Sccrapp No. 182 of 2010

COMMONWEALTH OF THE BAHAMAS IN THE COURT OF APPEAL SCCrApp No. 182 of 2010

BETWEEN:

LEROY ROLLE Appellant

AND

THE ATTORNEY GENERAL Respondent

BEFORE: The Hon. Mr. Justice, Blackman, JA The Hon. Mr. Justice John, JA The Hon. Mr. Justice Conteh, JA

APPEARANCES: Mr. Geoffrey Farquharson, Counsel for the Appellant, Mr. Franklyn K. M. Williams, with Ms. Desiree Ferguson, Counsel for the Respondent

DATE: 12th July 2011, 16th April 2012, 8th May 2012

______

JUDGMENT DELIVERED BY THE HON. JUSTICE JOHN, JA

1. On the 13 day of September 2010 before Snr. Justice Anita Allen (as she then was) and a jury the appellant and Makisha Brown (Makisha) were convicted of manslaughter following a trial for murder as a result of the death of Levano Brown (Levano) a 22 month old infant and Makisha’s daughter. The appellant was sentenced to a term of 25 years imprisonment and Makisha to 15 years imprisonment.

2. We heard the appellant’s appeal on 12 July 2011. At the conclusion of the hearing we reserved our decision to await the hearing and determination of Makisha’s appeal. Her appeal was heard and determined on 19 October 2011 when we allowed the appeal. At that hearing the Director of Public Prosecutions appeared on behalf of the Crown and very candidly admitted that after careful and mature deliberation she was satisfied that there was insufficient evidence to proffer a charge of murder against Makisha. At the close of the case for the prosecution a submission of ‘no case to answer’ was made on behalf of Makisha. The trial judge overruled the submission. The Director of Public Prosecutions in response to a question from the Bench conceded that she could not support the trial judge’s rejection of the ‘no case submission’ and agreed that the appeal should be allowed. As a consequence this judgment is concerned with the appellant only.

3. At the conclusion of the appellant’s appeal on July 12 the court invited the Attorneys to submit further skeleton arguments on the issue whether the evidence disclosed that the acts of the appellant were responsible for the death of Levano, that is to say, whether the admitted acts of violence upon Levano by the appellant were sufficient to be the substantial cause of death. That issue is addressed later on in the judgment.

4. It is a tragic case. The appellant then age seventeen was involved in an intimate relationship with Makisha who was 22 years of age and shared an apartment with her. He was not the father of Levano. Shortly after 5:00 pm on 16 March 2007 the appellant and Makisha took Levano to Skoorb’s Medical Centre which is situated opposite to where they lived. The appellant told the Doctor that Levano’s heart was

2 beating but he was not breathing. Dr. Maurice Brooks examined Levano who had a very faint heartbeat and was not breathing. Dr. Brooks asked Makisha what had happened to him and she said that he had a fever two days before, the fever broke, but the daddy (a reference to the appellant) beat him with a belt. The appellant admitted to Dr. Brooks that he did beat Levano with a belt. At the time of Dr. Brooks’ examination there were bruises on Levano’s chest, abdomen, leg and a mark on the forehead. Dr. Brooks summoned an ambulance and Levano was dispatched to the Princess Margaret Hospital.

5. Dr. John Neely together with a team of Pediatric Doctors attended Levano on admission to the Accident and Emergency Department. Dr. Neely said that Levano appeared to suffer from trauma. He was admitted to the I.C.U. where he subsequently succumbed to his injuries. An autopsy was performed by Dr. Caryn Sands who found that death was due to blunt force injuries to the head, torso and extremities.

6. Police Sergeant Wilson spoke to the appellant and Makisha at the hospital and the appellant told him that earlier that day he had beaten the child with a belt to the chest area. Sergeant Wilson arrested both the appellant and Makisha and took them to the Central Detective Unit. Woman Police Sergeant Brown interviewed the appellant at the Criminal Detective Unit and conducted a record of interview with him. She also recorded a statement from him. Counsel for the appellant objected to the statement and the record of interview being admitted into evidence on the ground of oppression. After conducting a voir dire the trial judge admitted both the written statement and the record of interview into evidence.

7. The appellant gave evidence on his own behalf. He denied causing any injury to Levano. He denied giving any statement to the Police and said he was forced to sign the document. His brother William Rolle also gave evidence on his behalf.

Three Grounds of appeal were filed on behalf of the appellant.

3 8. Ground – 1 The Committal ought to have been quashed

In support of this ground Counsel submitted that at the time of his arrest the appellant was a juvenile (17 years of age) and he was interviewed without an adult or attorney present. He further submitted that although the appellant admitted in the statement to having beaten Levano with a belt across his chest the medical evidence did not support the case for the prosecution that those injuries caused the death of the infant.

9. It is of some interest that at the commencement of the trial no application was made to quash the indictment nor was any application made to judicially review the finding of the magistrate that a prima facie case had been made out against the appellant. It was clearly open to the appellant to seek an Order for Judicial Review. The decision of the House of Lords in R v Bedwellty Justices, Ex p. Williams [1977] A.C. 225 is authority for that proposition. We therefore hold that it is not now open to the appellant to raise that issue on appeal. Accordingly this ground of appeal is unmeritorious.

10. Ground – 2 Failure to afford the Appellant Legal Representation

On this issue the evidence is quite clear. The transcript shows that when the matter was called the appellant indicated to the court that he needed legal representation. The trial judge told him that on a previous occasion he had indicated to the court that he wished to represent himself. She then told him that it was not possible to have counsel that day and he said that he would represent himself.

11. He was placed in the charge of the jury and the matter was adjourned to the following day when the matter was yet adjourned at the request of the Prosecution to the next day when counsel in the person of Mr. McPhee appeared for the appellant. The matter was further adjourned to facilitate Mr. McPhee. At page 16 of the transcript the trial judge told the jury:

4 “Mr. Foreman and members of the jury, you recall yesterday I asked Mr. Rolle, because I had indicated he had wished to represent himself, which is his right, and I asked him again yesterday and he indicated firstly to me that if counsel could be assigned for him, he would prefer that, but he was willing to go on and represent himself. When I went back into chambers, I thought it would be in the best interest of justice that he be assigned counsel and so I asked the Registrar to get counsel for him and Mr. McPhee kindly, at very short notice, has agreed to represent him. I think it is in the best interest of justice that he is represented in such a matter. I beg your indulgence. As you have seen from coming here, justice grinds very slowly so I ask for your patience.” In light of the above we find no merit in this ground of appeal.

12. Ground – 3 The judge misdirected herself in law in admitting the written statement having regard to Rolle’s age at the time and his brother who witnessed the statement was not a competent person within the meaning of the judges’ Rules.

13. According to Sergeant Brown who interviewed the appellant, he told her he was eighteen years of age. However, shortly after the interview began, William Rolle, the appellant’s brother, came to the Central Police Station and brought the appellant’s passport which showed his date of birth. William Rolle’s presence at the police station was explained by Sergeant Brown in this way: She said under cross- examination by Mr. McPhee that she asked the appellant if he wanted somebody to be present during the interview and at that stage he told her that he was seventeen years old. In an attempt to verify his age Sergeant Brown said she called his brother

5 and asked him to attend at the station and bring along some form of identification for the appellant.

14. A ‘voir dire’ was held to determine the admissibility of the statement. The appellant gave evidence in which he denied giving the statement. On the contrary, he said he was beaten by Police Officers and forced to sign the statement. He further said that he never told the police he was eighteen years old. He maintained that at the time he was seventeen years of age and that is what he told the police. He also said that when the police took him to his home they retrieved his passport from a drawer in his room and that was prior to the recording of the statement.

15. At the conclusion of the voir dire the trial judge gave her ruling in these terms: “…Having heard the evidence and observing the demeanour of the officers, I accept their evidence that the accused was not subjected to any force at any time by any one of them or by anyone in their presence. I further accept their evidence that when the accused was arrested and when taken out on inquiries, he gave his age as 18 years. The defence suggests that the accused would have no reason to do so. I find, however, from his evidence that the accused was well aware of the circumstances that he was in, namely, that he was a minor who was having a sexual relationship, according to him, with an adult woman and may well have had a reason for so doing. In any event, I accept the evidence of Sergeant Brown that when she was alerted to the fact that the accused may have been a minor, she requested his passport and interviewed him in the presence of his brother. (Emphasis added)

6 This in my view supports her evidence that her knowledge relative to his status as a minor changed between when she took him on inquiries and when she interviewed him at CDU. With respect to the allegation that the police used food and drink as a tool of oppression, the specific allegations made by the accused here were never put to Sergeant Brown, nor was it put to Corporal Collie, the station orderly at Central, that food and drink were withheld from him in order to obtain the statement and record of interview.”

16. The trial judge continued:

“I am further satisfied that no complaints of any kind were made by the accused to Sergeant Brown, Constable Wildgoose or Corporal Collie, and, indeed, the accused said here that he made none. I accept their evidence that he was comfortable and well when he was interviewed. The detention record, it is true, shows no entry of the accused being fed between his being booked in and the time of the interview. In my view that does not mean none was offered and, indeed, no questions were put to Corporal Collie to give him an opportunity to accept, deny or explain such an allegation. Throughout the record of interview, I observed that there are notations that the accused was well and in good health and that there were no complaints from him and I have no reason not to accept those notations as true.

7 I do not believe the evidence of the accused when he said he was slapped by Sergeant Meronard. I do not believe the evidence of the accused when he said that Sergeant Brown refused him food nor his evidence that other officers refused him food and told him that he had to give an interview before he could be given food. In the circumstances, I am satisfied beyond a reasonable doubt that the record of interview and statement were not obtained by oppression, nor are they rendered unreliable by reason of anything said or done or omitted to be said or done by the police in the circumstances existing at the time of the interview and recording of the statement by them. I, therefore, admit both documents into evidence in this trial.” (Emphasis added)

17. Provisions relating to the taking of statements from children and young persons and to comfort and refreshments for them are set out, not in the Judges’ Rules themselves, but in the Administrative Directions annexed thereto and read with them: see Practice Note (Judges’ Rules) [1964] 1 W.L.R. 152. Paragraph 3 of the directions prescribes that ‘reasonable arrangements should be made for the comfort and refreshment of persons being questioned.’ Paragraph 4 provides, in part:

‘As far as practicable children (should only be interviewed in the presence of a parent, guardian or, in their absence, some person who is not a Police Officer and is of the same sex as the child.’) (Emphasis added).

18. The case of the State v Abdool Azim Sattaur and Rafeek Mohamed [1976] 24. W.I.R. 157 a decision of the Court of Appeal of Guyana is instructive on this

8 issue. At the hearing of an appeal by the respondents one of the issues was the admissibility of Sattaur’s confession at the trial. At trial objection to the statement was on two grounds, (a) that it resulted from “pressure” and was not free and voluntary, and (b) that as he (then 15 going on to 16 years) was a young person and the taking of the statement in the absence of a parent or guardian was a breach of the letter and spirit of the Judges’ Rules. The judge nevertheless admitted it at a ‘trial within a trial’ as voluntarily taken, refusing to exercise his discretionary power of exclusion for the alleged breach of the Judges’ Rules. The question raised in the appeal was whether the judge’s decision to do so was right.

19. In holding that Sattaur’s statement was inadmissible the court said:

“. . . stronger proof of voluntariness was required since the accused Sattaur was a young person of obviously poor intelligence and illiterate. In such a case, the highest ranking officer involved in the investigation should have given evidence in order to provide more weighty assurance that no advantage was taken of the suspect’s youth and limitations”:

20. On the interrogation of children the court said:

“This rule so worded, puts no obligation on the police to have the appellant’s mother or some other adult present, even though Corporal Simon believed so. For this reason, rightly there was no breach, and so no basis on this ground for the application of the provision in the rules that: “Non- conformity with these rules may render answers and statements liable to be excluded from evidence in subsequent criminal proceedings.” But even if it did, the operative word “may” would have left the court free to hold that, despite a breach, the statement (already held to be voluntary) would be admitted, as was held in Conway v

9 Hotten [1976] 2 A11 E.R. 213. The effect of the Rules was long ago stated by Lord Goddard, C.J., R. v. May (1952), 36 Cr. App. Rep. at p. 93), in this passage: “The test of the admissibility of a statement is whether it is a voluntary statement. There are certain rules known as the Judges’ Rules which are not rules of law but rules of practice drawn up for the guidance of police officers; and if a statement has been made in circumstances not in accordance with the Rules in law that statement is not made inadmissible if it is a voluntary statement, although in its discretion the court can always refuse to admit it if the court thinks there has been a breach of the Rules.”

21. In Peart vs The Queen (2006) U.K.PC 5 their Lordships of the Privy Council considered the Judges’ Rules and Voluntariness as the criterion for admission of a confession statement. From their Lordships’ discussion on the matter four propositions were enunciated: They are:

(i) The Judges’ Rules are administrative directions, not rules of law, but possess considerable importance as embodying the standard of fairness which ought to be observed.

(ii) The judicial power is not limited or circumscribed by the Judges’ Rules. A court may allow a prisoner’s statement to be admitted notwithstanding a breach of the Judges’ Rules; conversely, the court may refuse to admit it even if the terms of the Judges’ Rules have been followed.

(iii) If a prisoner has been charged, the Judges’ Rules require that he should not be questioned in the absence of exceptional

10 circumstances. The court may nevertheless admit a statement made in response to such questioning, even if there are no exceptional circumstances, if it regards it as right to do so, but would need to be satisfied that it was fair to admit it. The increased vulnerability of the prisoner’s position after being charged and the pressure to speak, with the risk of self- incrimination or causing prejudice to his case, militate against admitting such a statement.

(iv) The criterion for admission of a statement is fairness. The voluntary nature of the statement is the major factor in determining fairness. If it is not voluntary, it will not be admitted. If it is voluntary, that constitutes a strong reason in favor of admitting it, notwithstanding a breach of the Judges’ Rules; but the court may rule that it would be unfair to do so even if the statement was voluntary. (Emphasis added).

22. In Williams v R (2006) 69 WIR 348 the Privy Council expressed the view that the presence of a Justice of the Peace during the interviewing and taking of a statement from a 12 year old boy whose literacy appeared to have been in some doubt was not proper compliance with either the letter or the spirit of the Administrative Directions.

23. In England the Judges’ Rules have been replaced by the statutory provisions set out in section 66 of the Police and Criminal Evidence Act 1984 and the Code of Practice C made thereunder. Whilst those provisions do not apply to The Commonwealth of The Bahamas its provisions are similar to the Judges’ Rules. We strongly suggest that the time has come for the Bahamas to introduce legislation along similar lines.

24. In D.P.P v Blake (1989) 89 Cr. APP R 79, a 16 year old defendant, estranged from her father and step-mother was arrested on an allegation of arson and taken to a Police station for an interview. The Police wished her father to be present at the interview as the “appropriate” adult. The defendant made it clear that the person she

11 wanted to be present at the interview was her social worker and not her father. The local social workers had a policy of not attending such interviews if a parent was available. Eventually the defendant disclosed her father’s address and he attended the interview, although he took no part in it and the defendant ignored him. At her trial the question arose whether the confession was admissible in evidence. The Justices ruled it was inadmissible under section 76 (2) of the 1984 Act on the ground inter alia, that the defendant’s estranged father was not an ‘appropriate’ adult. The Director of Public Prosecutions appealed.

25. In dismissing the appeal the Court of Appeal said, inter alia,: “… the justices were entitled to find that the estranged parent of a child, whom the child did not wish to attend her interview at the police station, did not come within the spirit of the Code of Practice. That is not how the justices couched their opinion, but it is clearly the effect of it. It is quite clear from the way in which they have expressed themselves that they were far from satisfied that such an estranged parent would fulfill the objective of ensuring a fair interview of a juvenile when that juvenile had expressly, and with some steadfastness, made plain that she did not wish the parent to attend. It is clear in such a circumstance that the objective which is set out in paragraph C.13C, to which I have referred, of the appropriate adult – in this case the parent – being of assistance and being a safeguard to the juvenile at such an interview would not necessarily be achieved.”

26. We, therefore, urge police officers that to give effect to the spirit and intent of the Judges’ Rules they ought to go a step further and explain to the appropriate adult

12 what exactly is his/her role in terms set out hereunder. It is important to note that under the English Code: “The appropriate adult should be informed that he is not expected to act simply as an observer. The purposes of his presence are, first, to advise the person being questioned and to observe whether or not the interview is being conducted properly and fairly; and, secondly, to facilitate communication with the person being interviewed.”

27. Was the brother an appropriate adult? We are satisfied that a 23 year old being called to a police station in the circumstances described by Sergeant Brown is more likely to be in fear than a person who has been told why he is required to attend and is ready and prepared to give the required assistance to a younger brother. Indeed there was no evidence that the brother’s role was ever explained to him nor was there any evidence that he had an opportunity to communicate with the appellant prior to the statement being recorded. In order to give effect to the true spirit of the Act, the person, in the absence of a parent or guardian, must be someone in ‘loco parentis.’ On the facts of this case we hold that William Rolle was not such a person. That, however, is not the end of the matter. The trial judge who had the opportunity of seeing and hearing the witnesses on the voir dire in giving her ruling on the admissibility of the statement made certain findings of fact. She had no doubt that the statement was given voluntarily. Notwithstanding the breach to which we have referred we are nevertheless satisfied that at all material times the Police exhibited fairness towards the appellant which is the criterion for the admissibility of a statement.

28. In holding that William Rolle was not an appropriate adult this court is not laying down that as a general rule under no circumstances can a brother be ‘an appropriate adult’ and this judgment should certainly not be regarded as laying down

13 any such prescription. We simply say that having regard to all the circumstances of this case we are not satisfied that William Rolle was an appropriate adult within the terms and spirit of the judge’s rules.

29. Did the acts of the appellant cause Levano’s death? In Archbold Criminal Pleading Evidence and Practice (1977) at paragraph 19-6 under the sub-heading “Substantial cause” the learned author states: “In homicide cases, it is rarely necessary to give the jury any direction on causation as such. When such direction is needed, they should be told that in law it is enough that the accused’s contributed significantly to the death; it need not be the sole or principal cause thereof.” (Emphasis added)

30. It is not in dispute that the appellant had no legal justification for the harm caused to Levano as the harm caused did not fall within any of the grounds on which force or harm may be justified. (See Section 98 Penal Code)

31. The question to be resolved is whether the acts of the appellant contributed significantly to Levano’s death. In order to properly resolve that issue it is necessary to return to the medical evidence and set out in some detail the evidence of Drs. Maurice Brooks, John Neely and the Pathologist Dr. Caryn Sands together with the evidence of the appellant.

32. Dr. Maurice Brooks – Examination-in-Chief

Q: Do you recall anyone coming into your clinic with a baby on Friday 16th March 2007?

A: Yes

Q: Can you tell us from your recollection what, if anything you did?

14 A: Well, when the young man came with the baby, he said the baby was breathing funny. I looked at the baby and I took the baby and I went to the examination room and I examined him and he wasn’t breathing and I didn’t hear any breath sound. I took my stethoscope and listened for the baby’s heartbeat and I didn’t hear any.

Q: Did you do anything after that?

A: After that I put in a mouth tube to clear the airway and started doing CPR. I heard the air going through the tube.

Q: Doctor, did you speak to any of them….were both the male and female in the room at any point?

A: Yes

Q: What was the conversation?

A: I asked her if she knew what happened to the baby Q: Did she say anything?

A: She said the baby had a fever two days ago and the fever broke, but the daddy beat the baby with the belt

Q: Did the man who brought in the baby; did he say anything?

A: Yes, he said he beat the baby with the belt

Q: Did you observe anything else about the baby?

A: The baby had bruises on the chest, face, had a long spot on the face. The body side that is

Q: Any other place if you recall?

A: The chest, abdomen, leg and he had a mark on the forehead

Q: What happened next?

15 A: I continued CPR until the ambulance staff arrived

Cross-Examination

Q: When you would have examined this baby’s body, did you observe any marks on the baby’s body that were consistent with a belt mark?

A: The marks on the chest and legs. They looked like belt marks

Q: When did you see the gash on the baby’s head?

A: When the mother came in and she said the baby ran into a door

33. The court then posed the following question to Dr. Brooks.

Court: The jury would like to know—you said you examined the baby and you would have observed the injuries that you told us about. The jury would like to know whether you can tell us if the bruises appeared to you to be fresh or old?

A: The marks looked fresh, not that old

Court: You say that because?

A: You could see swelling where the baby had gotten beaten

34. Dr. John Neely the emergency physician testified under examination-in-chief as follows:

Q: Doctor, can you tell what the patient (the baby) presented when he came in?

A: The patient was brought into the Accident and Emergency department unresponsive and at the time without any vital signs, meaning no pulse, no respiratory efforts

16 Q: Doctor, did you do anything?

A: Yes, I attempted to resuscitate the child along with another team of doctors. I did this for about half an hour and had for lack of better words “a successful outcome,” meaning we were able to obtain a spontaneous heartbeat.

Q: Doctor, did you at the time observe anything about this child?

A: His vital or physical?

Q: Physical

A: Yes, when I received the child I can recall that there were multiple bruises about the body. The torso in particular, the forehead and if I recall correctly the extremities, the arms and legs. The torso refers to the chest and stomach. And there was a bleed to the left eye and the abdomen was very distended or puffy.

Q: Those injuries, any of them looked recent to you at the time?

A: The eye in my opinion appeared recent. It is very hard to determine the age of the bruise because there are factors involved with determining the age of the bruise, and that is not part - - it does not fall under my forte to try to determine the age of a bruise

Q: Are you able to say whether those were old bruises or old marks or not too recent?

A: No, I don’t comment on that

Cross-Examination

Q: Just for clarification and information, you said the child appeared to suffer from trauma. So the jurors would have a better idea, describe what makes someone suffer from trauma?

A: Trauma particularly to the body, especially from blunt objects normally leaves the skin unbroken, but it leaves bruise. The bruise is actually a manifestation of blood leaving the blood vessels and being trapped under the skin, that is how we get a bruise. This blood, once under the skin, is out of the circulatory system and it is devitalized and it turns

17 dark. It is no longer bright red. A very recent bruise is normally bright red and a bruise that is older is normally darker in colour. To create the hue of colour is something I don’t attempt to do.

35. Dr. Caryn Sands performed the autopsy on the body of Levano on 21 March 2007. The post-mortem examination was very thorough. Dr. Sands said that in her opinion Levano died as a result of blunt force injuries to the head, torso and extremities. She proceeded to detail the injuries to the body. His eyes were puffy and the white part of the eye was also bleeding. There was a superficial laceration in the midline of the lower lip. She described a contusion, that is to say a bruise and an abrasion on the right side of the front-parietal scalp. Under the skull was a membrane, the dura matter which covers the brain and there she found approximately 7 milliliters of blood. She also observed bleeding in the cover immediately on top of the brain, as well as swelling of the brain, and her view was that the bleeding was caused by blunt force trauma to the head.

36. Dr. Sands also detailed the injuries to the torso. A bruise to the right side of the chest and an abrasion on the right side of the upper abdomen below the rib cage. She also found multiple red-purple bruises on the abdomen and on the back to the lower back and a curved linear scratch on the lower back, hemorrhages under the skin on the right side of the abdomen and back. Additionally the 5th, 6th, and 7th lateral ribs were fractured where they joined the spine, front and back. She further found hemorrhage on the right side in the soft tissue above the kidney and adrenal glands. There were bruises on the back of Levano’s left arm and forearm and on the back of the thigh which also had a hemorrhage on the skin. There was also a 2-2½ x 1½ inch laceration of the liver in the mid-line. The injuries outlined above were in the opinion of Dr. Sands recent injuries and the recent external injuries were associated with the internal injuries which she found.

18 37. The pathologist also described old injuries such as healing linear scratches to the face and an old hemorrhage under the lip. She saw healing and linear scratches on the right shoulder, the upper part of the right side of the chest, superficial healing scratches on the abdomen and multiple haphazard scratches on the left side of the lower back, and healed marks on the buttocks and the back of both legs.

38. The Appellant’s Statement

For the purpose of the issue under consideration we have set out verbatim some important excerpts from the statement given by the appellant to the Police. “The first time I really beat Levano when this thing got out of hand was on Wednesday, the 7th of March, 2007, or Thursday the 8th March, 2007. This was during the day while Makisha was moving up and down trying to do an interview with our landlord and the owner of Taylor Electrical. I was asleep when I heard Levano fall down. I call out to Makisha. She didn’t answer. I looked out and saw Levano at the front door of our apartment. Levano can reach the doorknob, so I got angry and went up and got him. I lifted him up and spank him on his hand. I took him into the room and told him I needed to beat him because he ‘cause me – I would have been blamed if anything happened to him. I got Makisha old brown belt with plastic rings on it and began beating him on his legs and back. As I hit him across his legs, the belt caught him across his stomach and chest. Levano pampers was soak, so I bathe him. I think it was one day this week when Levano fell in the tub while I was bathing him and he scrape his stomach on the faucet and also buck his lip. That afternoon Makisha asked if he slipped inside the tub and I told her yes. She told me he was scared of the water. That was the last I beat Levano. On Wednesday The 9th of March, 2007, Levano had a high fever. I checked him and placed a towel on his head which broke his fever.

19 Around 4:30pm, Friday 16 March 2007 Makisha walked downstairs to see if the boss had returned to open the door because she had locked it while she was out the house. I was talking to her through the window as she was downstairs. I heard the plastic on the bed moving. I turned and saw Levano moving the pillow off his head. He was breathing very heavily. His eyes was (sic) opening. I talked to him and I said to him “Daddy Roy” because that’s what he call me. I shouted for Makisha. I lift Levano out of the bed and rest him on the ground. Makisha began crying. I start trying to call Levano. Makisha picked him up and put him in the tub where she wiped him off. He only breathe hard. I told her look like something was wrong with him. I asked her if she wanted me to take him across the street to the clinic. The doctor asked me what was wrong with the baby. I told him I don’t know. I met him breathing like that. The doctor started CPR. He asked me what was with the marks on the baby, he looks like he get beaten with the belt. I told him I beat him last week. He then told me although they weren’t fresh marks, the police will still be called to investigate. I then ran back to the apartment and called Makisha. The ambulance came and they continued CPR. We called Makisha’s aunt, Phyllis. We told her he stopped breathing and we going to the hospital. The ambulance took us to the hospital with Levano.

39. The further submissions Mr. Franklyn Williams Counsel for the Crown in his written submissions stated that there was evidence that the appellant admitted to both Dr. Brooks and Sergeant Phillip Wilson that he had beaten the child on several occasions. That evidence he said, was also contained in both the record of interview and the statement. He further relied on the evidence of Dr. Sands that the injuries were recent.

40. Counsel further submitted that the directions to the jury were adequate and it was therefore open to them to find that Levano met his death as a result of injuries,

20 inflicted upon him by the appellant. He cited David Keith Padgett 2 (1983) 70 Cr. App R and R v Smith [1959] 2.A11E.R 193

41. Mr. Farquharson submitted that the only evidence led as to the cause of Levano’s death came from Dr. Sands who performed the autopsy. He further submitted that the admissions of the appellant (which were all denied by him) taken at their highest showed that about a week prior to Levano’s death the appellant had beaten him with a small belt and spanked him with one side of an infant’s shoe. He also relied on the principle of justification that is to say that the use of force in correcting a child is justifiable. As indicated earlier the appellant could not rely on justification as a defence. In any event at the close of the case for the prosecution there was evidence that Levano died from blunt force trauma.

42. Before us on 16 April Mr. Farquarhson for the appellant submitted that the evidence of causation led through Dr. Caryn Sands did not support the injuries allegedly inflicted by the appellant and therefore the prosecution failed to prove beyond a reasonable doubt that the acts of the appellant caused the death of Levano.

43. Mr. Farquhason re-iterated an earlier submission that the evidence at the close of the case for the prosecution was such that the court at its highest could only have said that one or other of the co-defendants caused the fatal injuries but would not have been in a position to say which one, and relying on the authority of Linda Joan Lane and James Lane [1986] 82 Cr. App. R 5 both the appellant and Makisha ought to have been acquitted at the no case stage.

44. We have found that case to be very instructive on the issue of causation. James and Linda Lene were the stepfather and mother of 22 month old child. Between 12 noon and 8:30 p.m. one day t he child sustained serious injuries and was admitted to hospital, dying at 2 a.m. the next day. A post mortem examination revealed that the cause of death was a fractured skull, the pathologist being of

21 opinion that the injury had resulted from a blow or other violet attack during the day before the child died between 12 noon and 8:30 p.m. During the period each appellant had been absent from the home leaving the child in the care of the other parent and there had been periods when they were both in the house together. The appellants were charged, inter alia, with manslaughter. There was no question that both parents were arguing with each other during the day in question. Both appellants subsequent to the child’s death had had a number of interviews with the police, both denying any responsibility.

45. In opening the case the prosecution conceded that the evidence did not establish which of the appellants had inflicted the injuries but in the absence of any innocent explanation they invited the jury to draw the inference that both were jointly responsible. At the end of the prosecution case it was submitted that the appellants had no case to answer on the manslaughter count, in that there was no evidence from which the jury could infer that the individual appellant had inflicted any blow or was acting in concert with the other, although it was conceded that they had told lies in the course of their interviews with the police, their object being “to alibi each other.” The trial judge rejected the defence submission stating that he was satisfied that there was sufficient prima facie evidence on which the jury could conclude that both had been responsible for the death of the child. Neither appellant gave evidence. The jury were directed that the death of the child was due to a deliberate act, and that they, the jury, might conclude that the evidence established that one or other or both of the appellants caused the child’s injuries, that the Crown could not establish, on the available evidence, which of the two actually injured the child but in the absence of any innocent explanation the only proper inference they could draw was that they were jointly responsible and both guilty as charged, for during that day both appellants had her in general custody and care. The jury convicted them. They appealed.

22 46. On appeal they contended that (i) the trial judge should have acceded to the submission of no case to answer; further, (ii) the jury had been misdirected. In delivering the judgment of the court Croom-Johnson L.J in alluding to the injuries said:

“There is no question but that both parents were arguing with each other during the day. Shortly before the ambulance was called Sara was seen and heard to be unwell. Linda accompanied Sara in the ambulance to the hospital, where she remained. On examination Sara was found to be unconscious. Extensive haemorrhages were found in both eyes. There was a severe bruise on the right side of her face and in her ear which was later found to bear a pattern similar to that on the edge of a rush mat in the kitchen of the appellants’ home. X-ray examination showed a fractured of the skull. The doctor who conducted the examination said that it was not possible for the bruising or the fracture to have been caused by a simple fall on to the mat. He was of the view that the injuries would have required considerable force. This view was confirmed by the post-mortem examination. The injuries were consistent with having been caused by a single blow. Sara died in the early hours of September 2.”

47. Later in the judgment he continued:

“The medical evidence went no further than to prove that the injuries from which Sara died had been caused at some time between 12:30 and 8:30 p.m. During that time each of the appellants, as has been said, had been alone for some time with the child. When the Crown opened the case on count 1, manslaughter, it was said that the child’s injuries had been caused by one or other or both of the

23 appellants, but that it could not be established which of them had done so. Analysing it further, there was no evidence of the time when the blow was struck, who did it, or even who was present when it happened.”

48. In addressing the law this is what the learned judge said as representing the starting-point in cases of this kind. He began by referring to Abbot (1955) 39 Cr. App.R. 41 then went on to say:

“If two people are jointly indicted for the commission of a crime and the evidence does not point to one rather than the other, and there is no evidence that they were acting in concert, the jury ought to return a verdict of Not Guilty in the case of both because the prosecution have not proved the case. If, in those circumstances I is left to the defendants to get out of the difficulty if they can, that would put the onus on the defendants to prove themselves not guilty. My brother Finnemore J. remembers a case in which two sisters were indicted for murder, and there was evidence that they had both been in the room at the time of the murder; but the prosecution could not show that sister A or that sister B had committed the offence. Very likely one or the other must have committed it, but there was no evidence which one. Although it is unfortunate that a guilty party cannot be brought to justice, it is far more important that there should not be a miscarriage of justice and that the law should be maintained rather than that there should be a failure in some particular case. If the learned judge, as we think is clear from what he said to the jury in his summing-up, had in his mind that he could not allow the jury to be left with the opinion that they could not acquit both, with all respect to the learned judge, we think he was wrong.”

24 49. The court next considered the case of Marsh and Marsh v H odgson [1974] Crim. L.R. 35, D.C. There the defendants were charged under the Children and Young Persons Act 1933 in terms of that part of section 1 forbidding assault on a young child. It was found that the injuries were not accidental through cot-banging as the two defendants had suggested but attributable only to a blow or blows. Both parents agreed that they had been together with the child, who was in their joint company throughout the period of two days in which the injuries must have been caused. It was submitted to the justices that the prosecution evidence did not indicate which of the two was responsible. The justices rejected the submission. Neither parent gave evidence and the justices convicted both of them. The defendants appealed, relying on Abbott (supra).

50. Ashworth J. delivering the first judgment said that both defendants agreed that they had been together with the child, who was in their joint company, throughout June 3 and 4. At page 5 of the transcript of the judgment he continued said:

“In my judgment there was, I would say, abundant evidence to support the prosecution case, and calling for an answer. In the first place there was strong evidence which the justices accepted to show that the injuries to this child wee inflicted by human agency. Secondly, there was evidence to show that in all probability those injuries were inflicted on or about June 3. Thirdly, there was evidence, accepted by the justices, to the effect that both the defendants admitted that they had been in charge, and joint charge, of this child during June 3 and 4. No doubt there would be moments when one or other of the defendants would be absent, but the substance of that answer was that: we were both responsible for this child throughout June 3 and 4. Fourthly, they put up, when challenged or questioned about the injuries, an explanation which could not hold water for a moment in the light of the

25 medical evidence, to the effect that the child had sustained her injuries through cot banging, and they could offer no other explanation. Therefore it seems to me quite clear that the justices were entitled to say to themselves: if the case stops here without answer by the defendants, then the charge of joint complicity in the injuries to the child is mad out. Therefore, they rejected the submission.” The point of that case is that in effect both parents were there all the time. With great respect to Ashworth J.’s fourth point about the parents not offering an explanation for the injuries, while it was undoubtedly correct on the facts of that case, it is a point that may not apply to every such case. It may be that a defendant either does not know the true explanation or has no means of knowing the facts which require explaining. MARCH AND MARCH v HODGSON was a case in which “there was evidence that at the time the offence was committed the defendants were acting in concert.” It did not place any particular reliance on the special wording of section 1 of the Children and Young Persons Act 1933 but was a straightforward application of the ordinary principles of proof in criminal law.”

51. In the present case further two matters have arisen for our consideration; first, should the submission of no case have been upheld as a matter of law; secondly, was the jury properly directed with respect to the evidence led by the prosecution and how they should deal with such evidence in light of the appellant’s admissions?

52. It must be remembered that there was no evidence that the appellant and Maksha were acting in concert. Secondly there was evidence before the court that the appellant admitted both to Dr. Brooks and the police that he inflicted injuries upon the child. It was never in dispute that the child was left in his care on divers occasions. We would therefore say relying upon Marsh and Marsh v Hodgson

26 (supra) that there was abundant evidence led by the prosecution which called for an answer from the appellant. The trial judge, in our view, rightly rejected the submission of no case to answer.

53. In directing the jury on their approach to the evidence of Dr. Sands the trial judge was at pains to let them know t hat at the end of the day it was an issue for them to resolve. This is how she put it at page 450 of the transcript:

“Now, if you accept the pathologist’s evidence, and it is entirely a question for you whether you accept her evidence and her opinions, and you find that Leroy Rolle told the police what is in his statement, namely, that he beat the child on the 7th or 8th of March, the fatal injuries, you may think, and it is a question for you could not have been inflicted on the 7th or 8th of March, if you accept the evidence of the pathologist. At the end of the day it is a question for you. You may think that the fatal injuries would have to have been inflicted nearer to the 16th of March when the child was taken to the clinic, namely, 5:00 pm on the 16th of March. It is a question for you. You may think, then, that explanation that he gave the police, if you accept it, cannot be true. Why? It is a question for you. Moreover, if you accept the pathologist’s evidence that the fatal injuries could not have been inflicted by a belt or by falling down as Leroy Rolle told the police or by the door hitting his head, again you may think that Leroy Rolle has not told the truth about what really happened to Levano Brown, but it is a question for you, and this all depends on whether

27 you accept that he made the statement and record of interview to the police.”

54. The above direction to the jury is in our opinion in accord with the statement of Ibrahim J.A (as he then was) in the case of Fuller vs State, (unreported) a decision of the Court of Appeal of Trinidad and Tobago where in the course of delivering a judgment where counsel was critical of the judgment’s summation, the learned Justice of Appeal had this to say in reference to what a jury requires from a judge in a summation:

“What they [the jury] require from the judge in the final round is his assistance in identifying, applying and assessing the evidence in relation to each direction of law which the trial judge is required to give them and also to the issues that arise for their determination. How that is done is best left to the discretion of each individual judge but howsoever it is done, what is required is that the jury must be given in clear language the assistance that they need to enable them properly to discharge their function.”

55. This was a case, which in our judgment called for a very full and careful direction from the trial judge. It was a difficult case for a jury and one in which they needed the assistance of the trial judge as to the approach they should take to crucial issues. In our opinion on the facts of the case, the judge gave a perfectly adequate summation on the crucial issues and how the jury should approach the evidence of Dr. Sands. In our view no reasonable jury, properly directed, would have come to any other conclusion than Levano’s death resulted from acts of violence inflicted upon him by the appellant. It is clear from the verdict that the jury rejected the explanation proffered by the appellant.

28 56. Accordingly the appeal is dismissed and the conviction affirmed.

57. The Sentence

Mr. Farquharson has urged upon the court that the sentence was manifestly excessive and the court should review it. As this court had said on divers occasions sentencing is an art; it is a balancing exercise and mercy must not be thrown out of the window when performing the balancing act. We have given anxious consideration to this aspect of the case. We note that the appellant was just seventeen years of age at this time of this unfortunate incident with no previous convictions. He was not the natural father of the infant, though, he either willingly accepted the role of father or it was thrust upon him. Whichever it was, he was clearly not sufficiently mature and psychologically ready to deal with all that goes with fatherhood. The jury’s verdict is indicative of the fact that he did not intend to kill Levano.

58. As sad as this case is, it is important that we focus on the purpose of a custodial sentence. In Benjamin v R (1964) 7. W.I.R 459 the Court of Appeal of Trinidad and Tobago presided over by Wooding, C.J laid down five principal objects of sentencing. These are (1) retributive or denunciatory, which is the same as punitive; (2) the deterrent vis-à-vis potential offenders; (3) the deterrent vis-à-vis the particular offender then being sentenced; (4) the preventive, which aims at preventing the particular offender from again offending by incarcerating him for a long period; and (5) the rehabilitative, which contemplates the rehabilitation of the particular offender so that he might resume his place as a law-abiding member of society.

59. The court there recognized that in some cases one object will be predominant whereas in others regard must be had more particularly to two or more of them. The Chief Justice went on to say…”that all five objects of sentencing policy, should; if possible, be kept in view although the punishment should at all times fit the crime.

29 60. In this case there is hardly any likelihood that this appellant will find himself in a similar situation again. While we accept that he must be punished, his rehabilitation is equally important. He has to live with the agony that he was responsible for the death of a 22 month old infant. We are cognizant of the fact that the trial judge took the circumstances of the offence and the offender into consideration. Nevertheless, there is a distinction between apply principles and over- straining them. This is a case that requires the court to temper justice with mercy. To quote Lord Lane in Attorney General’s reference No. 4 of 1989 (1990) 11 Cr. App R 366 “…leniency is not in itself a vice ‘…that mercy should season justice is a proposition based in law as it is in literature.’” In all the circumstance we quash the sentence of 25 years and in its place impose a sentence of 10 years imprisonment. The sentence to begin from the date of conviction.

The Hon. Mr. Justice John, JA

I agree.

The Hon. Mr. Justice Blackman, JA

I agree also.

The Hon. Mr. Justice Conteh, JA