Lionel Daley v The Queen

• Jurisdiction: Belize
• Judge: Hafiz-Bertram JA
• Judgment Date: 02 November 2018
• Neutral Citation: BZ 2018 CA 23
• Court: Court of Appeal (Belize)
• Docket Number: CRIMINAL APPEAL NO 8 OF 2012
• Date: 02 November 2018

IN THE COURT OF APPEAL OF BELIZE AD 2018

Before

The Hon Mr Justice Samuel L Awich Justice of Appeal

The Hon Madam Justice Minnet Hafiz-Bertram Justice of Appeal

The Hon Mr Justice Murrio Ducille Justice of Appeal

CRIMINAL APPEAL NO 8 OF 2012

LIONEL DALEY

Appellant

and

The Queen

Respondent

K Arthurs for the appellant.

J Chan, Crown Counsel for the Crown.

Criminal appeal - Murder — Whether the appellant was denied the right to a fair trial — Right to be represented by counsel — Right to a fair hearing within a reasonable time — Delay — Absence of transcript — Eligibility for parole — Whether the sentence imposed was unduly harsh — Rule 42 of the Prison Rules — McInnis v. The Queen [1979] HCA 65 — R v. Rushlow [2009] O.N.C.A. 461 — Boolell v. The State [2006] U.K.P.C. 46 — S v. Taenda [2002] (2) Z.L.R. 394 — The Queen v. Gilbert Henry [2018] CCJ 21 (AJ) — Sylvester Stewart v. R [2017] J.M.C.A. Crim 4 — Roberts and another v. The State (Trinidad and Tobago) [2003] U.K.P.C. 1.

Hafiz-Bertram JA

Introduction

1 On 4 April 2012, Lionel Daley (‘the appellant’) was convicted for attempted murder and robbery following a jury trial before Gonzalez J. He was sentenced to a term of imprisonment of 12 years for attempted murder and ten years for robbery, to run concurrently, effective 11 April 2012. The appellant appealed to this Court and the appeal was heard on 8 March 2018. The Court reserved its judgment.

2 The appellant and Abelino Briceno Jr. were indicted on 5 January 2012, for attempted murder and robbery of Leonardo Velasquez which occurred between the 20 and 21 of September 2010, in San Ignacio Town. The evidence of the doctor who treated Velasquez was that he was stabbed twice to the chest and his left lung had collapsed. The other lung was also damaged but was repaired.

3 The appellant was unrepresented at trial. The transcript of the proceedings was deficient as it does not have the summing up of the trial judge. Further, the evidence of the witnesses from both sides were prepared using the notes from the trial judge.

4 The appellant was remanded on 27 September 2010 at the Kolbe Prison for this incident. He was convicted on the 4 April 2012 and remanded to prison until sentencing on 11 April 2012. He was granted bail by this Court pending the appeal on 24 March 2017. At the hearing of the appeal, the appellant was not present. He was also granted leave to amend his grounds of appeal.

The amended grounds of appeal

5 There were four grounds of appeal as follows:

• (1) The appellant had been denied the right to a fair trial in a reasonable time;

• (2) The absence of a complete transcript and the appellant being an unrepresented youth with a standard VI education, in which issues of identification, dock identification, joint enterprise, good character and alibi were raised, particularly the summing up and the absence of proper procedure to rebuild the record, have further denied the appellant the right to a fair trial;

• (3) Owing to the delay in the trial and the deprivation of his right to a fair trial within a reasonable time, the appellant had not been afforded the right and application of the principles of remission;

• (4) In the alternative, the sentence is harsh and excessive, in that the mandatory minimum in respect to a minor of good character is disproportionate and excessive.

An unrepresented defendant and the right to a fair trial

6 Learned counsel, Mr. Arthurs submitted that when the appellant was charged he was a minor with a standard six graduate. He had just turned 18 years old when he was committed for this matter.

7 Mr. Arthurs argued that accused persons have a right to be represented by counsel of their choosing. He relied on McInnis v The Queen [1979] HCA 65, where Barwick CJ said that, “ it is in the best interests not only of the accused but also of the administration of justice that an accused be so represented, particularly when the offence charged is serious.” He also relied on Murphy J in the same judgment where he said that:

“ An unrepresented accused is disadvantaged, not merely because almost always he or she has insufficient legal knowledge and skills, but also because an accused in such a position is unable dispassionately to assess and present his or her case in the same manner as counsel for the Crown.”

8 Counsel submitted that the charges of attempted murder and robbery are considered serious and further, the insubstantial transcript based on the handwritten notes of the trial judge showed a limited understanding of the proceedings. As such, he contended that this called for judicial speculation as to whether the appellant had a fair trial. Counsel also relied on the case of R v Rushlow [2009] ONCA 461 which addressed the issue of unrepresented accused and fair trial.

9 Mr. Arthurs contended that the appellant had a standard VI education and as such he was unable to defend himself. Counsel relied on the case of Condon v R [2006] NZSC 62, where the adequacy of self-representation was in question before the court.

10 Counsel argued that there is no reference in the handwritten notes of Gonzalez J that there was any discussion on the appellant's lack of legal representation, or request for an adjournment or any advice given by the trial court to the appellant that because of his age he was at a disadvantage in representing himself. He submitted that the only reference found at page 1 of the transcript is simply “ the accused to defend themselves.”

11 Mr. Arthurs contended that there is no record of the questions by either of the defendants or the Crown and the handwritten notes, produced as the transcript, makes it difficult to state with any certainty that the appellant was not prejudiced because of his inability to properly participate in the trial process. He contended that the co-accused had the majority conduct of the trial.

12 Learned Counsel for the Crown, Mr. Chan in response contended that the record as acknowledged by Mr. Arthurs does not bear out what he had advanced in his arguments. Further, the appellant had not provided any evidence to support his argument that he was not allowed to seek legal representation. Counsel relied on two authorities from this Court. In Winston Dennison v The Queen, Criminal Appeal No. 1 of 2013, the Court said:

“[21] The first ground of appeal that, “the trial judge failed to grant to the appellant time to seek legal representation”, raises the question of denial of a constitutional right. In our view, it must fail. There is no factual basis for it. The Constitution declares that, an accused has a right to be represented by an attorney of his choice; but it is at his own expense. Sections 5 (2) (b) and 6 (3) (d) of the Constitution declare the right as follows:

5 …

(2) Any person who is arrested or detained shall be entitled–

…

(b) to communicate without delay and in private with a legal practitioner of his choice, and in the case of a minor, with his parents or guardian, and to have adequate opportunity to give instructions to a legal practitioner of his choice.

…..

(3) Every person who is charged with a criminal offence–

…

(d) shall be permitted to defend himself before the court in person, or at his own expense, by a legal practitioner of his own choice.

[22] The responsibility of the court in ensuring the above constitutional right is simply to afford the accused adequate time, that is, reasonable time, to obtain an attorney of his choice. Reasonable time may include a realistic time to obtain attorney's fees.”

[23] In the trial the appellant had more than adequate time to obtain an attorney. He was arrested on 17 March, 2011 and was informed that, his arrest was made pursuant to the complaint made against him of carnal knowledge of MC, a girl under the age of 16. On 18 March, 2011 he was formally charged in three counts, with the offence. Then the appellant would have been committed by a magistrate for trial in the Supreme Court. He was indicted. Trial in the Supreme Court commenced on 6 December, 2012. It was 1 year and over 8 months from the time the appellant was arrested. On that date (6 December, 2012) after a plea of not guilty was taken on each count, and the jury empanelled, the trial was adjourned to 10 December, 2012. The appellant did not, on 6 or 10 December, request to adjourn the trial so that the appellant would obtain an attorney. On these facts the judge was entitled to conclude that the appellant was unable to obtain an attorney to represent him and was resigned to having the trial proceed without an attorney.

……..

[25] The record of proceedings does not indicate that the trial judge inquired of the appellant whether he wished to have an attorney, and the reason for not having one in court. It is always a good practice to do so whenever an accused person appears without an attorney. The circumstances in this case show, however, that the appellant was not denied an opportunity to obtain an attorney.

[26] To satisfy ourselves that, the fact that the appellant was not represented by counsel did not occasion prejudice to the appellant at the trial, we considered whether as a matter of fact and law, the trial proceeded in an unfair way, and whether any miscarriage of justice was otherwise occasioned, and the conviction was unreasonable or cannot be supported having regard to the evidence. We concluded that, there was no instance on which unfair trial was occasioned, or a miscarriage of justice was occasioned, because the appellant did not have an attorney representing him. The judge was alert to those possibilities. He stated many times during the proceedings that, because the appellant was not represented by counsel, the judge had a duty to explain the law and rules of practice to the appellant. We agree that the judge had a duty to explain the law and rules of practice to an accused person not represented by counsel, provided...