The Tribune

By LAMECH JOHNSON

Tribune Staff Reporter

ljohnson@tribunemedia.net

THE Court of Appeal has affirmed the conviction and 45-year sentence of a man who nearly beheaded his girlfriend, an action that he had attributed to being in a “trance”.

Gibson Rafael and his lawyer Roberto Reckley appeared before Justices Dame Anita Allen, Jon Isaacs and Roy Jones in January of this year concerning Rafael’s challenge to a jury’s guilty verdict for the July 27, 2012, murder of Kidley St Brave.

Mr Reckley had argued that the judge allowed the deceased’s brother, Kirby St Brave, to give prejudicial evidence when he described his sister’s and the appellant’s relationship as abusive.

The lawyer also submitted that the judge did not direct the jury on non-insane automatism, as he said he was in a trance.

However, in the 2-1 majority decision handed down on Tuesday, Dame Anita and Justice Isaacs dismissed both arguments.

“The inadmissible evidence complained of by counsel was articulated as evidence of ‘opinion, hearsay, irrelevant and prejudicial.’ The only item of evidence impugned under this head was that Kirby St Brave, when he said that the relationship between the appellant and the deceased was ‘abusive,’” Dame Anita said.

“In this regard, while it is a matter of opinion which the brother could not ordinarily give, that evidence adduced in the context of having taken his sister to the police station to make a complaint against the appellant which evidence was admissible. In any event, the nature of the appellant’s relationship with the deceased was the basis for his self-defence claim. In the circumstances, the view expressed by Kirby St Brave that the relationship was abusive was not hearsay in as much as it was evidence relating to the appellant’s state of mind and motive. Nor was it, in my view, irrelevant and prejudicial to the appellant.”

On the latter argument, Dame Anita and Justice Isaacs said: “The defence of automatism must be raised in a way which makes it fit to be considered by the jury.”

“The crucial question in cases where automatism is raised is whether on the evidence as a whole, there is any evidence which would put in issue the defence of automatism which, if accepted as being true or possibly true, would have resulted in the defendant’s acquittal. In this case, neither the cross-examination of the prosecution witnesses nor the evidence of the appellant appeared to be directed at laying any foundation for the defence of automatism,” the pair of judges found.

They also stressed that there was “no medical evidence called to support the appellant’s contention that he was automatous at the time of the killing.”

Justice Jones, in his dissent, said the statement of Kirby St Brave regarding abuse and complaints by the deceased to the police “is irrelevant to the state of mind and/or motive of the appellant which is in fact an issue”.

“I disagree with the view that the appellant raised the issue of an abusive relationship as the basis for his self defence claim. From the evidence at trial, the appellant’s claim that he acted in self-defence only related to the day of the incident where, on his account, the deceased was in fact the aggressor. Consequently, any reference either by the appellant or by Christine Janvier about incidents of abuse by the appellant prior to the incident are not relevant to the appellant’s claim of self defence at trial and therefore cannot be subject to section 39(2)(b) of the Evidence Act.”

On the second argument, Justice Jones said that although the appellant’s claim of “non-insane automatism was thin, his claim in relation to self-defence was supported by a serious injury to the neck which he says was caused by an attack coming from the deceased.”

“In the absence of impugned evidence, it cannot be said that the appellant’s defence must fail and that a properly directed jury would inevitably have convicted the appellant,” Justice Jones stressed.

During the trial, Rafael testified that he and St Brave had recently got back together after a breakup. He said on the day in question, he picked her up from her Quarry Mission Road home and they had sex at his residence.

Raphael claimed that while in the bathroom, St Brave checked his phone and saw a text message from the mother of his son, which prompted her to attack him. He said when he slapped her back, she got a screwdriver and stabbed him before she went for a tile cutter.

He claimed a “trance” occurred after he took the tile cutter from her and did not remember what happened after that.

He did not report the incident to police until hours after her death.

A jury unanimously convicted Rafael of murder and he was subsequently sentenced to 45 years at the Department of Correctional Services, both of which were upheld in Tuesday’s ruling.

Linda Evans and Erica Duncombe appeared for the Crown in the appeal.