IN THE COURT OF APPEAL

TURKS AND CAICOS ISLANDS

CRIMINAL DIVISION

CR-AP 17 OF 2016

BETWEEN

THOMAS WATKINS JR APPELLANT

AND

REGINA   RESPONDENT

BEFORE:

The Honourable Mr. Justice Mottley, President

The Honourable Mr. Justice Stollmeyer, Justice of Appeal

The Honourable Mdme Justice Weekes, Justice of Appeal

APPEARANCES:

Mr Guy Chapman for the Applicant

Mr Clement F Joseph for the Respondent

15^th November 2017, 25 April 2018

JUDGMENT

Stollmeyer JA

[1]           On 15^th November 2017 we dismissed this appeal and affirmed the Appellant's conviction and sentence. This is the written judgment.

[2]           The Appellant was charged on a 3-count information, singly with attempted wounding with intent of John Doe, jointly with persons unknown of wounding with intent of Ellington Been and singly of having a firearm with intent to put another in fear. All the charges arose out of a single incident that took place at Five Cays, Providenciales. After a trial, he was acquitted of the first two counts but convicted of the third under the provisions of the Firearms Ordinance Chapter 18.09 section 22. The appeal is against conviction.

[3]           The Appellant's ground of appeal asserted that the trial judge did not clearly isolate and state the critical issues that the jury would have to decide on the third count. He submitted that the events of the evening in question were a “highly confused scene on fast moving events”. He suggests that a state of pandemonium reigned and few if any witnesses were able to recount the events with clarity. It is in this context that he submitted that there were a number of key issues that had to be crystalized by the trial judge in her summation and that she failed to do so.

Background

[4]           The Crown's case (as gleaned from the trial judge's summation) was that in the very early hours of the morning of 1^st January 2016, the Appellant walked into the yard of Daniel Forbes, asked, “where the north-side pussy niggers at” and then pulled out a gun and fired at an unidentified man who was in the yard. At this point, one Forbes, who was in the yard, lay on the ground and a man named Phil said, “they come to kill me”. People began running. The Appellant was identified by two persons, one, Andrew Parker who had attended school with him and Daniel Forbes, who also knew him from childhood and was married to a relative of the Appellant. There were other persons in the yard.

[5]           During the fracas, Ellington Been received a gunshot wound to his head. There were two other unidentified men who entered the yard after the Appellant and shot randomly at other persons.

[6]           Mr Chapman identified the key issues that needed to be addressed by the trial judge as follows:

(1) Was “the gentleman” who walked into Dennis yard not long before the incident commenced, the Defendant, or someone else?

(2) Did “the gentleman” have a gun?

(3) If “the gentleman” was the Defendant, did he have a gun?

(4) If “the gentleman” was the Defendant, and if he had a gun, did the Defendant have the intent, when in the yard, to put anyone in fear?

(5) Were the 2 armed men dressed in black, who came to the entrance to Dennis Yard and started shooting into the Yard during the incident in truth responsible for the commotion otherwise blamed on “the gentleman” or on the Defendant?

(6) Or was it all too confused and “sudden” for the Jury, on the evidence, to make any reliable decision as to who fired the shots which led to people running hither and thither in fear of their lives, especially as shots may have been coming from different shooters seemingly at the same time?

[7]           The trial judge, after properly dealing with the ingredients of the offence and the fact that the prosecution was asking the jury to draw the inference that there was a firearm, since none was recovered, then went on in respect of count 3 to deal with the issues from page 514 to 515 of the record. She identified the evidence from which the inference could be drawn that there was a firearm - the recovered spent shells and pieces of projectile, the object that looked like a firearm, the sounds of the gunshots, and the holes made in the wall of Daniel Forbes's house.

[8]           On the question of intent, she directed the jury that while actual fear need not to have been proven, there was indeed proof of it from the reactions of persons in the yard and that it was not necessary that any specific person be identified. She invited the jury to consider the words spoken by the Appellant and his pulling out a firearm and discharging it.

[9]           We note that Mr Chapman made no criticism of the trial judge's directions on identification and recognition. We have examined this and found it to be unexceptional.

Analysis

[10]         We find that the issues raised by Mr Chapman at (1), (2) and (3), were all answered and addressed by the trial judge in her summation. The direction on identification settled (1) and the narrative of the witnesses satisfied (2) and (3). The trial judge dealt with the issue of intention to put in fear, which answers Mr Chapman's (4). Questions (5) and (6) were a matter entirely for the jury. The words “commotion”, “confused”, and “sudden” were introduced by Mr Chapman as his description of the events. The witnesses testified as to what had taken place in sequence and timing and Mr Chapman's (4) and (5) are matters only they could answer. From their verdict, it is clear that while they accepted beyond reasonable doubt that the Appellant had been the initial trespasser who carried and discharged a firearm, they were less certain that he had intended to wound the unidentified man or that he had acted together with others to wound Ellington Been.

[11]         We found the jury's verdicts eminently reasonable on the evidence.

Disposition

[12]         We therefore dismissed the appeal and affirmed the Appellant's conviction and sentence.

Stollmeyer JA

I Agree

Mottley P

I Agree

Weekes JA