Bernard Knowles JR v The Director of Public Prosecutions

JurisdictionBahamas
CourtCourt of Appeal (Bahamas)
JudgeSir Michael Barnett, P
Judgment Date30 May 2022
Neutral CitationBS 2022 CA 78
Docket NumberSCCrApp No. 97 of 2021
BETWEEN
Bernard Knowles JR
Appellant
and
The Director of Public Prosecutions
Respondent
BEFORE:

The Honourable Sir Michael Barnett, P

The Honourable Madam Justice Crane-Scott, JA

The Honourable Mr. Justice Jones, JA

SCCrApp No. 97 of 2021

COMMONWEALTH OF THE BAHAMAS

Criminal Appeal — Appeal against conviction- Appeal against sentence — Lucas Direction — Dismissing the Jury

Held: Appeal is dismissed. The conviction and sentence are affirmed.

It is for the judge to consider whether to give a direction if on the evidence the judge considered that there was a real risk that the jury may consider the lies as evidence of the accused guilt.

The judge in her direction to the jury in this case, did not suggest that the prosecution was relying on the lies or the inconsistencies as evidence of guilt. They were simply matters that affected the credibility of the evidence of the appellant. In the circumstances of this, whilst a Lucas direction may have been given out of abundant caution, a Lucas Direction was not necessary. Moreover, the failure to give one did not make the verdict unsafe. There was ample evidence to support the conviction of receiving stolen property.

Whether to discharge a juror or an entire panel is within the discretion of the trial judge. It is also settled law that an appellate court cannot interfere with the judgment of the trial judge on an issue such as the discharge of a juror unless it concludes that the decision was outside the range of reasonable response to the issue which the judge was facing.

It is clear from the judge's ruling that she was satisfied that the juror had not discussed the case with other members of the jury and that any knowledge that juror had of the police witnesses was not communicated to the other members of the panel. Jury deliberations had not yet started and it would have been unreasonable to discharge the entire jury on the basis that they may have been infected with that jurors knowledge when there juror made it clear that she had no discussed the case with her colleagues on the jury panel. There is simply no basis for finding that the verdict is unsafe because the entire jury panel was not discharged.

A four years sentence for receiving is consistent with other sentences that Court of Appeal has imposed. In the circumstances, this court could not interfere with the four years sentence imposed by the judge on the ground that it is unduly severe. It is within the range of reasonableness.

Christopher McQueen And Director Of Public Prosecutions SCCrApp. No. 18 of 2021 considered

Indrick Tilme v Director of Public Prosecutions SCCrApp No 50 of 2015 considered

Julian Stuart v R SCCrApp. No 223 and 267 of 2016 considered

R v Barnett (Richard) [2002] EWCA Crim 454 considered

R v Gynane [2020] EWCA Crim 1348 considered

R v LS [2009] EWCA Crim 104 considered

R v Murray [2016] 4 W.L.R 142 considered

R v Newry [2002] BHS J. No. 25 mentioned

The People v Hegerty [2013] IECCA 66 considered

On the 7 March 2019, a black 2018 Honda CRV belonging to Pamela Rolle was stolen. On 12 March 2019 the appellant, Bernard Knowles Jr., was arrested. The appellant was charged with the armed robbery, contrary to section 339(2) of the Penal Code, Chapter 84 in that, while being armed with a firearm, he robbed Pamela Rolle of her black Honda CRV, an Apple iPhone, a handbag containing $350.00 in cash and other personal items. In the alternative, he was charged with receiving contrary to section 358 of the Penal Code, Chapter 84 in receiving the black Honda CRV belonging to Pamela Rolle. In December 2020, the appellant was acquitted of the offence of armed robbery and was convicted of the offence of receiving. On 20 July, 2021 the appellant was sentenced to a term of imprisonment of 4 years and a probation period of one year following his release. He now appeals his conviction and sentence.

APPEARANCES:

Mr. David Cash, Counsel for the Appellant

Mr. Terry Archer, Counsel for the Respondent

Judgment delivered by The Hon. Sir Michael Barnett, P
1

This is an appeal by Bernard Knowles against his conviction for receiving stolen goods and against his sentence of four years imprisonment.

Facts
2

On the 12 March, 2019 a black Honda CRV vehicle was found at the premises off Carmichael Road. The vehicle had no license plate and no disc attached to it. The vehicle was parked in the rear of a home near the wall of the house.

3

The vehicle belonged to Pamela Rolle who reported that it had been stolen from her on the 7 March, 2019.

4

The appellant was first arrested around 12:34 pm on the 12 March, 2019. He was arrested on Williams Drive, off Cowpen Road. At the time of his arrest he told Officer Farrington that he lived on Hospital Lane. He was taken to the Carmichael police station. About an hour later he was taken to the premises off Carmichael Road where a search was conducted pursuant to a search warrant. The vehicle was found. When asked about the vehicle the appellant told the police officer that he was keeping the vehicle for his friend Sheron and that he did not know where Sheron got it from.

5

The following day he was interviewed by the police and a Record of the Interview was made.

6

In the record of interview he told the police that he was keeping the vehicle for a person called Leon who was a friend of a friend. Leon brought it there on the Saturday night which was the 12 th of March, a few days after the vehicle was stolen. He said that Leon put the car there to keep as a surprise for Leon's wife.

7

The appellant was charged with armed robbery and an alternative count of receiving.

8

His trial commenced and evidence was taken from Pamela Rolle and the police officers who arrested and interviewed him. The appellant testified and was cross examined on his statements to the police both on his arrest, when the vehicle was found and at his interview at the police station. His mother also gave evidence on his behalf.

9

After a trial he was acquitted of the armed robbery offence but convicted of the offence of receiving stolen property. He was sentenced to four years imprisonment to be followed by one year in probation.

10

The appellant appeals his conviction and sentence.

11

The appellant challenges the safety of his conviction on two grounds. They are (i) that the trial judge erred in failing to give a direction on lies; and (ii) that the judge erred in not dismissing the jury when it was discovered after all the evidence was heard that a member of the jury worked with the police as a civilian worker in the Criminal Records Office, University Drive.

12

I will deal with each in turn.

Direction on Lies
13

The appellant's case is that the prosecution relied upon the lies or contradictory statements told by the appellant to the police as to his residence when he was arrested and as to how he came into possession of the vehicle during his interviews. The appellant submitted that the prosecution was relying on these “lies” to prove that the appellant was guilty of the offences charged.

14

Counsel for the appellant submitted:

“in a circumstance such as the above where the only defense available to the defendant required him to provide a satisfactory explanation the question of the credibility of the defendant was paramount. It was apparent that in this case there was real danger that the jury may infer his lies as evidence of guilt”

15

This was an ambitious ground.

16

It is clear that the judge was sensitive to the issue as to whether or not it was necessary or appropriate to give the jury a direction on lies. After the evidence had been taken and before the closing addresses and her direction to the jury, the judge specifically asked counsel for both the appellant and the Crown whether a Lucas direction was necessary.

17

This is found in the following exchange between the court and counsel:

“THE COURT: Any law that you think that we should rely upon? A lot was made of Sheron and Leon. Did that move us toward a Lucas Direction.

MR. FERGUSON: Possibly, my Lady. My Lady, I say no.

THE COURT: As a judge you err if Lucas arises and you don't give it but you are also wrong if it doesn't arise and you give it. So what is your view on that?

MR. FERGUSON: My Lady, I would say that he was consistent with his information from the start, from the Record of Interview straight up to the point when he gave his evidence.

THE COURT: Is there any inconsistency in what he told the arresting officer and what he told the investigating officer?

MR. FERGUSON: No, my Lady. The prosecutor made a big deal about the Hospital Lane issue, my Lady. But, my Lady, you know that is factual. But that's the point I think Mr. Archer, the prosecution, made a fuss about. But, my Lady, I see no issue with it. I say he was consistent with it.

THE COURT: Thank you. Mr. Archer.

MR. ARCHER: I wouldn't say consistent. I would say there was a lot of omissions, misleading.

THE COURT: So the point of a Lucas?

MR. ARCHER: I wouldn't take it to the point of a Lucas because with the Lucas there must be lies, the lies must be proven and the prosecution must rely on the lies.

18. So, it was the position of both the appellant's counsel and that of the prosecution that a Lucas direction on lies was not necessary. The judge did not give one. All the judge said to the jury was:

Consider also, too, the ability of the witness to recall what he or she observed some months later as in this case, when he or she comes to give evidence. And you will remember particularly in relation to the defendant, how he came and give evidence, he was attacked as to what he told the police, why he did not include certain things in relation to what he told the police, and he says that while he recall those things, he may just have failed to recollect them at the relevant time and to say them to the police officer. The offence occurred last year...

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