[1] Patrick Facey [2] Michael Facey Appellants v The Queen Respondent

• Jurisdiction: British Virgin Islands
• Judge: Morrison JA
• Judgment Date: 18 May 2015
• Neutral Citation: VG 2015 CA 4
• Judgment citation (vLex): [2015] ECSC J0518-1
• Court: Court of Appeal (British Virgin Islands)
• Docket Number: BVIHCRAP2013/0009
• Date: 18 May 2015

[2015] ECSC J0518-1

EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Before:

The Hon. Dame Janice M. Pereira, DBE Chief Justice

The Hon. Mde. Louise Esther Blenman Justice of Appeal

The Hon. Mr. C. Dennis Morrison, QC Justice of Appeal [Ag.]

BVIHCRAP2013/0009

Between:

[1] Patrick Facey

[2] Michael Facey

Appellants

and

The Queen

Respondent

Appearances:

Mr. Patrick Thompson for the Appellants

Ms. Tiffany R. Scatliffe, Principal Crown Counsel, and Mr. O'Neil St. A. Simpson, Crown Counsel, for the Respondent

Criminal appeal — Appeal against conviction — Wounding with intent contrary to section 163 of the Criminal Code of the Virgin Islands — Whether trial judge ought to have left alternative verdict of unlawful wounding to the jury — Whether trial judge ought to have given a good character direction in relation to appellant who exercised the right to remain silent at trial — Whether remarks by trial judge to the jury on majority verdict inappropriate — Appeal against sentence of 10 years' imprisonment — Whether sentences imposed by trial judge excessive

The appellants, Patrick Facey and Michael Facey, were both charged with unlawfully and maliciously wounding Mr. Loraine Springer with intent to cause him grievous bodily harm ("wounding with intent"), an offence contrary to section 163 of the Criminal Code 1 of the Virgin Islands ("the Code"). The prosecution's case was that on the evening of 30 ^th July 2011, Mr. Springer, and Ms. Avar McFarlane, the then girlfriend, now wife, of the first appellant were at work at Pusser's East Restaurant in Fat Hog's Bay, Tortola and during the course of the evening the two had a work related argument. Later that night, Mr. Springer received a text message from the first appellant saying that he, Mr. Springer, should "go and look your own woman" otherwise "I will fuck you up". Mr. Springer telephoned the first appellant and the two exchanged words during the course of which Mr. Springer told the first appellant he could not beat him "one on one", to which the first appellant replied "I going deal with you".

Following the telephone conversation, at about 12:30 am, Mr. Springer was standing outside his residence waiting for a friend to pick him up when the two appellants drove up in a vehicle, parked and approached him on foot. The first appellant pulled out a machete from the back of his neck and swung it at Mr. Springer, grazing Mr. Springer's neck. Mr. Springer tried to wrestle the machete from the first appellant and, while doing so, the second appellant struck Mr. Springer on the head with the flat side of a machete he took from behind him (the second appellant). Mr. Springer continued to struggle with the first appellant and the second appellant then inflicted a cut to Mr. Springer's shoulder with the machete. It was only when Mr. Springer's roommate emerged from his residence that the appellants' fled to the parked vehicle with the machetes and drove off. Mr. Springer went to the police station and made a report to Police Constable Harris Walters, who took him to the hospital for treatment. As a result of the incident, Mr. Springer was wounded on the top of his head and received 10 stitches.

Sergeant Steve George, a witness for the prosecution, indicated that shortly after midnight, whilst he was off duty, he was standing outside a friend's residence when he observed the second appellant enter a vehicle and drive away. The second appellant, who was now carrying a cutlass, returned about 15 to 20 minutes later with the first appellant and the second appellant went into the bushes and emerged without the cutlass. Later that day PC Walters arrested both appellants. Upon being cautioned, the first appellant said: "I do not deny the fact that I attacked Tony, however, he got me upset".

At trial, the first appellant elected to give evidence in his defence; however, the second appellant opted to exercise his right of silence. The defence's case was that the first appellant received a text message from Ms. McFarlane on the evening of 30 ^th July 2011 saying that Mr. Springer came to work drunk and was harassing her. He proceeded to text Mr. Springer to tell him to leave Ms. McFarlane alone. Mr. Springer then called him, they exchanged words and Mr. Springer suggested to him that he come out so that he, Mr. Springer, could slap the first appellant, to which the first appellant said he was coming. The first and second appellant then drove to Mr. Springer's residence and when they approached Mr. Springer he had a machete in his hand. The first appellant and Mr. Springer started wrestling with each other. Whilst wrestling, the machete hit Mr. Springer's head and Mr. Springer let go of the machete. The first appellant then picked up the machete to avoid Mr. Springer "rushing" him and he and the second appellant left and

drove home. When the first appellant got home he threw the machete into the bush. The first appellant denied that he had gone to Mr. Springer's house with the intention of assaulting him and he also denied that he or the second appellant had struck Mr. Springer with "any machete". In response to a question from counsel, he indicated that he had never been in any problems with the police before.

The appellants were both convicted of wounding with intent and sentenced to 10 years' imprisonment. The appellants appealed their convictions and sentences on the grounds that the trial judge ought to have left the alternative verdict of unlawful wounding contrary to section 164 of the Code to the jury; the trial judge ought to have given a good character direction in relation to the second appellant; the trial judge erred in advising the jurors of the fact that they could deliver a majority verdict before the time for doing so had properly arisen; and the sentences imposed by the trial judge were excessive in the circumstances of the case.

Held: dismissing the appeal and affirming the convictions and sentences of the appellants, that:

• 1. The question whether or not to leave an alternative verdict for a lesser offence to the jury in a particular case involves an examination by the trial judge of all the evidence, disputed and undisputed, and the issues of law and fact to which it has given rise. In considering this matter, the judge is obliged to take into account the question of fairness to the defendant, on the one hand, and the question of proportionality, on the other. That is to say, whether the alternative verdict would do justice to the facts of the case. The decision whether to leave an alternative verdict is one for the judge's discretion, based on the evidence in the case, and the manner of the judge's exercise of this discretion will not lightly be interfered with on appeal. Ultimately, the question on appeal is whether the judge's failure to leave the alternative verdict to the jury in the circumstances of the particular case has affected the safety of the conviction.

  Regina v Maxwell [1990] 1 WLR 401 applied; Regina v Coutts [2006] 1 WLR 2154 applied; R v Foster and other appeals [2008] 2 All ER 597 applied; The State v Singh (Clement) (1995) 51 WIR 128 applied; R v Foster and other appeals [2008] 2 All ER 597 applied.

• 2. In the instant case, there was considerable evidence from which the jury could have concluded that Mr. Springer's injuries were inflicted by the appellants unlawfully, maliciously and with the intention to do him grievous bodily harm. On the evidence and in the light of the perfectly fair direction to the jury on the possible effect of the appellants' case, it was entirely open to the learned trial judge to take the view that a direction to the jury on the alternative verdict of unlawful wounding was apt to divert their attention from the essential issue in the case, that is, whether Mr. Springer's injuries were inflicted by the appellants, with the intention of causing grievous bodily harm, or whether the injuries came about accidentally. In these circumstances, a direction on unlawful wounding might only have served to offer the jury a compromise which, on the Crown's case, simply did not arise and on the appellants' case, would have done a serious injustice to their defence. There was simply no evidence tending to establish that the appellants might have inflicted wounds to Mr. Springer unintentionally.

• 3. A defendant who has no previous convictions of any significance is entitled to the benefit of a good character direction from the judge. Generally speaking, the defendant's good character must be distinctly raised, either by direct evidence given by and/or on his behalf, and/or by eliciting it in cross-examination of prosecution witnesses. However, in an appropriate case, the failure of counsel to put the defendant's good character in issue may itself, particularly if unexplained, make a guilty verdict unsafe. But, the omission of a good character direction is not inevitably fatal to the fairness of the trial or to the safety of a conviction, as much may turn on the nature of and issues in a case and on the other available evidence. In this case, the good character direction to the jury in relation to the first appellant was necessitated by the fact that the first appellant, who gave sworn evidence, explicitly put his character in issue. However, not only did the second appellant opt to remain silent, but he neither put any suggestions to the prosecution witnesses nor called any witnesses with a view to establishing his good character. Accordingly, the second appellant not having given evidence, the force of any argument that the absence of the credibility limb of the good character direction rendered the conviction unsafe would be greatly diminished. Further, it was impossible to see how, in the light of the cogent evidence which the jury clearly accepted of the second appellant's participation in the attack on Mr. Springer, a propensity direction would have...