Court name
Court of Appeal of Turks and Caicos Islands
Case number
CR-AP 3 of 2010

Gibson v. The Crown (CR-AP 3 of 2010) [2011] TCACA 1 (04 July 2011);

Law report citations
Media neutral citation
[2011] TCACA 1
Coram
Zacca, P
Mottley, JA
Ground, JA

IN THE COURT OF APPEAL

TURKS AND CAICOS ISLANDS   CR. AP 3/2010

BETWEEN          CLIFFORD GIBSON AND THE CROWN

BEFORE:

THE RT. HON. EDWARD ZACCA PRESIDENT

THE HON. ELLIOTT MOTTLEY J.A.

THE HON. RICHARD GROUND J.A.

Mr. Kendle Williams for the Appellant

Mr. Franklyn for the Crown

DATE OF HEARING: July 4, 2011

PRESIDENT:

1.             The appellant was convicted by a jury of the offence of murder on March 2, 2010. The Indictment charged that the appellant, Clifford Gibson, together with Tarron Watkins did murder Leslie Aurelus on January 1, 2008. Tavron Watkins was found not guilty by the Jury.

2.             The prosecution’s case was presented as one of joint enterprise. The trial judge directed the jury that they should consider the evidence as it related to each accused. It was the prosecution’s case that it was the appellant who inflicted the fatal stab wound that caused the death of Leslie Aurelus but that the appellant and Tavron Watkins were acting in a joint enterprise.

3.             To summarise the prosecution case. Claudette Clare testified that in December 2007 she witnessed the appellant and the deceased fighting and hitting each other.

4.             Kazee George Forbes saw three young men fighting. He did not see how the fight started. One of the men was wearing a black hoodie. He fell to the ground and Forbes saw the men all doing stabbing motions, each of them having a metallic object in their hand. He observed that two of the men were against the man wearing the hoodie. After the fight the two men ran off. Mr. Forbes was unable to identify any of the men. Evidence was later tendered by the prosecution which identified the two men as the appellant and Watkins and the man in the hoodie as the deceased.

5.             Paula Arthur testified that at between 1 a.m. and 7.a.m. she witnessed a fight. She saw two men run past her and they went towards another man who turned out to be the deceased who was wearing a black hoodie. She did not see anything in the deceased hand. She saw Watkins punch the deceased with his clenched fist in his back. She had at first said that she could not be sure that he had anything in his hand but under cross examination stated that she did not see Watkins with a weapon. The appellant who had a silver object in his hand was to the front of the deceased and was moving his hand back and forward in a stabbing motion. The appellant and Watkins ran off and the deceased got up to run after them but collapsed. He was bleeding from his chest area and was breathing real hard.

6.             Crystal Bernard testified that she saw three young men fighting. A man wearing a black hoodie was on the ground and two men over him each with a knife. One had a knife about 10-12 inches long and the other a knife 5-6 inches long. She could not say if the man on the ground had on object in his hand but she saw the man with the long knife kneeling over the man on the ground and saw his hand go up and down twice. She also saw the man with the shorter knife over the man on the ground and his hand went up once with the knife. This witness did not identify the two men.

7.             Amanda Miller said that a fight broke out and she saw Watkins about one foot away from the deceased. She did not see Watkins stab the deceased who had nothing in his hand.

8.             Woman Police Constable Carissa Clare testified that she saw three young men fighting. One of the men was punching and kicking at the two other men before he fell to the ground. The man on the ground did not have a weapon in his hand. One of the men had an ice pick in his hand but he made no movement towards the man on the ground. He was holding the ice pick with blade pointing upwards. She saw the other man who was wearing a white T shirt and light blue jeans put his right hand behind the back area of his pants and pull out what appeared to be a knife and stabbed the man on the ground twice in his back. When the man on the ground tried to get up the same man stabbed him in his chest and stomach area.

9.             The two men ran with the injured man in pursuit but he fell to the ground. Officer Clare further stated that she went up to the injured man and noticed that he was conscious but had blood in his chest and stomach area. In the presence of Woman Police Constable Natasha Prosper and another lady, she asked the man his name. He replied “Leslie”. She then asked him “who did this to you”. He replied “CJ Gibson”. He then said to Officer Clare, “Officer I feel like I am dying”. This is when he started losing consciousness.

10.          Woman Constable Natasha Prosper corroborated the evidence of Officer Clare as to the conversation between herself and the deceased.

11.          Officer Tomiko Glinton testified that he spoke to Tarron Watkins having received a report. Watkins replied “I was trying to stop it” and that he received injuries to his arm when he was trying to part the fight. Later that day he saw the appellant at the police station. The report was put to him and he replied “Big man, not me, the person who stabbed and killed Leslie got stabbed on his left arm”. This reply was in reference to Tarron Watkins. The appellant told the officer that he was wearing a white shirt and blue jeans pants.

12.          Dr. Bruce Hyma Chief Medical Examiner for the Miami Dade County Medical Examiner Department and a Forensic Pathologist conducted a Post Mortem on the body of the deceased. He said that the cause of death was a stab wound to the chest resulting in fatal blood loss and was caused by a sharp instrument. In describing the fatal wound, Dr. Hyma listed the following:

(1) Wound in the skin is approximately ½ inch long.

(2) Wound is orientated on the body vertically, the edge of the wound are sharp indicating a rather slender type of piercing instrument.

(3) The wound track goes into the body and into the 6th cartilage on the left side that connect to the 6th rib to the breast bone.

(4) The wound track continued through the sack that protect the heart through the main pumping chamber of the heart, it exits the back of the sack of the heart then through the muscle that separates chest from abdomen, the breathing muscle called a diaphragm.

(5) Once through that the wound goes to the liver.

(6) The depth of the wound from the skin to where it ends in the liver was 4 ½ inches.

Dr. Hyma concluded, having regard to the nature of the wound, that the instrument that caused it had a length of at least 4 ½ inches, width of at least ½ inch and a narrow blade.

13.          Under cross-examination Dr. Hyma confirmed that the most likely weapon that would cause the wound was a knife or a knife like weapon. When asked whether it could be an ice pick, he ruled that out as an ice pick is not a knife and has a sharp pointed tip and a round or square shaft that has no cutting edge.

14.          Dr. Hyma testified that the stab wound would not cause immediate unconsciousness or death and would not necessarily cause a person standing up when stabbed to fall immediately. He said that eventually as blood loss occurred internally unconsciousness would follow and you would collapse. It is necessary to outline the evidence of Dr. Hyma in detail as the evidence of “a dying declaration” was being challenged.

15.          Dr. Hyma said that the stab wound went through the main pumping chamber of the heart. He stated that the heart is inside the sack or a bag and this kind of wound would bleed immediately. He further said that the bag around the heart would capture the blood and allow for a few minutes of the heart being able to propel blood through the body. He explained that at some point, and it only takes a few minutes, that blood collecting in the sack or bag gets tighter and tighter and essentially strangles the heart. He said that when that happens the heart fails, the blood does not go to the brain, unconsciousness follows and death follows. The whole process could give a victim a few minutes of consciousness. Then due to lack of blood and the oxygen which is in the blood to the brain, unconsciousness would occur within ten seconds in the absence of oxygen. Death would then occur to the brain in about 2-3 minutes.

16.          Dr. Edgar Panga is a government doctor at the Myrtle Rigby Health Clinic. He testified that Leslie Aurelus arrived at the clinic in an unconscious state and showed no appreciable vital signs. He felt that he was clinically dead. He agreed that the fatal wound was caused by a sharp object like a knife.

17.          Neither appellant nor Tarron Watkins gave evidence. The appellant’s case is that he did not inflict the fatal wound. However he called four witnesses and Watkins one witness. The witness’ evidence on behalf of Watkins was Norman Forbes jr. who was unable to be present as he was off the island. His witness’ statement in a redacted form was admitted and read to the jury. His testimony was that he saw Leslie and the appellant holding on to each other swinging weapons at each other and Watkins was unsuccessfully trying to part the fight. The defence of Watkins was that he was trying to part the fight between the appellant and the deceased. He received an injury to his arm whilst he was trying to part the fight. One of the witnesses Lavern Smith called on behalf of the appellant testified that he saw Tarron walk towards the fight and hold the deceased from the back, pulling him away from the fight. He saw the deceased juck Watkins on his arm with what he thought was a knife or an ice pick. Under cross examination by Mr. Smith for Watkins, Lavern Smith said that Watkins was trying to part the fight and it was when he was trying to do that that he received the injury. In answer to Mr. Franklyn, counsel for the prosecution, he said that the deceased and the appellant were fighting, throwing blows at each other. He did not see the appellant stabbing the deceased and that the only person with a weapon was the deceased. The other three witnesses who were called on behalf of the appellant did not give evidence as to the fight between the appellant and the deceased.

18.          Six grounds of appeal were filed on behalf of the appellant. These were:

(i)            The trial judge made a wrong decision on a question of law by admitting the prosecution’s evidence tendered by Carissa Clare and Natasha Prosper as a dying declaration of Leslie Aurelus.

(ii)           There were material irregularities in the course of the trial by errors made on the part of defence counsel.

(iii)          The trial judge erred in law by allowing an application by defence counsel for the co-accused, Tarron Watkins, admitting the redacted statement of Norman Forbes, who, due to an alleged mental breakdown, and who was receiving medical treatment overseas, could not be cross-examined by the appellant.

(iv)         Inconsistent verdicts - as there were two defendants on trial, and whereas the trial judge directed the jury as to the evidence in relation to both defendants, the jury inconsistently, and perversely, found the appellant guilty of murder and the co-defendant not guilty of murder or manslaughter.

(v)           The appellant did not receive a fair trial by virtue of the way in which the Crown conducted the prosecution at trial and that the verdict of the jury was unreasonable, could not be supported on the evidence, is based on wrong decisions on points of law, and that there was a miscarriage of justice.

(vi)          The opening speech by the prosecution was highly prejudicial against the appellant.

Ground 1

19.          Mr. Kendle Williams for the appellant submitted that the trial judge failed to properly direct the jury on the issue of the “dying declaration”. However, in the ground of appeal as filed, it was alleged that the trial judge was in error in admitting the evidence of Carissa Clare and Natasha Prosper as a dying declaration and that the evidence should have been excluded as hearsay. At trial the defence attacked the credibility of the witnesses by suggesting that they did not hear what they said they heard or were mistaken in what they heard.

20.          The credibility of the witnesses was a matter for the jury. The evidence was that the deceased was conscious at the time the statement was made. The medical evidence was that on the receipt of the wound, this would not cause immediate unconsciousness. By the time he arrived at the hospital the deceased was unconscious.

21.          The learned trial judge at page 273 in his directions to the jury with respect to Dr. Hyma’s evidence, said:

“Dr. Hyma concluded that scenario here is consistent with the evidence and that this type of wound would not result in immediate death but would cause death over period of minutes. You may feel that this would be consistent with the evidence that Aurelus was able to get up, run for a short distance and then fall to the ground after being stabbed. It is consistent with him being coherent for a short while and being able to talk with the officers at the time they said he did. You may feel that it is consistent with him shortly after speaking to the officers, falling unconscious and also by the time he arrived at the clinic,' he showing no vital signs.”

22.          Having regard to the medical evidence and that of Carrisa Clare and Natasha Prosper we are satisfied that the statement made by the deceased, Leslie Aurelus, who was seriously injured, was made in circumstances which were spontaneous and contemporaneous with the attack. There was ample evidence of the close and intimate connection between the statement ascribed to Leslie Aurelus and the stabbing which occurred shortly before the statement was made. We hold that the statement was correctly admitted in evidence by the trial judge.

See R v Andrews [1987] 1 ALL ER 513.

Ground 2

23.          Allegations were made as to the competence of Mr. Hamilton who appeared on behalf of the appellant at trial. However, the only submission made by Mr. Williams before this court was that Mr. Hamilton should have cross examined the doctor as to how long the deceased would have been conscious after the stabbing. Counsel did not proceed with the allegation that Mr. Hamilton on the instructions of the appellant failed to call him to give evidence.

24.          At page 157 of the transcript the trial Judge clearly explained to the appellant his right to silence but that he could still call witnesses on his behalf. He also explained to the appellant that no inferences could be drawn as a result of his exercising his right to silence. The appellant did not give evidence. The transcript discloses:

Gibson: “I do not wish to give evidence”.

Mr. Hamilton: “That concurs with my instructions.”

We found no merit in this ground of appeal.

Ground 3

25.          Mr. Williams submitted that the trial judge had a discretion in admitting the redacted statement of Norman Forbes jr. on behalf of the co-accused Watkins. He argued that it was more prejudicial than probative. The statement of Norman Forbes was admitted in evidence having regard to s. 8 (1) and (2) (a) of the Evidence Ordinance 2001. This evidence supported the case for the co-accused Watkins. We are unable to say that the trial judge was in error in the exercise of his discretion.

Ground 4

26.          It was argued that the jury’s verdict of guilty in respect of the appellant was inconsistent with the verdict of not guilty of the co-accused Watkins. The case for the Crown was one of common design and the jury may well have found both guilty. However, the evidence was such that it was open to the Jury to find Watkins not guilty. There was ample evidence to show that the appellant had a knife and stabbed the deceased. It was open to the jury to find the appellant guilty and Watkins not guilty. This verdict would not of itself result in the verdict of the appellant being inconsistent. We found no merit in this ground of appeal.

Ground 5

27.          There was ample evidence on which the jury after careful consideration could reasonably have found the appellant guilty. We found no merit in this ground of appeal.

Ground 6

28.          It is only necessary to say that no submissions were made to the Court in respect of this ground of appeal. It therefore has no merit.

29.          It was for the above reasons that the Court dismissed the appellant’s appeal against the conviction and affirmed the conviction.

ZACCA P

MOTLEY J.A.

GROUND J.A.