BASSETERRE, St. Kitts – RECENTLY, there were five men occupying cells in the Condemned Row at Her Majesty's Prison in St. Kitts awaiting the announcement of the day when they would be hanged by the neck until dead.
The five condemned men were Everson ‘Blee’ Mitcham, Romeo ‘Buncum’ Cannonier, Ruedeney ‘Denny’ Williams, Sheldon ‘Hatcher’ Isaac and Louis ‘Tooloo’ Gardener.
However, earlier this year four of the five men's death sentences were commuted to life imprisonment.
This publication, through the Law Chambers of Inniss and Inniss, received a release dated May 8, 2012, which states that the Eastern Caribbean Court of Appeal heard the cases of Cannonier, Williams, Isaac and Gardener and while their appeals against conviction were upheld, their appeals against sentence were granted and now, instead of awaiting a date of execution, the men are all serving life sentences.
"In a judgment delivered on 21st March 2012, the Eastern Caribbean Court of Appeal struck down as unconstitutional a statute providing time limits on the right to appeal in capital cases in St. Kitts and Nevis. In so doing, the Court of Appeal ordered the acquittal of Sheldon Issac upon finding that he is severely brain damaged and was unfit to stand trial and quashed the death sentences of the other Appellants, Romeo Cannonier, Reudeney Williams and Louis Gardener," the release said.
APPEALS
Cannonier was tried for the July 25, 2004 murder of Constable Delvin Nisbett of the Royal St. Christopher and Nevis Police Force, who was off-duty at the time. He was convicted and on December 20, 2007 sentenced to death.
He, Isaac, Williams and Gardiner were later tried for the March 21, 2005 murder of Gavin Gilbert, who was due to appear as a prosecution witness in Nisbett’s murder trial. The four men were convicted and on July 15, 2008 sentenced to death.
Cannonier filed his Notice of Appeal on February 8, 2008, two days outside the 14-day time limit prescribed by the Eastern Caribbean Supreme Court (Saint Christopher and Nevis) Act (“the Court Act”).
On October 30, 2008, the Court of Appeal dismissed his application for extension of time to appeal on grounds that it had no jurisdiction to extend the time for filing his Notice of Appeal based on the wording of section 52(2) of the Court Act.
The Privy Council subsequently made a conservatory order staying the execution of Cannonier, and on May 13, 2010 directed the Court of Appeal to consider arguments on the constitutionality of section 52 of the Court Act, the extension of time to appeal and the merits of the appeal.
Cannonier's grounds for appeal were:
1. Section 52(2) of the Court Act violates the fair trial provisions of the St. Kitts-Nevis Constitution in so far as it does not permit extensions of time in which to seek leave to appeal against conviction and sentence beyond the statutory period of 14 days in capital cases, irrespective of the cause for the failure to lodge the notice of application for leave to appeal within that period. This limitation on the right of appeal is arbitrary and disproportionate and violates his right to a fair trial and appeal. By virtue of section 2 of the Constitution, section 52(2) of the Court Act is void to the extent of the constitutional infirmity.
2. His conviction is unsafe because his counsel wrongly failed to comply with the statutory requirement to give notice of alibi witnesses to the Registrar, and the judge thereafter wrongly refused to allow the applicant to adduce alibi evidence.
3. The conviction is unsafe because the trial judge improperly failed to exercise his exceptional power at common law to refuse the admission of the statement of Gavin Gilbert in order to uphold the applicant's right to a fair trial.
4. The conviction is unsafe because the judge (a) failed to prevent prejudicial references in the presence of the jury to threats to witness safety and insinuations that Cannonier was trying to do away with witnesses; and (b) made these kinds of prejudicial comments to the jury in his summing up. In the alternative, the conviction is unsafe because trial counsel failed to ensure that the jury was absent when the admissibility of the statement was being discussed.
5. The conviction is unsafe because the judge failed to properly direct the jury to exercise caution in its consideration of the statement of Gavin Gilbert on the basis that the defence was deprived of the opportunity to cross-examine the witness on its contents.
6. The conviction is unsafe because the judge improperly disrupted the closing speech of Cannonier's trial counsel thereby depriving him of his right to a fair trial.
7. The conviction is unsafe because the judge gave an unbalanced summing up by implying that more weight ought to be accorded to the testimony of police witnesses as opposed to civilian witnesses. [Not pursued at the hearing of the appeal.]
8. The sentence imposed on Cannonier is unlawful as the judge failed to consider his prospects for reform when determining the appropriate sentence.
9. The sentence of death imposed on him is excessive and disproportionate having regard to the alleged offences and his mitigating circumstances.
In the second appeal, Cannonier, Isaac, Williams and Gardiner filed their Notices of Appeal one day outside the 14-day time limit provided for in section 52(2) of the Court Act. Their applications for leave to appeal out of time were dismissed by the Court of Appeal, which held that in view of the absolute language of that section and prior judgments by the Privy Council, they had no discretion to extend time in capital cases.
The Court however granted a stay of execution and a further extension on that stay in order to allow the men the opportunity to apply to the Privy Council for special leave to appeal.
The Privy Council made the same order in this appeal, which was that the death penalty not be carried out on the appellants until the determination of their appeals, and that the Court of Appeal considers the constitutionality of section 52(2) of the Court Act, the application for extension of time to appeal and the merits of the appeal.
The grounds for the men's appeal were:
1. Section 52 of the Court Act4 violates the fair trial provisions in section 10 of the Constitution5 in so far as it does not permit extensions of time in which to seek leave to appeal against conviction and sentence beyond the statutory period of 14 days in capital cases, irrespective of the cause for the failure to lodge the notice of application for leave to appeal within that period. This limitation on the right of appeal is arbitrary and disproportionate and violates the appellants’ right to a fair trial and appeal. By virtue of section 2 of the Constitution, section 52(2) of the Court Act is void to the extent of the constitution infirmity, and the Court of Appeal has jurisdiction to extend time for lodging notices of appeal in capital cases.
2. The learned judge failed to direct the jury properly or adequately in relation to the acts and declarations of those of the appellants which were relied upon as evidence as against other of the appellants, and wrongly directed the jury as to the admissibility of such declarations as against those other appellants.
3. The conviction of Louis Gardiner is unsafe because his counsel failed to adduce that he was of good character and the judge failed to give the jury a good character direction in relation to propensity.
4. Sheldon Isaacs was unfit to stand trial by reason of his severe brain damage, and his conviction is therefore unsafe.
5. The sentences of death imposed on the appellants are excessive and disproportionate having regard to the alleged offence and their individual mitigation. The sentences of death imposed on Isaacs and Williams are unconstitutional by reason of their brain damage and learning disability respectively.
JUDGMENT
In the first appeal, the Court of Appeal dismissed Cannonier’s appeal against conviction and upheld it, but quashed his death sentence and imposed a sentence of life imprisonment instead.
In the second appeal, the Court of Appeal allowed Isaac’s appeal against conviction and accordingly overturned his conviction and sentence.
Cannonier’s appeal against conviction was dismissed and his conviction affirmed. However, his appeal against sentence was allowed, setting aside the death sentence imposed on him and substituting a sentence of life imprisonment which is to run consecutive to the life sentence imposed on him in the first appeal.
Gardiner’s appeal against conviction was also dismissed, affirming his conviction but his appeal against sentence was allowed, also commuting his death sentence to one of life imprisonment.
Likewise, Williams’ appeal against conviction was dismissed, affirming his conviction but allowing his appeal against sentence, commuting his death sentence to one of life imprisonment.
BACKGROUND
Delvin Nisbett was gunned down in cold blood while traversing a stretch of road between Parsons Village and Dieppe Bay en route to his girlfriend’s home.
According to evidence presented during the case, Cannonier confessed to his then girlfriend, Makenia Lucas, that he had committed the crime.
Other evidence showed that after Cannonier was arrested for the offence and remanded to prison, he had sent instructions to the ‘outside’ concerning the whereabouts of the gun used in the murder as well as instructions on what should be done with it when retrieved.
After his conviction, Cannonier appeared before the Justices of Appeal requesting that the decision and sentence imposed by the High Court of Justice be overturned. But the Justices of Appeal ruled that his conviction of Nisbett’s murder and the death sentence be sustained.
They had however imposed a stay of execution which expired on December 1, 2008.
In the killing of Gavin ‘Magilla’ Gilbert, Cannonier was sentenced to death along with Gardener, Williams and Isaac by Justice Alfred Redhead on July 15, 2008.
The court was told that between 9:50 p.m. and 10:30 p.m. on March 21, 2005, Gilbert was gunned down a short distance from his Saddlers Village home.
According to evidence presented, the four men had played unique roles in Gilbert’s orchestrated death. Also, in accordance with the evidence, Cannonier had masterminded the plan, Williams was the transporter and whistle blower while Isaac and Gardner were the executioners.
The plan was birthed, as evidence suggested, because Gilbert was a key witness in the case of the murder of Constable Nisbett.
It was reported that Cannonier was behind bars when the incident occurred but other evidence presented indicated that he communicated his plan to Gardener through Lionel Warner, whom Sir Richard Cheltenham described as “the messenger of death”.
Evidence also suggested that Isaac was present when the message was communicated and he volunteered his services to commit the reprehensible act.
Had the men's appeals not been heard, their sentences could have been converted into life sentences after July 13, 2013. The men, now no longer on death row, leave one person, Everson ‘Blee’ Mitcham, still awaiting the date of his hanging.
