Che Gregory Spencer Appellant v DPP Respondent [ECSC]

• Jurisdiction: Saint Kitts and Nevis
• Judge: Blenman JA,Baptiste, JA,Michel, JA
• Judgment Date: 10 February 2014
• Judgment citation (vLex): [2014] ECSC J0210-2
• Court: Court of Appeal (Saint Kitts and Nevis)
• Docket Number: SKBHCRAP 2009/013A
• Date: 10 February 2014

[2014] ECSC J0210-2

EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Before:

The Hon. Mr. Davidson Kelvin Baptiste Justice of Appeal

The Hon. Mde. Louise Esther Blenman Justice of Appeal

The Hon. Mr. Mario Michel Justice of Appeal

SKBHCRAP 2009/013A

Between:

Che Gregory Spencer

Appellant

and

The Director of Public Prosecutions

Respondent

Appearances:

Dr. Henry Browne, QC with him Mr. Hesketh Benjamin, for the Appellant

Dr. Dennis Merchant with Ms. Rhonda Nisbett-Browne, Mr. Garth Wilkin and Ms. Greatess Gordon, for the Respondent

Criminal appeal — Murder — Provocation — Self-defence — Accident — Whether the learned trial judge erred in his directions to the jury on the issues of provocation, self-defence and accident

The appellant was convicted for the murder of the deceased, Jason Marsham, and sentenced to 18 years imprisonment. The prosecution's case was based on the evidence of three eye-witnesses who all gave testimony to the effect that the appellant deliberately shot the deceased twice; firstly a grazing shot to the head and then the fatal shot to the chest.

The appellant's version was that the deceased threw bottles at him, advanced towards him and began throwing punches. They started to wrestle. The deceased's girlfriend then brought a gun to the deceased. Both the appellant and the deceased held onto the gun.

In wrestling for the gun the appellant got struck in the mouth and the gun discharged in rapid succession striking the deceased. The issues of self-defence, provocation and accident arose from the defence's version of what transpired.

The jury accepted the prosecution's version of the events and found the appellant guilty. He has appealed against his conviction on the grounds that the learned trial judge erred in failing to properly direct the jury on the issues of (1) self-defence; (2) provocation; and (3) accident.

Held: allowing the appeal and ordering a retrial, that:

• 1. An important direction that a judge must give to a jury in appropriate cases is that an intention to kill is not inconsistent with the establishment of the plea, not only of self-defence but also of provocation. But that does not necessarily mean that the direction should be in such terms as there are no prescribed words which must be employed in or adopted in a summing up. It all depends on the way in which the issue is put to the jury. In the present case, it is clear that the learned trial judge did not specifically say to the jury that an intention to kill was not inconsistent with self-defence. However, this Court is satisfied that it was effectively conveyed to the jurors in clear and unequivocal terms that even if there was an intention to kill once the appellant was acting in lawful self-defence he ought to be found not guilty. There is no need to seek to restrict the form of words that a trial judge should use in giving directions on self-defence and the intention to kill or cause grievous bodily harm. It is within a trial judge's discretion how he approaches his summation. Accordingly, this ground of appeal is dismissed.

  Sigismund Palmer et al v The Queen [1971] AC 814 applied; Baptiste v The State (1983) 34 WIR 253 applied; Fabien LaRoche v The State Republic of Trinidad and Tobago, Court of Appeal No. 32 of 2009 (delivered 20 ^th April 2011, unreported) applied.

• 2. It is proper and indeed necessary for a trial judge to tell a jury that murder is not established unless an intent to kill or to cause grievous bodily harm is proved, but the converse proposition, namely, that the accused is guilty of murder if such an intention is proved is not correct. For where the intention to kill or to cause grievous bodily harm results not from premeditation but solely from the loss of self-control induced by provocation the accused is guilty not of murder but of manslaughter. The learned trial judge failed to direct the jury that a plea of provocation may still arise even if the appellant had formed an intention to kill or inflict grievous bodily harm, with this intention arising from sudden passion induced by the provocation. Further, in his definition of provocation to the jury, the learned trial judge included the phrase "for the moment not master of his mind". This was a gross misdirection. This would have effectively conveyed to the jury that the appellant would not have been able to form the necessary intention to kill or cause grievous bodily harm. On the evidence presented the jury may have easily found that the appellant had formed an intention to kill. As a result, the appellant might have been deprived of a verdict of not guilty of murder but guilty of manslaughter. In light of these misdirections, this ground of appeal accordingly succeeds.

  R v Bunting (1965) 8 WIR 276 applied; Baptiste v The State (1983) 34 WIR 253 applied; Antoine and Bass v R (1968) 13 WIR 289 applied.

• 3. The learned trial judge did not give a clear exposition of the concept of accident. He failed to give a specific direction on the burden of proof paying particular regard to the issue of accident. He ought to have made it clear to the jury that it was not for the appellant to prove that the happenings resulting in the death of the deceased were an accident. In addition, he failed to specifically direct the jury that it was for the prosecution to negative accident so as to make them feel sure beyond all reasonable doubt that it was not an accident and was a wilful act. As such, this ground of appeal succeeds in so far as there was a miscarriage of justice.

  Sherfield Bowen v The Queen Antigua and Barbuda, High Court Criminal Appeal HCRAP2005/0004 (delivered 20th June 2007, unreported) followed.

• 4. Taking into consideration the particular circumstances of this case, the interest of justice requires that a retrial be ordered. Accordingly, the Director of Public Prosecutions is at liberty to retry the appellant for the offence of murder.

Blenman JA

1 The appellant, Mr. Che Gregory Spencer ("Mr. Spencer"), was convicted for the murder of the deceased, Jason Marsham ("Mr. Marsham"), on 3 ^rd February 2009 and sentenced to 18 years imprisonment. He has appealed against his conviction on the following amended grounds of appeal:

• "(a) the appellant suffered a possible miscarriage of justice when the learned trial judge erred in law in his failure to properly direct the jury on the issue of self-defence;

• (b) the appellant suffered a possible miscarriage of justice when the learned judge erred in law in his failure to properly direct the jury on the issue of provocation; and

• (c) it is not for the accused to make out a prima facie case of accident. It is for the prosecution to prove that the killing was not by accident. And the prosecution failed to do so."

2 Before considering the grounds of appeal, I propose to briefly encapsulate the prosecution's case and that of the defence.

Prosecution's Case

3 Mr. Spencer along with 3 other persons went to the home of Jason Marsham at Godwin Ghaut on the morning of 6 ^th December 2006. They got there by car and on arrival one of Mr. Spencer's companion left the car, went into the yard where Mr. Marsham lived and spoke with him. Sometime after, Mr. Spencer came out of the vehicle and spoke with Mr. Marsham and there was a sharp exchange of words between the two men. Mr. Marsham took up two bottles whereupon which Mr. Spencer used a gun and shot Mr. Marsham twice. The first bullet grazed Mr. Marsham's forehead, however the second shot was fatal.

4 Three witnesses provided direct evidence on behalf of the Crown; they are Roseline Marsham who is Mr. Marsham's sister, Leon Thompson and Terrence Marsham. While there were some variations as to what transpired, all three of these witnesses indicated that it was Mr. Spencer who deliberately shot Mr. Marsham.

5 The jury by their verdict must have accepted the Crown's version of the case.

Defence's case

6 The gravamen of the defence's case was that Mr. Spencer travelled by car with three other persons to Godwin Ghaut. Upon reaching Godwin Ghaut he sat in the vehicle for about 25 minutes before exiting and requesting his belongings from Mr. Marsham's car. Mr. Marsham at that point took up two bottles and said "if you have anything in my car go and take them out if you bad". Mr. Spencer testified that Mr. Marsham then threw the bottles at him with the first bottle striking him on his upper arm. Mr. Marsham advanced towards him throwing punches and then he (Mr. Spencer) threw back some punches. They started to wrestle; Mr. Marsham's sister came at him (Mr. Spencer) striking him in his back and neck with Mr. Marsham's girlfriend passing a gun to Mr. Marsham. Both Mr. Spencer's and Mr. Marsham's hands went to the gun. In wrestling for the gun, Mr. Spencer got struck in the mouth and the gun discharged in rapid succession striking Mr. Marsham, the latter who fell to the ground and succumbed to his injuries.

7 Mr. Spencer further testified that he was unaware that Mr. Marsham was shot until his resistance started to wane. At that point, he backed away and ran from the scene. Upon leaving the area he heard another gunshot. Mr. Spencer's evidence was that he did not deliberately shoot Mr. Marsham. The issues of self-defence, provocation and accident arose from the evidence.

8 I now propose to address Mr. Spencer's amended grounds of appeal in turn.

Grounds of appeal

a. Failure to properly direct the jury on intent in relation to self-defence

9 Learned Queen's Counsel, Dr. Browne, submits that self-defence in St. Kitts and Nevis is governed by the common law and therefore the trial judge's direction must correctly reflect the common law as stated in Sigismund Palmer et al v The Queen 1.

10 Dr. Browne, QC complains that the trial judge made a fatal error when he failed to direct the jury that an intent to kill or do grievous bodily harm is not inconsistent with a plea of self-defence and...