Nardis Maynard v The Queen

• Jurisdiction: Saint Kitts and Nevis
• Judge: Pereira CJ
• Judgment Date: 10 June 2022
• Neutral Citation: KN 2022 CA 05
• Docket Number: SKBHCRAP2004/0012
• Court: Court of Appeal (Saint Kitts and Nevis)

BETWEEN:

Nardis Maynard

Appellant

and

The Queen

Respondent

Before:

The Hon. Dame Janice M. Pereira DBE Chief Justice

The Hon. Mde. Gertel Thom Justice of Appeal

The Hon. Mr. Gerard St. C. Farara Justice of Appeal [Ag.]

SKBHCRAP2004/0012

THE EASTERN CARIBBEAN SUPREME COURT IN THE COURT OF APPEAL

Criminal appeal — Appeal filed against conviction and sentence — Abandonment of appeal against conviction — Reopening of appeal against conviction — Whether abandonment of appeal against conviction was a nullity — Whether abandonment was deliberate and informed decision of appellant — Application to tender fresh evidence of alibi on appeal — Test for reception of fresh evidence on criminal appeal — Whether failure to call alibi witnesses at trial rendered conviction unsafe — Identification evidence — Turnbull guidelines — Whether judge failed to identify weaknesses in the identification and other evidence in summing up the case to jury — Good character direction — Whether judge erred in not giving good character direction to jury on behalf of the appellant — Application of the proviso

Held: dismissing the application to tender fresh evidence and dismissing the appeal against conviction, that:

• 1. The proper procedure for abandoning an appeal is by the appellant giving written notice of abandonment in Form 15 in Appendix C of the Eastern Caribbean Supreme Court, Court of Appeal Rules 1968 to the Registrar. Upon such notice being given, the appeal shall be deemed to have been dismissed. An abandonment will only be deemed a nullity if it was not the result of the appellant's deliberate and informed decision. In this case, no written notice of abandonment was given by Maynard. His appeal against conviction was abandoned orally by his former counsel. There being no evidence that Maynard had either directed his former counsel to abandon his appeal against conviction or had been informed that such a course of action would be adopted, the position as to whether the abandonment was Maynard's informed decision was placed in serious doubt. The Court accordingly declared the abandonment a nullity and proceeded to hear Maynard's appeal against conviction.

  Rule 59 of the Eastern Caribbean Supreme Court, Court of Appeal Rules 1968 considered; R v Medway [1976] 1 QB 779 applied; R v Smith [2013] EWCA Crim 2388 applied; R v Furniss (Michael) [2019] EWCA Crim 2224 considered.

• 2. The Court of Appeal may receive fresh evidence on an appeal if the evidence is credible and there is a reasonable explanation for the failure to adduce it at trial. In this case, the test for admission of fresh evidence has not been met as the evidence contained in the affidavit of Yvette Maynard is not credible. There has also been no explanation for the failure to call her evidence at trial. It therefore cannot be said that her evidence is fresh in the sense that it could not have been obtained for the trial with reasonable diligence. In any event, even if Yvette Maynard's evidence were both credible and fresh, it would not have had any effect on the safety of Maynard's conviction given the quality of the evidence against him at trial. Accordingly, there is no basis on which the affidavit of Yvette Maynard should be admitted as fresh evidence on this appeal.

  Section 49 of the Eastern Caribbean Supreme Court (Saint Christopher and Nevis) Act, Cap. 3.11, Revised Laws of Saint Christopher and Nevis 2009; Lescene Edwards v The Queen [2022] UKPC 11 applied; Lundy v The Queen [2013] UKPC 28 applied.

• 3. In relying on the conduct of defence counsel as a ground of appeal, it must be shown that the decision in question is one which no reasonably competent counsel would have made in light of the information available to him or her. In this case, there was no evidence of what informed Maynard's former counsel's decision not to call the alibi witnesses. There was also no assertion made as to the lack of competence of Maynard's former counsel. It would therefore be inappropriate for this Court to infer that there was no good reason for the failure to call Yvette or Terence Maynard to give evidence at the trial. In any event, the evidence of Yvette Maynard raises issues of credibility and does not establish a cogent alibi. In the circumstances, it cannot be properly concluded that the failure to call the two alibi witnesses at the trial rendered Maynard's conviction unsafe.

  R v Doherty & McGregor [1997] 2 Cr App R 218 considered.

• 4. In giving a Turnbull direction, the judge is required to point out any specific weaknesses in the identification evidence to the jury. However, it is not essential that he or she lists all those weaknesses or every argument made against the credibility of a particular witness. In this case, while the judge failed to highlight certain weaknesses in the evidence to the jury, this failure did not undermine the safety of Maynard's conviction as the quality of the identification evidence and other evidence weighing against him remained compelling.

  R v Turnbull [1976] 3 All ER 459 considered; Mills et al v R [1995] 1 WLR 511 considered; Omar Grieves and others v The Queen [2011] UKPC 39 applied.

• 5. The failure of a trial judge to give a good character direction where a defendant was entitled to one does not automatically render the conviction unsafe. The critical question is whether the good character direction would have made a difference to the result of the trial had it been given. In this case, while Maynard was entitled to a good character direction, it cannot be said that such a direction would have changed the view of the jury that Maynard was guilty in light of the evidence weighing against him at trial. Accordingly, the judge's failure to give a good character direction on behalf of Maynard did not undermine the safety of the conviction.

  Jay Marie Chin v The Queen ANUHCRAP2012/0005 (delivered 5 ^th April 2017, unreported) followed; Bhola v The State [2006] UKPC 9 applied.

• 6. In the circumstances, even if the judge's non-direction on the specific weaknesses in the evidence were to be considered as a misdirection to the jury, and even when considered cumulatively along with the judge's failure to give a good character direction, no miscarriage of justice has actually occurred. It is clear considering the quality of the evidence weighing against Maynard that the jury would have inevitably come to the same conclusion that he was guilty of murder. It would therefore have been proper for this Court to dismiss the appeal in any event by applying the proviso contained in section 44(1) of the Eastern Caribbean Supreme Court (Saint Christopher and Nevis) Act.

  Section 44(1) of the Eastern Caribbean Supreme Court (Saint Christopher and Nevis) Act, Cap. 3.11, Revised Laws of Saint Christopher and Nevis 2009 considered; Jevone Demming v The Queen BVIHCRAP2015/0001 (delivered 14 ^th January 2020, unreported) followed; Cassell and another v The Queen [2016] UKPC 19 considered; Michael Freemantle v The Queen [1994] UKPC 29 considered.

In 2003, the appellant, Nardis Maynard (“Maynard”), and Ingle Rawlins (“Rawlins”) were charged for the murder of Ernest Henry (“Henry”). The crux of the prosecution's case at trial was that, during an argument among the men, Maynard attacked Henry killing him. The prosecution mainly relied on the evidence of several eye-witnesses to the incident. Rawlins was acquitted when the learned judge upheld a no case submission and the trial proceeded against Maynard. He gave evidence on his own behalf that he was at home with his sister and brother, Yvette and Terence Maynard, at the time of the incident. His evidence raised primarily the defence of alibi but no alibi witnesses were called at trial. Maynard was convicted by the jury and sentenced to life imprisonment.

Maynard appealed against his conviction and sentence. In 2006, at the hearing of the appeal, his counsel informed the Court that the appeal against conviction was being abandoned and proceeded with the appeal against sentence only. The Court dismissed the appeal against sentence. Fourteen years later, Maynard, having obtained new counsel, filed an application to render the abandonment of the appeal against conviction a nullity and to reopen his appeal against conviction. He stated that he had only become aware that his appeal against conviction was abandoned by his former counsel in 2014. He also sought permission to tender fresh evidence on the appeal in the form of an affidavit of Yvette Maynard in support of the alibi defence raised at trial.

Upon hearing submissions from Maynard's counsel and in light of the respondent's concession on the point, the Court declared the abandonment a nullity and promised to provide its reasons for so doing at a later date. The Court accordingly proceeded to hear Maynard's appeal against conviction, admitting the fresh evidence of Yvette Maynard de benne esse and reserving its decision on the merits of the fresh evidence application. The issues which arose for the Court's determination on the substantive appeal are: (1) whether the failure to call alibi witnesses, Yvette and Terence Maynard, at the trial rendered Maynard's conviction unsafe; (2) whether the judge failed to identify for the jury, the weaknesses in the identification evidence during his summing up of the case; and (3) whether the judge erred in not giving a good character direction to the jury on Maynard's behalf.

Appearances:

Ms. Siobhan Grey, QC with her, Ms. Talibah Byron for the Appellant

Mr. Valston Graham, Director of Public Prosecutions and Ms. Terrilyn Hunte for the Respondent

Introduction

Pereira CJ

1 The circumstances of this matter are quite extraordinary. In July 2004, the appellant, Nardis Maynard (“Maynard”) was convicted for the murder of Ernest Henry (“Henry”) and sentenced to life imprisonment. He subsequently appealed to the Court of Appeal seeking to set aside his conviction...