Raphael v R

• Jurisdiction: Bahamas
• Judge: Allen, P.,Isaacs, J.A.,Jones, J.A.
• Judgment Date: 13 December 2016
• Neutral Citation: BS 2016 CA 141
• Docket Number: SCCrim App No. 317 of 2014
• Court: Court of Appeal (Bahamas)
• Date: 13 December 2016

Court of Appeal

Allen, P.; Isaacs, J.A.; Jones, J.A.

SCCrim App No. 317 of 2014

Raphael

and

Regina

Appearances:

Mr. Roberto Reckley, counsel for the appellant

Ms. Linda Evans with Ms. Erica Duncombe counsel for the respondent

Attorney General v. Quincy Todd SCCrim. Ap . 56 mentioned

Bratty v. AG of Northern Ireland [1963] AC 388 applied

Hill v. Baxter (1958) 1QB 277 mentioned

Larry Raymond Jones, Patrick Alexis Jervis, & Chad Goodman SCCr. App. Nos. 12, 18, 19 of 2007 mentioned

Maxo Tido v. Regina SCCr.App. No 296 mentioned

R v. Marr (1989) 90 Cr AppR 154 applied

R v. Gumbs (1927) 19 Cr. App. R. 94 mentioned

R v. Stone [1999] 2 SCR 290 applied

R. Stripp (1978) 69 Cr. App. R. 318 mentioned

Russell v. H.M. Advocate 1946 S.C.(J.) 37 mentioned

Arthurton v. Queen [2004] UKPC 25 mentioned

Mitcham v. Queen [2009] UKPC 5 mentioned

R v. Docherty [1999] 1 Cr App R 274 mentioned

R v. Rowton [1865] Le & Ca 520 mentioned

R v. Sims [1946] KB 531 mentioned

R v. Taylor and Evans SCCrApp No. 70 and 71 of 2013 mentioned

Reid (Dennis) v. The Queen [1978] AC 343 followed

Criminal practice and procedure - Murder — Appeal against conviction and sentencing — Whether the trial judge erred in not giving the jury a direction on the lack of specific intent required for the crime of murder — Appellant had testified he was in a trance — No evidence led before the trial judge as to the defence of automatism — Whether the trail judge failed to properly direct the jury on the appellant's defence — Defendant had not put the evidence sufficient to raise the defence he wished to be left for consideration by the jury — Whether the sentence was unduly harsh and severe — Aggravating factors outweighed the mitigating factors — Murder involved persons in intimate relationships — Minority view: Hearsay evidence — Whether evidence from the prosecution witnesses was hearsay evidence pursuant to Section 39 (2)(b) of the Evidence Act — Prejudicial evidence of bad character — Majority ruled that the appeal should be dismissed against conviction and sentence — Sentence of 45 years adjusted to take into account the time spent in custody pending trial — Section 291 (1)(b) of the Penal Code — Sections 29; 39 (2)(b) and 171 (f) of the Evidence Act Chapter 65.

Held: -appeal dismissed, conviction and sentence affirmed (Jones, JA dissenting)

per Allen, P

The inadmissible evidence complained of by Counsel was articulated as evidence of ‘opinion, hearsay, irrelevant and prejudicial’. The only item of evidence impugned under this head was that of Kirby St Brave, when he said that the relationship between the appellant and the deceased was ‘abusive’. In this regard, while that is a matter of opinion which the brother could not ordinarily give; that evidence was adduced in the context of his having taken his sister to the police station to make a complaint against the appellant, which evidence was admissible. In any event, the nature of the appellant's relationship with the deceased was the basis for his self defence claim. In the circumstances, the view expressed by Kirby St Brave that the relationship was abusive, was not hearsay in as much as it was evidence relating to the appellant's state of mind and motive, nor was it, in my view irrelevant and prejudicial to the appellant.

An issue such as the defence of automatism, must be raised in a way which makes it fit to be considered by the jury. The crucial question in cases where automatism is raised, is whether, on the evidence as a whole, there is any evidence which would put in issue the defence of automatism which, if accepted as being true or possibly true, would have resulted in the defendant's acquittal. In this case, neither the cross-examination of the prosecution witnesses, nor the evidence of the appellant appeared to be directed at laying any foundation for the defence of automatism.

Moreover, there was no medical evidence called to support the appellant's contention that he was automatous at the time of the killing. Significantly, the contention is only now being raised before this Court by Counsel and, in my view, there was no evidence before the learned trial judge on which she could reasonably have concluded that the issue was raised. Simply saying he was in a trance; that it was like he was sleeping ; and that he did not remember what happened, was not enough to raise the issue, and to require the judge to leave the defence of automatism for the consideration of the jury. We do not subscribe to the notion that because the murder involves persons in intimate relationships that it is somehow less serious, and that that factor should be considered a mitigating factor in favour of the appellant. Were we to give our blessing to such a principle, it would encourage and condone violence, particularly violence against women as physically weaker vessels. I wish therefore to disabuse Counsel, and indeed Courts of this view, and to encourage sentencing courts to look at all of the circumstances of the case regardless of the relationship between the parties; and determine what the appropriate sentence in the particular circumstances is.

An appellate court is loath to interfere with the exercise of a sentencing discretion by a lower court on the ground that it might have passed a different sentence; and further, that such a court should only revise a sentence where there is some error in principle made by the sentencing judge. Having considered the learned judge's reasons for the imposition of the sentence of 45 years in this case, we are of the view that in all the circumstances, it is a sentence which is reasonable and appropriate. We detect no wrong principles of law being applied; no failure to take into account matters she ought to take into account, and no consideration of matters which she ought not to take into account in arriving at the appropriate sentence.

per Jones, JA

In my view, the statement of Kirby St Brave regarding abuse and complaints by the deceased to the police is irrelevant to the state of mind and/or motive of the appellant, which was a fact in issue. I disagree with the view that the appellant raised the issue of an abusive relationship as the basis for his self-defence claim. From the evidence at trial the appellant's claim that he acted in self-defence only related to the day of the incident where, on his account, the deceased was in fact the aggressor. Consequently, any reference either by the appellant or Christine Janvier about incidents of abuse by the appellant prior to the incident are not relevant to the appellant's claim of self-defence at the trial and therefore cannot be subject to section 39(2)(b) of the Evidence Act.

At common-law the prosecution may not elicit evidence of the accused's bad character unless he adduces evidence of his good character either by giving evidence by himself or through witnesses. Section 29 of the Evidence Act Chapter 65 puts that rule in statutory form. Before us counsel for the respondent conceded that the evidence of Kirby St Brave regarding his sister's complaint to the police was prejudicial but she says it was accidentally elicited. On the facts of this case, there was no objection by counsel for the appellant when the evidence was first led. Nor did the trial judge direct the jury at the time when the prejudicial evidence was first elicited or during the summing up. Even if one were to accept that the judge did not wish to highlight the matter before the jury that was not the end. Counsel for the Crown, with the approval of the judge proceeded to cross-examine the appellant based on the inadmissible prejudicial evidence of Kirby St Brave.

In my view, these deficiencies taken together with the inadmissible prejudicial evidence given by the deceased's brother Kirby St Brave made the trial unfair and the verdict unsafe and unsatisfactory. These inadequacies were further compounded by the failure of the trial judge to properly exercise her discretion to discharge the jury or to give directions about the relevance and use of the inadmissible prejudicial evidence elicited. Furthermore, the judge below failed to consider whether the prejudicial effect of the inadmissible evidence exceeded its probative value and whether it undermined the appellant's credibility in advancing his case that he acted in self-defence

From the evidence in this case, the appellant admitted killing the deceased, but raised self-defence and non-insane automatism. Although, the appellant's claim on non-insane automatism was thin, his claim in relation to self-defence was supported by a serious injury to his neck, which he says was caused by an attack coming from the deceased. In the absence of the impugned evidence it cannot be said that the appellant's defence must fail and that a properly directed jury would inevitably have convicted the appellant.

1 On 26 September 2014, the appellant was convicted by a jury, in a trial in the Supreme Court before Charles J, of the 2012 murder of Kidlie St Brave. He was subsequently sentenced, on 8 December 2014, to imprisonment for 45 years. This sentence was reduced to 41 years on account of the time he spent awaiting trial.

2 The facts before the jury were that the appellant and Kidlie St Brave (the deceased), were involved in an intimate relationship which the appellant described as “on and off”. Indeed, according to the deceased's best friend, Christine Janvier, the couple broke up in November 2011; and again between May 2012 and the 27 July 2012. During this latter period the appellant attempted to reconcile with the deceased. Up to the morning of 27 July 2012, the deceased resisted the appellant's advances, but on that morning relented and went with him for breakfast, returned to her house at noon, and again left with him at 12.30 pm. She was killed by him sometime that afternoon or...