Aubrey Carlston Darling v R
| Jurisdiction | Bahamas |
| Judge | Mr. Justice Evans, JA |
| Judgment Date | 15 January 2019 |
| Neutral Citation | BS 2019 CA 007 |
| Docket Number | SCCrApp & CAIS No. 155 of 2017 |
| Court | Court of Appeal (Bahamas) |
| Date | 15 January 2019 |
IN THE COURT OF APPEAL
The Honorable Sir Hartman Longley, P
The Honorable Sir Michael Barnett, JA (Actg.)
The Honorable Mr. Justice Evans, JA (Actg.)
SCCrApp & CAIS No. 155 of 2017
Mrs. Romona Farquharson-Seymour with Mr. Calvin Seymour Counsel for the Appellant
Mr. Algernon Allen, Jr, Counsel for the Respondent
R v Oliva [1965] 3 ALL E.R 166
R v Woodhead (1847) 2 Car & D 520
Mario Delancy v The Attorney General SCCrim App No.19 of 2012
Garvin Pratt v Regina SCCrApp. No. 41 of 2016
Adel Muhamned El Dabbah v A-G for Palestine [1944] 2 All ER P 144
Beckford v R [1987] 3 ALL ER 426
R v Lucas [1981] 2 ALL ER 1008
Donna Vasyli v Regina SCCrApp. No. 255 of 2015
Criminal appeal — witness giving evidence at Preliminary Inquiry not called as witness at trial-Proper Direction for Self Defense — Manslaughter — Duty of the trial judge to give Good Character and Lucas Directions — Whether the verdict is unreasonable and not supported by the evidence.
The deceased, Aschol Deno Rolle, was shot and killed by the appellant, Aubrey Carlston Darling, who at the time was an on duty police officer patrolling around the Bimini Breeze Bar a.k.a. Yama's Bar in South Bimini on the 22 December, 2007. While on patrol, the appellant dressed in uniform was accompanied by Police Constable Desmond Turner dressed in plain clothing. They encountered the deceased, who appeared inebriated and was shouting expletives.
The appellant attempted question and then arrest the deceased. The deceased pulled out a pocket knife and a struggle ensued amongst the three men, the deceased, the appellant and Turner. Sometime during the struggle, the appellant pulled out his service firearm and shot the deceased in the head. The deceased was taken to the local clinic where he was pronounced dead. The appellant was convicted of Manslaughter contrary to section 293 of the Penal Code, Chapter 84, and sentenced to ten (10) years imprisonment. He appealed his conviction alleging that he was prejudiced by the absence of a witness for the Crown and the failure of the Trial Judge to give a proper direction on self defence. Further that the Learned Judge failed to give good character and Lucas directions.
Held: Appeal dismissed; conviction and sentence affirmed.
In reviewing the relevant authorities and the facts of this case we cannot say that the Learned Judge failed to properly remedy the absence of a Crown Witness.
It was open to the appellant to call the witness and the evidence indicates that the Court provided assistance by way of subpoena and was prepared to permit evidence by video link. There is indication that the authorities were not as helpful in serving the subpoena as they could have been. However, rather than seek further assistance from the Court in this regard the appellant's Counsel elected to close his case without pursuing the matter further.
In our view, Counsel for the appellant in the Court below must bear the responsibility for his own actions. The fact that the witness PC Turner was not on the indictment should have told him that the Crown did not intend to call him as a witness. As there is no property in witnesses there was no reason why arrangements could not have been commenced by the appellant on a timelier basis to secure the attendance of PC Turner. There was no further request for a further adjournment or any further assistance.
We have reviewed the direction of the Learned Judge as contained in the transcript at pages 370 to 372 and can find no fault with the same. She clearly directed the jury that they must consider whether the appellant held an honest belief that his actions were necessary. Further, she directed that if they were satisfied that he held such honest belief, then taking the circumstances as he honestly believed them to be, was his response reasonable? This is consistent with the law and is in no way can it be considered a misdirection.
This was a case where neither a good character nor a Lucas Direction was required.
Judgment delivered by The Honourable Mr. Justice Evans, JA (Actg.):
. On the 8 th February, 2017 the appellant was convicted of the offence of Manslaughter contrary to section 293 of the Penal Code, Chapter 84, before Madam Justice Estelle Gray-Evans. The Learned Judge sentenced him to ten (10) years imprisonment on the 13 th July, 2017.
. The appellant on the 25 th July, 2017 filed a Notice of Appeal against his conviction and on the 3 rd September, 2018 he filed an Amended Notice which contained the following grounds:-
“1. That the Learned Trial Judge erred in fact and law when she failed to properly remedy the absence of a Crown Witness.
2. That the Learned Trial Judge erred in fact and law when she failed to properly direct the jury on the issue of selfdefence.
3. That the Learned Judge erred in law when she failed to give the Defendant adequate time and facility to present its case.
4. That Defence Counsel erred by neglecting to lead evidence of the appellant's good character which resulted in an unsafe conviction.
5. The Learned Trial Judge erred in fact and law when she failed to direct the jury how to treat the appellant's testimony if they found him to be telling lies.”
. The facts in brief was that on the 22 nd December, 2007 the appellant who was at the time an officer of the Royal Bahamas Police Force, was on patrol together with Police Constable Desmond Turner (“PC Turner”). While on patrol they came across the deceased, who was intoxicated and loud using obscenities. The appellant who was in a marked police vehicle and in uniform attempted to arrest the deceased for disorderly behavior, however, the deceased resisted and pulled a knife from his pocket. That after the appellant and PC Turner attempted to arrest the deceased he engaged them in a violent struggle. It was during this struggle that the deceased was shot. However, the accounts of the circumstances of the shooting differed between the Prosecution and the Defence.
. There were five (5) key Prosecution witnesses that gave evidence at the trial which commenced on the 1 st February, 2017 in Freeport Grand Bahama. Those witnesses were Jonathan Bowleg, Percy Duncombe, Romeris Stuart, Brunette Rolle and Ellsworth Robins.
. Bowleg did not actually see the shooting but was present when the appellant first attempted to arrest the deceased. According to Bowleg, after the appellant told the deceased he was under arrest, the appellant grabbed the deceased by his hand and his throat and wrapped his foot behind the deceased's feet. PC Turner attempted to assist the appellant to subdue the deceased. Bowleg further testified that the appellant attempted to handcuff the deceased but the deceased got his hand loose and put his hand in his pocket and took out an object but he could not see if it was a knife. Bowleg said that when he left the scuffle was continuing.
. Duncombe's evidence was that he actually witnessed the shooting. His evidence was that he saw the appellant and PC Turner scuffling with the deceased and they ended up scuffling inside the bar and fell to the floor in the corner of the bar. Duncombe said that he got involved in the scuffle by holding the deceased to calm him down. He said while they were all on the ground he heard PC Turner asking for the handcuffs and he (Duncombe) tried to reach the handcuffs.
. Duncombe further testified that he saw the deceased with a pocket knife which was closed. On seeing the knife, he took it from the deceased who was still on the floor. He said he was in the process of getting up from the deceased who had ceased struggling when he heard a shot. On hearing the shot, he looked around and saw the appellant with a gun in his hand. Duncombe's evidence was that he told the appellant “ Man, why you do that, you didn't have to do that”.
. Stuart's version of the incident was that he saw when the appellant grabbed the deceased and tried to handcuff him and they started tussling. They ended up on the floor outside the bar and then the scuffle continued inside the bar. He testified that there was an unsuccessful attempt to get the handcuffs on the deceased. According to Stuart, they scuffled for a few more seconds until the deceased fell over a chair and was on the ground and it was then he observed the appellant shoot the deceased in the face. He then heard the appellant say “ Lord what I do?” three (3) times.
. According to Robbins, the appellant told the deceased that he was under arrest. He then saw the two officers approach the deceased who pulled a knife out of his back pocket. The appellant continued his approach, holding some handcuffs and a scuffle ensued and the handcuffs were knocked to the floor. He said that the deceased, PC Turner and the appellant all fell to the ground. He further said that Percy Duncombe entered the bar and then he heard Duncombe say “I gat the knife”. He (Robbins) then got the cuffs and when he turned he saw that PC Turner was getting up. He gave the handcuffs to the appellant and grabbed the deceased by the belt to help him get up. He said that while he was helping the deceased up he observed the appellant drop the handcuffs and shoot the deceased in the face. He then asked the appellant “man why you shoot him?”. Robbins during cross-examination denied seeing the deceased spring up with a knife in his hand nor did he see him swipe at the appellant using a knife.
. Ms. Rolle's evidence was that when she observed the struggle she saw PC Turner and the appellant on top of the deceased. She talked to the deceased and he replied “I ain't do them nothing, I ain't going nowhere.” She heard the appellant say the deceased had a knife and she...
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