Adnan Oliver v R
| Jurisdiction | Bahamas |
| Judge | Mr. Justice Isaacs, JA,Sir Michael Barnett, JA |
| Judgment Date | 20 May 2019 |
| Neutral Citation | BS 2019 CA 164 |
| Date | 20 May 2019 |
| Docket Number | SCCrApp. No. 191 of 2014 |
| Court | Court of Appeal (Bahamas) |
IN THE COURT OF APPEAL
The Honourable Mr. Justice Isaacs, JA
The Honourable Madam Justice Crane-Scott, JA
The Honourable Sir Michael Barnett, JA
SCCrApp. No. 191 of 2014
Mr. Marianne Cadet, Counsel for the Appellant
Mr. Vernal Collie with Mr. Bradford McKenzie, Counsel for the Respondent
Adrienne and another v Republic [2018] 1 LRC 380 applied
Delaney v Judge Donnchadh [2011] IEHC 138 considered
Todd v R [2008] UKPC 22 considered
Criminal appeal — Armed robbery — House breaking — Possession of an unlicensed firearm — Possession of ammunition — Ruling at the end of the voir dire — Consent to draw blood form admitted but confession statements excluded — Section 34 of the Police Act
On 14 May 2010 Scotiabank, Emerald Bay, Exuma was robbed by a masked gunman who fired a number of shots before escaping in a waiting vehicle, driven by another male. “Bait money” was among the money taken by the robbers. The following day the appellant was arrested and interviewed twice by the police. Two days later, on 16 May 2010, he was interviewed again and made a Statement under caution. On 17 May 2010 he was taken out on inquiries and directed the officers to a house where a 9mm casing was discovered outside. He took the officers to another area where, after a trek through bushes, the group came to a small clearing. The appellant then directed the officers to a pile of stones which, when removed, revealed a white bag containing cash, a pair of gloves, a black mask with the eyeholes cut out and a firearm wrapped in a cloth. A portion of the glove was clipped off for testing as it contained a substance suspected of being blood. The appellant was, again, interviewed and another Statement made by him. Thereafter, he consented to his blood being drawn and the DNA results revealed that the appellant could not be excluded as a contributor. The bait money was identified as being the property of the bank and the shells collected at the scene matched the firearm recovered from under the pile of stones.
At his trial the appellant challenged the voluntariness of the records of interview, the statements and the taking of his blood. As a result, a voir dire was held and the trial judge declined to admit the records of interview and the statements but ruled that the evidence relating to the taking of the blood sample could be led.
Following his trial before a judge and jury the appellant was convicted of armed robbery, house breaking, possession of an unlicensed firearm and possession of ammunition. He has now appealed his conviction.
Held ( Barnett, JA concurring): appeal allowed; conviction and sentence set aside.
per Isaacs, JA: The appellant's first complaint is that the judge failed to provide a written ruling at the end of the voir dire. There is no requirement generally speaking for a judge to render a written ruling on issues arising from a voir dire. Judges are encouraged to do so, however, as this enables an appellate court to appreciate the reasoning of the court and to satisfy itself that the judge did not somehow fall into error. Having ruled the two statements inadmissible, the Judge had to apply his mind to whether or not true consent had been obtained for the taking of the blood sample inasmuch as the taking of the sample occurred between the time of the making of the impugned statements. In those circumstances it would be incumbent on a trial judge to provide reasons for his admission of the consent form and blood evidence so as to place an appellate court in a position to determine if the judge's decision was reasonable and according to law. Notwithstanding the Judge's failure to provide reasons, the Court would not have found that this was fatal to the conviction if that was the only error in the trial because there was other evidence upon which the jury could have relied to properly convict the appellant.
There seems to be an incongruity between the Judge's decision not to allow the records of interview and written statement to be admitted into evidence presumably because he harboured a doubt as to their voluntariness and his decision to allow the evidence surrounding the taking of the blood sample to be heard by the jury. This is particularly inexplicable because the taking of the appellant's blood occurred between the taking of the two statements. Section 34 of the Police Act provides that a sample of a person's blood may be taken only with the person's consent given in writing. Provision is made for when a suspect objects to the taking of his blood. In such an event, the written consent of a magistrate is required. No magistrate's consent was obtained in this case. Implicit in this provision is the need for the person's true consent devoid of any pressure, oppression or other coercive measures: so if a person alleges he was threatened with bodily violence it behooves the Judge to investigate the allegation. It is not sufficient for the tribunal to embark on a pro forma exercise of merely looking to see if the person signed the consent form. True consent must be disclosed on the facts of the case. The Court was unable to conclude that by the time the consent form was signed by the appellant the oppression inflicted on him earlier had dissipated; the Court holds that the said oppression led to his signing of the consent form. There was no true consent.
In the circumstances of this case, the Judge ought to have refused to allow the prosecution to rely on the evidence derived from the blood samples taken from the appellant in pursuance of the signed consent form. The result of such refusal would have been to render irrelevant and therefore inadmissible the evidence of the DNA testing and results; and without which, there was no other evidence to connect the appellant to the offences charged except for the items found in the bushes, that is, the money, the firearm and gloves.
The Judge ought to have employed section 178 of the Evidence Act and ruled the evidence relating to the consent form and the taking of the appellant's blood inadmissible in the circumstances of this case. Had he done so, there was insufficient evidence upon which the prosecution could rely to require the appellant to answer their case.
Adrienne and another v Republic [2018] 1 LRC 380 applied
Attorney General's Reference (Number 3 of1999) [2001] 2 AC 91 applied
Bain and another v. Regina [2017] 2 BHS J. No. 116 considered
Law Shing-Huen v The Queen Privy Council No. 5 of 1998 considered
Reg. v. Delaney, The Times, 30 August 1988 considered
R v Sang [1980] AC 402 applied
The People (at the suit of The Director of Public Prosecutions), Appellant v JC, Respondent [2017] 1 IR 417 considered
The People (Director of Public Prosecutions) v Kenny [1990] 2 IR 110 mentioned
Todd v R [2008] UKPC 22 considered
Wallace and Another v R [1997] 1 LRC 350 mentioned
per Barnett, JA: The giving of reasons in interlocutory rulings is a matter of discretion by the trial judge. But like all discretions, it must be judicially exercised. As a general proposition adequate and intelligible reasons must be given for judicial decisions. A judge failing to give reasons must be the exception rather than the rule.
There was evidence to support the appellant's allegation that he was beaten and this clearly called for a reasoned ruling after the voir dire explaining why the judge was of the view that the conduct which vitiated the ROI and Confession Statement did not also vitiate the consent which was the basis upon which the blood sample was taken. Given the overwhelming evidence of bruises suffered by the appellant and the decision of the trial judge not to admit the ROI and Confession Statement, the trial judge erred in admitting the blood samples as he could not reasonably be satisfied that the consent was not signed otherwise than through oppressive conduct.
The law makes admissible facts discovered as a result of an excluded confession. So as a matter of law the material found by the police as a result of the confession were admissible. However, the judge's discretion to exclude that evidence is preserved by section 178 of the Evidence Act. Given the evidence of bruises which was the basis of the judge's decision not to admit the evidence of the ROI and Confession Statement this was clearly a case where the judge ought to have exercised his discretion to exclude the evidence obtained by police oppressive conduct.
Judgment delivered by the Honourable
The appellant was convicted on 22 May 2014 of 3 counts of armed robbery, house breaking, possession of an unlicensed firearm and possession of ammunition. He was sentenced on 2 July 2014. He filed a Notice of Appeal on 22 July 2014 containing a number of grounds but amended them in an amended Notice of Appeal in the following manner:
“1. That the Learned Judge erred in law by failing to provide a ruling at the end of the voir dire, or at all during the trial indicating the reasons for the finding made by the court given the circumstances of the case.
2. That the Learned trial judge erred in fact and Law in finding that the prosecution had proven beyond a reasonable doubt that the Appellant had voluntarily signed the consent for (sic) form for his blood to be taken, whilst also finding that the Appellant did not voluntarily sign the alleged confession statements. All of which was purportedly signed on the same day.
3. That the Learned trial judge erred in fact and law in allowing the prosecution to adduce evidence of pair of gloves containing a partial mixture of DNA, of which the Appellant could not be excluded. Inconsequence the evidence of DNA on the pair of gloves without any other evidence linking the Appellant to the crime, makes the conviction unsafe and unsatisfactory.
4. That the learned Trial Judge erred in fact and in law by...
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