IN THE COURT OF APPEAL
TURKS AND CAICOS ISLANDS
CRIMINAL DIVISION
BETWEEN:
BEFORE
APPEARANCES
JAMY WILLIAMS
and
REGINA
The Rt. Hon Mr. Justice Zacca, P
The Hon. Mr. Justice Mottley, JA
The Hon. Mr. Justice Forte, JA
CR-AP/48/2011
APPELLANT
RESPONDENT
Lam Maroof FOR THE APPELLANT
Samantha Williams-Glinton FOR THE RESPONDENT
HEARD August 26, 2013
DELIVERED January 30, 2014
Forte, J.A
1. On Monday, 26th August, 2013 having heard the arguments in this appeal, we dismissed
the appeal and affirmed the conviction and sentence. We promised then to put our
reasons in writing. These now follow.
On the 25th November, 2011 the Appellant was tried and convicted by a Judge and Jury
for the offence of unlawfully wounding Randel Grey on 3rd November, 2009. He was
sentenced to nine (9) months imprisonment and ordered to pay compensation, and on
failure to do so, to serve an additional year imprisonment.
2. Before us the Appellant per his Counsel argued amended grounds of appeal which reads
as follows:
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(i) The prosecution were permitted to re-open their case after discussion in the
Judge's room in the absence of the Defendant with no reasons given in
open Court.
(ii) The Appellant was prejudiced by the calling of Officer Hussein Higgs
without notice.
(iii) The Appellant's evidence in chief was interrupted by the calling of a
defence witness at the insistence of the Trial Judge causing prejudice to the
defence case.
(iv) The Learned Trial Judge's summing-up was fundamentally unbalanced,
leading to unfairness to the Appellant.
(v) The Learned Trial Judge failed to summarize the Appellant's evidence in
the summing-up.
(vi) The sentence of nine (9) months imprisonment was manifestly excessive
and wrong in principle in the particular circumstances.
3. Before addressing these grounds of complaint, it is necessary to set out a summary of the
evidence led at the trial as the issues that arose in the case were essentially questions of
fact. The outcome therefore depended, for the most part, on what evidence the Jury
accepted.
4. The facts are quite simple. The virtual complainant, Mr. Randel Grey, had spent some
time that afternoon playing dominoes at a place of entertainment, "The Tree", which in
fact was a tree under which citizens gathered frequently for entertainment.
5. In an attempt to leave, he discovered that the Appellant's vehicle was blocking his. He
approached the Appellant's car, but at the time the Appellant was "in a temper cursing
and carrying on". He asked the Appellant to "pull up" so he could pass, but the
Appellant was aggressive, asking him "who he is, and saying he don't belong in Five
Cays." The Appellant then pushed open his car door, hitting Randel Grey. Who in
response, pushed back the door at the Appellant and walked away
6. It was the prosecution's case that while Mr. Grey was walking away, the Appellant came
out of his car, slapped him on his shoulder with a machete, and when he turned, he saw
the Appellant swinging a machete towards his head. He lifted his left hand to block the
machete which then cut him on his left wrist. When he turned, in response to the slap on
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his shoulder, he was about 10 — 12 feet from the Appellant's car. Mr. Grey was
supported in his testimony by prosecution witness, Stephenson Walkin. He, however,
said the chopping occurred when Mr. Grey was about three (3) feet from the Appellant's
car.
7. It appears to have been agreed by all the witnesses, including the Appellant, that he (the
Appellant) was angry, because earlier that day, his car had been broken into, and his car
glass smashed.
8. In answer to the prosecution's case, the Appellant gave evidence averring that he acted in
self defence as Mr. Grey had attacked him.
He was there complaining about the fact that his car had been broken into when
somebody said "Quincy, you are a sissy". He responded telling the person about "their
mother". The person repeated what he/she had said before. He then replied "It takes one
to know one."
9. It was after that, Randel Grey "came out of the shadows and kicks his car door twice."
After doing so, Grey put his hands through the driver's side window and tried to choke
him. He fell back on his seat into the back and his right hand fell onto the machete. He
held it "into the front" and chucked it at Grey, who grabbed the blade and then the two of
them wrestled over the machete until Grey ran away. He did not know at that time that
Mr. Grey had got cut.
10. This latter evidence was contradicted by PC Higgs, who testified that the Appellant came
to the Five Cays station and made a report to him. According to PC Higgs, when the
Appellant came there he said to him "I just chopped a man underneath the tree in Five
Cays. If you think I'm joking, see the cutlass here." The cutlass was there on the
counter. The officer noticed blood and skin on the cutlass. This evidence was denied by
the Appellant who said that it was to another officer (a foreign officer) to whom he made
the report and his report stated that he had just been attacked.
11. It is clear from the summary of the evidence that the Jury's verdict was dependent on
which version of the incident they accepted.
It is on this background, that we considered the validity of the complaints made before us
by the Appellant.
12. Firstly, we note that in his original grounds of appeal, the Appellant complains that the
transcript is so inadequate that a fair appeal is impossible. It is true that there are places
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in the transcript in which some words have been omitted, and we wish to emphasize the
importance of having a full and accurate record of the evidence and summing-up in trials,
so that this Court can be assisted in assessing the validity of complaints made in respect
of the conduct of trials. We find, however, that this was a simple case and that the
omissions in the transcript are not such that deprive us of an accurate and proper insight
as to what occurred at the trial. We note also that there has been no complaint of any
omissions from the transcript which are detrimental to the advancement of any of the
grounds of appeal. Consequently, we conclude that the ground is not one which, in the
circumstances of the case, would affect our conclusion as to whether the verdict of the
Jury can be sustained.
13. We now turn to the grounds advanced in the amended grounds of appeal.
14. Grounds 1 and 2
Ground 1 asserts that the prosecution was allowed to re-open the case after an application
to do so was made in Chambers in the absence of the Appellant. The application is not
disclosed in the transcript, which gives support to the Appellant's contention that it was
heard in Chambers. What is uncontested is that the further evidence, that of PC Higgs
was allowed, and that the application was made after the Crown had closed its case, but
before the Defence had commenced its case.
15. Whereas there is an allegation that the application was heard in the absence of the
Appellant, there is no allegation that Counsel for the Appellant was not present. In fact,
the Appellant has sworn to an affidavit in which he states that his Attorney was present in
Chambers when this issue was raised and decided. The prosecution's contention is that
the evidence of PC Higgs came to its attention after the commencement of the trial, and
consequently it had no time to serve PC Higgs' statement on the Defence before it did so,
during the course of the trial.
16. The principles upon which a Trial Judge should exercise his/her discretion in allowing
further evidence from the prosecution, after it has closed its case is clearly set out by
Haynes JA in the Guyanese case of Omar Persaud v Jaitoon (1975) GLR 327 where
having examined numerous authorities on this issue he said (Page 337) —
"Applying to this country what the authorities cited up to this point appears to lay
down, it would seem, a fair summary to put the position thus.
"It is the duty of the prosecutor to tender all material and relevant
evidence available to him and necessary to establish a prima facie case, before he
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closes his case. But if for one reason or the other he fails to do so, that is not the
end of the matter. He would have no right to reopen his case to lead further
evidence. But the Magistrate has both a statutory and a common law inherent
discretion to allow the prosecution to reopen for further evidence. This discretion
is to be exercised judicially, not arbitrarily or capriciously or as a matter of
course. The prosecution must disclose to the Court a judiciary acceptable reason
or excuse for the omission, and satisfy it that the ends of justice require that the
discretion be exercised in his favour. But the Court will bear in mind that, as the
interests of justice includes the interests of the defence as well as those of the
prosecution, it would be wrong to allow the prosecution then to repair their
omission, if this would or might cause injustice or improper prejudice to the
defendant or be otherwise unfair to him.
"The Court may properly allow a reopening before the defence opens or
during its course or even after its close, and then let in evidence without
which the complaint might be dismissed. Such evidence might be proof of
a purely procedural matter, or might form a vital part of the proof of guilt
itself. But a prosecutor should make his application at the earliest possible
opportunity because the later the stage at which he acts the heavier is the
onus of justifying the claim to the exercise of the discretion in his favour.
And although this discretion is the Magistrate's and his alone to exercise
as he thinks fit, once he acts judicially, yet the circumstances of a case
might be such that it becomes his duty to exercise it in one particular
way."
We agree with the principle set out by Haynes JA.
17. In the present appeal, the further evidence sought to be adduced was not mere formal
evidence but evidence which was substantial and would assist in a finding of guilt. The
evidence of PC Higgs related to statements made by the Appellant which, standing alone,
the Jury could infer was an admission by the Appellant.
18. We acknowledge and confirm that a Trial Judge has a wide discretion to allow the
prosecution to reopen its case, after it has been closed. Of significance in the present
case, is the fact that when the further evidence was allowed, the defence had not opened
its case. We accept also that this was evidence which came to the notice of the
prosecution after the trial had commenced. In these circumstances, we ought not to
interfere with the discretion of the Learned Trial Judge as it did not deprive the Appellant
of a fair trial.
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19. Ground 2:
In the circumstances, the Appellant, in our view, was not improperly prejudiced by the
calling of PC Higgs. To begin with there was also other evidence of a caution statement
in which the Appellant admitted 'chopping the virtual complainant'. In the statement he
is alleged to have said "After that, I went inside and reported it to the police and told the
officer that I have ... chopped someone."
20. The Appellant's complaint that he was not present when the application to reopen the
prosecution is severely weakened by his concession in his affidavit that his Attorney was
present when the application was made in Chambers.
21. In the end, it was really a question of fact for the Jury to decide which account of the
incident was factual, was it an unprovoked "chopping" of Mr. Grey or did Mr. Gray
receive his injury while attacking the Appellant as he sat in his (the Appellant's) car.
22. Ground 3
We found difficulty in accepting the submission by the Appellant that the case for the
Defence was prejudiced by the interposing of the Appellant's witness during the course
of the Appellant's testimony. It was an administrative problem that led to that procedure
which was done without any objection from the Defence. The Appellant was allowed to
continue his evidence after the witness was interposed, the witness having given evidence
in support of the Appellant's account of the incident. Consequently, we found no merit
in this ground.
Ground 4
In this ground, the Appellant complains that the Learned Trial Judge's summing-up was
fundamentally unbalanced "leading to unfairness to him".
23. In support of this ground, the Appellant referred to four (4) passages from the Judge's
summing-up which he contends gives "a strong indication of her own views of the
evidence and were more akin to arguments than a summary of the evidence".
24. It is generally accepted that a Trial Judge has the right to make comments on the evidence
as long as he directs the Jury that they are entitled to reject any view of the evidence he
may express, and as long as his comments do not go beyond the bounds of judicial
comment, in transcending into directions which the Jury may feel they have to act upon.
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25. The passages forming the subject of complaint are:
(i) "What do you make of that evidence? What reason would Randel Grey
have for running away on that version of events? Run away from a man
sitting in his car? Because you remember that as soon as he got struck he
ran."
(ii) "... If Randel Grey got injured inside the car, how did the blood get on the
roof? Remember the spots of blood on the roof?
"... If you accepted what Stephen Walkin said and you thought that blood
was spewing, would that account for the drops we see on the roof the car"?
(iii) "Because it would be difficult to see how the blood could have got on the
roof if you are saying a man was injured inside."
(iv) "There is something about that. Do you remember when Grey was giving
evidence? I don't know if you heard that but he kept calling Jamy Jeremy.
The one thing he didn't call him was Quincy."
26. In our view those comments went no further than assisting the Jury by directing them to
important issues arising between the prosecution and defence cases which they had to
resolve.
27. In respect of the first passage, the Learned Trial Judge was not directing the Jury as to
any conclusion they must or should draw, but invited them to consider that particular
evidence on the basis of a common sense view of the evidence. It was still open to the
Jury to accept that approach to the evidence and accept the evidence of the Appellant.
28. Passages (ii) and (iii) refer to evidence that spots of blood were found on the roof of the
Appellant's car after the incident. In these passages, the Learned Trial Judge was
obviously assisting the Jury as to how to approach this evidence, given the differences in
both cases. On the prosecution case, Mr. Gray was injured when he was about 12 feet
from the car (Grey's evidence) or about 3 feet from the car (Stephen Walkin's evidence)
and on the Defence case, he got injured while struggling for the machete with his hands
inside the car. In our view it was reasonable for the Learned Trial Judge to invite the
Jury to consider whether blood could have got on the roof of the car in these
circumstances.
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29. She also invited the Jury to assess whether on the Prosecution's case that could have
happened, reminding them that n the evidence of Mr. Stephen Walkin, blood had spewed,
when Mr. Grey was chopped. She also pointed them to the discrepancy that existed
between the evidence of Mr. Grey and Mr. Walkin, as to the distances, and posed the
question whether Mr. Walkin's evidence may be more acceptable, as he was not under
attack at the time but an innocent bystander.
30. We are of the view that the comments made by the Learned Trial Judge on this aspect of
the case went no further than assisting the Jury as to matters they needed to consider in
coming to their decision.
31. Passage (iv), we found also went no further than assisting the Jury. It appears that the
Appellant is also known by the name Quincy. This matter arose from the Appellant's
evidence when he said that while sitting in his car he heard someone say "Quincy, you
are a sissy". The Defence maintained that it was Mr. Grey who said this, an allegation
Mr. Grey denied. In assisting the Jury in resolving this discrepancy, the Learned Trial
Judge was doing nothing more than pointing to aspects of the evidence which would
assist them in that regard.
32. In our view, these passages did not go beyond the bounds of judicial comments, and are
such that would be covered by the directions by the Learned Trial Judge that the Jury
should reject any comments she made, with which they did not agree.
33. One example of such direction which the Learned Trial Judge gave is as follows:
"If I say something or you think I have a critical opinion on the evidence,
you don't accept it just because I hold it. You can only accept that
evidence ... that opinion ... that fact, if it recommends itself to you. So
what I express to you concerning the evidence and you don't agree with
my view, you can reject it because you and you alone are responsible for
saying what happened.
"So if I say something and you disagree with that view, you must act on
your own views."
34. On this ground, the Appellant relies on the Privy Council case of Mears v Regina (1993)
97 CR.APP.R.239, with which we not only agree, but by which we are bound. We found
though that the facts of that case are distinguishable from the present appeal. The
direction by the Learned Trial Judge in the Mears case went far beyond the limits of
judicial comments, whereas in the present case they do not. This ground fails.
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35. Ground 5
This ground is difficult to understand, as it is clear from the transcript that the Learned
Trial Judge did in fact direct the Jury on the defence, and gave a summary of the
Appellant's testimony as well as that of the witness called by the Defence.
36. Ground 6— SENTENCE
This Court cannot interfere with the sentence of the Court, unless we conclude that the
sentence is manifestly excessive. We have read the Learned Trial Judge's sentencing
remarks and come to the conclusion that the sentence is not manifestly excessive. We
noted that English guidelines for sentencing were considered by the Learned Judge, in
determining the sentence to be imposed. We concluded that the sentence of nine (9)
months, given these sentencing guidelines, and the facts in the case, were appropriate.
As a result we affirmed the sentence.
Zacca, P
Mottley, JA
Forte, JA
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