Alexander Sweeting v R

• Jurisdiction: Bahamas
• Judge: Mr. Justice Isaacs
• Judgment Date: 24 September 2020
• Neutral Citation: BS 2020 CA 125
• Court: Court of Appeal (Bahamas)
• Docket Number: SCCrApp No. 113 of 2019
• Date: 24 September 2020

IN THE COURT OF APPEAL

Before:

The Honorable Sir Michael Barnett, P

The Honorable Mr. Justice Jon Isaacs JA

The Honorable Mr. Justice Roy Jones JA

SCCrApp No. 113 of 2019

Between

Alexander Sweeting

Intended Appellant

and

Regina

Intended Respondent

APPEARANCES:

Ms. Brendalee Rae, with Ms. Marianne Cadet, Counsel for Intended Appellant

Mr. Neil Brathwaite, Asst DPP, with Ms. Erica Kemp and Ms. Zoe Gibson Counsel for Intended Respondent

Attorney General v Omar Chisholm MCCrApp No. 303 considered

Alexander Williams v. Regina SCCrAPP No. 155 of 2016 mentioned

Errol Knowles v Regina SCCrApp. No. 79 of 2017 mentioned

Garvin Adderley v Regina SCCrApp. No. 250 of 2017 considered

Victor Johnson aka Ninja v Regina SCCrApp No. 143 of 2017 distinguished

R v Cooper [1969] 1 QB 267 considered

Sterling v DPP [1974] AC 878 considered

Regina v Clinton 1 W.L.R. 1181 considered

Deenish Benjamin and Deochan Ganga v The State of Trinidad and Tobago [2012] UKPC 8

Petit v. Regina [2016] 1 BHS J. No. 95 mentioned

The People at the Suit of the Director of Public Prosecutions v Kelleher [2016] IECA 277 considered

Criminal Appeal — Application for Extension of Time — Murder — Whether judge misdirected jury on voluntary confession — Whether judge ought to have called a mistrial — Attorney instructions-Whether verdict is unsafe and unsatisfactory.

On 17 October 2018, the intended appellant was found guilty for the 1 December 2015 murder of Whitfield Jones Jr. in Freeport, Grand Bahama. He was sentenced to thirty-years imprisonment. He now seeks an extension of time within which to appeal his convictions and sentences on the basis that the trial judge misdirected and/or confused the jury on the issue of the intended appellant's alleged confession, the intended appellant's attorney withheld crucial evidence from him and ran a defence inconsistent with the appellant's instructions and that the trial judge failed to order a mistrial therefore making his conviction unsafe and unsatisfactory.

Held: application for leave to appeal out of time is refused; conviction and sentence affirmed.

The record of transcript must be accepted as having represented what was heard by the jury when the trial judge explained to them how to approach the alleged confession. There appears to have been a word omitted from the underlined portion of the sentence in the transcript. However, despite this error, there is a clear indication to the jury by the judge that they could not rely on a confession obtained by oppression. When the judge's summing up is viewed as a whole, she makes it clear to the jury that if they harboured any doubt as to the voluntariness of the confession, they were to disregard it.

The intended appellant does not indicate what he considered crucial evidence that his attorney withheld, and in light of the confession that was put into evidence which reflected that the intended appellant was present at the scene of the shooting and was the person responsible for shooting the deceased, it was no longer possible for his counsel to continue with the defence of alibi. We find that Mr. Shurland did not deviate from the intended appellant's cardinal defence; but rather attempted to reconcile his instructions with the evidence adduced by the Crown.

It would not have been lost on the jury that Officer Russell had not been deemed an expert in the field of firearms examination unlike Inspector Wilson, and although the judge did not take immediate steps to “cure” the prejudicial effect of Officer Russell's statement, she did direct the jury in her summing up on the issue of “expert evidence”.

We harbour no lurking doubt about the safety of the intended appellant's conviction; and are satisfied that the trial of the intended appellant was neither unfair nor unsatisfactory.

Mr. Justice Isaacs

Judgment delivered by The Honourable

1 . On 8 July 2020, we heard the intended appellant's application for leave to extend the time within which to appeal his conviction for murder for which he received a sentence of thirty years on 14 March 2019, imposed on him by Madam Justice Estelle Gray-Evans (“the Judge”). We had indicated that should his application for leave prove successful we would go on to consider his substantive appeal. We reserved our decision for future delivery. We render it now.

Background

2 . Around 6:30pm on 1 December 2015, Whitfield Jones (Whitfield”) met his demise on Redwood Lane in Freeport, Grand Bahama, when he was shot multiple times. He was found lying in a pool of water on the ground. A fired cartridge casing and a fired bullet were discovered at the time by the police; and collected. The next day, after the pool of water had been bailed out, more cartridge cases and fired bullets were found and collected.

3 . Irene Ingraham was Whitfield's mother; and she had spoken to him by cell phone at about 5:30 pm on that December day. She never heard from him again; but she did see him in the Rand morgue on 2 December 2015, when she identified his body. It was her opinion of her son that although he had to go to court on occasion due to fights he would have with his girlfriends, he was a good young man.

4 . The weapon responsible for the injuries Whitfield received was a Glock 40 Smith & Wesson (“S&W”) caliber model 22 autoloading pistol. This could be inferred from the opinion of firearms examiner, Inspector Aaron Wilson who tested the Glock 40 pistol and ammunition; and who concluded that five of the fired cartridges found at the scene where the body was located, had been fired by the Glock 40 pistol. The pistol when discovered in a travel bag found in the yard at the intended appellant's residence, in his presence, had nine unfired 40 S&W cartridges housed in a detachable box magazine. The police had executed a search warrant for, No. 72 Sunridge Road, the premises the intended appellant is alleged to have given as his place of residence. Detective Sergeant 2559 Russell testified that when the firearm was found, he cautioned the intended appellant. Sergeant Russell said he asked the intended appellant who the bag belonged to and the intended appellant responded that the bag was his. Sergeant Russell went on to say the intended appellant then said, “Man officer, that's everything right there. That ga bury me. This fellow — this bey, that's the term he used. This bey pull a spin barrel 38 on me two weeks ago in Coral Reef. I saw him today and I felt threatened. And I gone and get my gun and I come back and I shoot him.”

5 . The intended appellant was later questioned by the police in connection with Whitfield's death; and during a question and answer interview he admitted to shooting Whitfield. The interview was video recorded. However, the intended appellant alleged that he had been oppressed to make admissions adverse to his interest. A voir dire was held; but the judge found that there had been no impropriety involved in the production of the record of interview; and ruled that the record of interview was admissible for the purposes of the trial.

6 . At the close of the Crown's case, Mr. Shurland, counsel for the intended appellant, made a no case to answer submission on behalf of the intended appellant during which he contended that his client ought not to be called upon to make a case because the intended appellant had acted in self defence. The judge rejected the application and the case continued.

7 . The intended appellant elected to give evidence under oath; and testified, inter alia that Whitfield had pulled a firearm on him one night and threatened to kill him and his friends; and afterward on those occasions when Whitfield came through Redwood Lane, he would always avoid Whitfield because Whitfield kept “triggering at him”. The intended appellant said that on the night in question, he shot Whitfield because when he saw him, he thought Whitfield was going to shoot him.

8 . The appellant was convicted of murder on 17 October 2018; and sentenced on 14 March 2019 to thirty years' imprisonment. On 8 July 2019 he filed his appeal against his conviction on four grounds. Those grounds were later amended.

9 . The appellant's appeal is out of time; hence, he requires the leave of the Court to extend the time within which to appeal. He filed a summons for that purpose on 18 February 2020; and an affidavit in support of the extension of time (“EOT”) application filed the same day.

Extension of Time

10 . The factors we are to consider on an EOT application are well known. In Attorney General v Omar Chisholm MCCrApp No. 303 of 2014, Adderley, JA said at paragraph 12:

• “12. It is settled that in exercising its discretion whether to grant or refuse an extension of time the court considers four things: the length of the delay, the reason for the delay, the prospect of success, and the prejudice, if any, to the respondent.”.

11 . See also Alexander Williams v. Regina SCCrApp No. 155 of 2016, Errol Knowles v Regina SCCrApp. No. 79 of 2017 and Garvin Adderley v Regina SCCrApp. No. 250 of 2017.

12 . Inasmuch as we hold the view that the factor, prospects of success, carries more weight in the “scales of convenience”, we propose to focus on that factor more closely than the others. Still, we will set out our decision in brief on the three other factors.

13 . Although the Criminal Form No. 1 — the form used to launch a criminal appeal in this Court — was filed in the Court on 8 July 2019, an EOT application was not filed until 18 February 2020.

14 . Section 17(1) of the Court of Appeal Act states that:

• “17. (1) Where a person convicted desires to appeal to the court or to obtain the leave of the court to appeal under the provisions of this Part of this Act, he shall give notice of appeal or of his application for leave to appeal in such manner as may be prescribed by rules of court within twenty-one days of the conviction.”

15 . Inasmuch as...