Deterville v The Queen
| Jurisdiction | St Lucia |
| Judge | Barrow, J. |
| Judgment Date | 09 October 2006 |
| Neutral Citation | LC 2006 CA 3 |
| Date | 09 October 2006 |
| Court | Court of Appeal (Saint Lucia) |
| Docket Number | Criminal Appeal No.5 of 2003 |
Court of Appeal
Gordon, J.A; Barrow, J.A; Rawlins, J.A.
Criminal Appeal No.5 of 2003
Mr. Callistus Vern Gill for the appellant.
Ms. Victoria Charles-Clarke, Director of Public Prosecutions for the respondent.
Criminal Law - Appeal against conviction — Manslaughter — No misdirection on alibi and identification evidence — Unsatisfactory direction on intent — Conviction and sentence for manslaughter substituted.
Barrow, J.A.: The valor of the late Mr. Linus Pamphille was not restrained by thoughts of discretion. At about 2:00 a.m. in the morning of Tuesday 3rd October 2000 he and his wife heard the sound of intruders in his shop, above which he lived, and he went to investigate. [Credit is given to the prosecution for the very helpful summary of the facts contained in their written submissions which I paraphrase.] He took a small cutlass with him.
The intruders were still inside the shop when he went down. While Linus Pamphille was outside the door of the shop the intruders tried to open the door by pulling it open. The door opened inwards. Linus Pamphille resisted this effort by holding on to the door and pulling it to keep it closed. Linus Pamphille also used his cutlass to strike the hands that were pulling the door.
Both Mr. Pamphille and his wife, who had remained upstairs, called out for help. Among the persons who responded and came to the scene were Linus Pamphille's brother, George Pamphille, and a neighbour, Doris Matthew. When these two responders arrived at the front of the shop they saw Linus Pamphille with his cutlass striking at the hands that were pulling the door.
After a while the door was pulled open and one man ran out. George Pamphille pursued him and struck him with a piece of wood. Doris Matthew recognized the man who ran out as one “Peter”.
Then Linus Pamphille went inside. By this time the wife, also named Doris, had come down and was also outside the shop. The wife, George and the neighbour all testified that they heard the sound of “wrestling” coming from inside the shop but they could not see inside the shop. After the deceased had been inside the shop for some five or ten minutes a second man emerged. He was carrying in his hand the cutlass that Linus Pamphille had taken into the shop. The witnesses later identified that man as the appellant. All three eyewitnesses testified that outside was well lit: there was a light on the front of the shop and one on the side of the shop as well as a streetlight across the road from the shop.
George Pamphille said the accused ran past him. This witness said he was standing about 8 feet away from where the accused passed and saw his whole body and face clearly. The witness said he saw the accused for about 2 minutes.
Doris Matthew said the accused passed about 5 feet away from her. She said she saw his face clearly and there was nothing that obstructed her view. She said she observed him for about 2 to 3 seconds.
The wife said the accused passed about 2 feet from her. She said she saw him clearly. She testified that she had seen him earlier that day when he came to the shop with another man.
After the second intruder ran off the three went into the shop and saw Linus Pamphille lying on the floor, unable to get up. The wife testified that “His legs were mashed up” and “he looked very bad”. The thieves had left behind two crowbars and a broken wooden stool. The police later took these items.
George Pamphille testified that while he was on the way with his injured brother to the hospital he spotted the accused near a garbage dump. George testified that the accused was wearing the same clothes he had been wearing when George saw the accused earlier.
At the hospital, after a nurse had attended to Linus Pamphille the accused arrived and sought treatment for his hand. George Pamphille testified that he exclaimed, in the presence and hearing of the accused, “look the same man who got wounded on his finger”. At that time police officers were present at the hospital. The police arrested the accused and took him away. No identification parade was ever held.
Linus Pamphille was discharged from the hospital after about five days, with casts on both legs. On 11th October 2000 he was readmitted and he died later the same day. The pathologist testified that the cause of death was pulmonary embolism secondary to clots forming in the veins in the leg. The injuries to the legs and the resulting immobilization of the legs caused the clots, which traveled to the lung. The pathologist also testified that a contributing cause of death was “sepsis, as a result of aspiration pneumonia and the right knee wound infection”. The doctor stated that the injuries were consistent with blunt force trauma to the front of both legs.
Although the appellant remained silent at the trial he had given a caution statement to the police that explained that he had got a cut on his finger when four men attacked him that night and one of the men chopped him on his finger while he, the accused, was holding a stick that he, the accused, had taken away from one of his attackers. In that statement the accused raised the defence of alibi. The prosecution brought the alleged alibi witness to testify that the appellant was not with her, as he had stated.
Against the jury's verdict of guilty of murder the appellant relied on three grounds of appeal. The appellant submitted that the judge misdirected the jury on the issues of identification, intention and alibi.
In the course of oral argument the Court indicated that it did not wish to hear the Director on the issue of alibi because it remained clear, after hearing counsel for the appellant, that there was no flaw in the judge's direction on alibi. The scant submission of counsel on the alibi direction was that the judge “failed to instruct the jury that it was still the duty of the Prosecution to make sure of the guilt of the accused.” The unarticulated premise of the submission was the well established proposition of law that a jury must be told that even if they are satisfied that an accused has given a false alibi, and they have therefore rejected the alibi, the jury must not conclude, because the defence of alibi has failed, that the accused is guilty but they must go back and consider the prosecution's case to see whether the prosecution's case satisfies them of the guilt of the accused. [See R v. Lesley [ 1994] E.W.J. No. 820 at paragraph 4]
In the instant case such a direction was virtually the last thing the judge told the jury. She told them:
“But even if you come to that conclusion [that the alibi was a lie], remember the directions I gave you about the alibi, the fact that he is not speaking the truth is not the end of it. Even if you find that he wasn't speaking the truth in the caution statement, you cannot convict him for just that reason. You have to go back and look at the rest of the prosecution's case, because they must prove the case so that you feel sure.”
In my view there was no misdirection on alibi and I would reject that ground of appeal.
The misdirection on identification that counsel for the appellant advanced was that the judge failed to give the particular attention that was merited, in directing the jury, to the discrepancies among the three eyewitnesses and to the inconsistencies in their evidence. Counsel referred only passingly to R v. Turnbull [[1977] QB 224] and I think he was quite right to do so because the judge gave a very clear Turnbull warning on the need for great care in acting on evidence of identification because of the ever present risk of mistaken identity.
Counsel relied explicitly on Langford and Freeman v. The State of Dominica [(2005) 66 W.I.R. 194] to argue that the judge paid insufficient regard to the evidence of identification by not warning the jury “about the absence of evidence about the identification of the appellant by George Pamphille at the Hospital.” Counsel also argued that the judge did not give the issue of the appellant's attire the kind of attention that it warranted. Counsel submitted that the judge “merely highlights the inconsistencies and discrepancies but [does] not address it (sic) properly in directing the jury on identification and the care to be taken by them. The specific direction had to be dealt with step by step and the evidence relating to each aspect of the direction addressed at that time. Not a separate time. There needs to be sufficient clarity in an ordered fashion.”
In his written submissions the only instance that counsel gave to support the general criticism was that the judge dealt with the dock identification of the appellant not at the point in her summing up when she dealt with the evidence of the witnesses' observation of the appellant on the scene, but at a later point in her summing up. The only addition in oral argument to that instance was counsel's complaint that the judge did not refer to the length of time and distance for which and from which George Pamphille observed the appellant at the dump and at the hospital.
The judge began her directions on identification by telling the jury to pay close attention to what she was going to tell them on the subject because the prosecution's case “stands or falls on the correctness” of the identification of the three eyewitnesses. She then told the jury to approach that evidence with the utmost caution and told them of the reason for that caution. The judge told the jury that it was possible for the three eyewitnesses to be all mistaken. Therefore, she continued, they must “examine carefully how long each witness who identified the accused knew him for.” The evidence was that Doris Matthew and George Pamphille were seeing the accused for the first time; and of Doris Matthew the judge said “her...
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