Aritis v R
| Jurisdiction | Bahamas |
| Judge | John, J.A.,Conteh, J.A. |
| Judgment Date | 30 April 2014 |
| Neutral Citation | BS 2014 CA 74 |
| Docket Number | SCCrApp & CAIS No. 174 of 2010; SCCrApp & CAIS No. 178 of 2010 |
| Court | Court of Appeal (Bahamas) |
| Date | 30 April 2014 |
Court of Appeal
Blackman, J.A.; John, J.A.; Conteh, J.A.
SCCrApp & CAIS No. 174 of 2010; SCCrApp & CAIS No. 178 of 2010
Mr. Jerone Roberts, counsel for appellants.
Mr. Franklyn K.M. Williams, Deputy DPP, with Mr. Aaron Johnson and Ms. Samantha Miah, counsel for respondent.
Evidence - Appeal — Criminal evidence — Fatal shooting — Conviction of murder — Inadmissible evidence was wrongly admitted — Dock identification — Irregularities in the course of the trial — Failure to disclose results of the forensic examination — Failure to obtain results on items submitted to the forensic laboratory — Alternate jurors — Questions from jurors — Discharge of jury — Editicy of interviews, statements and video recordings of the appellants — Circumstantial evidence — Sentencing — Consideration of mitigating factors — Death penalty — Murder conviction must fall in the wholly exceptional category so as to satisfy the threshold of the death penalty — Appeal against conviction dismissed — Sentence of death set aside — Evidence Act — Juries Act.
In mid 2010 Mario Flowers and Sylvester Ardis were convicted respectively of the murder of Police officer Ramos Williams and the attempted murder of Police officer Anton Curry. Both men appealed their convictions and sentences on numerous grounds.
appeal dismissed, sentence of Sylvester Ardis affirmed, sentence of Mario Flowers set aside, sentencing of Mario Flowers remitted to trial judge for the determination of the appropriate sentence
Where there has been no identification parade, the reason for not holding one is a material circumstance. Where, for example, the uncontroversial evidence is that the defendant was well known to the witness before the offence, and the witness has previously identified him, dock identification may, alone, be no more than a formality.
officer Curry testified about the familial relationship that existed between himself and Mario Flowers. Accordingly no useful purpose would have been served in holding the conventional identification parade. The alleged dock identification could not be said to have been conducted in a setting in which Curry was identifying Mario Flowers or Sylvester Ardis for the first time.
Fairness requires that material which the prosecution is under a duty to disclose should be disclosed in indictable cases at or before the preliminary inquiry, providing of course that the material in question is available to the prosecution at that time. Breach of this duty, however, does not automatically entitle an accused person to a remedy. In order to justify the granting of relief the person complaining must prove that he has suffered prejudice. This he may do either by showing that, but for the non disclosure, he would not have been committed at all or that he would have been committed for a lessor offence.
In the present case the appellants have not proven that they have suffered any form of prejudice by the failure of the prosecution to obtain the forensic results.
We fail to see how the appellants could have been prejudiced by the failure of the judge to discharge the jury and empanel a fresh one. When the learned trial judge came to summing up the case she very properly directed the jury that they must disabuse their minds of the statement made by the appellants' former co-accused.
While we strongly deprecate the absence of officer Curry's firearm from the case and the very cavalier manner in which the officer accounted for it we are nevertheless satisfied that no prejudice was caused to either of the appellants nor can its absence be said to have resulted in a miscarriage of justice.
Per Conteh, J.A.
The death penalty should be imposed only in the most exceptional and extreme cases of murder. It is a mandatory requirement in murder cases for a judge to take into consideration the personal and individual circumstances of the convicted person.
The judge must also take into account the nature and gravity of the offence; the character and record of the convicted person, the factors that might have influenced the conduct that caused the murder, the design and execution of the offence, and the possibility of reform and social re-adaptation of the convicted person. The death sentence should only be imposed in those exceptional cases where there is no reasonable prospect of reform and the object of punishment would not be achieved by any other means.
The murder of officer Williams, heinous as it was, does not fall by any definition or consideration within the category of the exceptional or extreme type deserving of the death penalty. The circumstances of the officer's death, from the evidence, were not planned and not attended by an unusual amount of force or cruelty.
Moreover we are not satisfied that the learned trial judge in sentencing the appellant to death took into account and/or fully gave the proper weight to the second principle of sentencing in death penalty cases namely that there is no reasonable prospect of reform of the offender and that the object of punishment could not be achieved by any other means.
Arising out of a fatal shooting which resulted in the death of a police officer the appellants together with two other persons were each charged with murder and attempted murder. On the 9th August, 2010 after a trial before Senior Justice Anita Allen (as she then was) and a jury at the Supreme Court in Nassau the appellants Mario Flowers and Sylvester Aritis were convicted of murder and attempted murder respectively. On the 25 th November, 2010 Flowers was sentenced to death and Arius to twenty years imprisonment.
The prosecution case was that in the early morning hours of 29 th December, 2007 Police officers Anton Curry, Deiroy Christie, and Ramos Williams, were on mobile patrol in a marked police vehicle travelling south in the area of Doctors' Hospital when they observed a dark Sentra vehicle travelling north. They pursued the vehicle, beckoning the occupants to stop. The vehicle turned west on Shirley Street and immediately turned north on Deveaux Street, which is a one-way street for south bound traffic. The officers gave chase and the Sentra came to a stop on Deveaux Street.
Two men emerged from the passenger side of the vehicle. They were later identified as the appellants. They went north and then east to the area of a container that was located on the eastern side of the street. officers Curry and Williams gave chase. Curry was armed with a .9mm Berretta pistol. Corporal Christie was also armed. However, Williams was unarmed. officer Curry stated that Aritis emerged from the area at the side of the container and produced a hand gun which he (Aritis) fired at him. officer Williams went behind the container in pursuit of the second man. officers Curry and Christie said they then heard shots ring out from behind the container and heard officer Williams scream. An exchange of gun fire then ensued between officer Curry and Aritis, with Curry retreating while firing and seeking cover.
The Crown's case further established that the two appellants then ran north on Deveaux Street and then on to Dowdswell Street passing officer Curry, who had taken cover in the meanwhile. officer Curry further stated that at that point he noticed a. third man trying to get out of the Sentra. That man was arrested at the scene and gave his name as Sean Feaster. The officers then checked behind the container and found that Williams had been fatally shot in the chest. Further investigations revealed that the driver of the vehicle, who had also escaped, was Raymond Thompson. He was subsequently arrested. Both he and Feaster gave statements to the police admitting their presence at the scene, but denying any involvement in the shooting. Thompson and Feaster were eventually charged along with the appellants with being concerned together in the murder of officer Ramos Williams, and the attempted murder of officer Anton Curry. Statements made by Thompson, Aritis and Feaster were admitted into evidence following a voir dire, but Thompson and Feaster were acquitted at the direction of the learned trial judge, following no case submissions.
officer Curry testified that Flowers was a relative of his whom he had known all his life and saw him often, especially at family functions. He said their grandmothers were sisters and Flowers visited his (Curry's) aunt's home at Kemp Road. Additionally, in the course of his duties as a police officer, he would see him in the Pinewood Gardens area. The morning of Williams's death when he first saw Aritis he (Aritis) was a distance of ten to fifteen feet from him. The shortest distance Aritis was from him during the incident was four to five feet.
The appellants appealed against their convictions on the grounds of various alleged errors and other defects in the judge's summing up to the jury. To the extent that the grounds of appeal affected both appellants we have dealt with those grounds together.
Counsel submitted that there was a breach of s.29 of the Evidence Act, 1996 in the case of both appellants. S. 29 provides as follows:–
“In criminal proceedings evidence may be given of the good character of the accused person, but evidence may not be given of his bad character, unless and with leave of the Court witnesses have been called or questions have been asked to show that he bears a good character.”
The first complaint affected Mario Flowers. We were referred to the transcript at pages 784–785 lines 27–29. It was the evidence in chief of officer Curry. The following is an extract from the transcript.
Q. During your life, sir, how often would you see Mario?
A. Practically all of my life, sir. I spent time seeing him at family functions, where he will come by my aunt who resides in Kemp Road.
And his grandmother who resides in Kemp...
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