Anton Bastian, Craig Johnson and Marcellus Williams v R
| Jurisdiction | Bahamas |
| Judge | Mr. Justice Roy Jones, JA |
| Judgment Date | 18 October 2018 |
| Neutral Citation | BS 2018 CA 158 |
| Court | Court of Appeal (Bahamas) |
| Docket Number | SCCrApp No 146 of 2016 SCCrApp No 148 of 2016 SCCrApp No 60 of 2017 |
| Date | 18 October 2018 |
IN THE COURT OF APPEAL
The Honourable Dame Allen, P
The Honourable Madam Justice Crane-Scott, JA
The Honourable Mr. Justice Jones, JA
SCCrApp No 146 of 2016
SCCrApp No 147 of 2016
SCCrApp No 148 of 2016
SCCrApp No 60 of 2017
Ms. Christina Galanos, Counsel for Appellant Williams
Mr. Roberto Reckley, Counsel for Appellant Bastian
Mr. David Cash, Counsel for Appellant Johnson
Ms. Cordell Frazier, Ms. Destiny McKinney, Ms. Antania Rolle-Taylor, Ms. Darell Taylor, Mr. Rodger Thompson, and Ms. Janet Munnings, Counsel for Respondent
Criminal Appeal — Appeal against Conviction — Murder — Armed robbery — Joint Enterprise Application of the Proviso-Defence of Accident — Crown Appeal Against Sentence — Determinate Sentences
On 12 May 2013 two females were robbed of their purses in the area of Double D's Restaurant. Kyle Brunner saw the robbery and intervened by taking hold of one of the men. He was shot by that robber and died. The appellants were arrested. Williams gave statements to police stating his involvement to the crime as only snatching the purse and blaming Johnson for the murder. They were charged and convicted for robbery and murder. They appealed their convictions.
Held: Appeals dismissed; sentences affirmed. Appeal for the Crown dismissed.
An appropriation is a continuing act, and if force is used while the appropriation continues, and the other ingredients of stealing are present, the offence is one of robbery.
In my view, on the facts of this case, there is sufficient evidence for Williams' case to go to the jury on the third count of armed robbery. First, Williams admitted to “snatching the purse” of one of the “white people” and to knowing that his co-accused Johnson had a firearm when they exited the car for the purpose of committing robbery. Second, co-accused Johnson's use of the firearm facilitated the continuing appropriation and escape of Williams while he ran away with the purse. I cannot say the trial judge was wrong to put before the jury the third count of armed robbery for Williams.
In my opinion, Bastian's statement by itself is sufficient evidence to put before a jury for their consideration on the counts of murder and armed robbery. Bastian admitted to taking part in an attack in which Johnson shot the deceased. Bastian also admitted that he knew Johnson had a firearm. It is a question of fact for the jury to decide whether Bastian had sufficient intention to be guilty of murder, if as a part of the joint enterprise, he knew that Johnson had a firearm and intended to kill the deceased, if there was resistance to the armed robbery.
The question of whether the witness said “known male suspect” or simply “male suspect” was at first ignored by the judge but continued by Williams' attorney with the witness. Nevertheless, counsel for Williams did not ask the judge to warn the jury in her summation nor did she ask for the jury to be discharged. The trial judge, no doubt, felt the remark by the witness was not sufficiently damaging to warrant a warning before the jury.
In this case, the trial judge in the court below took the view the statement did not adversely affect the jury, so there was no need to discharge them or to give a witness warning. This is a matter of discretion for the judge, and unless the judge was patently wrong, this court should not interfere.
The trial judge correctly directed the jury on the law of murder, manslaughter, and joint enterprise. She cautioned the jury they must consider the case against each defendant separately. Joint enterprise is the foundation of the respondent's case, and the trial judge correctly summarised this for the jury.
In this case, Williams and Bastian admitted that they were part of a joint enterprise with Johnson to snatch purses from the white women, with knowledge that Johnson was armed with a firearm. These matters were properly before the jury, and the learned trial judge cannot be faulted for the directions given.
In my view, the failure of the trial judge to specifically direct the jury on the respondent's burden of proof to rebut the defence of accident, was a misdirection by omission.
Even though the trial judge omitted to direct the jury on the burden of proof in the defence of accident; having regard to the evidence by the eye witness Sean Cannif; the surveillance video of the incident; the evidence of Dr. Sands about the distance of the shooter from the deceased; there was irresistible evidence of an intention and a deliberate act by Johnson to kill the deceased. Therefore, this is a proper case for the application of the proviso to s. 13(1) of the Court of Appeal Act.
Sentencing is uniquely a judicial function. Direct interference with the discretion of a Supreme Court judge to impose a fixed custodial sentence would be effectively to remove the function of sentencing from the judiciary and put it in the Executive. As we see it, the Penal Code Amendment Act, 2011 did not take away the discretion which a sentencing court has to impose a determinate custodial sentence under the law if circumstances so warrant. In our view, the trial judge in the Supreme Court still has a discretion as to what sentence to pass following a conviction for murder after it has weighed the aggravating and mitigating factors of the offence and of the offender in any given case. From the passage cited above, it cannot be said the judge exercised that discretion unreasonably, or that the exercise of her discretion in relation to Williams, Bastian and Johnson was plainly wrong.
Docherty [1999] 1 Cr App R 274 considered
Farquharson v Queen [1973] AC 786 followed
Ferguson v Attorney-General of Trinidad and Tobago and Others [2016] 40 BHRC 715 considered
Moss v. R [1999] BHS J. No. 108 considered
R v Gouldbourne [2010] JMCA Crim 42 considered
R v Jogee [2016] UKPC 7 considered
R v Lockhart; R v Prosper [2009] 3 BHS J No. 124 considered
R v Robert Angus Hale [1979] 68 Cr. App. R. 415 considered
R v Weaver [1968] 1 Q.B. 353 considered
Rodney Johnson v Queen SCCrApp No. 100 of 2012 applied
Spencer v Director of Public Prosecutions [2014] 5 LRC 613 considered
State v Simmons (1976) 24 WIR 149 considered
Stuart v The Attorney General of The Bahamas (2014) 83 WIR 35 applied
Trimmingham v The Queen [2009] UKPC 25 mentioned
Delivered by The Honourable Mr. Justice Roy Jones, JA
. On 21 September 2015 in the Supreme Court, Charles J and a jury tried appellants Craig Johnson (“Johnson”), Anton Bastian (“Bastian”), and Marcellus Williams (“Williams”) jointly on one count of murder contrary to sections 290 and 291 of the Penal Code, Chapter 84, and two counts of armed robbery contrary to section 339(2) of the Penal Code, Chapter 84. The trial ended on 3 November 2015, and the jury found all the appellants guilty of one count of murder and two counts of armed robbery.
. It was the prosecution's case that on 12 May 2013 at 4:00 a.m., Williams, Johnson, Bastian, Jamal Dorfevil (“Dorfevil”) and Leo Bethel (“Bethel”) were in a car near the Double D's Restaurant on Mackey Street. While in the car Bethel pointed out two white women in a group of five persons, and they all agreed to snatch the women's purses. Williams, Johnson, and Bastian came out of the car. As Williams was exiting the car he saw Johnson with a firearm. Williams then snatched a purse from one of the white women, and Bastian snatched another purse from the other white woman. After doing so, Williams and Bastian both fled the scene. While Williams and Bastian were running away with the purses, a struggle arose between Johnson and Kyle Bruner (“the deceased”), who was one of the persons accompanying the two white women. During the struggle, the deceased shoved Johnson against a car whereupon Johnson pulled out the firearm he had in his possession, and shot the deceased.
. According to the prosecution, Corporal 771 Greenslade (“Greenslade”) arrested Williams near Apache Alley off Kemp Road on 15 May 2013. Greenslade identified himself to Williams, told him he suspected him of murdering the deceased, and cautioned him. Williams said “Yeah Officer. I only snatched that bag, but Craig shot that man.” Williams gave his alias as “Slowy”. On the same date, Sergeant 2095 Johnson (“Sgt. Johnson”) interviewed Williams. At the interview, Williams confessed to being with the four co-accused, snatching the white woman's purse, and seeing Johnson with a firearm as he left the car.
. On 16 May 2013, Williams directed police officers including Johnson from the Central Police Station, to the eastern bridge. Williams showed the officers where he snatched the purse, and then took them to Okra Hill by the Old City Lounge Building where he threw the purse.
. Williams gave an alibi. In his sworn evidence he said that on 15 May 2013 at 4:00 a.m., he was at home sitting in his cousin's car, when Greenslade came and asked for his name. He gave his name as Marcellus Williams. Greenslade said he (Williams) was a suspect in the murder of the deceased. After he denied knowledge of the murder the officers handcuffed him and pulled him from the car. He said Greenslade stomped him on the floor, threw him into the police car and took him to the Wulff Road Police Station.
. At the Wulff Road Police Station, Williams said the officers searched him and placed him in a cell. He remained there until later in the morning, when officers from the Central Detective Unit took him to a room where he met Sgt. Johnson and Sergeant 3214 Munroe (“Munroe”). Williams enquired of...
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