Court name
Court of Appeal of Turks and Caicos Islands
Case number
CR-AP 30 of 2015

Missick v. Regina (CR-AP 30 of 2015) [2019] TCACA 1 (06 March 2019);

Law report citations
Media neutral citation
[2019] TCACA 1
Coram
Mottley, P
Stollmeyer, JA
Adderley, JA

IN THE COURT OF APPEAL TURKS AND CAICOS ISLANDS CR-AP 30/2015

BETWEEN DOUGLAS MISSICK APPELLANT AND REGINA RESPONDENT

BEFORE:

Sir Elliott Mottley, President

The Hon. Mr. Justice Stollmeyer, Justice of Appeal

The Hon. Mr. Justice Adderley, Justice of Appeal

Appearances:

Ashwood Forbes for the Appellant

Shatelia Hall for the Respondent

Heard:   March 6, 2019

Delivered:              September 26, 2019

Mottley, P

1.             On 30 August Police officers of North Caicos responded to a report of gunshots being fired at an apartment building in Whitby North Caicos. On arrival officers spoke with the compliant Leonorah Missick,, the wife of the appellant Douglas Missick. She confirmed the report and indicated that the appellant came to the property where an alternation occurred between the appellant and their sons, as a result the appellant fired off several shots. The appellant who was on the scene confirmed to the police that the firearm which he handed to them was his; he however denied firing any shots at or in the complainant's apartment.

2.             The jury found the appellant guilty. He was sentenced to five (5) year's imprisonment.

3.             Prosecution evidence showed that the former wife of the appellant said the appellant was twiddling with the lock on the door of the apartment. The appellant shouted “Open the door. Look how you're going to get killed tonight. Open this door”. He tried opening the door but was not successful. She heard him banging at the door. She saw the first hole appearing in the door and then there was more banging and holes were made in the door. At first, he could not get in the door but then he finally got in. He then opened the door to the bathroom. Leonorah went back in the bedroom and was talking to the appellant. She saw him standing with a gun in his hand. The appellant said to her immediately after she slipped in the bedroom that he could have killed her but that he was leaving that for someone else to do it. He moved away from the bathroom door, went to kitchen and he locked the door. He locked and guarded the door. She began to plead with him to let her go out of the bedroom; this took at least fifteen minutes.

4.             Her son Leonardo was present when the appellant fired shots through the door. She stated the at the bullets made a hole in the door. The appellant fired another shot which widened the hole in the door. As a result, she could see Leonardo standing in the kitchen area. The appellant pushed the gun through the door and aimed at Leonardo. She heard a bang and Leonardo had ducked to the side. She stated that she was really frightened. Another shot was fired and Leonardo broke into the door at which point the appellant came out fighting with Leonardo. He still had the gun. The appellant and Leonardo fought in the kitchen area. They fought on the floor in the kitchen and living room area. Neville, his brother, came and they both continued to try to get the gun from the appellant. The three of them were fighting. She said she told Leonardo to try and get the gun from the appellant. She said that four shots were fired. She said she did not count how many shots went into the bedroom door, nonetheless, she recalled it was about 4 shots. She said that the appellant discharged a total of 9 shots inside the apartment. She said she recalled all the shots. She was sure that a total 9 shots were fired in the apartment. She said she watched the appellant point the gun after he made the first hole and was adamant that she watched the holes created by the shooting. Before the appellant forced open the bathroom door, he fired two shots into the bathroom door. At that time, two persons were in the bathroom hiding from the appellant.

5.             Leonardo stated that currently he did not have any relationship with his father. He said that for many years the appellant kept insulting and daily abusing his mother. When asked in cross-examination if he was the appellant's son, he responded that only the appellant said he was not his son. He told him this about 16 years ago. It was suggested to the witness that the appellant told him that he was not his son from the time he was aged 6. He responded saying “If you say so.”.

6.             The police took the gun along with the three spent shells and two live rounds to the police station. The appellant was arrested by the police for possession of a firearm with intent to endanger life. The appellant he replied that he did not fire any shots at the apartment, however, he fired two or three shots at his home.

7.             The police revisited the residence of the appellant and went to an area by a water tank where the appellant pointed out two spent shells. The police examined the apartment including the doors pursuant to information that had been received. The police stated that there was no sign of bullet holes or spent shells in the apartment. The police stated further that there was no evidence of bullets being fired through the door and no evidence of gunshots passing through the door. The police were adamant that there was no evidence of gunshots in any part of the apartment, or outside of the apartment. The appellant told the police that he had fired off rounds of happiness at his daughter's wedding.

8.             On appeal, the appellant contended that the judge did not highlight inconsistencies in the evidence specifically as it related to the evidence of PC Garrick.

9.             On behalf of the Crown, it was submitted that the case was a short one, where the guilt or innocence of the appellant could be clearly and simply stated and that there was no need for the judge to repeat all the evidence which was heard. Counsel relied on R v Attfield (Joseph Albert) 1961 45 Cr. App. R 309, where Ashworth J who delivered the judgment of the Court had this to say:

“...Clearly in a complicated and lengthy case it is incumbent on the court to deal with the evidence. Conversely in a case which has not occupied a great deal of time and which the ussie guilt or innocence can be simply stated this court is not prepared to hold that it is a fatal defect to the summing-up that the evidence has not been discussed.”

10.          Counsel for the Crown contended that the evidence was that the appellant who is known to the complainant attended the apartment of the complainant where he made the statement such as “Open the door. Look how you are going to get killed tonight. Open this door.” The complainant also stated “Douglas took gun pushed through the door and aimed at Leonardo.” She then heard a noise which she describes as a “bang”.

The Crown submitted that the issues involved are narrow and that the failure of the judge to repeat the evidence in the summing up was not fatal to the case as the point in the case was simply whether the accused was in possession of a firearm with intent to put the persons in the indictment in fear.

11.          The Crown further submitted that the judge did tell the jury that they have heard all the evidence in this case from the various witnesses, and their job was to resolve the conflicts in the evidence.” Further, the judge said “It is for you members of the jury to decide who the more credible witness is, is it the victim - or the defendant it is a matter for you to decide who is telling the truth. There are inconsistencies for you to resolve MOJ there always are. It is the Crown who must prove the case beyond reasonable doubt so that you are sure the defendant is guilty as charged.”

12.          In his defence the appellant said he was attacked and injured at the scene of the alleged incident by his children. The appellant in his evidence said he was held down on the ground and attacked by his sons. He had his silver revolver in his left hand. He said that when he arrived at the scene he was attacked by his sons. The defendant said he ran into apartment number three and he sought to protect himself from his assailants, by putting his weight against a fridge when he claimed he had drawn to the door in an effort to protect himself from his attackers who were armed with rocks; which his sons used on him as missiles. He said he was injured as a result of a sustained assault by his own family members who he said were encouraged by his former wife Leonorah Missick who shouted “kill the bitch”. The appellant accepted that he carried a loaded firearm concealed on him on the night. The appellant said that he always carried his firearm with him.

13.          In his summation to the jury, Shuster J told the jury that the prosecution must prove that the appellant by his unlawful act caused fear to the person named in the information.

14.          The judge told the jury that the real issue between the prosecution and the defence is whether the defendant intended to cause fear. He said in law it is not necessary for the prosecution to prove that the defendant knew his victim or that he intended to cause serious injury to his alleged victim- specifically. He told the jury that it was enough for the prosecution to prove that the defendant intended to cause an occupant of the said apartment fear and that person is/was named in the information.

15.          The judge reminded the jury of the circumstances which they needed to consider.

“(i) Firstly, the defendant was, at the time, an adult. You have evidence about his personality and his marital circumstances in that he was on the date in question attending the wedding of his daughter Jessica and you heard the defendant had held a firearms licence in the TCI for many years. That firearms licence/certificate specifies- Keep and Carry. (ii) Secondly, consider exactly what the defendant did. He was at a reception and you were told that the defendant was ejected from the bar by the police and they closed down the reception at that bar. ASK WHY? Was the defendant troublesome? Was he angry? You heard evidence that the police received a number of 911 calls that night. The defendant told you that he had been drinking and he carried his loaded firearm- the prosecution said the defendant went to apartment number three- to kill a named person. They say he made threats which the defendant denies. The defendant said he went there to collect his niece and take her to see his father and he says he was then assaulted by his sons. You heard how the defendant said he was assaulted. You heard the prosecutions version. You then heard the defence version. There are conflicts in the evidence between the prosecution and the defence - MOJ there always are. (iii) Thirdly, consider what were the likely consequences of what the defendant was about to do. Would those consequences have been obvious to this man - as a mature defendant? Ash yourselves perhaps- why did the defendant's fire off shots [at his home] firing into the air before going on to the apartment taking his gun. Is that firing shots into the air not in itself an inherently dangerous act to do. EMYMOJ- you might consider what does up must come down? (iv)Fourthly, consider the defendant's own evidence about his awareness of the likely consequences of what he did. It is also important for you to reach a decision on whether the defendant was lying to you or was he in fact doing his best to tell the truth.”

16.          The judge reminded the jury that they should not judge the appellant's awareness with the benefit of hindsight; they had to consider his state of mind as it would have been, the defendant had a loaded firearm in his hand in August 2014 one year ago and at the scene of the locus in quo. You may in fact regard the defendant's act as extremely dangerous if the gun was taken away from him, or if it was indeed fired by accident. It was and is the defendant's sole responsibility for his firearm's safe storage and its carriage- and of course for his own conduct? Whenever he was in position of his loaded firearm.

17.          The judge told the jury that they were entitled to conclude that there was a high probability of death or serious injury or fear- arising from the appellant's intentional act transporting a loaded firearm. He told them that if in fact the firearm went off or discharged that what they had to consider is what the defendant himself intended to do. He told them they had to decide whether they believed the prosecution witnesses regarding their allegations of the appellant's threats to kill his son and or harm people and that the appellant was not invited to the apartment.

18.          He told the jury that if they accepted that the appellant may have wanted just to give his victims an unpleasant surprise or scare that was evidence from which they could or might conclude that he did not intend to cause really serious harm/fear.

19.          On the other hand, if they were sure the appellant as a firearms handler must have realized it was a virtual certainty that by firing a revolver [even by accident] that serious harm might be caused to someone in the apartment/or outside the said apartment- or might follow, then it was open to them to conclude that, despite his denial, that was his intention, even though his main purpose may have been merely to derive pleasure from his mischief.

20.          He told the jury that it was for them to ascertain if the appellant caused fear to other persons, his family members who were not conversant or familiar with a firearm and was the defendant under the influence of alcohol or not? He told them that they had to bear in mind throughout their considerations that the appellant was an adult and he was in fact the father of his grown-up sons. He reminded the jury that they had heard the evidence about/concerning the family relationships.

21.          In Omar Grieves and others v The Queen [2011] UKPC 39, the Privy Council explained the role of a judge when directing the jury on inconsistences in the evidence. Lorde C in rendering the opinion of the Board observed:

“36. Mr Birnbaum submitted that it was not enough for the judge, having identified the inconsistency between Todd's evidence and the ballistics evidence, simply to tell the jury that “It is for you to say what you make of it”.

37. Their Lordships agree. The judge ought to have said that the ballistics evidence pointed strongly to Todd being wrong in suggesting that the deceased was shot with a Mack 11. (It was theoretically possible on Hibbert's evidence that he might have been shot with an adapted Mack 11, but that would have been speculation.) The judge should also have directed the jury that they needed to consider whether this affected their view of the truthfulness and reliability of Todd's evidence that the deceased was shot (or shot at) by a group including the four appellants.”

22.          His Lordship went on to point out:

“40. The judge ought to have assisted the jury by analysing the evidence in that way, rather than merely reciting it...”

23.          On the state of the evidence, two issues arose for the consideration of the jury. The first issue was the inconsistences in the evidence of Leonorah and her sons on the one hand and the evidence of the police who attended and inspected the scene where the shooting was alleged to have taken place. The second issue was the nature of the family relationship which existed between Leonorah and her sons on one hand and the appellant on the other.

24.          For the reasons set out below, the judge did not properly assist the jury on either issue. In the opinion of the Court, this failure led to a miscarriage of justice.

25.          The judge was required to direct the jury that they needed to consider how the evidence of PC Garrick affected their view of the truthfulness and reliability of the evidence of Leonorah Missick, the former wife of the appellant.

26.          The judge was required to remind the jury that Leonorah Missick wife said:

“Prosecution evidence showed that the former wife of the appellant said “He was twiddling with the lock.” The appellant shouted “Open the door. Look how you're going to get killed tonight. Open this door”. He tried opening the door but was not successful. She heard him banging at the door. She saw the first hole appearing in the door and then more banging and holes in the door. At first he could not get in the door but then he finally got in. He then opened the door to the bathroom. Went out pull outside the door in the bedroom. Leonorah went back in the bedroom and was talking to the appellant. She saw him standing with a gun in his hand. The appellant said to her immediately after she slipped in the bedroom that he could have killed her but that he was leaving her for someone else to do it. He moved away from the bathroom door, went to kitchen and he locked the door. Still in the apartment the bedroom door leads to the kitchen. He locked and guarded the door. She began to plead with him to let her go out of the bedroom; this took at least fifteen minutes.”

27.          It was necessary for the judge to remind the jury that the wife also said:

“Her son Leonardo was present the appellant fired shots through the door. She stated the athe bullets made a hole in the door. The appellant fired another shot which widened the hole in the door. As a result, she could see Leonardo standing in the kitchen area.”

28.          The judge should have pointed out to the jury that the former wife had stated:

“She said that four shots were fired. She said she did not count how many shots went into the bedroom door, nonetheless, she recalled it was about 4 shots.

She said that the appellant discharged a total of 9 shots inside the apartment. She said she recalled all the shots. She saw the appellant fire the shots. She agreed that a total 9 shots were fired. She was sure in the apartment.”

29.          The judge ought to have reminded the jury that the appellant's former wife was adamant that the shots caused damage to the bathroom door. She had stated that she was able to look through the door and observe the appellant shooting.

30.          The judge was required to point to the prosecution's evidence which appeared to be in direct conflict with the evidence of Leonorah Missick. The judge was required to point to the evidence of PC Garrett who said:

“The evidence showed that officer Garrett examined the apartment. The officer examined the doors When asked why the doors were examined, the officers said that it was done pursuant to information that had been received. The officer was asked what was the conclusion of your investigation, the officer responded that there was no sign of bullet holes or spent shells in the apartment. The officer reiterated that there was no evidence of gunshots through the door? No evidence of gunshots passing through the doors. The officer was adamant that there was no evidence of gunshots in any part of the apartment, inside or outside of the apartment.”

31.          Further he was required to remind the jury that Leonorah Missick said that the appellant fired about 9 shots. However, the evidence from the police that the gun held five rounds, 2 live rounds and 2 spent shells were handed over to the police. The evidence was that the revolver only carried 5 bullets. The spent shells were pointed out to the police in the area of a tank at the residence of the appellant.

32.          The judge never told the jury that in considering the evidence of Leonorah Missick it was necessary to decide how the evidence of the police officer had affected their view of the truthfulness and reliability of her evidence. The failure to do so was in the view of the Court a material irregularity.

33.          The second issue on which the judge ought to have directed the jury was the relationship between the appellant and his former wife and children was clearly not that of a loving family. During cross-examination it was suggested to Leonardo that the appellant did not consider him to be his son. Indeed, he agreed that the appellant told him so on more than one occasions. In addition, Leonaro said that the appellant had many years of insulting and daily abusing his mother. It was against this background that the jury had to consider the truthfulness of the evidence of Leonorah, his former wife and Leonardo his son.

34.          In the view of the Court, the jury should have been directed that they needed to exercise caution considering the evidence of Leonorah and her sons. The judge was required to direct the jury on the significance of the relationship and the way the jury ought to have approached this issue. It was not enough for the judge to tell the jury that they heard the evidence about and concerning the family relationships.

35.          In Regina v Makanjuola [1995] 1wlr 1348, Lord Taylor, Chief Justice made certain observations which a judge ought to follow whenever there is reason to approach the credibility of a witness with caution. The Lord Chief Justice said:

“Whether, as a matter of discretion, a judge should give any warning and if so its strength and terms must depend upon the content and manner of the witness's evidence, the circumstances of the case and the issues raised. The judge will often consider that no special warning is required at all. Where, however the witness has been shown to be unreliable, he or she may consider it necessary to urge caution. In a more extreme case, if the witness is shown to have lied, to have made previous false complaints, or to bear the defendant some grudge, a stronger warning may be thought appropriate and the judge may suggest it would be wise to look for some supporting material before acting on the impugned witness's evidence.”

36.          The Chief Justice concluded inter alia that:

“(2) It is a matter for the judge's discretion what, if any warning, he considers appropriate in respect of such a witness as indeed in respect of any other witness in whatever type of case. Whether he chooses to give a warning and in what terms will depend on the circumstances of the case, the issues raised and the content and quality of the witness's evidence. (3) In some cases, it may be appropriate for the judge to warn the jury to exercise caution before acting upon the unsupported evidence of a witness. This will not be so simply because the witness is a complainant of a sexual offence nor will it necessarily be so because a witness is alleged to be an accomplice. There will need to be an evidential basis for suggesting that the evidence of the witness may be unreliable. An evidential basis does not include mere suggestion by cross-examining counsel.”

37.          It was for these reasons that the Court allowed the appeal and quashed the conviction of the appellant, set aside the sentence and entered a not guilty verdict.

The appellant filed the Grounds of Appeal. These were:

1)            The judge erred in law when he failed to direct or properly direct the jurors as it related to the vast inconsistency of the evidence, given by Leonarah Missick and Neville Missick, against the lack of physical evidence at the crime scene.

2)            There was a misdirection by the judge when he failed to direct the jury that the burden of proof was on the prosecution to prove that the appellant had the firearm with the intention to cause fear, mere possession of the firearm was not, and is not sufficient to put someone in fear.

3)            The misdirection and/or no direction in the above grounds were fatal to the appellant's fair trial and in all the circumstances the verdict of the jury was unsatisfactory and remains a lurking doubt as to the appellant's guilt.

4)            The judge erred in law when he misdirected the jury during his summing up as it relates to the purported unlawful actions of the appellant and may have confused the jury on the law.

5)            The judge erred in law, by not giving a Good Character direction on the appellant.

6)            The judge erred in law when he overstated the elements of the offence under section 22(1) of the Firearms Ordinance.

Submissions on Ground 1

a)            The evidence given by the Crown 1st witness Leonorah Missick of the appellant actions by Darlington Higgs apartment is totally inconsistent, with the lack of any physical evidence at the crime scene where the Crown says that the offence took place. See page 3 and 4 where she gave evidence extensively about the appellant firing shots whilst in the apartment, several times through the bedroom door.

b)            None of the witnesses did not at any time whilst giving evidence that the appellant pointed the firearm at them...even if the appellant says to Leonarah Missick see I could of [sic] kil; you, but I will leave it for someone else to do, that by itself does not amount to putting her or anyone in fear. Banging on the door saying open this door does not amount to putting someone in fear.

c)             The judge in his summing up never brought to the jury's attention the evidence of Officer Garret, one of the crime scene investigators, who stated that the reasons they examined the whole apartment was because of the reports of shots being fired through the doors of the apartment, the Officer concluded that there were no signs of bullet holes or spent shells in the apartment, no evidence of gunshots in any part of the apartment, inside or outside as well. The appellant submits that this lack of physical evidence at the scene, strongly suggest that the conviction is not supported by any cogent evidence or none at all. The evidence by Officer Garrett is in stark contrast to the evidence given by Crown witnesses.

Submission on Ground 3

a)            The cumulative effect of the judge errors renders the appellant's conviction unsafe and unsatisfactory in all the circumstances, these errors are elaborated in the proceeding paragraphs already stated [above] and below.

b)            The appellant contends that because of the misdirection by the judge amounts to an unfair trial, and this his conviction should be deem unsafe.

c)             It is submitted that in circumstances where there has been a departure from good practice by the judge in summing up, it will come to a point where the departure from good practice is so gross, or persistent or prejudicial or irremediable that an appellant will have no choice but to condemn the trial as unfair and quash the conviction as unsafe, however strong the grounds for believing the defendant to be guilty R v Randall [2002] UKPC 19.

GAI v Regina [2012] EWCA Crim 2033

Fairness: the Board's conclusion

27.          The Board sees great force in many of the points made by Mr. Perry for the prosecution. The case against the appellant does indeed appear to have been a very strong one, and the explanations proffered by him might well have been properly rejected by a jury. On the material before the Board, there would appear to be grounds for criticizing the conduct of the defence and the evidence of the appellant. It would be quite wrong to infer that all the faults in the conduct of this trial law with the prosecution, which had to overcome a series of unnecessary obstacles. The Board is fully mindful that it has seen a relatively small part of the trial transcript.

28.          While reference has been made above to some of the rules which should be observed in a well conducted trial to safeguard the fairness of the proceedings, it is not every departure from good practice which renders a trial unfair. Inevitably, in the course of a long trial, things are done or said which should not be done or said. Most occurrences of that kind do not undermine the integrity of the trial, particularly of they are isolated and particularly if, where appropriate, they are the subject of a clear judicial direction. It would emasculate the trial process, and undermine public confidence in the administration of criminal justice, if a standard of perfection were imposed that was incapable of attainment in practice. But the right of a criminal defendant to a fair trial is absolute. There will come a point when the departure from good practice is so gross or so persistent, or so prejudicial, or so irremediable that an appellant court will have no choice but to condemn a trial as unfair and quash a conviction as unsafe, however strong the grounds for believing the defendant to be guilty. The right to a fair trial is one to be enjoyed by the guilty as well as the innocent, for a defendant is presumed to be innocent until proved to be otherwise in a fairly conducted trial.

29.          The crucial issue in the present appeal is whether there were such departures from good practice in the course of the appellant's trial as to deny him the substance of a fair trial. The Board reluctantly concludes that there were. Prosecuting counsel conducted himself as no minister of justice should conduct himself. The trial judge failed to exert the authority vested in him to control the proceedings and enforce proper standards of behavior. Regrettably, he allowed himself to be overborne and allowed his antipathy to both the appellant and his counsel to be only too manifest. While none of the appellant's complaints taken on its own would support a successful appeal, taken together they leave the Board with no choice but to quash the appellant's convictions. It cannot be sure that the matters of which complaint is made, taken together, did not inhibit the presentation of the defence case and distract the attention of the jury from the crucial issues they had to decide.

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Mottley, P.

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Stollemeyer, JA

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Adderley, JA