Darlington Noel v The King
| Jurisdiction | St Lucia |
| Judge | Baptiste JA |
| Judgment Date | 06 December 2022 |
| Neutral Citation | LC 2022 CA 9 |
| Docket Number | SLUHCRAP2016/0008 |
| Court | Court of Appeal (Saint Lucia) |
| Year | 2022 |
LC 2022 CA 9
The Hon. Mr. Davidson Kelvin Baptiste Justice of Appeal
The Hon. Mde. Gertel Thom Justice of Appeal
The Hon. Mde. Margaret Price-Findlay Justice of Appeal [Ag.]
SLUHCRAP2016/0008
SLUHCRAP2016/0007
THE EASTERN CARIBBEAN SUPREME COURT
IN THE COURT OF APPEAL
Criminal appeal — Appeal against conviction — Admissibility of documentary evidence — Sections 55 and 56 of the Evidence Act Chapter 4.15 of Saint Lucia — Duty to give reasons — Trial judge's exercise of discretion — Whether the learned judge misdirected himself in law by admitting witness statement which was the only evidence that sought to link appellant with the crime — Whether the learned judge misdirected and confused the jury that although the content of witness statement was not proof of the truth of its content, he went on to direct the jury that it was a cell confession, which provided evidence of his involvement in the killing — Recognition evidence — Whether the learned judge did not exercise his discretion fairly by permitting witness to admit the unacknowledged oral confession of appellant into evidence — Section 136 of the Evidence Act — Whether the learned judge failed to give a section 136 direction in relation to the evidence of witness — Test for a miscarriage of justice — Identification parade — Whether learned judge erred in admitting the evidence of the identification parade at the trial — Whether learned failed to direct the jury that little weight, if any, can be given to the parade — Whether the judge erred in failing to direct the jury on the effect of an unfair identification parade on a dock identification — Appeal against sentence — Whether the sentence of 45 years imposed on the appellants was too excessive and wholly inappropriate.
Darlington Noel (“Noel”) and Jan Isidore (“Isidore”) (together “the appellants”) were found guilty of capital murder for the killing of Anthony Edwards also known as Ali Baba, on 14 th June 2009 at Bruceville, Vieux Fort. A sentence of 45 years imprisonment was imposed on the appellants respectively.
The prosecution in support of its case in the court below, relied on the evidence of several witnesses, including Sherman Mitchell (“Mitchell”), an eyewitness who also participated in an identification parade and positively identified the appellant Noel; Raul Fevriere (“Fevriere”) who had previously met the appellants at the premises he rented at Bruceville, Vieux Fort and who had been told by the appellants that they ‘killed a man’; Chris Eleuthere (“Eleuthere”), deceased, a prisoner in the holding cell at the Vieux Fort Police Station who had been told by Isidore that he killed a man named Ali Baba; and Special Police Constable Bertrus Biscette (“SPC Biscette”), who heard Isidore say to Eleuthere in the holding cell, “a man I killed in Vieux Fort there, that's why I am in the cell”.
The appellants being dissatisfied with their convictions and sentences, appealed to this Court. In relation to Isidore, the main issues for determination before this Court are: (i) whether the learned judge misdirected himself in law by admitting the witness statement of Eleuthere which is the only evidence that sought to link Isidore with the crime; (ii) whether the learned judge misdirected and confused the jury that although the content of Eleuthere's witness statement was not proof of the truth of its content, he went on to direct the jury that it was a cell confession, which provided evidence of his involvement in the killing; (iii) whether the learned judge did not exercise his discretion fairly by permitting SPC Biscette to admit the unacknowledged oral confession of Isidore into evidence, namely: “a man I killed in Vieux Fort, that why I am in the cell”; and (iv) whether the learned judge failed to give a section 136 direction in relation to the evidence of SPC Biscette.
In relation to Noel, the main issues for determination before this Court are: (i) whether the learned judge erred in admitting the evidence of the identification parade at the trial; (ii) whether the learned failed to direct the jury that little weight, if any, can be given to the parade; and (iii) whether the judge erred in failing to direct the jury on the effect of an unfair identification parade on a dock identification.
Both appellants also pray to this Court to determine whether the sentence of 45 years imposed on the appellants was too excessive and wholly inappropriate.
Held: dismissing the appeal of Darlington Noel against his conviction for capital murder and affirming his conviction; dismissing the appeal of Jan Isidore against conviction for capital murder and affirming his conviction; allowing the appeal of Darlington Noel and Jan Isidore against sentence to the extent that the sentence of 45 years imposed on each appellant is set aside and substituted for a sentence of 40 years imprisonment, that:
Jan Isidore's appeal
1. Sections 55 and 56 of the Evidence Act deal with the admissibility of documentary records as an exception to the hearsay rule. Sections 55 (1) and (2)(a)(i) provide for the admission of a statement in a document, in any proceedings, as evidence of any fact stated therein of which direct oral evidence would be admissible. This is conditioned on the document being or forming part of a record compiled by a person acting under a duty, from information supplied by another person, whether the other person was acting under a duty or not, who had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with in that information; and the person who supplied the information is dead. While section 56(5)(b) is an exclusionary provision which provides that the court shall not give leave to admit a statement referred to in section 56(4) unless the court is of the opinion that the statement ought to be admitted in the interest of justice having regard to the likelihood that the defendant will be prejudiced by the admission of the statement in the absence of the person who supplied the information on which the statement is based.
Sections 55 and 56 of the Evidence Act Chapter 4.15 of the Revised Laws of Saint Lucia, 2019 applied.
2. The learned judge in satisfying himself that all the statutory requirements were met for the admission of the statement, would have had to take account of the exclusionary provision contained in section 56(5)(b) of the Evidence Act. The judge was bound to admit all admissible evidence unless its probative value was outweighed by its prejudicial effect. The judge was justified in admitting the statement of the deceased Eleuthere after the voir dire was held and the Crown complied with the statutory requirements for admissibility. In addition, the trial judge was well positioned to weigh the probative value of the evidence on the one hand and its prejudicial effect on the other. Further, the evidence was not the only evidence linking Isidore to the crime. There was independent support for the hearsay statement of Eleuthere, for example, the evidence of SPC Biscette that he heard Isidore say to Eleuthere, “a man I killed in Vieux Fort there, that's why I am in the cell”. The learned judge therefore did not misdirect himself in law by admitting the witness statement of Eleuthere.
Brunetta Festa v The Queen [2001] HCA 72 applied; Pfennig v R [1995] HCA 7 applied.
3. It is settled law that the duty to give reasons is a function of due process and justice. What is required depends on the nature of the case, but a judgment needs to make clear not only to the parties but to an appellate court the judge's reason for his conclusion on the critical issues. The test is: does the losing party know sufficiently why they have lost, and the other party has won? In this case, the learned judge adequately dealt with the matter and in his judgment made it clear to the parties as well as to this Court, his reason for admitting the statement was that all the statutory requirements were met. The admissibility of the statement was a matter provided for by statute. There is therefore no merit in the appellant's complaint.
Flannery v Halifax Estate Agencies Ltd [2001] 1 WLR 377 applied; English v Emery Reimbold & Strick Ltd; DJ & C Withers (Farms) Ltd v Ambic Equipment Ltd; Verrechia (trading as Freightmaster Commercials) v Commissioner of Police of the Metropolis [2002] EWCA Civ 605 applied; Baird v Thurrock Borough Council [2005] EWCA Civ 1499 applied.
4. It could not be lost upon the jury, that the statement of the deceased witness ought not to be treated as a confession and was not a confession. This is borne out in the learned judge's directions that: if the jury accepted the statement, they cannot hold it out to be a confession; that is, they cannot say that Isidore confessed to Eleuthere that he took part in the murder of Ali Baba. The learned judge placed enough emphasis on the fact that that the statement of the deceased witness ought not to be treated as a confession. The overall effect of the direction on the issue was to warn the jury that the utterances did not amount to a confession. In the circumstances, there was no material misdirection to the jury. The treatment of the evidence was fair to the appellant.
5. The learned judge in his judgment exercised his discretion fairly in admitting the oral utterance “a man I killed in Vieux Fort there, that's why I am in the cell”. There is therefore no proper basis for appellate interference.
6. Section 136 (2) of the Evidence Act ordains that where there is a jury, the judge shall, unless there are good reasons for not doing so: (a) warn the jury that the evidence may be unreliable; (b) inform the jury of the matters that may cause it to be unreliable; and (c) warn the jury of the need for caution in determining whether to accept the evidence...
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