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Appeal Court Upholds Attempted Murder Conviction

By LAMECH JOHNSON

Tribune Staff Reporter

ljohnson@tribunemedia.net

THE Court of Appeal has affirmed a jury’s conviction of a man who stabbed his estranged wife 14 times during a holiday visit to the Bahamas.

Michael Scott, a Jamaican who lived in Miami, Florida, came to Nassau to spend time with his family and make up with his wife, Sheneka Colebrooke, on December 20, 2009.

However, he had not expected to see his wife on the road in Palm Beach Street in the early hours of that day with 21-year-old David Rolle, her lover, because she had told him she was not involved with anyone.

At his trial in the Supreme Court, it was claimed that Scott tried to kill his estranged wife in the road – not far from the home where she lived with her mother.

He stabbed Rolle, causing his death, and then repeatedly stabbed his wife, the court was told during the trial.

Scott had argued self-defence at trial, claiming that he was attacked by Rolle and that it was during their scuffle that Ms Colebrooke had been stabbed.

While the jury returned a guilty verdict of 8-4 for murder, it was not accepted because it was not unanimous as was the panel’s verdict of 12-0 for the attempted murder charge.

He and his lawyer Murrio Ducille had appealed the conviction on the grounds that the judge failed to adequately put his client’s case of self-defence to the jury while furthering the prosecution’s case by allowing himself to assume the role of advocate in asking questions.

Mr Ducille had also argued that the judge was duty-bound to address the issue of good character, as his client had no prior run-ins with the law.

Mr Scott also believed that the 34-year sentence imposed on him was manifestly harsh and excessive.

In a written ruling handed down on Monday and published on its website yesterday, the appellate court panel of Justices Dame Anita Allen, Stella Crane-Scott and Roy Jones did not accept any of the grounds argued by the appellant when they dismissed his appeal of his conviction.

“In light of the evidence before the court, it is difficult to see how the learned judge could have directed the jury relative to the attempted murder charge any more succinctly than he did,” Dame Anita said.

“Indeed, he correctly told the jury it was a question for them whether on the evidence they could find that the appellant inflicted unlawful harm on Sheneka intending to kill her, and further that they had to find that the offence of murder was not completed because of circumstances independent of the appellant’s will. It is to be noted that the evidence against the appellant on the charge of the attempted murder of his wife, was simply overwhelming, and no matter how fairly the case is put, it would naturally appear to be one-sided.

“Having read and considered the whole summing up it is clear that the learned judge put the appellant’s defence of accident in the best way he could; and reminded the jury of all of the evidence relating to that charge, which was of assistance to him in his defence,” the appellate president added.

Concerning the ground of the judge allowing himself to assume the role of the advocate, the appellate court noted that Section 168 of the Evidence Act provides that the court in its discretion may ask any question in any form at any time to any witness, and with leave of the court, any party may cross-examine the witness upon any answer given in reply to any such question.

“The discretion to ask questions by a trial judge must be exercised with due regard to his role in a trial, and subject to his duty to ensure the fairness of a trial. Having examined the questions to which counsel referred the court, and after anxious consideration, and application of the relevant principles, I am of the view that none of the impugned questions invited the jury to disbelieve the appellant’s case; none made it impossible for his counsel to properly defend him; none were so ‘prejudicial or irremediable that an appellate court would have to condemn the trial as unfair,’” the court said.

On the issue of good character, the appellate court stressed that the issue was not raised by counsel below “and we have not been provided with any explanations for counsel’s omission.”

“Consequently, the questions for this court are one: whether the judge had a duty to raise good character on counsel’s failure to do so; two: if he was under such a duty whether his failure to do so, and to give a good character direction, was fatal to the fairness of the trial, or to the safety of the conviction.

“It emerges from the authorities, firstly, that while it is counsel’s duty to raise the issue of good character, in cases where it is obvious that good character may be in issue, the trial judge should enquire. Secondly, that only where there are good reasons for counsel’s failure to raise good character, will that issue be ordinarily permitted to be raised for the first time on appeal, but at the end of the day once credibility was a crucial issue in the trial, and it is not possible to say that a jury would inevitably, or without a doubt have convicted, such failure will be fatal to the conviction.

“There was no dispute that the knife he held inflicted the injuries on her and the appellant’s defence was accident, an assertion that Sheneka was lying. While the appellant’s credibility was equally critical, there was other evidence, namely that of Sidney Evans and George Symonette, which negatived his version of events and consequently his credibility; and bolstered the case for the prosecution.

“Moreover, the medical examination of Sheneka by Dr Tanya Garcia revealed 14 stab wounds. All of this evidence when taken together contradicted the appellant’s defence of accident; weakened his credibility; and bolstered the case for the prosecution. In my view, the nature and strength of the evidence in the present case wholly outweighs any assistance a good character direction as to the appellant’s propensity and credibility would have afforded him,” the appellate court said.

Concerning the harshness of Scott’s 34-year sentence, the appellate court noted that the sentencing court “must assess and give appropriate weight to all of the relevant and competing circumstances.”

“When considering an appeal from such an assessment, an appellate court will only find a sentence unduly severe where, it ‘falls outside the range of sentences which the judge, applying his mind to all the relevant factors, could reasonably consider appropriate. I wholeheartedly agree with the reasons given by learned judge for not giving the raised matters of mitigation any weight and would therefore dismiss the appeal against sentence,” the court ruled.

Crystal Rolle assisted Mr Ducille in arguing the appeal.

Garvin Gaskin, director of public prosecutions responded for the Crown and was assisted by Olivia Pratt-Nixon and Cephia Pinder-Moss.

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