Ashley Hield v R

JurisdictionBahamas
JudgeMr. Justice Isaacs, JA,Sir Michael Barnett, P
Judgment Date27 July 2021
Neutral CitationBS 2021 CA 128
Docket NumberSCCrApp. No. 172 of 2019
CourtCourt of Appeal (Bahamas)

IN THE COURT OF APPEAL

Before:

The Honourable Sir Michael Barnett, P

The Honourable Mr. Justice Isaacs, JA

The Honourable Madam Justice Crane-Scott, JA

SCCrApp. No. 172 of 2019

Between
Ashley Hield
Intended Appellant
and
Regina
Intended Respondent
APPEARANCES:

Mr. Stanley Rolle, Counsel for the Intended Appellant

Ms. Linda Evans, Counsel for the Intended Respondent

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

Andy Francis v R SCCrApp. No. 133 of 2009 considered Angelo Poitier v R SCCrApp No. 95 of 2011 mentioned

Attorney General v Omar Chisholm MCCrApp No. 303 of 2014 applied

Attorney General's Reference Nos. 74 of 2002, 95 of 2002 and 118 of 2002 (Darren Anthony

Suratan, Leslie Humes, Mark Paul Wilkinson [2003] 2 Cr. App. R. (S) 42 considered

Donna Vasyli v Regina SCCrApp. No. 255 of 2015 considered

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

Garvin Adderley v Regina SCCrApp. No. 250 of 2017 mentioned Gregory August et al v The Queen [2018] CCJ 7 (AJ) considered

Hilfrant Francois Joseph v The Attorney General SCCrApp. No. 88 of 2013 considered Kemp v Regina [2013] 2 BHS J. No. 22 mentioned

Leon v Regina [2018] 1 BHS J. No. 122 applied

R v Angelo Brennen SCCrApp. Side Nos. 9 and 10 of 2007 mentioned

R v Fanel Joseph Criminal No. 43/2/2012 mentioned

R v Gumbs (1927) 19 Cr. App. R 74 applied

R v Hunter (Nigel) and Others [2015] EWCA Crim 631 considered

R v Raymond Giles Gilbey (1990–91) 12 Cr. App. R. (S.) 49 considered

R v Smith [2000] 4 All ER 289 considered

R v Vye; R v Wise; Rv Stephenson [1993] 3 All ER 241 considered

R v Richens (1992) Times, 25 November considered

Raphael Neymour v The Attorney General SCCrApp No. 172 of 2010 considered

Rodriquez Jean Pierre v Regina SCCrApp. No.110 of 2019 distinguished

Roscoe Knowles v Regina SCCrApp No. 285 of 2018 applied

The Attorney General v Claude Lawson Gray SCCrApp. No. 115 of 2018 applied

The State v Sydney (2008) 74 WIR 290 considered

Criminal appeal — Extension of time within which to appeal — Manslaughter — Good character direction — Credibility limb — Propensity limb — Whether a good character direction would have affected the jury's verdict having regard to the state of the evidence — Unduly severe — Whether sentence unduly severe — Error in principle

On 24 August 2015 John Henry Frazier, the deceased, according to the Crown's case, asked two men on Gibbs Corner if they wanted to make five dollars by assisting him and his friend, Ted, change a tire on the vehicle Ted was driving. Things went horribly wrong as one of the men robbed Frazier of his gold chain while Ted had gone to get the money changed to pay them. Frazier followed the intended appellant, requesting the return of his chain. The evidence is that the intended appellant hit Frazier in the head about five times with a conch shell. Frazier managed to get up but was again set upon by the intended appellant. As Frazier tried to leave, he was pursued by the intended appellant who still had the conch shell in his hand.

The intended appellant's case was that in the course of helping Frazier change the tire, Frazier began rushing him. As a result, he became fed up and tried to leave. However, he and Frazier ended up “hassling”. Frazier's gold chain popped in the hassle. He tried walking away but says Frazier pursued him seeking payment for his chain which Frazier alleged had been popped by the intended appellant. He says Frazier pursued him and threw rocks at him from behind and began charging at him with a broken a bottle. It was then that he picked up the conch shell and hit Frazier with it.

The intended appellant was charged with Frazier's murder, however, the jury found him guilty of manslaughter. He was sentenced to 30 years' imprisonment, less the time spent on remand. The intended appellant now seeks an application for an extension of time within which to appeal his conviction and sentence.

Held: application for an extension of time within which to appeal conviction refused; application for an extension of time within which to appeal sentence allowed. Sentence of 30 years' imprisonment quashed; 20 years' imprisonment substituted. Sentence reduced by 3 years and 7 months having regard to the time spent on remand awaiting trial; sentence of 16 years and 5 months is to run from the date of conviction.

On an application for an extension of time the factors which the Court must consider are well known. They are the length of the delay, the reasons for the delay, the prospects of success and the prejudice, if any, to the intended respondent.

The intended appellant is out of time by approximately 5 months and indicates that the reason for his delay is due, in essence, a lack of assistance. There is no perceived prejudice which inures to the intended respondent. Relative to prospects of success, the intended appellant contends that his prospects are good as the learned judge's directions to the jury relative to his good character were defective and his sentence is unduly severe.

Where a good character direction is required but not given, in assessing the safety of the conviction, the Court has to consider whether the direction, if it had been given, would have made a difference to the jury's verdict. The Court is satisfied that having regard to the state of the evidence in this case even if a full good character direction had been given the jury would inevitably have convicted the intended appellant.

Regarding the intended appellant's complaint that his sentence is unduly severe, the Court is of the view that the prospects of success are good as the judge ritualistically relied on the range of sentences suggested by Larry Raymond Jones and also due to the judge's failure to observe and sentence the intended appellant in accordance with the jury's verdict.

Mr. Justice Isaacs, JA

Judgment delivered by the Honourable

1

. On 17 June 2021, we heard the final submissions of counsel in this appeal; and reserved our decision. We render it now.

2

. The intended appellant was charged with the murder of one John Henry Frazier aka John Chandler (“Frazier”). After a trial presided over by Mr. Justice Andrew Forbes (A'g) the intended appellant was convicted of manslaughter and sentenced to thirty years' imprisonment — less the three years and seven months he had spent on remand — on 4 April 2019, following his conviction of manslaughter on 3 October 2018. He filed a Notice of Appeal on 4 September 2019 in the Court's Registry. His appeal is out of time by some 5 months; hence, he requires the leave of the Court to extend the time within which to appeal.

Extension of Time Application
3

. The factors we are to consider on an extension of time 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.”.

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.

4

. Inasmuch as I hold the view that the factor, prospects of success, carries more weight in the “scales of convenience”, I propose to focus on that factor more closely than the others. I do, however, provide a brief consideration of the three other factors.

Delay, Explanation and Prejudice
5

. On 7 October 2019, the intended appellant filed an application to extend the time for appealing (“the EOT application”). It appears that on 19 January 2021, the applicant filed a summons that appears to relate to his EOT application. Also filed on the 19th, was an affidavit sworn to by the intended appellant in support of his application.

6

. The delay in this matter is some 5 months, that is, from 25 April 2019 to 7 October 2019.

7

. In his sworn affidavit, the intended appellant explained that the cause for his delay in appealing was due to a lack of assistance from his lawyer who represented him during the trial, he had no money to retain a lawyer and it was not until he was interviewed by the Board at the Prison that he was able to request an appeal form. He completed the form and signed it on 16 July 2019; and sent the forms to the Prison authorities for transmission to the Court. He contended that without outside help, it is virtually impossible to get a form from the Registry within twenty — one days.

8

. This is an oft heard complaint heard by us made by would be appellants, that is, the Prison authorities do not provide them with the requisite appeal forms within the time mandated for appealing thereby reducing the persons to mendicants before the Court. We have spoken to this issue before, but it bears another observation. It may be useful to provide appeal forms to each convict upon his admission into the Prison to avoid appeal delays in the future.

9

. Nevertheless, I am not satisfied that the intended appellant's explanation for the delay that has occurred in this case is entirely satisfactory. Approximately 5 months is an inordinate length of time. His case is not as egregious as the intended appellant in Rodriquez Jean Pierre v Regina SCCrApp. No.110 of 2019, where the delay involved was six years. Fortunately, for this intended appellant, I am unable to perceive any prejudice that inures to the respondent due to the delay occasioned by his inaction.

Prospects of Success
10

. The intended appellant contends that he has good prospects of success because the Judge gave defective directions to the jury on the issue of his good character; and as a consequence, his trial was rendered unfair, and his conviction ought to be quashed. His amended grounds of appeal filed on 19 January...

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