Faux v R
| Jurisdiction | Belize |
| Judge | Morrison, J.A.,Mottley, P.,Carey, J.A. |
| Judgment Date | 13 March 2008 |
| Neutral Citation | BZ 2008 CA 4 |
| Docket Number | Criminal Appeal No. 3 of 2007 |
| Court | Court of Appeal (Belize) |
| Date | 13 March 2008 |
Court of Appeal
Mottley, P.; Carey, J.A.; Morrison, J.A.
Criminal Appeal No. 3 of 2007
Mr. Kevin Arthurs for the appellant.
Ms. Cheryl-Lynn Branker-Taitt, Deputy Director of Public Prosecutions, for the respondent.
Evidence - Admissibility — Res gestae — Whether statements admitted formed part of res gestae — Trial judge adequately applied test of admissibility for statements.
Criminal Law - Murder — Appeal against conviction — Accidental disclosure of accused's bad character — Whether trial judge gave adequate directions to the jury.
At the conclusion of the hearing of this appeal on 17 October 2007, the court announced that the appeal would be dismissed and the appellant's conviction and sentence affirmed. These are the promised reasons for that decision.
The appellant was tried before Lucas, J. and a jury on an indictment containing a single count charging him with the murder of Sydney Bradley on 9 June 2005. After a trial which concluded on 8 March 2007 the jury found him guilty of murder, and he was sentenced by the learned trial judge to imprisonment for life.
At the appellant's trial, the prosecution relied on the evidence of two witnesses as to fact, Mr. Clarence Hemmans, who was 15 years old at the material time, and Mr. Martin Bahadur, who was a constable in the Belize Police Department. The evidence of both witnesses was given after a voir dire early in the trial into the question of its admissibility and a ruling by the learned trial judge that this evidence was in fact admissible. While the correctness of that ruling was one of the matters canvassed on appeal, there was no challenge to the procedure adopted by the learned trial judge. As this court held in Trevor Gill v. R (Criminal Appeal No. 15 of 2006, judgment delivered 22 June 2007) the decision to conduct a voir dire in these circumstances is entirely a matter for the discretion of the trial judge.
Mr. Hemmans' evidence was that on 9 June 2005, at about 10:00 p.m., he was standing in front of the alley where he lived at 165 West Canal Street, Belize City, in the company of his friend Sydney Bradley, his aunt and two cousins who lived at the same premises. They had been there for about half an hour and Mr. Hemmans and Mr. Bradley were there talking to each other when Mr. Hemmans noticed the appellant come up to a Chinese shop “cross the next side on East side” and then go back down Berkeley Street bridge. About five minutes afterwards, the witness saw the appellant coming back on a bicycle through Berkeley Street from the east side riding slowly, whereupon the appellant “ride the bike from through Berkeley Street then stand up middle of the canal side he pulled out a gun and fired four to five shots in our direction.” The distance from where Mr. Hemmans, Mr. Bradley and the others were standing to where the appellant stood firing these shots was estimated to be about three hundred feet.
After the appellant had fired the first two shots, Mr. Hemmans testified that he and his aunt and cousins ran through the alley, when he saw Mr. Bradley fall to the ground. At this point, Mr. Hemmans turned back, picked up Mr. Bradley and carried him into his house at 165 West Canal Street, where the witness observed that Mr. Bradley was bleeding from his chest. Mr. Bradley was put to sit in a chair, where the following took place:
“Q: And after you put him down to sit in the chair, what if anything happened next?
A: He mentioned to my mother, my aunt that how Lee Mike shot him.
Q: Can you recall his exact words?
A: He said, “Lee Mike shot me, Lee Mike shot me”.
Q: How close or far were you to him when he said these words?
A: Right beside him.
Q: You said, he said “Lee Mike shot me, Lee Mike shot me”, when he said it was Lee Mike to you did you know anyone by that name of Lee Mike.
A: He didn't say it because I saw the person who shot him, he said it to my mother and aunt.
Q: Yes, but did you, at that time know anybody by the name of Lee Mike?
A: Yes.
Q: Who do you know as Lee Mike?
A: Michael Faux.
Q: After he said these words that Lee Mike shot what if anything happen next?
A: He just tell me to call the police.”
In fact, the police had already been called by Constable Bahadur, who was Mr. Hemmans' next door neighbour, and Mr. Bradley was taken from Mr. Hemmans' house and placed in a police car and rushed to Karl Heusner Memorial Hospital, where he succumbed to gunshot injuries later that same night.
Mr. Hemmans had known the appellant for about five to six years before that night and he had usually seen him and spoken to him almost every day, on the street and at school. On the night in question, he had seen him for some two to three minutes in good lighting produced by four well lit lamp posits at the “corner of the land and at the alley mouth where I live.” The appellant was wearing blue jeans pants, a navy blue shirt and a “camouflage peak cap.” Although Mr. Hemmans initially insisted that he had given a statement to the police the following day, 10 June 2005, positively identifying the appellant as the person who fired the shots that night, he accepted under cross examination that he had in fact given a statement some five days after the incident, that is, on 14 June 2005. Mr. Hemmans denied the suggestions put to him that he had not been present when the shooting took place and that the only reason he had named the appellant as the person who shot Mr. Bradley was “because you know that at the time Sydney Bradley and Michael Faux were quarrelling.” Counsel for the appellant's attempt to elicit further evidence in cross examination, presumably to explain the reason for the “quarrelling”, was stopped by the learned trial judge, who told counsel that “I don't want you to introduce hearsay.”
Earlier that evening, Constable Bahadur, who lived at 163 West Canal Street, had been visited by Mr. Bradley (also known to him as “Buco” and “Boops”), who was his neighbour, while he was watching a basketball game on television. Mr. Bradley had looked in several times to see how the game was going and in due course stayed to watch the entire fourth quarter of the game. He left at a little after 10:00 p.m., while Constable Bahadur remained at home chatting with his roommate (also a police officer). This is how Constable Bahadur described what happened next:
“Whilst we were talking, at about 10:25 p.m. I heard a single gun shot. Approximately two seconds later, I heard approximately four more gun shots. I then got up and stood in my corridor of my apartment where my attention was drawn to my neighbours at the back, screaming and crying. I then went at the back of the yard of the apartment building where I still heard them screaming. I then exited the corridor made my way unto West Canal. Upon reaching outside I met a young lady, who works at the Department of Transport, however at that time I cannot recall her name, who also resides through the same alley with Sydney. I went through the alley where I heard people screaming and I was told something. I went in the house where I saw Buco was, I saw him standing holding his left side of his chest with his right hand and I saw the front part of his shirt full of blood. I then dial 911 and I began to assist another young man who I know as Clarence to take out Buco outside. As I was walking Sydney through the alley, towards West Canal I heard Sydney say, “boy a get f**k:, the man got me, the man got me”. I asked him who got you, and he said, “Michael Faux”.”
According to Constable Bahadur, Mr. Bradley was no more than three to four inches away from him when he made the statement set out in the preceding paragraph and spoke in a voice that was “clear and loud enough.”
On 13 June 2005, Ms. Grace Flowers, a cousin of Mr. Bradley, identified his dead body at the hospital morgue to Dr. Mario Estradabran, who in due course performed a post mortem examination. Having given this evidence, Ms. Flowers was asked by counsel for the prosecution whether to her knowledge Mr. Bradley and the appellant were known to each other, to which question she responded affirmatively, saying that they knew each other “very well”. During the course of this wholly unnecessary excursion, the following exchange took place:
“Q: The person Michael Faux that you say you know for a while, before June 9 2005, can you recall how regularly you use to see him then?
A: After they grow up and want to hang out they stopped come around.
Q: But how regularly you would see him?
A: Faux don't usually come in the neighbourhood.
Q: I want to know, not that he would come and hang out with you, how regular would you see him, did you see him up to June 9 2005?
A: Yes because the Wednesday before he killed Sydney my son went to clear up my yard on rocky road and he bust like about nine shots.
Q: No that's not what I want, I want to know you.
THE COURT: Leave the witness alone because you ought to have, you know that rules you know, I'm blaming you for all this. Because I'm going to tell you now the witness you're getting the evidence from the witness which she does not have here in her deposition. So I don't know if you have alerted defense counsel so that he could know.
MS. MATURA: My Lord, it was just identification I was bring out, My Lord, it wasn't anything unusual.
THE COURT: That's unusual.”
In the light of one of the grounds of appeal argued in the matter, we shall have to return to how Lucas, J. dealt with this gratuitous and obviously prejudicial piece of evidence later in this judgment (see paragraph 23 below).
The prosecution also relied on the usual evidence from police officers who investigated the matter as to the circumstances in which the appellant came to be arrested and charged in due course for the murder of Mr. Bradley, as well as evidence from a forensic scientist and a forensic pathologist.
The...
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