Jerome Butler v R

• Jurisdiction: Bahamas
• Judge: Sir Michael Barnett, JA
• Judgment Date: 04 March 2019
• Neutral Citation: BS 2019 CA 23
• Court: Court of Appeal (Bahamas)
• Docket Number: SCCrApp. No.167 of 2017
• Date: 04 March 2019

IN THE COURT OF APPEAL

Before:

The Honourable Madam Justice Crane-Scott, JA

The Honourable Mr. Justice Jones, JA

The Honourable Sir Michael Barnett, JA

SCCrApp. No.167 of 2017

Jerome Butler

Intended Appellant

and

Regina

Intended Respondent

APPEARANCES

Ms. Marianne Cadet, Counsel for the Intended Appellant

Ms. Al-leecia Delancy, Counsel for the Intended Respondent

Adrian Robinson v Regina SCCrApp. No. 93 of 2013 distinguished

Alexia Barr and Deangelo Sands v R SCCrApp. Nos. 286 & 288 of 2016 considered

Geddes v H.M Advocate [2015] HCJAC 10 considered

Henry v The State [1986] 40 WIR 312 considered

R v Martin Dyos et al [1979] Crim L.R. 66 distinguished

Regina v Stanton [2014] EWCA Crim 1695 applied

Smith v H.M Advocate [2016] HCJAC 67 considered

The Attorney-General v Omar Chisholm MCCrApp. No. 303 of 2014 mentioned

Criminal appeal - Extension of time — Prospects of success — Murder — Asphyxia — Probable asphyxia — Types of asphyxia — Circumstantial evidence on a submission of no case to answer — Causation

On 3 February 2015 Faith Butler-Cleare dropped her mother, Princess Butler, home from choir practice at around 8:00pm. At that time Faith left her mother in good health. Mrs. Butler shared a home with her son, the intended appellant, who says that he saw his mother around 11:30pm that evening, before he retired for bed and she appeared to be in good health. The following morning Mrs. Butler was found on her bedroom floor with no signs of life or obvious signs of injury. The intended appellant called his brother, Jenny, who lived next door and his sister, Faith, who came to the house. Faith called a doctor —who happened to be a family friend. He examined the body and pronounced Mrs. Butler dead. As she had no signs of trauma or injuries the doctor signed the death certificate stating that Mrs. Butler died of natural causes.

An autopsy was performed and it was revealed that Mrs. Butler did not die of natural causes but rather of a violent nature.

The intended appellant stated that the doors of the home were all locked, none of the burglar bars were tampered with and nobody else was in the house. His brother Jenny, who resided at the back of the property did not have a key to the home, but would gain entry whenever someone opened the door for him. The intended appellant was charged with and convicted of his mother's murder. He has applied for an extension of time within which to appeal on the primary grounds that the judge failed to uphold his No Case submission on the basis of insufficient evidence and a misdirection by the trial judge to the jury on causation.

Held: Application for extension of time within which to appeal dismissed; conviction and sentence affirmed.

Where there is sufficient evidence on which a court properly directed could convict the trial judge should not withdraw the case from the jury and acquit the defendant. From the evidence of the pathologist there was blunt force trauma to the neck. This suggests the application of unlawful force to the neck of the deceased which she says is one of the reasons pointing to asphyxia as a cause of death. That fact together with the intended appellant being the only other person in the house with the deceased who could have caused that injury was, in the Court's view, a sufficient basis for the trial judge to decline to stop the case and send it to the jury for a determination of the guilt or innocence of the intended appellant.

Regarding the complaint of the judge's misdirection on causation, the medical evidence was that the death was caused by probable asphyxia and the pathologist gave evidence of her findings of significant injuries to the neck consistent with force being applied by the hands of another person. She gave evidence that it was unlikely that the injuries were caused by any seizures or by a fall from the bed of the deceased bed. The non-medical evidence was that Mrs. Butler was alive and well when she was brought home by her daughter at 8:30pm and at 11:30pm when the intended appellant retired to bed. The evidence was that there was no evidence of entry to the home by any third person. When the intended appellant found her on the floor he did not immediately seek medical help or call his sister. The intended appellant took photographs and made a video of his mother in that state on the floor and afterwards called his brother who was slightly incapacitated by being deaf. It was only after he called his brother and they had both cried at their mother's condition that the intended appellant called his sister to advise her of their mother's condition. He never himself called for medical help. It was only after the intended appellant's sister arrived that medical help was sought by calling for an ambulance. It was after the ambulance arrived and the EMS personnel said that their mother had passed away was the doctor / family friend called.

In this case the sole issue was whether Mrs. Butler died of natural causes or whether she died from asphyxiation due to the injuries to her neck. If she died of asphyxiation due to the injuries to her neck were those injuries inflicted by the intended appellant or by someone else.

The Court is satisfied that the summing up adequately contained the necessary elements and having regard to the nature of the evidence the appeal has no prospects of success as there is no doubt about the safety of the conviction. A not guilty verdict would have been perverse. In the circumstances, and having regard to the length of the delay and the reasons for the delay the application to extend the time within which to appeal is dismissed.

Judgment delivered by the Honourable Sir Michael Barnett, JA (Actg.) :

1 . This is a proposed appeal by the intended appellant against his conviction for the murder of his mother.

2 . Mrs. Princess Ruth Butler (“the deceased”) resided alone with the intended appellant. On 3 February 2015, the deceased, was brought home from her usual choir practice sometime after 8:00pm by her daughter Mrs. Faith Butler-Cleare. Faith, at the time she had taken her mother home did not note any injuries on her mother, whom she knew to have been in good health, nor did her mother make any complaints to her. In essence, Faith left her mother in good health on 3 February 2015.

3 . The intended appellant saw his mother around 11:30pm on 3 February 2015 before he retired to bed having secured the house. He said his mother appeared to be in good health.

4 . Around 6:30am on 4 February 2015, the intended appellant awoke and went into his mother's bedroom. He saw his mother on the floor with no signs of life nor any obvious signs of injuries. The intended appellant then made a video of his mother on the floor and after making the video called his brother who lived next door to see their mother. After they cried the appellant then called his sister, Faith, who came to the house. The sister then called Dr. Austin Davis, a physician and family friend, who immediately came and after examining Mrs. Butler pronounced her dead. As he did not see any visible sign of injuries or trauma to her body, Dr. Davis signed the death certificate stating that Mrs. Butler died of natural causes.

5 . The intended appellant stated that the doors of the home were all locked, none of the burglar bars were tampered with and nobody else was in the house. His brother Jenny, who resided at the back of the property did not have a key to the home, but would gain entry whenever someone opened the door for him.

6 . An autopsy was performed by Dr. Caryn Sands. It was discovered that the deceased did not die of natural causes but rather of a violent nature. The intended appellant was charged with murder. The trial lasted seven days and after deliberating for three hours the jury unanimously found the intended appellant guilty of his mother's murder. He was, thereafter, sentenced to 35 years' imprisonment; that sentence was reduced by two years to 33 years to give effect to the time the intended appellant spent awaiting trial.

7 . The appellant was sentenced on 4 May 2017 and his Notice of Appeal and Application for an extension of time within which to appeal were filed on 9 August 2017. It is well known that on an application for an extension of time four factors ought to be considered; they are the length of the delay, the reasons for the delay, the prospects of success and the prejudice, if any, to the respondent. See The Attorney-General v Omar Chisholm MCCrApp. No. 303 of 2014.

8 . In the present case the length of the delay is about three months and the reasons proffered in the intended appellant's affidavit in support of his application for an extension of time filed on 3 October 2018 are:

• “3. That I completed by Notice of Appeal on the 25th July, 2017, 2 months and 21 days after the 21 days had expired. My delay in completing my Notice of Appeal was due to reasons beyond my control, the prison provided me with the Notice of Appeal on the 25th July, 2017 and I immediately completed it. The same was filed in the Registry on the 9th August, 2017…

• 4. That the delay in the court receiving my application for Appeal is not my fault and was (sic) circumstances beyond my control.”

9 . In considering the intended appellant's prospects of success I had regard to the primary grounds of appeal as follows:

• 1. That the learned judge erred in law and fact, to call upon the Appellant to lead a Defence having regard to the fact that the prosecution had not established the elements of the offence

• 2. That the learned judge erred in law and fact misdirected the jury that if they found that the deceased died of natural causes, then they must acquit but if the deceased died of probable asphyxia, the finger might be pointed to the Defendant.

Failure to uphold No Case submission on the basis of insufficient evidence

10 . In summary, the intended...