Mitcham
    [25] I now turn to examine the position of Evanson Mitcham, the No. 1 accused at the
    trial. The learned trial Judge, Baptiste, J., imposed the death sentence upon him.
    The Judge felt sure that Mitcham was the masked man who fired the fatal shot.
    What was the admissible evidence against Mitcham?11
    [26] The case against Mitcham was based entirely on circumstantial evidence. Very
    shortly before Ms. Fleming saw the arrival of the three masked men, Kayane Lake
    and another man were in the company of the three Appellants. Lake testified that
    Fahie went into a yard and came out with something wrapped in a red cloth. Fahie
    gave the thing to Matthew. Matthew put it in his (Matthew’s) pants. The five men
    then proceeded to Dorset Park Court. Mitcham went off and returned with a plastic
    bag. From the bag, Mitcham took out and distributed, each to Fahie and Matthew,
    a long sleeve shirt. Mitcham then took out a black tam and a small scissors. He cut
    eye holes and fashioned a mask from the tam. Matthew unfolded the thing in the
    red cloth. It was a gun. He checked the gun and replaced it in his pants. The three
    Appellants then went off together. As they were going off, Mitcham turned to Lake
    and the other man that had been left behind. He pointed his finger at them and
    warned them that they had not seen him. The fatal shooting took place not far
    away, very shortly after the three Appellants left Lake.
    [27] Arlene Fleming did not recognize any of the three men who robbed her. She
    testified that the one with the gun had very dark skin. He was wearing a long
    sleeve plaid shirt, mostly red in colour and a long jeans pants, beige or khaki in
    colour. John Foster also witnessed the shooting. His evidence was that he was
    there speaking with Ms. Fleming and the deceased when the three masked men
    suddenly appeared. He saw the one with the gun in an altercation with Ms.
    Fleming. He began backing away but he kept his eyes on the gun man. He saw
    the gun man shoot the deceased. He then ran away faster than he had ever run in
    his life. He testified that the gun man was wearing a dark jean pants and a plaid
    shirt.
    [28] Around the time of the fatal shooting, Jacqueline Hendrickson saw three men
    “running up the road from Wendell Lawrence’s house”, a distance of about 600
    yards from the shooting. The place where she saw the three men was consistent
    with the route taken by Fahie and Matthew in their respective statements. Ms. 12
    Hendrickson recognised one of the three men running. It was Mitcham. She said
    that he had on a jean and a dark blue shirt.
    [29] Counsel for Mitcham submitted that there was no evidence against his client. It
    was said that the statements of Fahie and Matthew were inadmissible hearsay
    against Mitcham and that all the items discovered as a consequence of Fahie’s
    statement were equally inadmissible as against Mitcham because those
    discoveries could only make sense, regarding the case against Mitcham, if one
    first had regard to the hearsay material linking the items to the crime.
    [30] The learned DPP’s response to this was that there was powerful circumstantial
    evidence against Mitcham that was independent of the hearsay material. This
    circumstantial evidence lay principally in “the factor of three”. Lake’s testimony
    clearly implicated Mitcham in a conspiracy to commit a robbery in which a gun and
    masks were to be used. The eye witnesses to the murder testified that the crime
    was committed by three masked men. Three men were seen running shortly after
    the shot was fired. One of these was positively identified as Mitcham. Fahie and
    Matthew admitted that they formed part of the trio, it was open to the jury to infer
    on the admissible evidence that Mitcham was the third man. In my view it cannot
    be said that there was insufficient circumstantial evidence against Mitcham. His
    appeal accordingly fails.13
    The Appeal Against Sentence
    [31] I have read and fully agree with the guidelines put forward and other views
    contained in the judgment of the learned Chief Justice and in all the circumstances
    I too agree that this matter should be remitted to the trial Judge so that, as far as is
    practicable, the learned Chief Justice’s views and guidelines can be adopted.
    Adrian D. Saunders
    Justice of Appeal
    I concur. Albert Redhead
    Justice of Appeal

    /evanson-mitcham-et-al-v-director-public-prosecutions/
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