R v Smith 1996 Criminal Jur. No. 44

• Jurisdiction: Bermuda
• Judgment Date: 09 April 1999
• Docket Number: Criminal Appeal No. 1 of 1999
• Date: 09 April 1999
• Court: Court of Appeal (Bermuda)

The Court of Appeal for Bermuda

Astwood, P.

Clough, J.A.

Worrell, J.A.

Criminal Appeal No. 1 of 1999

The Queen

Appellant

and

Justus Raham Smith

Respondent

Mr. William Pierce Q.C, Mr Peter Eccles For the Appellant

Mr. John Perry Q.C., Ms. Elizabeth Christopher for the Respondent

Connelly v DPPELR [1964] AC 1254

Attorney General v Davis & Caroli 1998 Criminal Appeal No. 21

Barker v Swann 1985 Criminal Appeal No. 7

Criminal Code s. 286, 286A, 485

Court of Appeal Act 1964, s. 17(2)

Middleton murder — Appeal from decision of Supreme Court to return Not Guilty verdict — Premeditated murder — No case to answer — Circumstantial evidence — Abuse of process of the Court

Judgment

Astwood, P.

This is an appeal by the Attorney General (the Appellant) from the decision of a Judge of the Supreme Court of Bermuda and the direction by him to the jury to return a verdict of Not Guilty in favour of Justus Raham Smith (the Respondent) who was charged and tried before him for the offence of premeditated murder contrary to the provisions of section 286 and 286A of the criminal Code (the Code). The victim of the murder was a young 17 year old Canadian girl.

Background

On the evening of July 2, 1996, Rebecca Middleton, the Canadian visitor, went to St. Georges with her friend, Jasmine Meens. The young ladies had drinks at a tavern in St. Georges and then visited a home at 141 Mullet Bay Road in St. Georges where they socialised with friends.

Between 1:08 am and 2:16 am on July 3, 1996, the girls telephoned three times for a cab to take them home. After the last call, the girls went outside the home and waited for transport by the side of the road at Mullet Bay. Some minutes after they were there, one Dean Lottimore rode up on his motor bike coming from the direction of Hamilton. He stopped and spoke with the girls and shared a cigarette with Jasmine. Shortly after Lottimore stopped, a motor bike ridden by Kirk Mundy with the Respondent as a pillion passenger also stopped at the side of the road where Lottimore was with the two girls.

The two girls were offered rides on the bikes and they accepted. Jasmine went on the bike with Lottimore and Rebecca went on the bike with Mundy and the Respondent. Rebecca sat between the rider and the pillion passenger. The bikes proceeded out of St. Georges in the direction of Hamilton. The bike with Rebecca took the lead. Rebecca was not seen alive by Jasmine after this.

At some time between 3:30 am and 3:45 am on July 3, 1996, Rebecca was found severely injured and bleeding with most of her clothes stripped off, lying in the road at Ferry Reach. We do not have the distance from where the girls got on the bikes at Mullet Bay to the point where Rebecca was found, but if the times were accepted by the jury as the time the girls left Mullet Bay at about 3:00 am to the time Rebecca was found on the road at Ferry Reach at about 3:30 am, they could have inferred that the distance was not very far, or they may have appreciated the distance from the map of the area which was in evidence. Rebecca died soon after she was discovered.

At about the time Rebecca was discovered, Mundy was seen and identified by a witness who knew him. Mundy had stopped to speak to this person in the vicinity of the St. Georges Swing Bridge. Another witness by the bridge also identified Mundy but did not identify the other person on the bike with Mundy at this time, other than to say he was male. No other person was on the bike with the two men. However, there was evidence before the court if left to the jury that the jury could have inferred that the other person on the bike with Mundy was the Respondent. This could have been inferred from the Respondent's statement which he gave to the police on July 10, 1996, in which he said he was with Mundy at St. Georges and left St. Georges with him, and also from the evidence of Lottimore and Meens. There was also the opinion evidence given by two highly qualified forensic experts as to how they concluded the killing of Rebecca was carried out by two persons assisting one another. The medical and scientific evidence placed Mundy at the scene of the killing. His semen was found in Rebecca. There were other pieces of evidence such as a witness seeing a bike leaving Ferry Reach at about 3.30 am with two persons on it with a piece of cloth hanging from its rear as it passed by where he was at work as a security guard at the Shell Station at Ferry Reach. A witness by the bridge had also noticed a piece of cloth hanging from the rear of the bike when Mundy stopped. Mundy told him that he had it there as the bike was not licensed, but on investigation by the police the bike was in fact found to be licensed. These were all facts which if left to the jury, the jury could have found that the other person on the bike with Mundy when it stopped by the bridge was the Respondent. There were also other pieces of evidence which could have been pointed out to the jury to assist them in their task in deciding who committed the murder.

The Appeal

This appeal was brought on 6 grounds, but only grounds 1,2 and 6 were pursued.

Grounds 1 & 2

These grounds attack the Judge's ruling that there was no case for the Respondent to answer after hearing the submissions on the evidence and the law, from both Mr. Perry Q.C. for the Respondent and Mr. Pearce Q.C. for the Appellant.

In his ruling at pp 20–21, the Judge set out correctly the provisions of the Code at sections 286 A and B, which he had to consider when...