Jevone Demming v The Queen

• Jurisdiction: British Virgin Islands
• Judge: Pereira CJ,Blenman JA
• Judgment Date: 14 January 2020
• Judgment citation (vLex): [2020] ECSC J0114-2
• Docket Number: BVIHCRAP2015/0001
• Court: Court of Appeal (British Virgin Islands)
• Date: 14 January 2020

[2020] ECSC J0114-2

EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APEAL

Before:

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

The Hon. Mde. Louise Esther Blenman Justice of Appeal

The Hon. Mr. Mario Michel Justice of Appeal

BVIHCRAP2015/0001

Between:

Jevone Demming

Appellant

and

The Queen

Respondent

Appearances:

Mr. Patrick Thompson for the Appellant

Ms. Leslie-Ann Faulkner, with her Ms. Melissa Brewley for the Respondent

Criminal appeal — Attempted murder — Appeal against conviction — Joint enterprise — Whether the judge erred in law when directing the jury on joint enterprise — Section 20 of the Criminal Code 1997 — Application of proviso — Section 37 (1) of the Supreme Court (Virgin Islands) Act

The appellant, Jevone Demming (“Demming”) and Sherman Williams were jointly tried and convicted for the attempted murder of Neil St. Rose (“St. Rose”). On 30 ^th September, St. Rose, Demming, Sherman Williams and others attended a social gathering at the Rock Café and Restaurant (“the Rock Café” or “the Café”). Whilst inside the Café, St. Rose felt someone push him and when he turned around, he saw Demming standing directly behind him and inquired of him what was wrong. Shortly after, there was a non-physical confrontation between St. Rose, Demming and another. After the social gathering ended, a physical altercation ensued when St. Rose pushed Sherman Williams, who was ahead of him in queue to exit the Café and allegedly obstructed his way. Following this altercation, St. Rose began walking towards his parked vehicle. At that point, Sherman Williams withdrew and discharged a firearm, causing St. Rose to turn around to find both Demming and Sherman Williams approaching him (Sherman Williams with a gun in hand). St. Rose testified that when the men got to him, Sherman Williams struck him in the back of his head with the gun, causing him to fall to his knees. Demming fisted St. Rose in the nose and both Demming and Sherman Williams kicked and punched him while he was on his knees. Sherman Williams then placed the firearm at St. Rose's neck and discharged it. Demming and Sherman Williams thereafter fled the scene. At the trial, the case against Demming was grounded in joint enterprise. Demming denied being present at the time the altercation in the parking lot took place and stated that he was not at the Café when he heard what sounded like gunshots. The jury accepted the prosecution's version of events and found Demming guilty of attempted murder.

Demming has appealed against his conviction on the ground that the trial judge misdirected the jury on the law of joint enterprise thus rendering his conviction unsafe and unsatisfactory. The main issues which arose in this appeal are (1) whether the relevant law on joint enterprise in the Virgin Islands is governed by the common law or by the BVI Criminal Code 1997 and (2) whether the learned judge erred in her direction on the requisite mental element of a secondary party to a joint enterprise.

Held: dismissing the appeal and affirming the conviction that:

• 1. Section 20 of the BVI Criminal Code requires two conditions for the liability of parties to a joint enterprise, namely; (1) two or more persons with a shared intention to prosecute an unlawful purpose in conjunction with each other; and (2) that while pursuing the unlawful purpose, an offence is committed that was a probable consequence of the prosecution of the unlawful purpose. Section 20 essentially provides that a person, who participates in a joint enterprise, is liable for the commission of an offence committed in the furtherance of the joint enterprise if the secondary party had foresight that the offence committed would have been committed. It follows therefore that the relevant law on joint enterprise in the Territory of the Virgin Islands is governed by the Criminal Code, and in particular that the mental element for the liability of a secondary party to a joint enterprise is contained in section 20 of the Criminal Code and not the common law.

  Section 20 of the Criminal Code Act No.1 of 1997 applied; R v Jogee; Ruddock v The Queen [2016] UKSC 8; [2016] UKPC 7 distinguished; Teiko David Jamel Furbert et al v The Queen [2000] UKPC 12 applied; Anjay Charles v The Queen SVGHCRAP2013/0016 (delivered 6th April 2017, unreported) applied.

• 2. When a judge's summation is subject to review, the directions given by the judge must be looked at as a whole. An appellate court's examination of a summation is not concerned solely with determining whether a judge made errors in directing the jury on the law or in the summing up of the evidence. The Court is concerned with whether the judge's misdirection occasioned a miscarriage of justice and resulted in an unsafe conviction.

  Daniel Dick Trimmingham v The Queen [2009] UKPC 25 considered; Jay Marie Chin v The Queen ANUHCRAP2012/0005 (delivered 5th April 2017, unreported) considered.

• 3. The judge misdirected the jury on the relevant law to be applied to the issue of joint enterprise given that the judge's direction was in effect a Jogee direction. However, the presence of a misdirection is not itself determinative of an appeal against conviction. The effect of the judge's misdirection in this case, is that the misdirection enured to the benefit of the appellant as the jury was directed on the higher standard on intention to kill. No real prejudice can be suffered where a jury convicts a secondary party to a joint enterprise having been given a Jogee direction instead of a section 20 direction.

  R v Jogee; Ruddock v The Queen [2016] UKSC 8; [2016] UKPC 7 distinguished.

• 4. Per Blenman JA: The learned judge was required to direct the jury in accordance with section 20 of the Criminal Code. However, the learned judge's direction to the jury that “[e]ven if unusual or unforeseen consequences arise in the execution of the agreed joint enterprise, all are liable for those consequences” is inconsistent with Jogee. More critically, that direction that was given did not comport with section 20 and would therefore amount to a misdirection. The jury could have easily formed the view that Mr. Demming could have been found guilty for unusual or unforeseen consequences, which would have prejudiced him at trial.

• 5. The application of the proviso requires this Court to look beyond the errors of a trial judge to examine whether, having regard to the admissible evidence before the jury, a conviction was inevitable. There was overwhelming, corroborated and virtually unchallenged evidence before the jury which supported the prosecution's case. Therefore, the jury would have found that the appellant foresaw that the firearm would have been used in the course of the altercation, and further the jury would inevitably have convicted the appellant.

  Section 37(1) of the Supreme Court (Virgin Islands) Act Cap. 80, Revised Laws of the Virgin Islands 1991 applied; Stafford v The State [1999] 1 WLR 2026 applied; R v Matenga [2010] 2 LRC 36 considered; Rupert Anderson v The Queen [1972] AC 100 applied; Freemantle v R [1994] 3 All ER 225 applied; Maxo Tido v R [2011] UKPC 16 applied.

Pereira CJ

1 Jevone Demming (“Demming” or “the appellant”) and Sherman Williams were jointly tried and convicted for the attempted murder of Neil St. Rose (“St. Rose”) contrary to section 152 of the Criminal Code 1997 (“the Criminal Code”). 1 This is an appeal by Demming against his conviction. This appeal, in the main, is concerned with determining whether the learned trial judge properly directed the jury on the issue of joint enterprise, and by extension, determining the state of the law on joint enterprise in the Territory of the Virgin Islands. A brief background to the appeal is set out below.

Background

2 In the early morning of 30 ^th September 2012, St. Rose, Demming, Sherman Williams and other members of the public, attended a social gathering at the Rock Café and Restaurant (“the Rock Café” or “the Café”) located in the Valley, Virgin Gorda.

3 The prosecution's case was founded on the evidence of three material witnesses — St. Rose who was the virtual complainant, along with Dayna Hillhouse and Reberty Williams, who were also attending the social gathering. On the prosecution's case, St. Rose, whilst inside the Rock Café felt someone push him from behind. When he looked to see who had pushed him, he observed that Demming was standing directly behind him. He confronted Demming enquiring what was wrong, in response to which Demming gesticulated towards him and gave an unclear response. Shortly after, there was a brief non-physical altercation between St. Rose, Demming, Sherman Williams and another patron.

4 In due course, the social gathering ended. St. Rose alleged that Sherman Williams, who was ahead of him in the queue to exit the Café, was deliberately obstructing his way. St. Rose then pushed Sherman Williams in the back, which resulted in a physical altercation that was eventually separated by other patrons.

The prosecution's case was that, following the brawl, St. Rose began walking towards his parked vehicle, at which point, Sherman Williams withdrew and discharged a firearm. Demming was about two (2) feet away from Sherman Williams at the time, and had no adverse reaction to the gun or it being discharged

5 St. Rose then turned around to find Sherman Williams approaching him with a gun pointed in his direction. When he realised that both Demming and Sherman Williams were approaching him, St. Rose grabbed a rock to defend himself, which he threw away as they neared him. He testified that when the men had got to him, Sherman Williams struck him (St. Rose) to the back of his head with the gun, causing him to fall to his knees, and that Demming grabbed him by the collar of his shirt and fisted him in the nose.

6 Both Demming and Sherman Williams kicked and punched St. Rose while on his knees. While St. Rose attempted to...