Black v R

• Jurisdiction: Bahamas
• Judge: Isaacs, JA
• Judgment Date: 24 July 2017
• Neutral Citation: BS 2017 CA 72
• Docket Number: SCCrApp No. 40 of 2014
• Court: Court of Appeal (Bahamas)
• Date: 24 July 2017

IN THE COURT OF APPEAL

Before:

The Honourable Dame Anita Allen, P

The Honourable Mr. Justice Isaacs, JA

The Honourable Ms. Justice Crane-Scott, JA

SCCrApp No. 40 of 2014

Between

Mikiko Black

Appellant

and

Regina

Respondent

APPEARANCES:

Mrs. Ramona Farquharson-Seymour, Counsel for the Appellant

Mr. Anthony Delaney with Ms. Destiny McKinney, Counsel for the Respondent

Artis v Regina; Flowers v Regina [2014] 1 BHS J. No. 119 applied

Bhola v The State of Trinidad and Tobago [2006] UKPC 9 considered

Cumberbatch v R (2004) 67 W.I.R. 48 considered

Dennis Lobban v The Queen [1995] 1 WLR 877 applied

Duffy v H.M. Advocate [2015] HCJAC 29; 2015 S.C.C.R. 205 considered

Edmund Gilbert v The Queen, PC Appeal No. 25 of 2005 considered

Ferguson v H.M. Advocate [2008] HCJAC 71; 2009 S.C.C.R. 78; 2009 S.L.T. 67 considered

Galbraith v R [1981] 1 W.L.R. 1039 applied

Hunter v The Queen [2003] UKPC 69 considered

Jagdeo Singh v The State of Trinidad and Tobago [2006] 1 WLR 146 considered

Kevano Musgrove et al v Comissioner of Police SCCrApp 140 of 2012 and 22 of 2014 followed

Kzeno Kemp v R SCCrApp No. 283 of 2014 followed

Lewis v The Attorney General SCCrApp No. 19 of 2014 considered

Nigel Brown v The State [2012] UKPC 2 applied

Patterson v Regina [2016] 2 BHS J. No. 45 applied

R v Coutts [2006] 1 WLR 2154 considered

R v Lucas [1981] Q.B. 720 applied

R v Marr (1989) 90 Cr App R 154 considered

Stafford v The State (Note) [1999] 1 WLR 2026 applied

Stubbs et al v R SCCRApp Nos. 203 and 280 of 2013 and 106 and 208 of 2014 followed

Teeluck v The State of Trinidad and Tobago [2005] UKPC 14 applied

The Attorney-General v Larry Raymond Jones SCCrApp Nos. 12, 18 and 19 of 2007 followed

Von Starck v The Queen [2000] 1 WLR 1270, 1275 considered

Criminal appeal - Manslaughter — Provocation — Adequate time for the preparation of defence — No case to answer submission — Good character direction — Failure of judge to leave accident as a possible verdict — Unsworn statement from the dock — Lies — Lucas direction — Whether sentence excessive and unreasonably harsh?

Criminal Law - Manslaughter — Sentence of 12 years imprisonment — Provocation — No case submission — Unsworn statement from dock — Appeal — Whether adequate time for preparation of defence — Whether failure of judge to give good character direction — Whether failure of judge to give Lucas direction — Whether failure of judge to leave accident as possible verdict — Whether sentence excessive — Appeal dismissed

The deceased and the appellant were husband and wife. Following an argument the deceased left the home but returned a short while later. Upon his return the appellant claimed that she and the deceased fought over his shotgun which resulted in the weapon discharging and fatally wounding the deceased. The appellant was charged with her husband's murder but found not guilty. However, she was found guilty for the lesser offence of manslaughter.

Held: appeal against conviction dismissed; sentence of twelve years' imprisonment affirmed.

Defence counsel requested two clear days to prepare, and to be in the best position to present the appellant's case, however, the judge granted counsel one day to prepare. While the desire for expedition in the completion of criminal trials is a commendable aim, it must not be accomplished at the expense of compromising an accused person's right to a fair trial which encompasses the right to be given adequate time to prepare for the trial. In the present case, however, notwithstanding the brief time allotted for preparation, defence counsel marshalled the appellant's case as best he could in view of the formidable evidence arrayed against the appellant in the Crown's case. The provision of an extra day or even a longer period of time would not have provided the appellant with any greater advantage such as to lead to a more favourable verdict.

Relative to the complaint that the trial judge erred in law by not upholding the appellant's no case submission, the evidence revealed that at the close of the Prosecution's case, there was ample material on which the Judge could ground her decision to call on the appellant to make a defence, namely, the wound track, the lapse of time before the appellant alerted persons about the incident, the presence of a knife in the deceased's hand and the demonstration given by the appellant as to how the shooting occurred. These were matters which were inconsistent with a spontaneous event. They suggested a scene which had been contrived to support a story of a struggle. The clear inference from the Prosecution's evidence is that the appellant shot the deceased from an angle above and slightly behind him.

The appellant complains that the Judge erred in not discharging the jury when defence counsel indicated in open court and in the jury's presence that he intended to make a no case to answer submission. The statement of counsel without more in the jury's presence did not rise to the level of a material irregularity sufficient to affect the fairness of the trial or prejudice the appellant's case.

With respect to the appellant's complaint that she was not allowed to make an unsworn statement from the dock, it is well established that the “right” to give an unsworn statement from the dock does not arise until an accused is given their election. In the present case, the appellant's trial commenced on 1 July 2013 and her election was put to her on 12 July 2013, well after the right to give an unsworn statement had been abolished in 2011. The appellant, therefore, had no “right” to give an unsworn statement from the dock.

As to a good character direction, the state of play in the appellant's case, to my mind, did raise the issue of her credibility. In the circumstances, therefore, there was a duty on the Judge to direct the jury on the appellant's good character both in terms of credibility and propensity. However, the failure of the Judge to direct the jury on good character does not inevitably lead to a successful appeal. In a case such as this, due to the sheer force of the evidence against the appellant a good character direction would not have affected the jury's verdict.

A judge must direct a jury on any defence reasonably arising from the evidence in a case even if it is not relied upon or raised by the defence. However, in this case, based on the evidence, there was no basis upon which the Judge could reasonably have left a defence of pure accident with the jury.

As to the appellant's complaint on the lack of a Lucas direction, the appellant intimated that she had no knowledge of how to operate a shotgun. The Crown, however, called a rebuttal witness to demonstrate to the jury that the appellant was possessed of a certain familiarity with the shotgun. By doing so it belied her assertion to the contrary; and by so doing, brought home to the jury that the appellant was lying to them because she feared the truth and wanted to avoid the consequences of her act. Notwithstanding the failure of the Judge to give a Lucas direction, a miscarriage of justice did not result due to the state of the Prosecution's evidence.

The average range of sentences for manslaughter are 18 – 25 years' imprisonment. Nevertheless, there may be cases where a sentencing judge goes below or above the range but it would be expected that cogent reasons for so doing would be provided by the judge. In this case, the Judge gave her indication for the sentence she imposed and the appellant has disclosed no reason for this Court to interfere with the sentence so imposed, nor have we detected any error in principle by the Judge in arriving at the sentence she imposed.

REASONS FOR DECISION

Isaacs, JA

Judgment delivered by the Honourable Mr. Justice

1 . The appellant was convicted of manslaughter by provocation by a jury on 17 January 2014, following a trial before Watkins, J (the Judge). She was sentenced to fourteen years' imprisonment, less the one year and five months she had spent on remand. On 27 February 2014, she filed her appeal in this Court. We heard the submissions of Counsel; and on 14 March 2017, for reasons which are expressed below, we dismissed the appeal.

Background

2 . The appellant and her husband, Leonardo Black, a Royal Bahamas Defence Force officer (the deceased), lived in a one bedroom rental apartment at Shrimp Road off Faith Avenue, New Providence from around 2007. The apartment was a part of a complex owned by Mr. Joseph Ferguson, a retired police officer and building contractor, and his wife.

3 . On 19 April 2010 around 4:30pm, the landlord, a Mr. Ferguson was at the complex to do some renovations to an apartment above the unit in which the Blacks' resided. He intended to rest before starting his task but was not able to do so because the appellant and her husband were having an argument loud enough for him to hear. It appeared to him that they were fighting too because he heard the appellant screaming, “You are hitting me and I am telling you the truth!” He heard the deceased saying, “I don't give a fuck because I really don't care”. This lasted about fifteen minutes. He then heard the deceased say, “Either you get the F out of here or I am going to get the F out of here”.

4 . Mr. Ferguson observed the deceased leave in his green vehicle only to return about five minutes later; and re-enter the complex. Mr. Ferguson heard the deceased ask where his gun was; and some two or three minutes later he heard a single gunshot. He estimated that he heard this sound between 5:00 pm and 5:30 pm. Mr. Ferguson went to lie down because everything got quiet after that. He did hear the appellant's voice speaking for about ten to fifteen minutes after the time he heard the shot.

5 . He got back up around twenty minutes later to the sound of the appellant screaming outside, “Nardo dead! Nardo dead!” He went downstairs and met the front door of...