Attorney General v Johnny Mackey Armando Sargent; Armando Sargent v Director of Public Prosecutions; Johnny Mackey v Director of Public Prosecutions; Makaveli Tinker v Director of Public Prosecutions
| Jurisdiction | Bahamas |
| Judge | Mr. Justice Isaacs,Mr. Justice Evans,Madam Justice Bethell |
| Judgment Date | 22 December 2021 |
| Neutral Citation | BS 2021 CA 214 |
| Docket Number | SCCrApp. No. 125 of 2018 SCCrApp. No. 77 of 2019 SCCrApp. No. 84 of 2019 |
| Court | Court of Appeal (Bahamas) |
IN THE COURT OF APPEAL
The Honourable Mr. Justice Isaacs, JA
The Honourable Mr. Justice Evans, JA
The Honourable Madam Justice Bethell, JA
SCCrApp. No. 125 of 2018
SCCrApp. No. 76 of 2019
SCCrApp. No. 77 of 2019
SCCrApp. No. 84 of 2019
Ms. Christina Galanos, Counsel for the Intended Appellants Johnny Mackey and Armando Sargent
Mrs. Romona Farquharson-Seymour with Mr. Stanley Rolle, Counsel for the Intended Appellant Makaveli Tinker
Mr. Vernal Collie, Deputy Director of Public Prosecutions, Counsel for the Intended Respondent
Bahamasair Holdings Ltd v Messier Dowty Inc. [2018] UKPC 25 considered Birkett v. James [1978] AC 297 considered
Hamid v (1) Khalid & (2) Co-operative Insurance Society General Insurance Ltd [2017] EWCA Civ 201 considered
Mario Taylor v Regina SCCrApp. No. 265 of 2017 mentioned
Mott and McKenzie v The Attorney-General Appeal Nos. 45 and 47 of 1995 considered
Shavargo McPhee v The Queen [2016] UKPC 29 applied
Criminal appeal – Murder – Manslaughter – Attempted murder – Conspiracy to commit armed robbery – Attempted armed robbery – Voir dire – No case to answer submission – Reasonable inferences – Alternate verdicts – Allegations of oppression – Minor taken into Police custody – Appropriate adult – Right to counsel – Allegation of breach of the Force Standing Orders - Article 19(2) of the Constitution - Section 114(3) of the Criminal Procedure Code
On 11 November 2015 JM and her 13-year-old son (TM) were driving along Parkgate Road near the junction with Village Road. TM advised his mother that there was a man lying in the road. JM swerved to avoid the man and about two seconds later TM heard glass shattering. JM had been shot in her neck; she continued driving but shortly thereafter crashed into a wall. TM exited the vehicle and ran away. The Crown's case was that he was shot at while running away.
The intended appellants were all charged with the murder of JM, the attempted murder of TM, conspiracy to commit armed robbery and attempted armed robbery. The intended appellant Sargent was convicted of manslaughter, conspiracy to commit armed robbery and attempted armed robbery; Mackey and Tinker were convicted of all of the offences with which they were charged. The intended appellants now seek an application for an extension of time within which to appeal their convictions.
Held: Sargent and Mackey: applications for an extension of time acceded to; convictions and sentences quashed. No retrials ordered. Tinker: application for an extension of time acceded to; convictions and sentences quashed. Retrial ordered. Tinker is to remain on remand until his retrial or until he is released on bail. The appeal of the Attorney General was withdrawn and therefore dismissed.
Sargent challenges, inter alia, the learned judge's decision to admit his statement and record of interview and the judge's decision not to accede to his no case submission. Sargent alleged that the record of interview and statement attributed to him were obtained through oppression, but the Officers denied his assertions. The judge below heard the evidence and preferred the evidence of the Officers. In the circumstances counsel conceded that the judge had the discretion to decide whose evidence he would accept.
Relative to the submission of no case to answer, while the evidence demonstrates that Sargent knew a robbery would occur, there was no evidence led that could lead to a reasonable inference that he knew a gun was on the scene prior to the commission of the offences. There was no request by the Crown of the judge to leave the alternate offences of robbery and attempted robbery to the jury, therefore those offences were not left to be considered by the jury. In these circumstances Sargent's case ought not to have been left for consideration by the jury. It is not in the interest of justice, therefore, to order a retrial.
Mackey was selected from an ID parade by TM as the man lying in the road. During his record of interview Mackey told officers that he was lying in the road because he caught a cramp. Mackey did not sign the record of interview. At trial Mackey testified he was forced to admit that he was lying in the road to cause a car to stop in furtherance of a robbery. Similar to Sargent's case no evidence was led by the Crown that Mackey had knowledge of a plan to use a firearm. It is clear that each of the offences for which Mackey was convicted was dependent on a finding that he was a part of a plan to commit armed robbery with the use of a gun. No alternate offences were left for consideration by the jury. As the Crown's evidence did not meet the required standard to give rise to a proper conviction it would not be in the interest of justice to order a retrial in Mackey's case.
The evidence against Tinker, a juvenile and the shooter on the Crown's case, was two confessions, one of which was given without the presence of his mother or an attorney. The judge below found that confession to be a spontaneous admission. The second confession was given in the presence of a social worker and a pastor as, on the evidence of the Police, Tinker's mother could not be contacted. The Court is of the view that the first confession ought not to have been admitted and its admission prejudiced the jury and brings the safety of the conviction into doubt. The circumstances of the case are appropriate for Tinker to be retried.
Judgment delivered by the Honourable Mr. Justice Evans, JA:
. In November 2017, the intended appellants' trial commenced before the Supreme Court, during which time the intended appellants were arraigned on the following offences:
a. Murder contrary to section 290(2)(c) and section 291(1) (a) of the Penal Code, Chapter 84
Particulars: That you, Makaveli Tinker, Johnny Mackey and Armando Sargent on Wednesday, 11th November, 2015 at New Providence, being concerned together, did murder Joyelle McIntosh.
b. Attempted murder contrary to section 292 of the Penal Code, Chapter 84
Particulars: That you, Makaveli Tinker, Johnny Mackey and Armando Sargent on Wednesday, 11th “November, 2015 at New Providence being concerned together did attempt to murder Trent McIntosh Jr.
c. Conspiracy to commit armed robbery contrary to sections 89(1) and 339(2) of the Penal Code, Chapter 84
Particulars: That you, Makaveli Tinker, Johnny Mackey and Armando Sargent on or about Wednesday, 11th
November, 2015 at New Providence, being concerned together did conspire to commit armed robbery.
d. Attempted armed robbery contrary to sections 83(2) and 339(2) of the Penal Code, Chapter 84
Particulars: That you, Makaveli Tinker, Johnny Mackey and Armando Sargent on Wednesday, 11th November, 2015 attempted to rob Joyelle Mclntosh of her personal property.
. On 12 December 2017, the jury found the intended appellant Sargent guilty of the following offences: manslaughter; conspiracy to commit armed robbery and attempted armed robbery. The learned trial judge, after hearing arguments, did not accept the verdict of attempted murder and ruled that it was inconsistent with the verdict on count one where Sargent was convicted of manslaughter.
. On 10 May 2018, he was sentenced to 18 years imprisonment for the manslaughter, 10 years imprisonment for the conspiracy to commit armed robbery and 13 years imprisonment for the attempted armed robbery, to run concurrently from the date of conviction.
. On 12 December 2017, the jury found the intended appellant Mackey guilty of the following offences: murder, attempted murder, conspiracy to commit armed robbery and attempted armed robbery.
. On 10 May 2018 he was sentenced to imprisonment for life on the murder count; 23 years imprisonment for the attempted murder count; 10 years imprisonment for conspiracy to commit armed robbery and; 13 years imprisonment for the attempted armed robbery, to run concurrently from the date of conviction.
. On 12 December 2017 the intended appellant Tinker was convicted of all of the offences charged and on 10 May 2018, following the preparation of a Probation Report, Tinker was sentenced to detention at the Court's pleasure at the Bahamas Department of Corrections on the murder count; 23 years' imprisonment on the attempted murder count; 10 years' imprisonment on the conspiracy to commit armed robbery count and 13 years' imprisonment on the attempted armed robbery count, all terms to run concurrently from the date of conviction.
. The convicted men all filed Notices seeking an extension of time within which to file appeals against their convictions. In Mackey's case he also appealed against his life sentence. The Attorney General filed cross appeals against the sentences imposed on both Sargent and Mackey. The Notices were not filed at the same time, but we determined to hear those applications together as a matter of convenience. Those hearings took place over a number of days and on 1 October 2021 we reserved our decisions and promised to provide written judgments as soon as practicable. This we do now. However, we have also determined that it is also convenient to combine our decisions on the various applications into one judgement and this we have also done. The Attorney-General's appeal against the sentences of Mackey and Sargent was adjourned sine die to await the outcome of their extension of time applications.
. Evidence was led from the Crown which indicated that on 11 November 2015, at about 8pm, Joyelle McIntosh...
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