Gill v R

JurisdictionBelize
CourtCourt of Appeal (Belize)
JudgeMorrison, J.A.,MOTTLEY, P.,SOSA, J.A.,MORRISON, J.A.
Judgment Date22 June 2007
Neutral CitationBZ 2007 CA 9
Date22 June 2007
Docket NumberCriminal Appeal No. 15 of 2006

Court of Appeal

Mottley, P.; Sosa, J.A.; Morrison, J.A.

Criminal Appeal No. 15 of 2006

Gill
and
R.
Appearances:

David Morales for the appellant.

Ms. Cheryl-Lynn Branker-Taitt, Deputy Director of Public Prosecutions, for the respondent.

Evidence - Admissibility — Res gestae statements — Finding that the trial judge rightly admitted statement.

Morrison, J.A.
1

At the conclusion of the hearing of this appeal on 8 March 2007, the court announced that this appeal would be dismissed, for reasons to be given in due course. These are the reasons for that decision.

2

The appellant was tried before Gonzalez, J. and a jury on an indictment containing a single count charging him with the murder of Anthony Flowers on 25 February 2005. At the appellant's trial, which was completed on 23 June 2006, the jury found him not guilty of murder but guilty of manslaughter and he was sentenced by the learned trial judge to thirteen years' imprisonment.

3

The cause of the deceased's death was a stab wound to his left chest inflicted by either a knife or some other such weapon which caused damage to his left lung, resulting in internal bleeding and his death shortly thereafter. The prosecution relied at trial on the evidence of three witnesses as to fact, Messrs. Kevin Thompson and Mark Rowley and Miss Tara Sebastian. None of these witnesses testified to actually seeing the appellant inflict an injury on the deceased.

4

Mr. Thompson's evidence was that on 25 February 2005 at about 10:00 p.m. he drove off in his motor car from the house of a friend of his named Rowley on Castle Street in Belize City, intent on going to his own home. Upon leaving, he reversed his motor car from Castle Street into Victoria Street and drove up into Lovely Lane, where he saw the appellant and Mr. Flowers on Lovely Lane about ten feet away standing by the gate of the lodge hall, which was also used for the purposes of a pre-school. They were facing each other, with the appellant also facing in the direction of the witness, holding a beer bottle in his hand. Mr. Flowers and the appellant were standing about two feet apart, talking to each other. There was nothing in Mr. Flowers' hands, as far as the witness could see. As Mr. Thompson's car started to pass the two men by the lodge hall gate, Mr. Flowers moved off and passed him, going in the opposite direction, that is, towards Victoria Street in the direction of Castle Street, while the appellant remained standing by the lodge hall gate. The witness did not observe any kind of hand movement from the appellant while he was standing facing Mr. Flowers at the lodge hall gate. At the time when Mr. Thompson first saw the two men standing on Lovely Lane, the lighting conditions were good (“the regular lamp post light and thing were on”) and his view of the men was unobstructed. Both the appellant and Mr. Flowers were known to Mr. Thompson before that night, the appellant, who was known as “Flouwa”, “from ih small” and Mr. Flowers, known as “Pie Bwai”, for about five years. Some five to six minutes later Mr. Thompson was to pick up Mr. Flowers, suffering from a severe wound to his chest, at a point close to No. 3 Castle Street and, with the assistance of his friend Mr. Rowley, put him in the back seat of his car and take him to the Karl Heusner Memorial Hospital, where he was pronounced dead later that night.

5

Mr. Mark Rowley gave evidence of himself and several others, including Mr. Thompson, having left a football game earlier in the evening of 25 February 2005 and congregating “on the corner of Victoria Street and Castle Street by No. 3 Castle Street by Miss Annie's yard”. They were there discussing the football game from some time after 7:00 p.m. Mr. Rowley said that a little after 10:00 p.m. Mr. Thompson left the group in his vehicle, reversed up Victoria Street and drove down Lovely Lane. According to Mr. Rowley, Mr. Flowers (or Pie Bwai, known also as Anthony Palma) left from the same place in front of No. 3 Castle Street at the same time as Mr. Thompson, but about five minutes later came running back from Lovely Lane in his (Mr. Rowley's) direction, crossed Victoria Street into Castle Street, “running with his hand on his chest, his right hand on the left side of his chest”. Mr. Flowers ran past him straight towards 8 Castle Street, which is where he lived, and Mr. Rowley ran following him until they got to 8 Castle Street, at which point Miss Tara Sebastian (Mr.Rowley's cousin) came out of the yard of that premises and asked Mr. Flowers “who stomped yuh in the drain'?”

6

At this point, Mr. Rowley's narrative was interrupted by an objection from Mr. Morales (who appeared on behalf of the appellant at the trial as he did in this court) on the ground that whatever response Rowley might make to Miss Sebastian's question would be hearsay and inadmissible. Miss Matura, who appeared for the prosecution at the trial, then sought and received the learned trial judge's permission to “address a matter of law in the absence of the jury”, whereupon the jury were duly excused for this purpose. Somewhat unusually (since, as the learned judge observed belatedly, Mr. Morales would ordinarily have been expected to go first in support of the objection and Miss Matura to respond) detailed submissions followed first from Miss Matura, who sought to justify the introduction in evidence of what Mr. Rowley heard Mr. Flowers say in response to Miss Sebastian's question under the principle of res gestae, as an exception to the rule against hearsay. Mr. Morales for his part amplified and developed his objection to the evidence being allowed, followed by a rebuttal from Miss Matura and various exchanges between the court and both counsel. At the end of the submissions, Gonzalez, J. ruled the evidence admissible under the principle of the res gestae exception to the hearsay rule, whereupon it was indicated to the court by Mr. Morales that to the extent that the depositions revealed that Miss Sebastian would in due course when called give similar evidence, he would not then pursue any further objection to her giving that evidence in the light of the ruling in respect of Mr. Rowley's evidence. Gonzalez, J. regarded that position as having been quite properly taken by Mr. Morales, a view from which this court does not dissent in the circumstances.

7

Resuming his evidence before the jury, Mr. Rowley answered the question that had sparked Mr. Morales' unsuccessful objection in this way:

“A: Tara was coming out and I –

THE COURT: She was coming out of 8 Castle Street?

WITNESS: Yes.

WITNESS: And she said something to Pie Bwai? Yes. I could mention what Pie Bwai seh?

THE COURT: No. You have to be careful here. He can say it but you have to be careful.

Q: You need to say only what Pie Bwai said in respond (sic) to what Tara Sebastian said.

A: Pie Bwai mentioned –

THE COURT: No. Something was told or asked of Pie Bwai and he gave an answer, what is the answer he gave?

Q: What did Pie Bwai say?

A: Dah ih get juck down. He mentioned who juck ahn down too.

Q: You could say the exact words as close as you know it.

A: Pie Bwai mentioned dah Flouwa juck him down.

THE COURT: The first thing is Pie Bwai said that he got juck down?

WITNESS: Yes, sir.

THE COURT: And the next thing you said is what?

WITNESS: He got juck down from Flouwa.

THE COURT: What were the exact words he said as you can recall?

WITNESS: Flouwa juck mi down.”

Mr. Rowley's evidence was that the distance from where he had seen Mr. Flowers running on Lovely Lane to Castle Street was approximately fifty feet (estimated by the court as sixty feet) and that Mr. Flowers had passed him running fast at a distance of about seven feet, holding the left hand side of his chest “and blowing like he was on his last … Like he trying to ketch his breathe (sic)”. Mr. Flowers' shirt was red with what he took to be blood and Mr. Rowley turned and followed him to a point right beside 8 Castle Street where Mr. Flowers sat down on a step.

8

Thereafter, Mr. Rowley testified, he ran back in search of a vehicle on Lovely Lane, found and summoned Mr. Thompson, who “reversed back into Victoria Street and headed into Castle Street, at 8 Castle Street, then me and one [of] my cousin (sic) put Pie Bwai to the back of the vehicle”, which then transported him to the Karl Heusner Memorial Hospital. Mr. Rowley stated that the appellant was the person known to him (and “the whole neighbourhood”) as Flouwa. It was suggested by Mr. Morales to Mr. Rowley that he did not see Mr. Flowers running from Lovely Lane into Castle Street, that he was not present and so did not hear when Miss Sebastian asked Mr. Flowers the question to which he responded, and that he did not run behind Mr. Flowers, as he had testified. Mr. Rowley disagreed emphatically with all of these suggestions.

9

Miss Sebastian's evidence was that she resided at 8 Castle Street and that on 25 February 2005 sometime after 10:00 p.m. as she was leaving her home and going through her gate onto Castle Street she “buck up to” Mr. Flowers. This is how she described what happened next:

“Q: And when you buck up into Pie Bwai, can you tell the court what if anything happened?

A: Well, he was staggering headed for the gate which I was coming out of.

Q: And what if anything happened next?

A: Well, he was staggering heading for the gate which I was coming out of, so I had asked him, I said, “Pie, who stamp you in the mud, in the drain” because around our area, the drain is always clogged up with mud instead of water, and he then groaned. So, I was still standing at the gate so he couldn't come in, so he went and ease himself on the step of #6 Castle Street which is also our family house. He then sat down in a crunched position and mentioned, “Dah Flouwa juck mi down.” [Witness indicates.]

Q: When he said this, how did he say it?

A: He say it in a manner of, “Dah Flouwa fuck mi down.”

[Witness...

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