Vasyli v R; R v Vasyli
| Jurisdiction | Bahamas |
| Judge | Dame Anita Allen, P,Isaacs, JA,Crane-Scott, JA |
| Judgment Date | 25 July 2017 |
| Neutral Citation | BS 2017 CA 73 |
| Docket Number | SCCrApp. No. 255 of 2015 |
| Court | Court of Appeal (Bahamas) |
| Date | 25 July 2017 |
IN THE COURT OF APPEAL
The Honourable Dame Anita Allen, P
The Honourable Mr. Justice Isaacs, JA
The Honourable Ms. Justice Crane-Scott, JA
SCCrApp. No. 255 of 2015
Ms. Clare Montgomery, QC with Mr. Murrio Ducille and Ms. Michaela Ellis, Counsel for the Appellant
Mr. Garvin Gaskin, Director of Public Prosecutions with Mr. Neil Brathwaite, Assistant Director of Public Prosecutions, Mr. Floyd Moxey and Ms. Rosalee Ferguson, Counsel for the Respondent
Andre Birbal v Regina SCCrApp 18 of 2011 mentioned
Balson v. The State [2005] UKPC 6 considered
Barrow v. The State [1998] UKPC 16 mentioned
Bhola v. The State [2006] UKPC 9 mentioned
Campbell v. The Queen [2010] UKPC 26 mentioned
Dennis Reid v. The Queen [1980] A.C. 343 applied
Director of Public Prosecutions v. Selena Varlack [2009] 4 LRC 392 applied
Edmund Gilbert v. The Queen [2006] UKPC 15 mentioned
Eversley Thompson v. The Queen [1998] AC 811 mentioned
France & anor v. The Queen [2012] UKPC 28 applied
Jagdeo Singh v. State of Trinidad and Tobago [2006] 1 WLR 146 mentioned
Jamal Glinton v. Regina, SCCrApp No. 113 of 2012 mentioned
Kenyatta Lewis v. The Attorney General SCCrApp No. 19 of 2014 mentioned
McGreevy v. Director of Public Prosecutions [1973] 1 WLR 276 applied
Navardo Johnson v Regina SCCrim App No. 38 of 2015 mentioned
Nigel Brown v. State of Trinidad and Tobago [2012] UKPC 2 applied
Questions of Law Reserved on Acquittal (No 2 of 1993) (1993) 61 SASR 1 mentioned
R v Aziz [1996] AC 41 mentioned
R v. Galbraith [1981] 1 WLR 1039 applied
R v. Glen Michael Moore, unreported, 20th August 1992 considered
R v. Hunter et al [2015] EWCA 631 distinguished
R v. P [2008] 2 Cr App R 68 mentioned
R v Vye [1993] 3 All ER 241 mentioned
Simmons and Greene v. The Queen [2006] UKPC 19 mentioned
Teeluck v. State of Trinidad and Tobago [2005] 1 WLR 242 applied
Woolmington v. D.P.P. [1935] AC 462 mentioned
Criminal appeal - Murder — Character evidence — No case submission — Circumstantial evidence — Provocation — Unlawful harm — Identification — Video identification — DNA evidence — Confession — Prejudicial effect outweighs probative value — Retrial
Criminal Practice and Procedure - Evidence — Murder — Appeal — No case submission — Circumstantial evidence — Provocation — Unlawful harm — Video identification — DNA evidence — Confession — Retrial — Whether prejudicial effect of evidence outweighed probative value — Appeal allowed.
On the morning of 24 March 2015 Philip Vasyli was found dead in his Old Fort Bay home. There were no signs of forced entry and his wife, the appellant, was reportedly the last person seen with him alive. She was subsequently charged with his murder. The case was based totally on circumstantial evidence.
In addition to there being no signs of forced entry, the appellant told police that the surveillance cameras at her home were not working, but the evidence revealed that they were; the deceased's blood was found on two dresses, a blue one and a multi-coloured one, purportedly belonging to the appellant – one the police found her in, the morning they informed her of her husband's death (the blue one), the other was found in the closet of the room the appellant spent the night in (the multi-coloured one). The appellant claims to have left her husband at home, alive, and spent the night at her daughter's house. She fervently denied killing her husband.
Following a trial before a judge and jury the appellant was convicted of her husband's murder and sentenced to twenty years' imprisonment, less the time she previously spent on remand. She appealed on six grounds.
Held: appeal allowed; case remitted to the Supreme Court for retrial (Crane-Scott, JA dissenting), respondent's cross appeal dismissed
per Allen, P:
Before the jury was evidence that the appellant told the police on one occasion that the clothing she had on that evening was the clothing she wore at her daughter's house (blue nightdress and white robe); and on another occasion told them she wore a pink and white Bahama Handprint outfit that evening. The evidence also was that a multi-coloured dress found in her daughter's closet had the deceased's blood on it, with no explanation as to how the blood got there. Therefore, we have the appellant purporting to have worn two different outfits that evening, none of which include the multicolored dress the Crown suggests she wore and then placed in the closet at the Lilypond; and the evidence of the appellant that the surveillance cameras at the house were not working.
Indeed, if the jury accepted that the recorded footage was from the house; that it was the appellant on the tape; and that she did not have on either a blue night dress and white robe, or a pink and white Bahama Handprint out fit as she told the police, it would be evidence from which the jury could infer that the appellant lied about the clothing she wore that night; and about the functionality of the cameras as well. Notwithstanding the prosecution's evidence in this regard, the defence did not challenge or provide a reason for the alleged lies, and in those circumstances, the jury was possibly left with the impression, as suggested by Counsel for the prosecution, that the appellant lied about her clothing and the functionality of the cameras to conceal the murder of her husband. Consequently, given the reference to it by the Crown in its closing address; and the reliance by them on the lies of the appellant as proof of guilt, there was clearly a danger that the jury might regard the lies of the appellant as probative of her guilt.
These circumstances ought to have attracted a Lucas direction by the learned judge on the significance of lies; and there is no doubt that he was under a duty to so direct the jury. In my view, his failure to do so was an irregularity which substantially affected the merits of the case; and I would remit the matter for retrial to the Supreme Court on the authority of Reid v R (1978) 27 WIR 254. As to the need for a good character direction, I agree with Isaacs JA that such a direction need not have been given by the trial judge for the reasons stated by him.
Hunte and another v State 40 BHRC 633 applied
McGreevy v Director Public Prosecutions [1972] NI 125 applied
R v Burge and Pegg (1996) 1 Cr App Rep 163 applied
R v Coutts [2006] UKHL 39 applied
R v Duffy [1949] 1 All ER 932 considered
Rolle v. Regina [2016] 1 BHS J. No. 139 applied
per Isaacs, JA:
The appellant argued that though evidence of her good character in the legal sense had not been raised, her good character in the moral sense had been and that, that was sufficient for the judge to give a good character direction. She says that in the circumstances of this case, a good character direction was clearly material as it impacted upon the issue of her credibility and propensity to commit such an offence. Having reviewed the law it was determined that a good character direction need not have been given by the Judge inasmuch as such evidence as was led in the trial “demonstrated nothing more than the quality of a relationship”; and did not raise directly or inferentially the good character issue.
The judge, in summing up stated, that there was little or no issue of provocation arising from the evidence. Indeed, the theory of the crime put before the jury by the Crown and left for their consideration by the Judge, suggested the appellant was provoked to do as she is alleged to have done. Thus, the Judge ought to have directed the jury on the issue of provocation in the terms of section 304 of the Penal Code. The failure of the Judge to leave the issue of provocation with the jury deprived her of an opportunity to be found not guilty of murder; although she may have been found guilty of manslaughter.
With respect to whether there should be a retrial; “the interest of the public in The Bahamas that those persons who are guilty of serious crimes should be brought to justice and should not escape it merely because of some technical blunder by the judge”, as in this case where the Judge did not leave manslaughter as a possible verdict for the jury to consider, leads me to conclude that an order for a retrial would be in the interests of justice; and would not, in my view, amount to an error of principle in the exercise of the power under s. 13(2) of the Court of Appeal Act.
Bhola v The State of Trinidad and Tobago [2006] UKPC 9 considered
Brown v The State of Trinidad and Tobago [2012] UKPC 2 considered
Cordell Darrell Farrington v Regina No. 30 of 2006 considered
DPP v Selena Varlack, Privy Council Appeal No. 23 of 2007 considered
Delancy v The Attorney General SCCrimApp No. 19 of 2012 mentioned
Edmund Gilbert v The Queen, PC Appeal No. 25 of 2005 mentioned
Lewis v The Attorney General SCCrApp No. 19 of 2014 mentioned
Jagdeo Singh v The State of Trinidad and Tobago [2006] 1 WLR 146 mentioned
Jamal Glinton v R SCCrim App No. 113 of 2012 mentioned
Jerome Bethell v Regina SCCrimApp No. 19 of 2013 mentioned
Kemp v Regina No. 201 of 2012 mentioned
R v Butterwasser [1948] 1 K.B. 4 considered
R v Galbraith [1981] 1 W.L.R. 1039 applied
R v Hunter (Nigel) and Others [2015] EWCA Crim 631 considered
R v Jabber [2006] EWCA Crim 2694 considered
Reid v R (1978) 27 WIR 254 applied
Teeluck v The State of Trinidad and Tobago [2005] UKPC 14 applied
Thompson v The Queen [1998] AC 811 considered
Per Crane-Scott, JA:
The appellant was charged with the murder of her husband in circumstances where there were no eye witnesses to the deceased's killing, the time of death was not established and the prosecution case was wholly circumstantial. Unlike Balson v. The State [2005] UKPC 6 where the circumstantial evidence was overwhelming and a good...
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