Christopher Butler v R
| Jurisdiction | Bahamas |
| Judge | Sir Hartman Longley, P |
| Judgment Date | 11 January 2019 |
| Neutral Citation | BS 2019 CA 004 |
| Docket Number | SCCrApp. No. 273 of 2016 |
| Court | Court of Appeal (Bahamas) |
| Date | 11 January 2019 |
IN THE COURT OF APPEAL
The Honourable Sir Hartman Longley, P
The Honourable Sir Michael Barnett, JA (Actg.)
The Honourable Mr. Justice Evans, JA (Actg.)
SCCrApp. No. 273 of 2016
Mr. Stanley Rolle, Counsel for the Appellant
Ms. Raquel Whyms, Counsel for the Respondent
Kofhe Goodman v R (2016) 78 WIR 27 mentioned
Lashley and another v Singh [2014] CCJ 11 (AJ) considered
R v Farooqi and others [2013] EWCA 1649 applied
Criminal appeal — Murder — Misconduct of defence counsel — Fairness of trial — Lurking doubt
On the 4 th June, 2013 Rapeson Jules was shot multiple times about his body; he died on the scene. The appellant was charged with and convicted of his murder. Following his conviction he was sentenced to 41 years and 8 months imprisonment. He now appeals his conviction on the ground, inter alia, that the conduct of his counsel at trial adversely affected the fairness of his trial.
Held: appeal allowed; conviction set aside; case remitted to the Supreme Court for retrial.
Having reviewed the transcripts it is apparent that defence counsel created an atmosphere in the court that would have caused the jury to look adversely upon him and his client's case.
When circumstances like this arise in the course of a trial it is imperative that the judge make clear to the jury in his summation and if not before that they should not hold it against the accused when considering the question of his guilt or innocence that his counsel was rude, disrespectful and antagonistic toward the judge, the jury and the witnesses for the crown as well as disrespectful of crown counsel. The judge in this case did not do this. He did, on several occasions, in the absence of the jury, warn counsel about his behavior but that in the Court's view was not enough to undo the damage done by the behaviors and misconduct of counsel. Especially given at one point that the jury had, it seems, come to the view that the appellant was rude.
Excerpts of the transcripts demonstrate unequivocally that counsel's behavior caught the attention of the jury to the point where the jury was motivated to make the complaint to the judge that counsel was rude.
Without, therefore, cleansing the mind of the jurors of this negativity, the infection may have extended to the deliberation of the jury to the point where a fair trial may have been imperiled. In that atmosphere it was unlikely that doubts would have been resolved to the benefit of the appellant. It was therefore crucial that the judge take further steps to advise the jury to separate the conduct of counsel from their consideration of the issues.
In the circumstances the appearance that the appellant did not have a fair trial due to the misconduct of the appellant cannot be avoided.
Judgment delivered by the Honourable
. On the 4 th June, 2013, just before 4pm, the deceased Rapeson Jules was murdered. He had suffered multiple gunshot wounds from which he died.
. There were no eyewitnesses to the shooting. The appellant was charged with his murder.
. Following a trial before a Hilton, J. and a jury the appellant was found guilty of Jules’ murder and sentenced to 45 years imprisonment; that sentence was reduced to 41 years and 8 months to give effect to the time spent awaiting trial.
. The case against the appellant was purely circumstantial. It consisted of the following elements. Just prior to the shooting, the appellant was identified by one prosecution witnesses as being in the vicinity where the crime was committed while in a CR-V motor vehicle. That witness gave detailed evidence of the movement of the deceased and the appellant around the time of the incident. Later the appellant was seen in chase of the deceased, shortly after which gun shots were heard. The deceased died of gunshot wounds. When the police arrived on the scene they recovered a number of spent cartridges and fired bullets from the scene. Also, the pathologist recovered two fired bullets from the clothing of the deceased. These items were subjected to forensic analysis. The appellant was arrested and at the time of his arrest on the 12 th June, 2013, a firearm containing five live rounds of ammunition were taken from him by Inspector Johnson. ASP Thompson determined that the fired bullets and the shots taken from the clothing of the deceased that caused his death were all fired by the firearm found on the appellant when he was arrested. Also, at the time of his arrest, he had the keys to the CR-V which was in police custody and which fitted the description of the vehicle identified by prosecution witness Jean as the vehicle the appellant was seen in shortly before the murder. Additionally, the appellant was being electronically monitored at the time and an ICS report put the appellant in the area of the killing between 3:55p and 3:58 pm on the 4 th June, 2013, clearly placing him on the scene at the time of the shooting.
. The case for the appellant was essentially a denial of the charge. When he was arrested and questioned he was unresponsive. At the trial, he declined to give evidence but called two witnesses one of whom was in the vicinity at the time but claimed she did not see the appellant at the scene.
. It seems there is a time differential in her evidence to suggest that the killing may have occurred around 3pm instead of 4pm. This is a matter of some significance for it would mean that the ICS report was unreliable as it did not place the appellant in the area of the killing at 3pm and so he could not have been the killer if her evidence is reliable.
. This is a matter the judge pointed out to the jury was a matter for their consideration.
. Nevertheless the jury convicted the defendant of murder.
. Numerous grounds have been put forward to attack the verdict.
. However, having regard to the decision to which we have come on the substantive ground of appeal relating to the misconduct of counsel occasioning an unfair trial we do not desire to say very much. The “substantive ground” was framed as follows:
“ Ground 1
In the course of the trial, there was a material illegality or irregularity substantially affecting the merits of the case,
1…
2…
3…
4…
5. The conduct of the case by defense counsel coupled with the behavior of defense counsel towards the Court and the Prosecutrix throughout the course of the trial compromised an acquittal. These words and actions of defense counsel affected the minds of the jury to the extent that the jury declined to hear answer (sic) from witness (sic) and asked the judge to speak to defense counsel.
6…
7…
8…
9. That in the course of the trial inappropriate remarks coupled with various interruptions of the trial by the judge, Counsels (sic) and the Appellant was irregular and collectively weighed against the Appellant in the course of his trial.
Ground 4
That the grounds complained of, when taken together, makes the conviction unsafe or unsatisfactory .
Ground 5
That taken as a whole, the Appellant did not receive a fair trial .
. It is our considered opinion that the misconduct of counsel as laid out in the attached transcripts of the proceedings made it impossible for the appellant to have received a fair trial. The transcript in this case mirrors that of Kofhe Goodman v R (2016) 78 WIR 27 in which the same counsel appeared and in which this Court (differently constituted) ruled that the matter had to be sent back for retrial.
. The authorities are clear. For example in Lashley and another v Singh [2014] CCJ 11 (AJ) the Caribbean Court of Justice held: A conviction could only be set aside on appeal if, in assessing counsel's handling of the case, the court concluded that there had not been a fair trial or the appearance of a fair trial. In arriving at that assessment, the court would consider the impact of any errors of counsel on the outcome of the trial. Even if counsel's ineptitude would not have affected the outcome of the trial, an appellate court might yet consider the ineptitude or misconduct so extreme as to result in a denial of due process and the conviction would be quashed regardless of the guilt or innocence of the accused. However, all counsel were entitled to the utmost latitude in matters such as strategy.
. As noted, in Goodman this Court (differently constituted) also had to address the question of misconduct by counsel in the course of a trial.
. The facts are set out in the headnote of the case:
“On the 23rd September, 2011 an 11-year-old boy went missing on his way to a convenience shop in the neighbourhood of his home in The Bahamas. Five days later his body was found some distance from where he was last seen. The boy's death attracted considerable publicity and evoked public outrage. Press reports speculated that he had been abducted and sexually assaulted. In November 2011 the appellant was arrested for the murder of the boy and, from the time of his arrest until his trial in April 2013, there were constant media reports and commentary on the circumstances surrounding the boy's disappearance, including references to the fact that the appellant had previously been convicted of a sexual offence against a young boy and had also been charged with sexual offences related to another young man. The Minister of National Security announced that the government intended to implement a so-called ‘Marco's Law’ (named after the dead boy), increasing the penalties for child molesters and establishing a sex offenders register. On 29 March 2013, some 10 days before the start of the trial of the appellant, the Minister repeated that pledge and stated that Marco's Law would be introduced at the conclusion of the trial. At trial, the...
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