Shonovia Thomas Appellant v The Queen Respondent

• Jurisdiction: British Virgin Islands
• Judge: Baptiste, JA
• Judgment Date: 27 August 2012
• Neutral Citation: VG 2012 CA 10
• Judgment citation (vLex): [2012] ECSC J0827-2
• Court: Court of Appeal (British Virgin Islands)
• Docket Number: HCRAP 2010/006
• Date: 27 August 2012

[2012] ECSC J0827-2

EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Before:

The Hon. Mr. Davidson Kelvin Baptiste Justice of Appeal

The Hon. Mr. Don Mitchell Justice of Appeal [ag.]

The Hon. Mr. Mario Michel Justice of Appeal [Ag.]

HCRAP 2010/006

Between:

Shonovia Thomas

Appellant

and

The Queen

Respondent

Appearances:

Ms. Tana'ania Small, with her, Ms. Tamara Cameron and

Ms. Akilah Anderson for the Appellant

Mr. Valston S. Graham, Senior Crown Counsel for the Respondent

Criminal appeal - Self-defence - Provocation - Whether judge ought to have left the defence of provocation to the jury when the defence was one of self-defence –Time spent on remand ought to be taken into account during sentencing

The appellant, Shonovia Thomas, was charged for the offence of murder of Archie Todman, with whom she had a tumultuous romantic relationship. The prosecution's case was that on 2 ^nd October 2008 Shonovia went to Todman's house, undressed and got into bed beside him but he was unreceptive to her presence. She felt rejected and got dressed but before she left Todman's house she pulled out a rat tail comb from her bag and stabbed him in the chest with moderate to strong force when he was lying in bed. As a result of the stabbing Todman pursued Shonovia outside the apartment where an altercation ensued. He eventually collapsed and was found by Vincent Wattley, a neighbor, whom he told that Shonovia was the one who stabbed him.

The defence case was one of self defence. Shonovia denied that she stabbed Todman while he was in his apartment but claimed that the stabbing took place outside the apartment when Todman pursued her after she left the apartment and violently attacked her. In an effort to defend herself, she reached into her handbag, pulled out a rat tail comb and swung it at Todman. She did not know what part of Todman's body it came into contact with; she only wanted to get Todman off her.

At trial, Shonovia was acquitted of murder but unanimously convicted of manslaughter by reason of provocation and sentenced to ten years imprisonment. Shonovia appealed her conviction and sentence on various grounds which included that the learned trial judge should not have left the partial defence of provocation to the jury; the verdict of manslaughter by reason of provocation cannot be sustained having regard to the evidence and as such the conviction is unsafe; the judge did not give any directions or adequate directions on the law pertaining to self-defence and that the sentence imposed was unduly harsh in all the circumstances.

Held: dismissing the appeal against conviction and allowing the appeal against sentence to the extent that the period of 14 months and 15 days is deducted from the sentence that was imposed, that:

• 1. The evidence presented at trial by both the prosecution and the defence was left before the jury and it was open to the jury to decide which version they would accept and which version they would reject. There was sufficient evidence placed before them to negate self-defence. The mere fact that they rejected Shonovia's version of the events does not render the conviction unsafe and unsound.

• 2. If on the evidence, whether of the prosecution or of the defence, there is any evidence of provocation fit to be left to the jury, and whether or not the issue has been specifically raised at the trial by counsel for the defence and whether or not the accused has said in terms that he was provoked, it is the duty of the judge, after a proper direction, to leave it open to the jury to return a verdict of manslaughter if they are not satisfied beyond reasonable doubt that the killing was unprovoked. The trial judge identified the evidence from the Crown's case and the defence case that could have amounted to provocation. As such, the learned trial judge was correct in leaving the partial defence of provocation to the jury.

• Mancini v Director of Public Prosecutions [1942] AC 1 applied; Joseph Bullard v the Queen [1957] AC 635 applied; Kwaku Mensah v The King [1946] AC 83 applied; Tabeel Lewis v The State [2011] UKPC 15 applied.

• 3. Evidence of provocation and the loss of self-control are two closely connected aspects of the same limb of the provocation defence and are usually combined as a single composite. In the circumstances of this case, having identified the evidence that could amount to provocation, that same evidence would go to support the conclusion that Shonovia had lost her self-control. The learned judge specifically indicated to the jury the evidence that could go towards loss of self- control. Accordingly, it cannot be said that there was no evidence on which the jury could reasonably find that Shonovia had a sudden loss of self-control.

• Tabeel Lewis v The State [2011] UKPC 15 applied; R v Van Dongen (Anthony Gerrard) [2005] EWCA Crim 1728 applied.

• 4. Where a summation is criticised on the grounds that it lacks fairness and balance, the criticisms have to be considered in the context of the summation as a whole and the various issues which arose for decision. An appellate court is enjoined to look at the thrust of the directions and consider whether they have adequately put the several issues before the jury and given them a proper explanation of their task in relation to those which they have to decide. The learned trial judge did set out the salient issues during the course of the summation and directed the jury accordingly. She put Shonovia's defence to the jury at all material times so that they were aware of what her defence was. In addition, she gave detailed instructions on the law of self-defence. Consequently it cannot be said that the direction from the judge could have caused any unfairness to Shonovia.

• Daniel Dick Trimmingham v The Queen [2009] UKPC 25 followed.

• 5. The judge directed the jury that they must feel sure of the intention of the accused before the accused can be guilty of murder and that they cannot convict of murder unless they feel sure that the accused had the specific intent to kill or the specific intent to cause grievous bodily harm to Todman. In the circumstances of this case, the jury would have found that there was a virtual certainty that at the very least Shonovia had an intention to cause serious bodily harm to Todman when she stabbed him and that she appreciated that this was the case. Having found that Shonovia was provoked the jury returned a verdict of manslaughter by reason of provocation. This verdict is not unfair or unsafe in all the circumstances.

• R v Woollin [1999] 1 Cr App R 8 applied; R v Nedrick [1986] 1 WLR 1025 applied;

• 6. The primary rule is that in the absence of unusual circumstances a judge should fully credit a prisoner for pre-sentence custody not simply by means of a form of words but by means of an arithmetical deduction when assessing the length of the sentence that is to be served from the date of sentencing. The judge should state with emphasis and clarity, what he or she considers to be the appropriate sentence taking into account the gravity of the offence and mitigating and aggravating factors, that being the sentence he or she would have passed but for the time spent by the prisoner on remand. In the absence of exceptional circumstances real credit has to be given to the time spent on remand. The sentencing exercise must demonstrate how the time spent on remand is taken into account in order to give efficacy to it, thus redounding to the actual benefit of the prisoner. This conduces to transparency, avoids uncertainty or ambiguity and eliminates or reduces the risk of injustice occasioned by an error in principle. Although the leaned judge stated that the time spent on remand was taken into account, it is evident that no credit was given to Shonovia for the time spent on remand. The judge accordingly erred in principle. As a result, the sentence imposed must be adjusted taking into account the time Shonovia spent on remand.

• Callachand & Anor v State of Mauritius (Mauritius) [2008] UKPC 49 applied; Romeo Da Costa Hall v The Queen CR1 of 2010, [2011] CCJ 6 applied.

Baptiste, JA

1 Shonovia Thomas and Archie Todman were involved in a four year old tumultuous romantic relationship. The relationship came to a tragic end in the early hours of 2 ^nd October 2008 when Shonovia fatally stabbed Todman in the chest with a rat-tail comb. Shonovia was tried before a judge and jury for the offence of murder. On 15 ^th June 2010, following a two week trial, Shonovia was acquitted of murder but unanimously convicted of manslaughter by reason of provocation and sentenced to ten years imprisonment. Shonovia has appealed her conviction and sentence.

Case of the parties

2 On the Crown's case, the stabbing took place at Todman's home at Huntum's Ghut, Tortola, between 2 and 3 a.m. on 2 ^nd October 2008. It was the Crown's case that Shonovia, having left a social function, went to Todman's home, - to which she had a key, - undressed and got into bed besides him but he was unreceptive to her presence. Todman sucked his teeth and muttered to himself. Shonovia felt rejected but did not handle the rejection very well. She got dressed and decided to leave but before leaving she pulled out a rat tail comb from her bag and stabbed Todman in the chest with moderate to strong force when he was lying in bed, then left the apartment. As a result of the stabbing Todman pursued Shonovia outside the apartment where an altercation ensued. Todman collapsed and was found by Vincent Wattley, a neighbour.

3 Wattley gave evidence that he was in bed watching television with his girlfriend when he heard a loud noise outside as if someone or something had fallen. Before hearing that noise, he did not hear any other noise. He muted the television so that he could hear more keenly. Then he heard a sound as if someone was groaning. He looked out and saw Todman lying on the...