Rolle v R
| Jurisdiction | Bahamas |
| Judge | Allen, P.,Blackman, J.A.,Newman, J.A. |
| Judgment Date | 27 June 2011 |
| Neutral Citation | BS 2011 CA 54 |
| Docket Number | SCCrApp No. 153 of 2010 |
| Court | Court of Appeal (Bahamas) |
| Date | 27 June 2011 |
Court of Appeal
Allen, P.; Blackman, J.A.; Newman, J.A.
SCCrApp No. 153 of 2010
Mr. Murrio Ducille with Ms. Krista Smith for the appellant.
Mr. Franklyn Williams, Ms. Darnelle Dorsette and Ms. Kristan Stubbs for the respondent.
Criminal Law - Murder — Appeal against conviction — Directions to the jury — Sentence.
Donnell Rolle (“the appellant”) was tried for the murder of his wife Gayle Rolle (“the deceased”); the attempted murder of his daughter and step-daughter, Davinia Rolle and Emelie Campbell; and the arson of theft home, before Longley J. (as he then was) and a jury in the Supreme Court at Freeport Grand Bahama. He was convicted on 6 July, 2010, of the manslaughter of his wife and the arson of their home, but acquitted of the attempted murder of the girls.
The appellant was sentenced to fifteen years' imprisonment for manslaughter and three years' imprisonment for arson, to run concurrently with effect from the date of his conviction.
He appeals to this court against his conviction and sentence on the following amended grounds:
“1. The learned judge erred in law when he ruled the appellant had a case to answer.
2. The learned judge erred in law when he failed to adequately put the defence of the appellant to the jury.
3. The learned judge erred in law when he failed to adequately direct the jury how to treat inconsistencies/discrepancies in the evidence given by the witness EMELIE CAMPBELL.
4. The sentence is manifestly harsh and excessive.
5. The verdict is unreasonable and cannot be supported having regard to the evidence.
6. The verdict is unsafe and unsatisfactory having regard the circumstances of the case.”
The argument by counsel for the appellant on the first ground was that the prosecution failed to prove the elements of the offence of murder, and/or arson, in as much as there was no evidence that the appellant intended to kill the deceased or to commit arson when he lit the mattress.
Counsel contended, in respect of the second ground, that the learned judge misdirected the jury in placing the burden on the appellant to show he did not believe his actions would cause death which deprived him of the opportunity of a not guilty verdict on manslaughter.
Counsel conceded ground three, and in respect of ground four, he submitted that the sentence of fifteen years was excessive in light of the circumstances of the offence.
Grounds five and six were argued together, and in that regard, counsel contended that even if he failed on the other grounds, the evidence at its highest supported only the offence of manslaughter by negligence.
Counsel for the respondent defended the directions of the learned judge on the law and his analysis of the evidence, and in particular, his direction on the element of intent required for the offence of murder and for that of manslaughter pursuant to sections 12(3), 289 and 290 of the Penal Code. He argued that the judge's direction was consistent with the law and that in the circumstances, the conviction for manslaughter should be affirmed and the sentence upheld.
The appellant did not dispute that on Saturday, July 8, 2006, he deliberately set fire to a mattress in a bedroom occupied by the deceased, his infant daughter and his step-daughter. According to the evidence of Emelie Campbell, on which the prosecution mainly depended, the appellant entered the bedroom and went to the side of the bed where the deceased was lying, woke her up and told her they needed to talk. She said the deceased told the appellant she had to get up for work at 7 a.m. and they could talk later.
Again, according to Emelie, the appellant told the deceased to get up and after she did so, the appellant asked her if she didn't want to argue. He then left the room, returning with a lighted paper towel and dropped it on the bed. She recounted that everything exploded, that she was lying in the bed and her mother was on the right side of the bed. She said her mother told her to take her sister out of the bedroom, and she went into the bathroom in the narrow hallway ten feet away from the bedroom.
Emelie further told the jury that she saw her mother and the appellant fighting in the hallway while the mattress was on fire and overheard her telling the appellant to take the burning mattress out of the house. Then the deceased came out of the bedroom and the appellant let go of the mattress. Emelie said she overheard the appellant tell the deceased to move the mattress and saw him push her into the fire.
This witness also testified that she saw the deceased's body on fire and when she next saw her, she was gasping for breath. She also said that the walls in the bedroom were on fire.
The medical evidence showed that the deceased sustained extensive second degree burns to her body and died some ten (10) days after the incident.
The appellant, according to Corporal 195 McSweeney, was arrested soon after the incident and admitted his involvement in the deceased's death, but said he did not mean to hurt his wife.
At trial, the appellant's defence was that he had been out drinking before the incident and was intoxicated. In his unsworn statement, the appellant explained that when he set fire to the mattress, it was a prank, which unfortunately ended in the death of his wife.
With respect to the first ground of appeal, Lord Lane, C.J., in the course of his judgment in Galbraith [1981] 1 W.L.R. 1039, at page 1042, paragraphs B-D, admirably guided judges faced with deciding whether there was evidence fit to be left for the consideration of the jury. He said:
“How then should the judge approach a submission of no case? (1) If there is no evidence that the crime has been committed by the defendant, there is no difficulty. The judge will of course stop the case. (2) The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence. (a) Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict on it, it is his duty, upon a submission being made, to stop the case. (b) Where however its strength or weakness depends on the view to be taken of a witness's reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury…”
In my view the judge was correct in leaving the case for the consideration of the jury under limb 2 (b) of Galbraith (above). There was evidence, if accepted, that he intentionally lit the mattress in a bedroom in a home in which he, his wife and daughters lived, from which the jury might properly determine that he intended to burn down the house.
Moreover, there was evidence of his pushing his wife into the burning mattress, and the medical evidence, from which the jury might reasonably infer an intention to kill. In so far as the first ground of appeal is concerned then, I would dismiss it.
As to the second ground of appeal and the complaint that the learned judge misdirected the jury in summing-up the offences of murder and manslaughter, with particular reference to the element of ‘intention’, he defined ‘murder’ in accordance with sections 290 and 291 of the Penal Code and summed up the prosecution's evidence relative to each element of the offence (transcript: page 7; lines 8-32 and pages 8-11; lines 1-32 and page 12: lines 1-24). With respect to the element of intention, he specifically directed them on section 12(3) and said the following:
“Fourthly, the prosecution must prove that the defendant intended to kill. Now, intention is a difficult element to prove, as it is difficult to prove what is in a person's mind at a particular time. This is because very rarely do persons undertake unlawful actions after explaining what they are going to do. What usually happens is that they do or say certain things during the course of those actions from which you may draw certain inferences or presume their intention. The law acknowledges this and provides for this in Section 12(3) of the Penal Code. And that section provides, so far as relevant, as follows:
‘If a person does an act of such a kind or in such a manner as that if he used reasonable caution and observation, it would appear to him that the act would probably cause or contribute to cause an event, He shall be presumed to have intended to cause that event until it is shown that he believed that the act would probably not cause or contribute to cause the event.’ (My emphasis)
The case for the Prosecution, as I understand it, and you heard Ms. Dorsette who addressed you yesterday, is that when the Defendant set fire to the mattress, he intended to kill his family, not only his wife, but the two little children as well, one of whom was his natural child. The Prosecution's case is that if the Accused had used reasonable caution and observation when he set fire to the mattress and allegedly pushed his wife into the burning mattress, it would have appeared to him that that act would probably cause or contribute to cause the death by fire of the wife and I add parenthetically the two children. Unless it is shown that he believed that the act would probably not cause or contribute to cause certain events. in other words, he must be taken to have intended the natural and probable consequence of his act, until it is shown that he did not believe that it would cause or contribute to cause the event that is the death of mrs. rolle. so unless the person can show that he believed that his act would...
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