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