Clifford Gibson v R

• Jurisdiction: Turks and Caicos Islands
• Judge: Sur Elliott Mottley, P.
• Judgment Date: 30 January 2020
• Neutral Citation: TC 2020 CA 3
• Docket Number: CR-AP 36/2013
• Court: Court of Appeal (Turks and Caicos)

Between

Clifford Gibson

Appellant

and

Regina

Respondent

Before:

Sir Elliott Mottley, President

The Hon. Mr. Justice Adderley, Justice of Appeal

The Hon. Mr. Justice Hamel-Smith, Justice of Appeal

CR-AP 36/2013

IN THE COURT OF APPEAL

Appearances:

Ms. Sheena Mair for the Appellant

Ms. Leonard Franklin of the Office Director of Public Prosecutions for the Crown

Sur Elliott Mottley, P.

1 In the early hours of 1 January 2008, an incident occurred in the Downtown Area in Provo. As a result of the incident, Clifford Gibson, the appellant was charged with the murder of Leslie Arellus. Following a trial before the then Chief Justice and a jury, the appellant was convicted of murder on 15 November 2013 and on 13 November 2013 was sentenced to a term of imprisonment for life.

2 The prosecution called two witness as to the incident in the Downtown area. Carissa Ingram, woman police constable 79 with the Royal Turks & Caicos Island Police Force, who was Acting Sergeant. She said she was attending a Junkanoo event which was being held in that area. While there, she saw three young men approach the main road. At that time the three young men “appeared to be fighting or playing”. One of the young men fell to the ground.

3 The acting sergeant continued:

“Whiles the injured man was running behind the one in the white T-shirt he fell to the ground in the vicinity of the Western Union office with. I then proceeded to the area where the injured man was lying, I identified myself to him as a police officer in plain clothing he was conscious at the time.”

4 The witness went on to give evidence of the dying declaration of Leslie that it was the appellant who stabbed him.

5 Natasha Prospere, woman police constable 146 said that around 5:00am she was standing with Sergeant Sutton and other police officers near a police truck when she received a report that a number of young men were fighting in the area Butterfield Square. She subsequently went through a crowd of people and saw a young man lying on the ground.

6 Paula Arthur stated that she attended a party by Butterfield Square. While talking to some friends, she saw a young man walking, holding a little boy's hand. She saw the boy was “attacked from the back by one gentleman and immediately after front the front by another.” The appellant was the person who attacked the deceased from the front. After the attack, the two guys ran away. The deceased ran after them but fell to the ground, another person “lashed” him with the flat side of a cutlass. Someone threw a chair at the guy with the cutlass.

7 In his summation to the jury, the judge directed the jury on the self defence even though it was not specially raised by the appellant. In addition, the Chief Justice correctly left the issue of manslaughter to the jury. He told him:

“Now, I want to talk to you about the possibility which is opened to you to return an alternative verdict to the charge of murder, which will be manslaughter. But I will caution you before you consider the alternative, which I will now explain to you. You should make some decisions based on evidence that you have decided that you can rely upon and those decisions will be to the effect that Clifford Gibson caused the death of Leslie Arellus. And I suggest you have to do that first before you at least consider an alternative to the charge of murder, which is the charge of manslaughter.

So if in your deliberations you've reached the position where you are sure the defendant in fact caused the death of Leslie Arellus and that he did so by an unlawful act but you're not sure that he intended to kill him then you will acquit on the charge of murder because one of the essential ingredients of the offence which I've just explained to you would not have been made out as his intention to kill him. This might arise if you thought, for instance, that the defendant only meant to harm or to disable, or to subdue Leslie Arellus but not to kill him. However, in such a case it is open to you to return a verdict of guilty to manslaughter even though it's not specifically written down on the information. That's provided for by Section 7 of the Criminal Law Ordinance.

So what is manslaughter? Manslaughter is simply causing someone's death by an unlawful harm. For these purposes any harm is unlawful, again, unless there is something which makes it lawful. Again, the only instance which might arise here is harm inflicted in lawful self defence or defence of another. And as I've already explained to you what is self defence.

If you think that any harm that was caused to Leslie Arellus was or might have been inflicted in lawful self defence then you should acquit the defendant outright of both murder and manslaughter. But if you are sure that the defendant was responsible for Leslie Arellus' death and that he did not act in lawful self defence or lawful defence of another but you are unsure

5 that he actually intend to kill him, then you should acquit him of murder but convict him of manslaughter. Thus if you thought the defendant meant to harm Leslie but not to kill him that would be manslaughter.”

8 It is significant that in dealing with this aspect of manslaughter, the Chief Justice restricted his summation to the act being an unlawful act without the necessary element of intention to kill. The Chief Justice therefore limited his summation in respect of manslaughter to the lack of intent to kill. However, the Chief Justice did not direct the jury on the issue of provocation.

9 In the opinion of the Court, the issue of manslaughter as a result of provocation arose on the evidence of woman police constable Clarrisa Ingram. The constable said she was three young men who approached the main road and appeared to be fighting. The prosecution did not seek to have the witness clarify what the witness meant when she said she saw three men approaching her and at the time they were fighting. The concept of fighting meant that what the witness saw would involve blows passing between the three men. The witness did not say what they were doing to each other. Nor was the witness able to say how the fight started. Having regard to what had taken place previously at the fair, it was necessary for the prosecution to disprove the issue of provocation- that the appellant had not been provoked.

10 In his...