[1] Tyrone Kadan [2] JNO Baptiste Stoute Appellants v The State Respondent [ECSC]

• Jurisdiction: Dominica
• Judge: GEORGE-CREQUE, J.A.,Justice of Appeal,Chief Justice,Janice George-Creque,Hugh A. Rawlins,Michael Gordon,Justice of Appeal [Ag.]
• Judgment Date: 17 May 2010
• Judgment citation (vLex): [2010] ECSC J0517-1
• Docket Number: HCRAP 2007/002
• Court: Court of Appeal (Dominica)
• Date: 17 May 2010

[2010] ECSC J0517-1

IN THE COURT OF APPEAL

Before:

The Hon. Mr. Hugh A. Rawlins Chief Justice

The Hon. Mde. Janice George-Creque Justice of Appeal

The Hon. Mr. Michael Gordon Justice of Appeal [Ag.]

HCRAP 2007/002

[1] Tyrone Kadan

[2] JNO Baptiste Stoute

Appellants

and

The State

Respondent

Appearances:

Ms. Dawn Yearwood Stewart for the Appellants

Mr. Gene Pestaina (Director of Public Prosecutions) for the Respondent

Criminal Appeal — Aggravated Burglary — Appeal against Conviction — whether unsafe or unsatisfactory — Pre-trial publicity — Bias — whether the judge should have recused himself from hearing the matter —Refusal of joinder of offences — Whether edited interview notes tendered into evidence prejudiced the appellants — Appeal against sentence — whether sentence too severe –

The appellants were charged jointly with the offence of aggravated burglary and were both convicted and sentenced to ten years imprisonment. They appealed against their conviction on the grounds that it was unsafe and unsatisfactory having regard to adverse publicity; the prejudicial effect of the edited interview notes tendered into evidence which clearly showed that there were several robberies the police were investigating given the manner in which the interview notes were edited and then shown to the jury. The appellants contended further that there was an element of bias insofar as the trial judge having previously ruled on the voir dire in the earlier trial and which had resulted in a mistrial, could not bring a fresh mind to bear on the matter now commencing de novo. Further that he erred in law when he failed to admonish the Director of Public Prosecutions when he repeatedly interrupted defence counsel's closing speech with inflammatory comments designed to taint the minds of the jury. They appealed against sentence on the ground that it was too severe in all circumstances, particularly insofar as the sentence imposed running from the date of conviction, amounted to 13 years after counting the period the appellants spent on remand and taking into account other charges which were pending. The prosecution's case was that one of the appellants pointed a firearm at an employee of the Coca Cola Factory. The employee made a report to the police and subsequently the appellants were taken into custody and the appellants were interviewed in connection with several robberies including the one at the factory. The second appellant also gave a statement to the police. At the trial, the police interview and statement were edited for use in the trial on the offence of aggravated burglary. The appellants raised objections before the trial on certain issues namely; pre-trial publicity, refusal of joinder of offences and bias. The first two objections were overruled and no ruling was made on bias. The appellants argued that the edited interview ought not to have been entered as an exhibit to the jury as it served to place before the jury incriminating facts prejudicial to a fair trial of the appellants.

Held: dismissing the appeal against conviction and sentence and affirming them.

• 1. The appellants failed to discharge the burden of establishing that pre-trial publicity had impressed on the minds of the prospective jurors, making it unlikely for an impartial jury to be impanelled.

  Nankissoon Boodram v Attorney General 47 WIR 459 followed.

• 2. The refusal for joinder of offences did not cause unfairness in the trial, given the inordinate delay in the hearing of the matter, the time spans in respect of the incidents for which joinder of offences was sought and the fact that counsel was not retained in respect of those incidents.

• 3. The circumstances of this case did not meet the criteria for establishing bias. A ruling on the voir dire is never the end of the matter; if the statement is ruled admissible it goes to the jury to determine the weight that should be given to it.

  R v Gough (Robert) [1993] A. C. 646 applied.

• 4. The practice of editing a defendant's statement to exclude prejudicial or irrelevant material is well recognised which is to guard against the danger inherent in merely blotting out or changing a word by overwriting a letter therein as occurred in this case. However while it amounted to an irregularity, given all the evidence, the court does not consider that the jury would have arrived at a different verdict.

• 5. That to satisfy prosecutorial misconduct it must be shown that the prosecutor's conduct amounts to such a departure from good practice as to be considered so gross that an appellate court would have no choice but quash the conviction.

  Randall v The Queen [2002] UKPC 19 and Nyron Smith v The Queen [2008] UKPC 34 applied.

• 6. The maximum sentence for aggravated burglary is 14 years; therefore it is quite within the generous ambit of the trial judge's discretion in taking into account the further offences to impose a sentence of 10 years which in effect, counting time in remand, may have amounted to 13 years.

GEORGE-CREQUE, J.A.

1 The appellants were charged jointly with the offence of aggravated burglary. Their trial in the High Court for this offence commenced on 14^th May 2007, and on 21^st May 2007, the jury returned a verdict of guilty in respect of both appellants. On 30^th May 2007, they were each sentenced to ten years imprisonment. They have appealed against their conviction and sentence.

The background

2 On August Monday, (4^th August 2003), a public holiday in Dominica, around 8:15 a.m., one Jefferson Carbon, an employee of the Coca Cola Factory saw two men, one of whom had allegedly pointed a firearm at him. Mr. Carbon proceeded to police Headquarters and made a report. The Police visited the scene. On 8^th July 2004, the second appellant was taken into custody, and on 9^th July 2004, the first appellant was taken into custody. Between 8^th and 9^th July 2004, the police conducted an interview with both men in connection with several robberies including the robbery at the Coca Cola Factory. In addition to being interviewed the second appellant also gave a statement to the police. At the trial, the police interview and the statement were edited for the purposes of use in relation to the offence of aggravated burglary on which the trial was proceeding.

3 Before the actual trial got underway, Ms. Yearwood Stewart, counsel for the accused raised certain preliminary objections, three of which bear mention as they are also raised on this appeal. They are pre—trial publicity, bias, and refusal of joinder of offences. The learned trial judge overruled the objections in respect of pre—trial publicity, joinder, and made no ruling in respect of bias. The trial proceeded.

The grounds of appeal

4 Counsel for the Appellant raised nine grounds of appeal. They are as follows:

• 1. The learned trial judge erred in law and misdirected himself when he failed to traverse the matter to the September 2007, Assizes by reason of adverse publicity.

• 2. The learned trial judge erred in law and misdirected himself when he failed to consider joinder of the offences.

• 3. There was a material irregularity when the edited interview notes tendered into evidence clearly showed that there were several robberies the police were investigating. However, the words were edited to read "robbery"—thus clearly having the effect of prejudicing the minds of the jury.

• 4. The learned judge was wrong on a question of law when he admitted the police interview with the appellants notwithstanding that the learned trial judge had expunged or edited the interview thus excluding highly prejudicial parts.

• 5. The interview ought not to have been entered as an exhibit to the jury as it was procured in contravention of the judge's rules and or was a concoction by the Dominica police force who all signed the documents and none of the appellants did so in the circumstances designed to trap, cross examine and get before the court incriminating facts in the interview prejudicial to a fair trial of the appellants.

• 6. There was a material irregularity when the learned trial judge failed to rule on the Application that he should recuse himself from the hearing of the matter on the basis of bias.

• 7. The learned trial judge erred in law and misdirected himself when he failed to admonish the learned Director of Public Prosecutions when he repeatedly interrupted Defence Counsel's closing speech with inflammatory comments designed to prejudice the minds of the jury and did prejudice the minds of the jury.

• 8. That the conviction of both appellants should be set aside as being unsafe or unsatisfactory.

• 9. The sentence was too severe in all the circumstances of this case.

Grounds already ruled upon by the court during the hearing

5 During the hearing of the Appeal, the court disposed of the issues of pre-trial publicity, joinder of offences and bias on the part of the trial judge and dismissed those grounds. For completeness, the reasons for dismissal of those grounds are now summarized.

Pre-Trial Publicity—Ground 1

• (a) Counsel for the appellants conceded that no evidence had been produced before the court substantiating the allegation of pre–trial publicity. The onus of establishing that pre-trial publicity is such that it would affect the minds of jurors so as to make it unlikely that an impartial jury could be empanelled is a heavy one. The case ofNankissoon Boodram v Attorney General and Another (1994) 47 WIR 4591 is instructive of the principle. There it was held at page 460 that:

  "the appellant had failed to discharge the heavy onus of establishing that the pre-trial publicity had been so widespread and indelibly impressed on the minds of the prospective jurors that it was unlikely that an impartial jury could be impanelled."

• (b) In this case, the appellants do not even begin to meet the bar as there was a total lack of an evidential basis. The trial...