Court name
Court of Appeal of Turks and Caicos Islands
Case number
CR-AP 26 of 2013
27 of 2013

Delancy and Another v. Regina (CR-AP 26 of 2013, 27 of 2013) [2016] TCACA 6 (25 January 2016);

Law report citations
Media neutral citation
[2016] TCACA 6
Coram
Zacca, P
Mottley, JA
Forte, JA

IN THE COURT OF APPEAL

TURKS AND CAICOS ISLANDS

CRIMINAL DIVISION

CR-AP NO. 26 & 27 OF 2013

COLIN DELANCY

LEVARDO SMITH

Appellants

vs

REGINA

Respondent

Before:

The Right Honorable Sir Edward Zacca, President

The Honorable Mr. Justice Mottley, Justice of Appeal

The Honorable Mr. Justice Forte. Justice of Appeal

Appearances:

Noel Skippings for the Appellants

Angela Brooks Deputy Director of Public Prosecutions for the Crown

Heard: January 25th 2016

Forte JA,

On the 25th January 2016, we heard the appeals of both Appellants, and on the 5th February 2016 we allowed the appeals, quashed the convictions and set aside the sentences. In the interest of justice we ordered a new trial. We promised then to put our reasons for doing so in writing. We now fulfill that promise.

THE JURY ISSUE

1.             The Appellants were tried on one indictment, which charged the offence of murder on the first count, and the offence of robbery on the second count. They were convicted on both counts. We however, found that there was a material irregularity in trying the offence of robbery on the same indictment charging the Appellant for the offence of murder.

2.             The reason is quite clear. The Jury Ordinance has ordered different modes of trial for these offences. Section 22 of the Ordinance states:

"All cases of treason, murder and piracy shall be tried before a jury, whether special or common, of twelve persons duly sworn and empanelled. ” [Emphasis mine]

3.             Section 23 of the same Ordinance states:

"Every criminal case, other than treason, murder or piracy, and every Civil case tried with a jury, shall be tried before a jury, whether special or common, of seven persons duly sworn and empanelled. ” [Emphasis mine]

4.             It follows from those provisions that anyone charged with an offence other than the offences of treason, murder or piracy must be tried by a jury of seven persons, while for those stated offences (Section 22), a jury of twelve persons ought to be sworn and empanelled to determine the outcome.

5.             In the instant case, the Appellants were tried for an offence other than murder, etc. in the presence of twelve jurors instead of seven. The trial of the Appellants for the offence of robbery was therefore a nullity, having been tried by twelve, rather than a seven member jury.

6.             We are confirmed in this view by the case of Junior Cottle and Lorraine Laidlaw v R (1976) 22 WIR 543 decided by Her Majesty’s Privy Council.

7.             In that case, in delivering the opinion of the Board, Lord Diplock summarized it thus:

"Each of the appellants were found guilty by the unanimous verdict of the jury both of murder under count one and of shooting with intent under count three, and were acquitted under the alternative count two. Both of them appealed to the Court of Appeal, West Indies Associated States Appeal Court (St. Vincent) on a variety of grounds, all of which the Court of Appeal rejected. The Notices of Appeal did not include any submissions that the trial was irregular upon the ground that a capital and non-capital offence had been tried together by a jury of twelve persons. It was the Court of Appeal itself which took this point in the course of the hearing. They held correctly in their Lordship’s view, that the trial of the Appellants by a jury of twelve on the non-capital counts was contrary to the provisions of the Jury Ordinance. They accordingly quashed the conviction of the appellants on count three. They did not, however, treat the whole trial as a nullity or interfere with the conviction on count one, for the capital offence of murder. ”

8.             In reviewing the history of the case, Lord Diplock made reference to the Jury Ordinance of St. Vincent which is similar to the Jury Ordinance of the TCI.

9.             In doing so he states:

"By Sections 12 and 13 of the Jury Ordinance 1938, provision is made for different modes of trial by jury for capital and non-capital offences. ”

10.          He then quotes the relevant section which provides for trial by nine jurors in the case of non-capital offences and by twelve jurors in the case of capital offences.

He then continues:

"It is thus unlawful in St. Vincent for capital and non-capital offences to be tried together by the same jury. ”

11.          In our view, this dicta covers the circumstances of the instant case also and consequently we ruled that the trial for the offence of robbery with that of murder was unlawful and rendered the trial of the offence of robbery - a nullity.

THE MURDER APPEAL

12.          A brief summary of the evidence is necessary before considering the appeal against the conviction for murder.

On Wednesday, 20th July, 2011 four (4) men drove to “the vicinity” of Sailing Paradise Inn, Blue Hills. The evidence revealed that they went there with the intention of robbing the Inn. Three of the men entered the premises at a time when the only person in the bar area was Santa Suarez Ramirez, the barmaid, who was subsequently shot and killed.

The prosecution alleged that the Appellant, Levardo Smith, was armed with a gun. Another, Jasario Robinson, armed with a cutlass stood by the door, while another, Ronego Missick was directed to take whatever money could be found. There was CCTV installed, and the footage was shown at the trial.

The plan was that the fourth man, the driver of the vehicle, would meet up with them after they exited the establishment.

It is sufficient to say for these purposes, that during the robbery, Ms. Ramirez was shot and subsequently died.

13.          Subsequently, two of the men, Jasario Robinson and Ronego Missick pleaded guilty to offences “other than murder” and were sentenced to four (4) and seven (7) years respectively, for their part in the incident.

The two Appellants maintained their innocence and subjected themselves to trial.

14.          At the trial, the two main witnesses for the prosecution were the two men who had admitted their participation in the offence, and who had consequently pleaded guilty. They were therefore self confessed accomplices in the committal of the offences.

These circumstances, therefore, called for detailed directions by the learned trial judge as to how the jury should treat with such evidence. In directing the jury, this is what the Learned Judge stated:

Robinson and Missick agreed that they’ve lied to the police during the investigation and they both explained why they did that. It would not have escaped your attention that even now, after they have been sentenced, they still seek to minimize their involvement. One of them always qualified his answers when he is asked about guns, that what he knows about guns is only from the internet, as if that lessened the impact of his knowledge.

You are well advised to treat their evidence with caution as people who are prepared to lie when they see it necessary for their own purposes. ”

15.          We find these directions were insufficient when dealing with accomplices, i.e., the evidence of persons who admittedly participated in the commission of the offences. This is a case where the offence of murder was committed, during the course of the robbery in which the witnesses admittedly participated. In these circumstances, the jury should have been told to approach their evidence with great caution, not only because they admitted to lying, but moreso, that they had an interest to serve, in exonerating themselves from the more severe offence of murder.

16.          For the above reasons, we declared the trial for robbery a nullity, and the conviction for murder unsafe. Consequently, we allowed the appeals, quashed the convictions set aside the sentences and in the interest of justice, ordered new trials - that is to say, separate trials for the offence of murder and the offence of robbery.

_______________________

Forte, JA.

___________________

Zacca, P

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Mottley, JA.