Court name
Court of Appeal of Turks and Caicos Islands
Case number
CR-AP 42 of 2014
CR-AP 43 of 2014

Castillo and Another v. Regina (CR-AP 42 of 2014, CR-AP 43 of 2014) [2017] TCACA 18 (01 December 2017);

Law report citations
Media neutral citation
[2017] TCACA 18
Coram
Mottley, P
Forte, JA
Stollmeyer, JA

IN THE COURT OF APPEAL OF TURKS AND CAICOS ISLAND

CRIMINAL APPEAL 42 & 43/2014

BETWEEN:

MISAEL CASTILLO  Appellants

STANFORD FORBES Jnr.

AND

REGINA Respondent

Before: The Hon Mr. Justice Elliott Mottley- President

The Hon Mr. Justice Ian Forte- Justice of Appeal

The Hon Mr. Justice Humphrey Stollmeyer- Justice of Appeal

Skipping for Stanford Forbes

Courtenay F. R. Barnett for Misael Castillo

Silver for the Crown

Heard: 7 September 2016, 19 September 2016, 1 December 2017

MOTTLEY, P.

1.             The appellants Misael Castillo and Stanford Forbes Jnr. (referred to as Castillo and Forbes individually or collectively as the appellants) after a trial before Joyner J. and a jury, were on 10 November 2014 convicted.

2.             Following these convictions, they appealed to the Court of Appeal. On 19 September 2016, the Court dismissed their appeals. At that time, we promised to put our reason for so doing into writing. We now hand down those reasons. The Court must however apologize for the delay in handing down these reasons but the delay was due to circumstances beyond the Court's control.

3.             The appellants were jointly charged with the murder of Anthony Quinn. The information alleged that on Sunday 13 May 2013 the appellants acting together with each other by an unlawful act did intentionally cause the death of Anthony Quinn.

4.             The appellants were also charged on a second count which charged robbery contrary to Section 10(1) of Theft Ordinance Cap. 3.10. The particulars alleged that on the same date they robbed Anthony Quinn of one Green Jeep Liberty Reg. # 7806, one White Flip Nokia Cell Phone and a FirstCaribbean International Bank Card. For the reasons set out below, the appeals against the convictions for robbery were allowed and the conviction were quashed.

5.             The case for the prosecution was that on 12 May 2012 Anthony Quinn an employee of Projetech Construction (Projetech) went out with some fellow workers for drinks at Jimmy Dive Bar in Grace Bay. At about 4.57 am on the Sunday morning, the deceased left the Bar in the Green Jeep Liberty which is owned by Projetech. He was driving towards his residence at One Loft on Thompson Cove. As he was driving towards his house, he has a flat tyre.

6.             The Prosecution case against Castillo consisted of his statements to the Police. In that statement, Castillo said that early on the morning of the 13 May 2012 he was walking towards Stanford Forbes house when he saw a Jeep turn into the yard of Forbes; it drove a little way and then stopped. The lights of the vehicle were then turned off. Castillo then went to Forbes room and woke him up. According to Castillo, after Forbes put on clothes both of them went out into the yard. Forbes picked up a rock. Subsequently, they emerged at the front of the vehicle where Castillo saw a man lying face down. Both he and Forbes went and picked up the man whom he described as a “bright skin slim man”. Castillo said he spoke to the man who said he was okay. He said that one of his car tyres had burst. Castillo and Forbes went in search for a tyre. Castillo told him that he and Forbes would assist him r in changing the tyre. To this end, Castillo inquired of him where he would find the jack. The man said that it was under a rug in the trunk. Castillo did not find the jack. He then went to the back seat of the car but did not find the jack. A further search of the car proved futile as no jack was found. Castillo them told Forbes to go and get a jack from his yard. Forbes eventually reappeared with a jack.

7.             Castillo said that after he finished changing the tyre, Forbes went to the back of the Jeep where the “bright skin man” was sitting on a rock. Castillo heard a noise which led him to inquiry of Forbes what had happened. Forbes responded that he had knocked “the bright skin man” with a rock. On going to the rear of the vehicle, he saw “the bright skin man” on the ground bleeding from the back of his head. He enquired of Forbes why he had hit the man. Forbes responded that he wanted the Jeep. Castillo observed that there was a rock with what appeared to him to be blood by the man's right shoulder. At that time Forbes was about 3 feet from the man. He complained to Forbes that his conduct could cause them to get into trouble. Forbes responded that he was going to “clean everything up”. Castillo turned the “white man” over on his back. He tried to ascertain whether he was still alive by putting his right hand below the nose of the “white man”.

8.             Further, Castillo stated:

“I went to the back of the vehicle and I lift the white man into the trunk and close the door and Stanford and I went into his daddy yard, where I had the jack on my hand to go, put back and Stanford went into his home to lock his door and Stanford and I walk back up the hill through the short cut at the dame time while we were working I asked Stanford what he was going to do with the man, and he said he don't know he was going to drop him by the new Marina in Long Bay. Stanford and I get into the Jeep. I was in the front passenger seat and Stanford was in the driver seat and as soon as Stanford started the Jeep I heard the white man mumble. Stanford go out the Jeep went to the back trunk and open it and told the white man to shut up, and I turn my head to look back and when I look back I saw the white man like he was trying to get up and I say “Smurf” Stanford bend down and grab a rock below him and I got out the ride to go to the back and I head the sound of Stanford hitting him again in his head in his face and I asked him “why the f--- he do that again” , and told him if he hit him like that one more time he was going to die so. Stanford close the trunk door and went back to the driver seat and I to the passenger seat and drove straight down the hill in the yard and turn the Jeep around and we went back up the hill to the main road and turn left into the highway and made a U-turn at 7/11 by Nell Store and drove straight up to the last round about by Texaco gas station and I told him to stop because [I] wanted to drive. Both of us switch sears and I drove straight to the marina with[out] making a stop. I drove straight to where the canal connect from the sea and both of us got out of the Jeep and we open the back trunk and left [sic] the man out and tried to lift him to the water. We sat him down because he started talking again, and Stanford wanted to hit him with a rock and I told him “No” and I told him to go to the back and get the jumper cable instead and told him we should tie a rock to him so he could sink. We ties[sic] the jumper cables to his foot then tie it to a rock and lifted him while Stanford lift the rock. The jumper cables was not strong enough, so, the rock kept coming off and Stanford said lets throw him in without the rock. Stanford held the white man two hands and dragged him while I was holding his foot to lift him and we sat him close to the water on the rocks. I again put my finger next to his nose to see if he was alive and I told Standford that he was still alive and Stanford took his right foot and kicked the man iff[sic] the rock into the water. We ran back to the jeep, I to the driver side and when we got in Stanford told me to let him drive back and I told him “Hell No” because Stanford was driving to [sic] slow when he drives so. I started the Jeep and put it in reverse and as I was reversing I sink the had and asked him where we taking the Jeep and he told me that we was going to take it by “Dice”, to get spray in Long Bay. I do not know “Dice” real name. As I was reversing I sink the had and reverse the Jeep into the bushes on the left side, I then put it in drive and tried to get it out the bush but it did not work so, we got out the Jeep and Stanford told me lets call somebody to get it out and I said that we can go check “AJ” Ariel Gray...”

We will revert to this statement later in the judgment.

9.             The prosecution case against Forbes was largely dependent of the statement he made to the Police. The relevant part of this statement is:

“At this time the white guy was in the back of the jeep. Marcel was in front of me and Marcel told me “I gin kill him you know” and I took it as a joke. I said that is on you and I continue to go for the jack. I came back with the jack put the jack under the jeep and started loosening the logs of the tire before I jack it up. It was the front left tire because the jeep was facing downwards in the yard... While loosening the logs I heard a thump sound, so I got up and walked around the right side of the jeep to see what it was. When I look I saw the white guy on the ground with his blood leaking and Marcel over him. Marcel looked at me and told me “I tell you I was gen do it”. It sounded like he was boosting (sic) and when he told me “you don't think I was going to do it for real a?” me already intimated I walked back to the tire in which I was fixing. I jack the tire up, took the tire off. Now there was a big rock in the ground stopping me from putting the tire on so Marcel and I had to dig the rock out so I can put the tire on. After we fix the tire Marcel take the fire wrench and throw it on the right side of the bush. I remember Marcel dragging the body to the front of the jeep and searching it. That's when I see him pull out a black wallet and pull out this flip top phone. I left Marcel putting the body back in the trunk of the jeep and I went to put the jack back in my daddy truck. While going back to the short cut to go to the truck Marcel stop me and told me I better come back or he would come in the yard and make a bunch of noise and wake my daddy up and I didn't want him to do that. So I told him “yea man I gen come back”. I went and put the jack in the truck on the left side next to the tire. After doing so I went back to Marcel, I went and I sat in the passenger seat of the vehicle. Marcel was driving and he came down the hill in a burst of speed, he turned around at the first building in my yard and went back up the hill in a burst of speed again... Heading up the road we hear the white guy start to talk in the truck Marcel turned to me and told me “Smurf handle that!” In my mind I was saying this dude seriously want me to go in the back there and hit this dude that's when he said to me “man just climb in the back seat and hit the dude two to knock him out. I told him I wasn't into that and I ain't doing it if he want it done he gotta do it himself. He was like “boy you don't think I'll do it for real a?” that's when he presed breaks suddenly and you could hear the sound like the boy hit his head in the truck and he went out again. So we continued going up the road. Now going up the road we hear the guy talk again that's when Marcel start say “boy you gen die and ain't nobody gen know you dead. Now the white guy was in the back reply “guys why you gotta do this? Now we continue going up the road until we reach the cannel.

When we reach the cannel the guy was still talking so Marcel hop out the jeep and hit him in his head with a rock again. Marcel pulled the body next to the jeep which what of been the left side cause it was facing the water. Marcel said to me “Smurf people live around here so you don't know who watching”, after he told me “evert time I pull the body I want you to pull the jeep up”. This went on until the jeep and the body reaches the edge close to the water. Tide was high at the time after the body got to the edge Marcel kick the body into the water. I was outside the jeep witnessing this happen. After he kick the body in the water he tell me lets go so I jump in the passenger sear and he went back to driving I could see he was paranoid cause every time he got behind the wheel he was speeding...At this point I going crazy cause I just witness a murder I say to murder I say to myself I going catch a jitney to Kew Town.”

We will revert to this statement later in the judgment.

10.          The Court is mindful that the contents of this statement of Castillo is only evidence against him even though he purported to make statements which incriminate Forbes. Equally the statement of Forbes is only evidence against Forbes and not evidence against Castillo even though it contains statements incriminating Castillo.

11.          The port mortem on the body of the deceased was conducted by Dr. Larry Godfrey, a Forensic Pathologist. He found that the deceased sustained extensive and contusions to all parts of the body. He had multiple lacerations and contusions to the head and scalp. The injuries to the head were consistent with being struck several times by rocks. The bruises and lacerations over the body are consistent with being dragged over rocks. He expressed the view that the bilateral pulmonary edema with foaming fluid in airways was consistent with water intrusion. In his view, the deceased died by drowning.

12.          The Court will consider together Grounds 1, 2, 3 and 8 (i) (ii) (iii) of Castillo's appeal. These deal with the issue of Castillo representation at the trial. In Ground 1 the complaint is made that counsel for the appellant at the trial acted improperly in insisting upon representing the appellant in circumstances where the following obtained:-

a)            as a fact, the appellant had stated in writing that the intended attorney-at-law who had been appointed upon legal aid, was compromised and/or tainted;

b)            there had been no prior communication with counsel and therefore no instructions which the intended counsel could have taken due to the circumstances of the rejection of counsel, with reason, bearing on the perceived compromise and/or taint;

c)             the appellant at all material times had a right to be provided legal representation which was adequate, in the sense of not being obliged to have a legal representative to whom objectively he could refer to as not being compromised and/or tainted, which considerations must and do bear upon the appellant's legitimate expectation for perceived honesty and/or integrity as are required and relevant for adequate legal representation;

d)            the appellant reasonably had a right to be represented by someone to whim the jury might have sufficient confidence in to be perceived as an honest legal representation of integrity providing adequate legal representation.

13.          In the second ground it was alleged that the judge erred in ruling as she did, based upon her findings and determination and directions:

i)              The Court: “Are you prepared to represent yourself?”

ii)             Defendant: “No, ma'am.”

iii)            The Court: “Well we're at a stalemate

AND

iv)           The Court: “Do you have somebody else who can take (inaudible) today?”

v)            Defendant Castillo: “No, ma'am.”

vi)           The Court: “Well, Anybody - thank you. Any other counsel want to (inaudible)?”

AND

vii)          Defendant Castillo: “I mean, if you all going to make Mr. Greene represent me in this case, you all can do it without me present. And matter of fact, (inaudible) I broke - my right foot it broken, and I;m very (inaudible) including now and I can't (inaudible) anyway.”

AND

viii)         The Court: “The court's ruling is that the defendant Mr. Castillo is representing himself.”

Mr. Green: “Very well.”

The Court: “That's the only ruling and I would ask you to remain as amicus.” (

14.          Ground three alleged that the appellant was inadequately and/or unfairly represented in that on the face of the record the preparation time for taking instructions was 20 minutes before the jury was empaneled determined as follows:

The Court:            “Yeah, I will rise then. I'll take a break. How much time you need, sir?”

Mr. Green:             “Ten minutes, 15 minutes tops.”

The Court:            “I'll give you 20 minutes, how is that?”

Mr. Green:             “Very well, My Lady.”

AND (same day)

“Recess

Upon resuming

………..Jury pool present.”

and by reference to his affidavit of the 3rd December 2014 the Appellant states that no adequate instructions were taken from him and that none were taken in writing, by reason of which the appellant was not given fair and/or adequate legal representation to accord with s. 6 of the Constitution and the rights attendant to ss. 6(1) and 2(c) therein:

“6.(1) If any person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.”

“(2) Every person who is charged with a criminal offence-

(c) shall be given adequate time and facilities for the preparation of his or her defence.”

15.          The Court considers that it is necessary to set out at length the exchanges which took place before Castillo accepted Mr Green as his counsel to defend him at the trial. On 14 October, the following exchange took place between the court and both counsel and the appellant:

The Court:            Thank you. Mr. Castillo, stand please. Who is your attorney?

The Defendant Castillo:     Courtenay Barnett.

The Court:            In Court say “mister”, you see?

The Defendant Castillo:     Pardon?

The Court:            In court say “mister” Courtenay Barnett.

The Defendant Castillo:     Mr. Barnett

The Court:            Well, [inaudible] see correspondence from him saying he can't appear for you. Have you spoken to him recently, since Friday?

The Defendant Castillo:     No, ma'am.

The Court:            That's the way it is, Mr. Castillo. [inaudible] received your letter and said you wanted Mr. Hamilton [inaudible] now, yes?

The Defendant Castillo:     Yes, ma'am.

The Court:            And Mr. Barnett would be your attorney. But subsequent to that did you see correspondence from Mr. Barnett saying he's not taking on your brief. So as of now you are unrepresented, do you understand?

The Defendant Castillo:     Yes ma'am.

The Court:            Yes, does anybody else have anything to say before I send the matter back to Grand Turk?

Ms. Meloche:       I would just like to put on the record, My Lady, that the prosecution was ready to proceed.

The Court:            Yes

Ms. Meloche:       All 29 witnesses were summonsed and ready to come to court. The family of the deceased has come to this jurisdiction from the UK, expecting the trial to take place. And Mr. Barnett, I understand, had been in negotiation with the Chief Justice and had been offered an uplift, but chose not to take it, and we would have been ready to proceed either with Mr. Hamilton representing or Mr. Barnett. So I'm just wondering if the court can make a recommendation that a very early date be set for this matter so that we don't encounter any further.

The Court:            Mr. Castillo stand now. Like I said, you are unrepresented on the record. You need to write to the chief—well to the registrar in Grand Turk saying you understand from this court you have no counsel and you need to have counsel and if they could provide you with Legal Aid, you understand?

The Defendant Castillo:     Yes, ma'am.

The Court:            So when you get back to where you're being kept, you have to write. Write today. Yes?

The Defendant Castillo:     Yes, ma'am

The Court:            You'll be taken to the Grand Turk Supreme Court on the 25th of October for a nine thirty sitting, yes?

It should be noted that the DPP indicated that all the witnesses had been summoned, In addition, the DPP pointed out to the judge that the family of the deceased had come to the Turks and Caicos Islands for the trial. The judge nonetheless adjourned the matter.

16.          The Matter resumed on 25 October when the following exchange took place:

Mr. Greene:           Clayton Green for Mr. Castillo

Ms. Meloche:       Thank you, My Lady. I take it then that Mr. Castillo is retaining Mr. Clayton Greene?

The Court:            I'm about to—I was about to ask him.

Ms. Meloche:       Okay, that's fine. I just wanted to make sure that was on record. Thank you.

The Court:            I was about to ask him.

The Court:            Mr. Castillo, sir, do you speak English, sir?

Defendant Castillo:             Yes, ma'am/

The Court:            Yes. Mr. Clayton Green is your attorney, sir?

Defendant Castillo:             No, ma'am.

The Court:            Who is your attorney?

Defendant Castillo:             Um, Mr. Courtenay Barnett.

The Court:            Where is her? Do you see him?

Defendant Castillo:             No, ma'am. He couldn't [inaudible] he is currently away, but he's coming back [inaudible].

The Court:            I talked to Mr. Courtenay Barnett on Wednesday. He said he was in Jamaica. He said he wouldn't be back until this Friday. He said he does not appear for you. I'm just telling you what he said, sir. Something about fees not right and he will need more time to prepare, in any event. That's what he said. Are you prepared to represent yourself?

Defendant Castillo:             No, ma'am

The Court:            Well, we're at a stalemate.

17.          Returning to the issue of the appellant's representation, the following took place:

The Court:1992. Thank you, sir. Yes, back to your representation, sir. If I could just hear from him a bit. The trial is to start today. You appreciate it has been a long history for representation in this matter, yes?

Defendant Castillo:             Yes ma'am.

The Court:            First, it was Mr. Hamilton, and then he discovered on the day it was set for trial that he is related to you and asked to be taken off the record and a hearing was held. He was allowed to withdraw because he indicated that Mr. Barnett would take the brief. Yes? Thereafter, there was some negotiations with Mr. Barnett as to fees, which this court was not privy to, and then it would appear that no agreement was reached.

Thereafter, you were put back on the plea and directions hearing list for PDH after PDH, when representation should have been settled. And then in July of this year, the present Chief Justice, Chief Justice Hale, assigned Mr. Green as your counsel. Thereafter you wrote a letter saying you do not want Mr. Greene. But as I understand it, Mr. Greene is still the counsel. So there we are.

Defendant Castillo:             I mean, I really- I really want somebody to represent me. Mr. Greene is [inaudible].

The Court:            Yes, [Inaudible] letter.

Defendant Castillo:             I mean, it doesn't necessarily have to be Mr. Barnett, but Mr. Greene can't-

The Court:            Do you have somebody else who can take [inaudible] today?

Defendant Castillo:             No, ma'am.

The Court:            Well, anybody- thank you. Any other counsel wants to [inaudible]

Ms. Meloche:       Yes, please, My Lady

The Court:            You want to say something.

18.          The Director reminded the judge of what had taken place in so far as the representation of the Appellant.

Ms. Meloche:       As Your Lady indicated, the history of the case, if I may be allowed to read it into the record, is that Mr. Castillo was represented by Mr. Hamilton from the time of his arrest.-

Ms. Meloche:       And that was from the original trial date scheduled in October 13 2013. It was three days before that trial date that Mr. Hamilton made an application to remove himself from the record, claiming a conflict of interest in that he had been present at the time of the taking of the caution statement given by Mr. Castillo. Mr. Courtenay Barnett had provided a letter to the court indicating that he would go on record only if the court agreed to an uplift to the Legal Aid fees in an amount satisfactory to him. The Crown objected to Mr. Hamilton's request to be removed in those circumstances, mainly that the timing of the request was unreasonable bearing in mind that Mr. Hamilton had been aware of the conflict from the time of the arrest. The Crown also submitted the conditional nature of the offer by Mr. Barnett to accept instructions would probably result in an adjournment of the case and there was no precedent for an uplift in the fees.

The Court:            Excuse me, I remember Mr. Hamilton also saying he was related to Mr. Castillo.

Ms. Meloche:       I don't- that's fine and I accept that, but he also was the - was the lawyer that- and again, it's the same argument, he would have known that from the time of the arrest.

The prosecution had 27 witnesses under summons and scheduled to testify. The witnesses included one international expert and one international civilian witness. Further, the family of the deceased had travelled from the UK, at their own expense, and were emotionally prepared to deal with the trial. The request to be removed from the record by Mr. Hamilton was granted. And although the uplift in the legal aid fees requested by Mr. Barnett was not agreed by the court, an uplift in the legal aid was nevertheless offered, but it was not to his satisfaction. Inevitably, an adjournment took place for the new trial date, scheduled one year later, October 6, 2014.

The accused Misael Castillo appeared at the plea and directions hearing- as Your Lordship indicated, every single one, for the whole period of the year before Chief Justice Goldsbrough - and at each appearance Mr. Castillo was given the opportunity to retain counsel at public expense. He refused to accept the offer, insisting upon the services of Mr. Courtenay Barnett at public expense. Mr. Barnett maintained the position that he would only accept the instructions if the fee was uplifted to his satisfaction and this was not agreed to by the court.

At the request of the court, the bar council circulated a notice to the legal profession, My Lady, requesting the services of defence counsel to assist Mr. Castillo at his scheduled trial. Three separate defence counsel offered their services and Mr. Castillo declined each one, insisting-

The Court:            May I have the names of those three, please?

Ms. Meloche:       I don't have those names. Those names would be with the bar-or the registrar.

The Court:            Who told you that-

Ms. Meloche:       It came out in court

The Court:            Which court?

Ms. Meloche:       When he was appearing at the plea and direction.

The Court:            PDH. Okay

Ms. Meloche:       Chief Justice Goldsbrough, at each monthly plea and directions appearance over the course of the year, reiterated the court's position that the fees demanded by Mr. Barnett could not be agreed and that Mr. Castillo was free to retain his services at his own expense. Also, in court Mr. Castillo was reminded that the trial was scheduled to take place in October 2014 and it would be in his best interest to be represented by counsel. Mr. Castillo continued to refuse the legal aid assistance.

In July 2014, Justice Ramsay-Hale, as Your Ladyship had indicated, was hearing the plea and directions. She-she -she was provided with the history if the case and ordered that the court appoint competent counsel to assist Mr. Castillo at this scheduled trial.

Mr. Clayton Greene, an experienced and senior member of the bar, accepted the appointment. I would submit that his personal situation had no bearing on this matter.

All disclosure was provided to Mr. Greene in an endeavour to prepare for trial. At the scheduled trial dated today, which has been-or on the sixth, which has been delayed a week, Mr. Castillo communicated to the court that he had provided to the court indicating that he has not instructed Mr. Greene.

Again, Madam Justice Joyner, all 27 witnesses are under summons and scheduled to testify. The witnesses now include three international civilians witnesses and one international expert witness. The family of the deceased victim again have travelled from the UK and are once again prepared to deal with the trial.

19.          The DPP concluded her submission

Ms. Meloche:...    So in conclusion, My Lady, Misael Castillo has been offered the support and advice of experienced counsel. There has been delay of his previously scheduled trial for over one year whilst he has been, on a monthly basis, encouraged and assisted to find new counsel. The counsel of his choice not being prepared to accept instructions from the Registrar, there is no indication that that has changed or will, the court cannot any longer be held to ransom by a defendant's demand for counsel who refuses to act. The court could be satisfied in this case that the defendant can be properly represented by counsel and that the balance of justice and fairness requires that this case proceeds. Any further adjournment will be detrimental to the co-accused, the Crown, the public interest, the 27 witnesses and, we submit, importantly the family of the deceased, who have once again, at their own expense, journeyed to the islands to learn of the fate of their brother.

Justice demands that the trail starts on this new fixed date and there is no justification for a further adjournment. I'm confident that the Court of Appeal would uphold the decision by My Lady in conformity with the case law in the circumstances that exists in this case.

20.          Mr. Green made the following intervention:

Mr. Greene:           Since Your Ladyship has asked one three occasions, I will say something.

The Court:            Well-

Mr. Greene:           And I will begin by saying I don't know what I'm required to say.

The Court:            No-

Mr. Greene:           The defendant has said-

The Court:            No it's just that the Crown has made her submission and I'm asking ifyou wish to say anything.

21.          The judge invited the appellant to make any submission should he wish.

The Court:            You don't have a response. Mr. Castillo, are you prepared to represent yourself?

The Court:            You have to adapt to reality. It's not going change to accommodate you. Life doesn't work like that. So what are you going to do?

Defendant Castillo:             I mean, if you all going to make Mr. Greene represent me [inaudible] trial without me being here, because I wouldn't [inaudible]-

The Court:            You want to what? Go a little slower. [inaudible] yes?

Defendant Castillo:             If Mr. Greene is going to represent me in this case, you all can do it without me present. And matter of fact, [inaudible] right now, I broke-my right foot is broken, and I'm very [inaudible] including now and I can't [inaudible] anyway.

The Court:            Do you have any family in the precincts of the court? Do you have any family members who came today? Not here, but downstairs, did you see any of your family?

Defendant Castillo:             No, ma'am.

The Court:            Do you know if any of them came today?

Defendant Castillo:             No. [inaudible]

The Court:            Okay. [inaudible] broke your foot...

The Court:            Yes. Thank you. During     the trial you will be allowed to sit. You won't be on your foot.

[inaudible] the situation here, because the court has to balance the Defendant Castillo's wishes with the fact that the trial must go on. Mr. Greene, how [are] you going to take instructions if there is this- for want of a better word-feeling?

Mr. Greene:           Well, I'm not sure I'm in a position to take instructions.

The Court:            That's what I was trying to—[inaudible] just said

Mr. Green:             Well, the court has to rule but my [inaudible]

The Court:            No, but I have to hear from everybody before.

Mr. Greene:           Very well, I've never been in a position where I'm representing somebody against their wishes.

Mr. Greene:           That puts me in a very peculiar position.

Mr. Greene:           Particularly given the basis of his position—

Mr. Greene:           --that I -that he does not wish me to represent him.

The Court:            You personally, yes

Mr. Greene:           Yes

Mr. Greene:           So that puts—and that is why I didn't wise to speak to the submissions, because I don't-I'm in that position.

22.          In so far as a further adjournment to permit the appellant to obtain counsel of his choice, the DPP stated:

Ms. Meloche:       I know, but it's important for the record. An adjournment today will result in no change. We will be back here in the same position. Mr. Castillo will have to have his trial. So the only thing to do is to accept his wishes and go forward with the trial with him being unrepresented. There is no alternative. There is no alternative. He has been offered legal representation, but he refuses it. There is no alternative representation for him that he will accept. The only alternative is, is that he go forward with his trial unrepresented, which he has orchestrated, requested and consents to. That's what—square what the case law represents. He is here without a lawyer today because of his choice. That is his choice. There is no alternative for the court but to respect that choice and go forward. Every other choice has been offered to him, facilitated for him, over the period of a year, you know, impressed upon him, the importance of it et cetera. There is just no other alternative available. So either Mr. Castillo wants to have legal representation offered to him today, or he doesn't. There is no alternative for this court. What is an adjournment going to accomplish? It won't accomplish anything. There must be a trial.

23.          At the conclusion of the submission, the judge made his ruling:

The Court:            The court's ruling is that the defendant Mr. Castillo is representing himself.

Mr. Green:             Very well.

The Court:            That's the only ruling. And I would ask you to remain as amicus.

Mr. Green:             Very well.

24.          Later the judge inquired of the appellant whether anything had changed in respect of his retaining counsel to represent him. The following exchange took place:

Mr. Greene:           Yes, yes, My Lady. Perhaps if you want, for the record, to hear from...

The Court:            Mr. Castillo, has anything changed, sir?

Defendant Castillo:             I make Mr. Clayton Green my attorney.

The Court:            I'm not- you're talking too fast, sir.

Defendant Castillo:             I'm sorry. I make Mr. Clayton Green be my attorney.

The Court:            All I heard was Clayton Green. Come again.

Defendant Castillo:             I make Mr. Clayton Greene to be my [inaudible].

The Court:            Oh, Mr. Clayton Greene now appears for you. Sorry about that. Thank you. Mr. Clayton Greene, this is so?

25.          Mr. Greene then confirmed to the Court that he was appearing for the appellant:

The Court:            So you appear in a defense counsel capacity?

Mr. Greene:           Yes, My Lady.

The Court:            Very well, Bring up the jury, please. Because that will take time to vacate the courtroom while the jury is siting.

26.          The thrust of Mr Barnett's argument was that Castillo did not want to be represented by Mr Green and consequently was denied of his constitutional right to be defended by the attorney-at-law of his own choice. Section 6(2)(d) of the Constitution of the Turks & Caicos Islands states:

(2) Every person who is charged with a criminal offence:-

(a)           ……….

(b)           ………….

(c)           …………

(d)           shall be permitted to defend himself or herself before the court in person or at his or her own expense by a legal representative of his or her choice or when the interest of justice so requires, by a legal representative at the public expense.

27.          It would have been pointless for the judge to adjourn the case for the appellant to obtain the services of Mr. Barnett. It was known that Mr. Barnett was not prepared to accept a Legal Aid Certificate unless he was given an uplift on the legal aid fees. This uplift was not forth coming. It does not appear that fees to brief Mr. Barnett could be raised privately. From what passed between the appellant and the judge, the appellant at one point was unwilling to accept any other lawyer. It should be remembered that the right to counsel as guaranteed by section 6 of the constitution is not absolute. In Robinson v R - (1985) 32 WIR 330, Lord Roskill observed that:

“In the present case the absence of legal representation was due not only to the conduct of counsel but to the failure of the appellant, after his decision not to seek legal aid, to ensure that those by whom he wished to be represented were put in funds within a reasonable time before the trial or, if such funds were not forthcoming, to apply in advance for legal aid. If a defendant faced with a trial for murder (of the date of which the appellant had had ample notice) does not take reasonable steps to ensure that he is represented at the trial, whether on legal aid or otherwise, he cannot reasonably claim that the lack of legal representation resulted from a deprivation of his constitutional rights.”

His Lordship indicated that the Privy Council

“... after full consideration reached the conclusion that there was no breach of the constitutional rights to which the appellant was entitled. In this connection their Lordships would refer to the decision of the Court of Appeal of Jamaica in R v Pusey (1970) 12 Jamaica LR 243.”

In Pusey, it was argued that

“the refusal of the adjournment deprived Pusey of the same constitutional rights as those of the deprivation of which the appellant now complains.”

The Privy Council concluded that:

“In giving the judgment of the Court of Appeal Sir Joseph Luckhoo JA said (at page 247):

'Counsel for the applicant has urged that in the light of the foregoing the applicant was denied the right to counsel of his own choice and has contended that the trial ought to have been adjourned to enable the applicant to engage the services of counsel other than Mr Neita if Mr Neita no longer wished to defend him. While we fully appreciate that the Constitution of Jamaica enjoins that every person who is charged with a criminal offence must be permitted to defend himself by a legal representative of his own choice if he so desires, yet the trial of an accused person cannot be delayed indefinitely in the hope that he will by himself or otherwise be able to raise at some indeterminate time in the future sufficient money to retain the services of counsel.'

Their Lordships respectfully agree with this statement. Of course, in Pusey's case the other counsel was available whereas in the present case there was a refusal by Mr Soutar not only to appear without Mr Neita but even to appear on a legal aid assignment. Nonetheless, the importance of the decision is that it shows that the right to legal representation is not absolute in the sense that adjournments must always be repeatedly granted to secure legal representation. There are other relevant considerations to be taken into account. In their Lordships' view one other relevant consideration is the present and future availability of witnesses.”

28.          In any event, the Director of Public Prosecution indicated to the judge that she had a number of witness (26) who had been summoned for the hearing. The family of the deceased had on two occasions at their own expense travelled twice to the Turk & Caicos Islands for the trial. In deciding whether to grant an adjournment, the judge had to consider the interest of justice which meant that he had consider not only the interest of the appellant but the interest of the prosecution. In addition, one of the expert witnesses came from overseas. In addition, the judge had to consider that a pointless adjournment undermines the confidence in the administration of justice and the competence of the Court (see Barrow JA in Kalus Rogers v The Queen Anguilla Criminal Appeal No 1 of 2004.

29.          Having been informed by the judge that no adjournment would be granted, the appellant was faced with embarking on the trial without counsel. In the circumstances, Castillo informed the judge that he would accept the assignment of Mr Green as counsel. We do not consider that there is any merit in these grounds of appeal which are rejected.

30.          In Ground Four, complaint was made that Mr. Green failed to take instructions and as a result did not raise the issue of homosexuality which Castillo considered to be an element in the case. Consequently, it was alleged that he failed in his duty as counsel to the appellant Castillo. It was stated that this occurred because counsel did not take any and/or adequate instructions as to the “homosexual aspect” of the case which involved an adult male with young men late at night.

31.          It is also alleged that, by his conduct, Mr. Green willfully deprived Castillo “of likely self-defence and/or provocation in all the circumstances of the case”.

32.          Castillo further alleged that “Mr. Green objected to the admissibility of the evidence of the alleged confession at the voir dire on the ground that it was not a voluntary statement having been taken by the police in the absence of his attorney-at-law. However, when the prosecution sought to admit the evidence before the jury, Mr. Green failed to object.

33.          On 3 December 2014, Castillo swore an Affidavit which was filed with the Registration Office on the dame date. In para 3 (ii) (e) of that Affidavit, Castillo stated:

“I said on my own behalf in my appeal documents that this was a homosexual attack which went “in an inappropriate homosexual way seriously of control” and I was a person of much young age than the one attacking me, and I instructed Mr. Green not only to deal with this defence but to put me in the witness box and instead:-

He failed to emphasize to the jury why the deceased was found naked.

He failed at all to mention or in any proper defence address the fact to the jury that condoms were found.

He failed at all to deal with the fact of semen and how this might or could have been exchanged and be of great relevance to the case and defence.

He failed to deal with the fact that blood was found on both accused clothes.

He failed to address and/or adequately or at all deal with the fact that the fingerprints found on Quinn's jeep could be legitimately explained.

He failed to permit me to testify in light of the scientific evidence which had to be explained.

34.          On 6 September 2016, Mr. Green swore an Affidavit in response. He stated that although Castillo's affidavit was filed on 3 December 2014, it was not received by him until 8 August 2016. A letter dated 5 August 2016 from Mr. Courtenay Barnett accompanied the Affidavit. In that letter, Mr. Barnett requested Mr. Green to confirm in an affidavit which he stated would be placed before the Court the following:

a)            Whether you did take (sic) written instructions from Castillo in this matter, and if so when, and to what extent, if any, were the instructions reduced to writing?

b)            Is the allegation true that Castillo was adamant that he wanted to give evidence from the witness box on his own behalf in his defence?

c)             Is the allegation true that upon your advice you insisted that he not give evidence as he had requested to do?

d)            Did you take a written signed confirmation (from) Castillo as to his final decision to give evidence or decline to do so, based upon his instructions to you?

35.          In para 13 of his Affidavit, Mr. Green stated inter alia that on 7 October he attended Her Majesty's Prison “to take specific instructions from Castillo.” He continued:

“I had by this time reviewed the file and the statements of the witness and determined a strategy for the defence of Mr. Castillo. I explained strategy to Mr. Castillo during our meeting and took the instructions necessary in order to enable me to cross examine the police witnesses as there was no direct evidence save and except what may have been contained in the interviews of the defendants who were jointly charged.”

36.          Mr. Green denied the allegation that he did not receive instructions from Mr. Castillo. He characterize allegations as “patently false”. He pointed out that “the contents of the instructions continue to be privilege”. In so far as to whether Castillo would give evidence, Mr. Green stated at para 22:

“In relation to whether or not Mr. Castillo would give evidence in the trial Mr. Castillo and I continued to keep this under review and discussed it continually during the course of the trial. At the end of the day Mr. Castillo took a decision not to give evidence. I have no doubt that his (decision) was influenced by matters that I would have raised with him but at every step of the way I made it clear that the final decision was his to make and that I would respect the decision that he made.”

37.          Mr. Green, in his Affidavit, made no reference to the allegation by Castillo that he has instructed Mr. Green that what occurred on the morning when the deceased died was an inappropriate homosexual “attack which got out of control”. The Record does not show that this issue of homosexuality was ever raised by Mr. Green.

38.          In the opinion of the Court when such an allegation is being made against a deceased person, it is the clear duty of counsel to reduce such instructions to writing and have his client sign them. Such allegation could have this effect of impugning the character of the deceased. A defence involving such a line attack ought not to be lightly embarked upon without clear, unambiguous and signed instruction. Before attacking the character of the deceased, Counsel must be satisfied that there is substance in the allegation and that if denied by the prosecution witness as it would not be left hanging in the air without substantial evidence to support it.

39.          Mr. Green never raised this issue in cross examining any of the witnesses. Beyond asking his friends whether the deceased had homosexual tendencies, there was not much that Mr. Green could have done.

40.          In regards to the allegation that Castillo wanted to give evidence but Mr. Green did not call him, this issue was dealt with by the Privy Council in Ebanks v R [2006] UKPC 16-

“[17] It is unfortunate that there should be any room for doubt about the position. The decision whether or not to give evidence is always ultimately one for the defendant himself after receiving appropriate advice from counsel; cf the Bar of England and Wales, Written Standards for the Conduct of Professional Work, para 11.4. But the decision not to give evidence is one of such potential importance that it has long been recognised that it should be recorded in writing. Watkins LJ explained the position in this way in R v Bevan (1993) 98 Cr App Rep 354 at 358: 'One criticism has, however, to be levelled at counsel. It is to be hoped that all counsel will heed what we now say. When the decision is taken by a defendant not to go into the witness-box, it should be the invariable practice of counsel to have that decision recorded and to cause the defendant to sign the record, giving a clear indication that (1) he has by his own will decided not to give evidence and (2) that he has so decided bearing in mind the advice, if any, given to him by his counsel. That certainly was the practice in the days when the members of this court were practising at the Bar. It should never have been departed from. It is our firm view that if the practice has fallen by the wayside, it should be restored to its former prominence and become invariable once again.'

More recently, in R v Chatroodi (unreported) [2001] EWCA Crim 585, at paras [39] and [40], Pitchford J repeated the warning:

'[39] As long ago as 1993 Watkins LJ, giving the judgment of this Court in R v Bevan 98 Cr App Rep 354 said that it should be the invariable practice of counsel to record any decision of a defendant not to give evidence, signed by the defendant himself, indicating, clearly, that the decision has been made of his own free will, and that in reaching that decision he has borne in mind advice tendered by counsel. We are bound to express some dismay at the knowledge that comparatively senior counsel, advising a client not to give evidence, notwithstanding the provisions of s 35 of the Criminal Justice and Public Order Act 1994, was unaware of this obligation.

'[40] While we would not expect counsel to record every detail of every conference between himself and his client, we would expect some written record of a conversation relevant to the important question whether it was in the defendant's interests to give evidence at his trial. This court suffers the disadvantage, in the absence of such a record, of being required to evaluate the recollections of counsel, on the one hand, and the appellant on the other.'

The reasons which make the practice desirable apply with equal force in the Caribbean jurisdictions, as the Board made clear in Bethel v The State (1998) 55 WIR 394 at 398. The appellant had alleged that his counsel had acted improperly in several respects, including not permitting him to give evidence. Lord Hoffmann recorded that their lordships felt bound to say that

'they are surprised that in a capital case no witness statement was taken from the petitioner or other memorandum made of his instructions. In view of the prevalence of allegations such as those now made, they think that defending counsel should as a matter of course make and preserve a written record of the instructions he receives. If this appeal serves no other purpose, it should remind counsel of the absolute necessity of protecting themselves from such allegations in the future.'

Although the Board was there dealing with a capital case, the practice is equally desirable in non-capital cases. Since it appears that even experienced counsel are still failing to follow the practice, their lordships wish to emphasise yet again that, where it is decided that the defendant will not give evidence, this should be recorded in writing, along with a brief summary of the reasons for that decision. Wherever possible, the record should be indorsed by the defendant.

[18] Mr Froomkin submitted that the rule of practice was so important that, where it had not been followed, the appellant should be given the benefit of the doubt and an appeal court should proceed on the basis of his version of events. Their lordships would not accept that submission. Rather, in the absence of any written record, an appeal court has to consider the respective accounts of the appellant and of his former counsel and evaluate them in the light of the other relevant circumstances.

[19] In carrying out that exercise the appeal court may well find it desirable to hear evidence from those concerned. The Court of Appeal declined to do so in this case. One submission made on behalf of the appellant was, accordingly, that the appeal should be allowed and the case should be remitted to the Court of Appeal to hear evidence before reconsidering the grounds of appeal. But there may be cases where, having regard to the surrounding circumstances, the court feels able to resolve the dispute without hearing evidence. The question is whether, without hearing such evidence, the appeal court can be satisfied that the verdict is safe.”

41.          The appellant complained that Mr. Green failed to take adequate instructions from him and failed to raise the issue of homosexuality which he alleged was an element in the case. He suggested that homosexuality was relevant as the case involved an adult male with young men late at night. An additional complaint was that counsel deprived the appellant of the defence of self defence and/or provocation. Further, while counsel objected to the issue of whether the statements (both oral and written) to the Police which led to the voir dire, he failed to object to the admissibility before the jury.

42.          In his affidavit, Mr. Green stated that at all times he had been given instructions and was able to effectively cross examine the witness.

43.          In his cross-examination of Ms. Hartshorn, Mr. Green asked her whether at any time during the eight and half years that she has known the deceased whether she “had ever known him to have a girlfriend”. This question was met with vigorous objection by the Director of Public Prosecution. In the absence of the jury, Mr. Green pointed out to the court that evidence would be shown to assist the court in ascertaining the relevance of the condom wrappers were found at the scene of the crime. In addition, he said that there was evidence of semen on the penis of the deceased and on the boxer shorts he was wearing. After further cross-examination, the witness stated:

“If you are asking me if Anthony was a homosexual, my answer, my answer is no.”

44.          Faced with this specific denial by Ms. Hartshorn, Mr. Green's only option to have to evidence of the alleged homosexual tendencies of the deceased placed on the record would have been by evidence of the defendant himself or witness called on his behalf. The defendant did not give evidence nor was any witness cased on his behalf to give evidence relating to this specific allegation.

45.          In a signed statement, Castillo confirmed his instruction to Mr. Greene. A copy of that document produced to the Court as an attachment to his affidavit shows the following:

“I am one of the Defendants charged with the offence of murder and robbery. I have had a consultation with my Attorney who informed me that I had the right to testify in the trial if I wish to do so. He has advised me that the decision to testify was mine and mine alone. I decided that I did not wish to testify in the trial. I made this decision of my own free will.”

46.          The document which was signed by Castillo is dated 7 November 2014. The Record does not show the date on which the Crown closed its case. The Record shows that the judge began her summation to the jury on 10 November 2014. The document produced shows that on 7 November, the defendant after consultation with Mr. Green made the decision no to testify. Castillo has been informed of this right to testify if he so desired. He was fully aware that the decision whether to testify or not was his. In the opinion of the Court, he made a decision having been informed of all the relevant law. In our view, he cannot now complain that he was not allowed to give evidence.

47.          The decision of Castillo not to testify meant that there was no evidence that the deceased was a homosexual or had homosexual tendencies. The effect of this was that Mr. Green was unable, in his address to the jury, to refer to any such allegation of homosexuality or to show that it played any role in the death of the deceased. Whatever his instructions were, without evidence from the defendant or witnesses on his behalf, counsel could not address the jury (on the) issue. In the absence of any evidence to that effect the judge could not direct the jury on the question of homosexuality and the role it was alleged by the appellant to have played.

48.          In respect of the allegation that he was willfully deprived of the likely defence of self defence or the defence of provocation, the defence of self defence or provocation certainly did not arise on the prosecution case. It certainly did not arise on the statements which Castillo gave to the police. Neither defence arose on the state of the evidence. In the circumstances, the criticism is not justified.

49.          The appellant also complained that, following the judge's ruling on the voir dire, Mr. Green did not object to the admission of the confession and statements to the police when the Director of Public Prosecution sought to admit the statement in the presence of the jury. There is clearly no substance in this submission. The admissibility of a statement or confession is a question of law from the judge. This is heard in trial, within a trial or the voir dire. Once the statement or confession has been admitted by the judge it is not opened to counsel for the defendant to challenge the admissibility. Once admitted into evidence the issue for the jury is to determine what weight ought to be given to the statement or confession.

50.          For the reasons stated above, we consider that Ground Four should be dismissed.

51.          In Ground 6 it is alleged that the judge failed “to have contested evidence addressed in a manner that was not prejudiced and/or contrary to the Constitutional protection guaranteed under section 6(1) of the Constitution to ensure a fair trial. The Ground specifically state vital evidence “as regard rock, debit card, cell phone, buccal swabs were improperly addressed before the jury”.

52.          The complaints in relation to the cell phone and buccal swab were not pursued. The police officer gave evidence that he found the credit card with the name Anthony Quinn under the rear seat of the minivan which belongs to the appellant Forbes. It was entered as Exhibit CG7 after Mr. Greene informed the Court that he had no objection to the debit card being admitted into evidence.

53.          Section 6(1) of the Constitution provides:

“6. (1) If any person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.”

54.          In relation to the rock, the judge having heard submission in the admission of the rock into evidence, ruled that was not admitting into evidence. Counsel complained that nonetheless the judge told the jury:

“If you wish any physical exhibits if you wish the stone, you'll just asked for them and they'll be provided.”

Immediately before saying this, the judge told the jury:

“The stones you won't get but you'll get the documentary evidence.”

The judge then made the statement with which issue is being taken by Counsel. While some uncertainty may possibly exist, there is nothing to indicate that the jury requested or were given the stone.

55.          The Court does not consider that there is any merit in this Ground of Appeal.

56.          Complaint is made that the judge misled the jury into believing that the interview in the absence of his lawyer was permissible conduct on the part of the police. In his summation to the jury the judge said:

“Then you have the caution statement of Misael Castillo, which is in the handwritten form; fourteen pages, yes. And remember when you read this you only take what he said about himself. Only what he said about himself not what he said about anybody else, yes. Prosecution is relying on this and then he gave interviews where he modified some of the things he said in his caution statement you have to look at that too. You have the one with his lawyer present where he exercises constitutional right to silence. That was given on the 18th and the one on the 20th came after without his lawyer present when he answered questions according to his caution statement.”

57.          It is alleged that this direction is a misdirection in that they referred to the Second Caution Statement what the Appellant said of himself.

58.          The judge having ruled the statement admissible, the only issue for the jury was what weight to be attached to the statements. We did not consider that there was any merit in this complaint.

59.          The appellant complained that the judge failed to direct the jury on the issue of manslaughter. Even though manslaughter was not raised as a defence by the appellant, the law is if it properly arises on the evidence the judge is under a duty to leave it to the jury.

60.          Section 7 of the Offences against the Persons Ordinance provides:

“Whoever causes the death of another person by unlawful harm is guilty of manslaughter shall be liable on conviction to imprisonment for life.”

61.          Section 3 of the Offences against the Person provides:

“3. Subject to the provisions of section 4 of this Ordinance, whoever intentionally causes the death of another person by an unlawful act or omission is guilty of murder:

Provided that where on the facts found the offence would, under the laws of England, be reduced to one of manslaughter, then the offence shall be so reduced.”

62.          In Alphonse (Stephen) v The State of Dominica - (1994) 48 WIR 92, the Court of Appeal of the Easter Caribbean observed:

“On the issue of provocation, in Lee Chun-Chuen v R [1963] 3 All ER 73

Lord Devlin in Her Majesty's Privy Council said (at page 79):

'Provocation in law consists mainly of three elements - the act of provocation, the loss of self-control, both actual and reasonable, and the retaliation proportionate to the provocation. The defence cannot require the issue to be left to the jury unless there has been produced a credible narrative of events suggesting the presence of these three elements. They are not detached. Their relationship to each other - particularly in point of time, whether there was time for passion to cool - is of the first importance. The point that their lordships wish to emphasise is that provocation in law means something more than a provocative incident. That is only one of the constituent elements. The appellant's submission that if there is evidence of an act of provocation, that of itself raises a jury question, is not correct.'

In the opinion of the Court “there is no sufficient evidence or credible narrative capable of satisfying the three undetached elements ..., necessary to constitute provocation in law.”

63.          In Lewis v The State - (2011) 79 WIR 417, Lorde Brown pointed out that the defence of provocation, is identical in Trinidad and Tobago under s 4B of the Offences Against the Person Act, Chap 11:08 to that in England and Wales under s 3 of the Homicide Act 1957 namely:

“Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man.”

His Lordship indicated that the issue of whether the defense of provocation should be left to the jury and, if not left when it should have been. He referred to the decision of the House of Lords in R v Acott [1997] 1 All ER 706, [1997] 1 WLR 306 where, in the single reasoned speech, Lord Steyn said this ([1997] 1 All ER 706 at 712-713, [1997]1 WLR 306 at 312¬313):

“Section 3 is only applicable "if there is evidence ... that the person charged was provoked (whether by things done or things said or by both together) to lose his self-control". A loss of self-control caused by fear, panic, sheer bad temper or circumstances (eg a slow down of traffic due to snow) would not be enough. There must be some evidence tending to show that the killing might have been an uncontrolled reaction to provoking conduct rather than an act of revenge. Moreover, although there is no longer a rule of proportionality as between provocation and retaliation, the concept of proportionality is nevertheless still an important factual element in the objective inquiry. It necessarily requires of the jury an assessment of the seriousness of the provocation. It follows that there can only be an issue of provocation to be considered by the jury if the judge considers that there is some evidence of a specific act or words of provocation resulting in a loss of self-control. It does not matter from what source that evidence emerges or whether it is relied on at trial by the defendant or not. If there is such evidence, the judge must leave the issue to the jury. If there is no such evidence, but merely the speculative possibility that there had been an act of provocation, it is wrong for the judge to direct the jury to consider provocation. In such a case there is simply no triable issue of provocation”

Lord Brown stated that Lord Steyn went on to reject counsel's invitation to “state what would be sufficient evidence of provocation to justify a trial judge in leaving the issue of provocation for the jury to consider”. Lord Steyn said:

“What is sufficient evidence in this particular context is not a question of law. Where the line is to be drawn depends on a judgment involving logic and common sense, the assessment of matters of degree and an intense focus on the circumstances of a particular case. It is unwise to generalise on such matters: it is a subject best left to the good sense of trial judges. For the same reason it is not useful to compare the facts of decided cases on provocation with one another.”

64.          In The State v Alfred - (2015) 86 WIR 360, the Court of Guyana stated:

“It is his responsibility not only to see that the trial is conducted with all due regard to the principle of fairness, but to place before the jury all the possible conclusions which may be open to them on the evidence which has been presented in the trial, whether or not they have all been canvassed by either of the parties in their submissions. It is the duty of the judge to secure that the overall interests of justice are served in the resolution of the matter and that the jury is enabled to reach a sound conclusion on the facts in light of a complete understanding of the law applicable to them. If the evidence is wholly incredible, or so tenuous or uncertain that no reasonable jury could reasonably accept it, then of course the judge is entitled to put it aside. The threshold of credibility in this context is, as was recognised in Xavier v The State (1998) (unreported), a low one; and, as was also recognised in that case, it would only cause unnecessary confusion to leave to the jury a possibility which can be seen beyond reasonable doubt to be without substance. But if there is evidence on which a jury could reasonably come to a particular conclusion then there can be few circumstances, if any, in which the judge has no duty to put the possibility before the jury. For tactical reasons counsel for a defendant may not wish to enlarge upon, or even to mention, a possible conclusion which the jury would be entitled on the evidence to reach, in the fear that what he might see as a compromise conclusion would detract from a more stark choice between a conviction on a serious charge and an acquittal. But if there is evidence to support such a compromise verdict it is the duty of the judge to explain it to the jury and leave the choice to them.'

65.          In the opinion of the Court there was no evidence on which it could be said that manslaughter by reason of provocation arose on the evidence. In his statement to the police Castillo said that he drove straight to where the canal connected from the sea and both of them got out of the Jeep, opened the back trunk, lifted the man out and attempted to lift him to the water. They sat him down because he had begun to speak again and Stanford wanted to hit him with a rock. Castillo told him "No" and that he would go to the back and get the jumper cable instead. Castillo also told Stanford that they should tie a rock to the man so he could sink. They tied the jumper cables to the man's feet then tied it to a rock and lifted him while Stanford lifted the rock. The jumper cables were not strong enough so the rock kept coming off. Stanford said they should throw him in without the rock. Stanford held the white man's two hands and dragged him while Castillo was holding his feet to lift him. They sat him close to the water on the rocks. Castillo again put his finger next to the man's nose to see if he was alive and he told Standford that he was still alive. Stanford took his right foot and kicked the man and the rock into the water. They then ran back to the jeep.

66.          The other basis on which manslaughter could arise would have been that Castillo did not have the intention to cause the death of the deceased. According to his statement he was aware that the deceased was alive and talking. While according to him, he prevented Forbes from hitting the deceased with a rock, he suggested that they tie jumper cables to his foot and tie it to a rock. Clearly he was joining in an enterprise where he had demonstrated an intention to throw the deceased in the sea with a rock tied to his foot. According to the appellant, after they got near to the water, Castillo “put his finger next to the nose of the deceased discovered that he was still alive. At this part, Forbes pushed [the deceased?] into the sea. This demonstrated that this put the deceased in a position from where he was pushed into the water.

67.          In relation to the appellant Forbes the Court does not consider that there was no evidence which required the judge to leave manslaughter to the jury. Forbes in his statement to the Police stated that Castillo said “I gin kill him you know”. He further states that later when he was changing the left front tyre of the jeep, he heard “a thump sound” which caused him to go to the right side of the jeep. There he saw “the white guy on the ground with his blood leaking and Marcel over him”. He said that Marcel spoke to him “you don't think I was going to do it for real”. Marcel, he said, dragged the body of the white man to the front of the jeep where he searched it and removed a black wallet and a flip top. He stated that Marcel then put the white man's body back in the trunk of the jeep. While the white man was in the back of the jeep, Forbes heard talking; Castillo told him to climb in the back seat and “hit the dude two to knock him out”. After the white man started talking again, Castillo said “boy you gen (sic) die and ain't nobody gen (sic) nobody gen (sic) know you dead”. Shortly after reaching the canal, Castillo hit the white man again in his head with a rock. After this, Castillo pulled the man's body next to the jeep. Castillo told Forbes that people live around the area and they did not know who might be watching. Castillo then told Forbes that every time he pulled the body he wanted him to up the jeep. Castillo pulled the body until they reached close to the water's edge. As he did this Forbes drive the jeep. Forbes said that Castillo kicked “the body into the water”.

68.          In his statement, Forbes was aware that Castillo said he intended to kill the white man. He later said he saw the white man lying on the ground on the right side of the jeep; he was bleeding. Castillo reminded Forbes that he told him he was going “to do it”. Later Forbes said that Castillo told him to climb in the back seat and hit the white man again and knock him out. Forbes again heard Marcel say to the white man you are going to die. Later Forbes said “Castillo hit the white man in his head again”.

69.          With the knowledge that Castillo intended to kill the white man, Forbes assisted Castillo by driving the jeep to hide Castillo when he was pulling the body to the water's edge before Castillo, according to him, kicked the body in the water.

70.          Both Castillo and Forbes complained that the judge erred in not directing the jury along the principle set out in R v Jogee [2016] UKSC8 and Ruddock v The Queen [2016] UKPC7. Jogee and Ruddock were cases which dealt with the mens rea required for a secondary party.

71.          In this case, the Director of Public Prosecution in her opening address to the jury indicated that the prosecution's case against Castillo and Forbes was based on the fact that each of the appellants were principals in the first degree. In Jogee and Ruddock, Lorde Hughes and Lord Toulson in their joint judgment observed at para 88:

“In some cases the prosecution may not be able to prove whether a defendant was principal or accessary, but it is sufficient to be able to prove that he participated in the crime in one way or another.”

72.          On the state of the evidence the prosecution decided that it was not necessary to prove whether Castillo or Forbes actually killed the deceased. Both Castillo and Forbes accused the other as the person who kicked the deceased into the water.

73.          As stated earlier, the statement of each appellant was evidence against him and not his co-accused. While each appellant accused the other appellant, such evidence was only evidence against him and not the other appellant. However, certain facts exist in each statement from which inferences of guilt may be drawn.

74.          These factors may be enumerated as follows: (a) the “white man” came into a yard, driving a jeep which had a flat tyre which needed to be changed; (b) the white man was on the ground bleeding as a result of being struck on his head with a rock; (c) the deceased was again struck on his head with a rock; (d) deceased man was rendered incapable of defending himself; (e) he was kicked into the water and left.

75.          As far as Castillo is concerned he was aware that Forbes had struck the deceased in his head on two occasions which caused him to bleed. According to Castillo, after reaching the cannal, Castillo prevented Forbes from hitting the deceased. However, Castillo told Forbes instead of hitting the deceased again with a rock they should tie the jumper cable to the foot of the deceased and then tie a rock to the jumper cable so that the deceased would sink when thrown into the water. Castillo stated that he participated in trying to tie the jumper cable and rock to the foot of the deceased when he would then be thrown into the water to sink. This clearly evinced an intention on the part of Castillo to kill the deceased. When they were unable to get the cable and the rock tied to the foot of the deceased, Castillo stated that Forbes suggested throwing the deceased into the water without the rock. Castillo said that while Forbes lifted the deceased by his “two hands”, he lifted his foot and they sat him close to the water on the rocks. Castillo said he reminded Forbes that the deceased was still alive. At this point, Forbes kicked the deceased into the water.

76.          On this evidence, it was open to the jury to convict the Castillo of the murder of the deceased.

77.          Forbes in his statement was aware that Castillo had indicated more than once his intention to kill the deceased. Yet with this knowledge, Forbes drove the vehicle to prevent any one from seeing Castillo pulling the body towards the water where he eventually kicked the body into the water. So far as Forbes was concerned, he told the police that he had “just witness a murder”.

78.          On this evidence, Forbes nonetheless participated in assisting Castillo who told him on more than one occasion that he intended to kill the white man. His assistance was that the used the jeep to prevent persons living in the area from seeing what Castillo was pulling the body towards the water where Castillo kicked him into the water.

79.          On post mortem, the doctor expressed the view that the bilateral pulmonary edema with foaming fluid in airways was consistent with water intrusion. This lead to his death by drowning.

80.          We did not consider that there was any merit in any other submissions made. The case for the prosecution was based on the statements made by each appellant incriminating himself in the murder of Anthony Quinn.. The judge having ruled the statements admissible it was for the jury to assess what weight was to be given the participation of in the death of the deceased.

81.          It was for these reasons that the Court dismissed the appeal against murder and affirmed the conviction for murder.

82.          We had earlier indicated that the appeal against conviction for robbery would be allowed and the conviction quased and sentence set aside. Those reasons are now set out.

83.          In respect to the Ground relating to the conviction for robbery, the Court allowed the appeal on the ground that the second count was a nullity In so doing, the Court relied on the judgment of the Court in Colin Delancy, Levardo Smith v Regina CR-AP No. 26 & 27 of 2013. In that case, 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.

84.          The Jury Ordinance requires different modes of trial for the offences of murder and robbery. 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 empaneled” [Emphasis mine]

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 empaneled.” [Emphasis mine] 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 empaneled to determine the outcome.

85.          In reaching that conclusion, the Court followed the decision in Junior Cottle and Lorraine Laidlaw v R (1976) 22WIR 543. In delivering the opinion of the Board, Lord Diplock summarized it:

“Each of the appellants was 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 (Saint Vincent), on a variety of grounds all of which the Court of Appeal rejected. The notices of appeal did not include any submission 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 Lordships' 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 convictions 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.”

86.          Lord Diplock made reference to the Jury Ordinance of St. Vincent which is similar to the Jury Ordinance of the TCI. He stated:

“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.”

His Lordship concluded:

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

We held in Delancy v Smith, the trial for the offence of robbery with that of murder was not permitted by law and therefore rendered the trial of the offence of robber-a nullity.

Mottley, P.

Forte, JA

Stollmeyer, JA