IN THE COURT OF APPEAL OF TURKS AND CAICOS
BETWEEN: TREVERSON SAUNDERS APPELLANT
AND: REGINA RESPONDENT
BETWEEN: LINCOLN SMITH APPELLANT
AND: REGINA RESPONDENT
The Honorable Mr. Justice Mottley, President
The Honorable Mr. Justice Forte, Justice of Appeal
The Honorable Mr. Justice Adderley, Justice of Appeal
9 June 2017; 1 December 2017
Lara Maroof for the Appellant
Latisha William for the Respondent
14 June 2017; 1 December 2017
Oliver Smith for the Appellant
Diane Brooks for the Director of Public Prosecution
1. While these cases were heard separately, the Court has decided to give a joint judgment as both cases raise a discrete constitutional point arising out of the provision of section 6 (12) of the Constitution of the Turks and Caicos Islands.
2. Section 6 (12) provides:
6. (12) Every person convicted of a criminal offence by a court shall have the right to have his or her conviction or sentence reviewed by a higher court; and the exercise of this right, including the grounds on which it may be exercised, shall be governed by law.
3. Section 6(1) and section 6(3) which also deals with fair trial provide:
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 (1) If any person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.
6. (3) When a person is tried for any criminal offence, the accused person or any person authorised by him or her shall, if he or she so requires and subject to payment of such reasonable fee as may be prescribed by law, be given within a reasonable time after judgment a copy for the use of the accused person of any record of the proceedings made by or on behalf of the court.
4. This right under section 6(12) does not exist in a vacuum and is only meaningful if a duty is cast upon someone to protect the right. In the opinion of the Court, the trial judge has the duty and responsibility to ensure that a proper record of the trial is being maintained. If the evidence and summation are being mechanically recorded, it is the responsibility of the trial judge to ensure the equipment provided is working properly. This should not be taken that the judge must himself check the equipment. What it means is that the judge should ensure that the proper equipment is in place and that it is in proper working order. This is done by ascertaining from the person responsible for the maintenance and operation of the equipment that it is working properly.
5. The right to a fair trial does not end at the trial on indictment or on information. Without the existence of the proper record of proceedings of the trial before the judge including the summation to the jury (in jury trial) or reason for the judge decision (in a trial without a jury), an appellant would be denied his right to have a Court of Appeal review his conviction or sentence.
Appeal of Saunders
6. On 23 February 2015, following a trial before Madam Justice Joyner, the appellant was convicted of aggravated burglary with intent to rape and was sentenced to a term of imprisonment for six years.
7. The Court allowed the appeal and ordered a retrial. At that time, we promised to put our reasons into writing. These are those reasons. In view of the fact that we ordered a retrial, the Court refrains from commenting on the fact.
8. The Court wants to make it clear that the contents of this judgment is in no way a criticism of Madam Justice Joyner.
9. The appellant was charged with the offence of aggravated burglary with intent contrary to section 12(1) of the Theft Ordinance. The particulars alleged that on Saturday 12 July 2014 at Back Salina Grand Turk, the appellant entered as a trespasser into a dwelling house with intent to rape L.H. and at the time of committing the burglary, had a knife.
10. At the hearing of the appeal, the sole issue was the absence of a transcript of the summation which Madam Justice Joyner delivered to the jury. Counsel who appeared in the appeal did not appear at the trial below.
11. The Record of Appeal presented to the Court comprised of the judge’s notes of evidence which were typed from the judge’s notebook. There was no transcript of the judge’s summation to the jury. What was presented to the Court is a document which appears to the Court to be no more than an “aide memoir” which the judge intended to use to assist her in her letter of summation to the jury.
12. The importance of the summation to the criminal trial cannot be over emphasized. It is the responsibility and duty of the jury to find the facts of the case having been directed by the judge as to what is the law to be applied in the particular case. Without a direction on the law from the judge, the jury would not be able to apply the law to the facts of the particular case. In these circumstances, it is absolutely essential that, a Court of Appeal which is going to review what took place at the trial, have before it the summation of the judge to the jury to ensure that the judge directed the jury in accordance with the law.
13. The summation will show what assistance the judge gave to the jury in assessing the issues that arises in any particular case. The accused is guaranteed a fair trial under the provisions of section 6 of the Constitution.
14. In addition to the fair trial provision in the Constitution, the Constitution gives a person convicted of a criminal offence the right to have his conviction and sentence reviewed by a Court of Appeal.
15. In order to perform this function, a Court of Appeal, would have to have before it the summation delivered by the judge at the trial. A Court of Appeal needs to be aware of the direction given to the jury by the trial judge. The importance of the summation may be seen in jurisdictions such as Bermuda, Cayman Islands and Jamaica where provision is made for summation to be provided to the Court of Appeal in all criminal appeal. This is to be contrasted with the need for counsel for the appellant to make application to the Court for documents other than the summation.
16. The “aide memoir” which is submitted as being the summation is unacceptable. This document does no more than to show what the issues of law the judge considers to be relevant to the facts of the case. It does not show that the judge did in fact direct the jury as stated in the “aide memoir”. It does not assist the Court of Appeal with showing whether and if the judge assisted the jury in dealing with the evidence of the witnesses.
17. The Court was informed that the proceedings were being recorded mechanically. However, the recording cannot be located. No explanation has been given for the unavailability of the recording. All that the Court has been told is that the recording cannot be located. It is not for this Court to assign blame to any person for the failure to secure the record of proceeding. What the Court will say [is that] in future it is the responsibility of the Registrar and staff of the Registry to secure the record of proceeding from which the Record of Appeal is to be prepared. That will suffice as it is not for this Court to micromanage the Registration Department.
18. In the absence of the summation, this Court cannot be sure that the jury was properly directed. In these circumstances, the Court cannot say? that the appellant had a fair trial.
19. It was for these reasons that we allowed the appeal; the conviction is set aside and the sentence quashed.
Appeal of Smith
20. On 16 May 2016, the appellant was convicted of the offence of rape. The information on which he was convicted alleged that on 4 September 2010, acting together with another, raped YARR. He was sentenced to 10 years imprisonment.
21. The Court allowed the appeal, quash the conviction and set aside the sentence. The Court ordered a retrial and will therefore not comment on the facts.
22. Counsel for the appellant took issue with the summing up of the judge as it appeared in the Record of Appeal.
23. Complaint was made of defects in the evidence as set out in the record of the evidence. The Court makes no comment on this as it does not form part of the reasons for allowing the appeal.
24. The defect in the case appears in the summing up of the judge. At page 494 of the Record of Appeal, the judge indicated that she was going to review the evidence given in the case. She stated:
“I will start with Y...A...R...R... as the jumping off point.
She was the sixth witness called. There were eight witnesses for the witnesses for the prosecution. She was the 6th one called. ”
25. The Record shows that the judge reviewed the evidence of Y.R.
26. At page 515 of the Record, the following note appears:
“Note: A lot of the summing up is inaudible and not worth transcribing and then the tape ends with the judge reviewing the evidence of the accused in cross-examination. ”
27. An Additional Ground of Appeal is that the Trial Transcript is replete with numerous significant lacunas in the evidence and the judge summation so as to deprive the appellant of a fair trial.
28. The transcript of the summation does not contain what was said by the judge in reviewing the evidence of the other witness including the evidence of the appellant. Further, the transcript of the summing up does not show whether the judge put the appellant’s defence to the jury and if she did what was said.
29. Without going in to all the lacunas in the evidence and the judge’s summation, the Court is satisfied that the appeal should be allowed. It is clear that in the absence of proper record of the evidence and summation, the appellant could not have his conviction or sentence reviewed by this Court. Consequently, the conviction is quashed, sentence set aside and a new trial is ordered.