Daniel Coakley v R

JurisdictionBahamas
CourtCourt of Appeal (Bahamas)
JudgeMr. Justice Isaacs, JA,Mr Justice Jones JA,Mr. Justice Evans, JA,The Honourable Mr. Justice Isaacs, JA,The Honourable Mr. Justice Jones, JA
Judgment Date25 April 2018
Neutral CitationBS 2018 CA 64
Date25 April 2018
Docket NumberSCCrApp. No. 15 of 2017

IN THE COURT OF APPEAL

Before:

The Honourable Mr. Justice Isaacs, JA

The Honourable Mr. Justice Jones, JA

The Honourable Mr. Justice Evans, JA (Actg.)

SCCrApp. No. 15 of 2017

Between
Daniel Coakley
Appellant
and
Regina
Respondent
APPEARANCES:

Mrs. Terrell Butler, Counsel for the Appellant

Ms. Darnell Dorsette with Mr. Patrick Sweeting, Counsel for the Respondent

DPP v Selena Varlack [2008] UKPC 56 applied

Questions of Law Reserved on Acquittal (No. 2 of 1993) (1993) 61 SASR 1, 5 mentioned

R v Galbraith [1981] 1 WLR 1039 applied

R v Jabber [2006] EWCA Crim 2694 considered

R v Exall (1866) 4 F & F 922 applied

The State v Khan (2012) 80 WIR 407 mentioned

The State v Mitchell (1984) 39 WIR 185 applied

R v Amado-Taylor [2000] 2 Cr App R 189 applied

R v Piazza (1997) 94 A Crim R 459 mentioned

R v. Marr (1989) 90 Cr App R 154 (CA) applied

Regina v Beck [1982] 1 All ER 807 considered

Criminal appeal - Kidnapping — Conspiracy to commit armed robbery — Attempted armed robbery — No case to answer submission — Circumstantial evidence — Unreliable witness

On the night of the 23 rd / morning of the 24 th November, 2013 Shane Gardiner (“Shane”) and Tishka Braynen were robbed, kidnapped and murdered in Andros. The prosecution's case was the appellant and his three co-accused, after learning that Shane had won some money, conspired to rob him of his winnings. The evidence led at trial came from two witnesses in the main: one was a co-conspirator that gave Crown evidence (“Terrell”) and the other was the girlfriend of one of the three co-accused (“Quetell”). Terrell's evidence was, in essence, that he was present when the plan to rob Shane was being hatched; he does not implicate the appellant. Further, Terrell recounted in his evidence that on the morning of the 24 th November, 2013, he was picked up by the men and realized that Shane and Tishka were in the jeep and that the men were armed with handguns. He recounted that they arrived at Newbold Farm, Fresh Creek, that they all exited the vehicle and it was at that time that one of the appellant's co-accused began asking Shane for money. Terrell said that Shane replied that he had no money and at that point one of the co-accused shot Shane; he then led Tishka a short distance away and shot her also.

Quetell's evidence on the other hand does implicate the appellant; she testified that the appellant was present when Shane's winnings was being discussed and that he went away with one of the co-accused and returned with another co-accused. Further, she testified that early in the morning of the 24 th November, 2013 she saw Terrell driving in Shane's jeep and the appellant following closely behind driving Tishka's sister's car. Tishka had borrowed the car on the 23 rd November, 2013 to go to Shane's house. Quetell further testified that as the vehicles drove by she heard a male and female screaming.

In the course of their investigations the police had arrested and questioned Quetell relative to the incident.

Following a trial before a judge and jury the appellant was convicted of two counts of kidnapping, conspiracy to commit armed robbery and attempted armed robbery. He was sentenced to 8 years', 10 years' and 15 years' imprisonment, respectively. He now appeals his convictions on the basis that the trial judge should have acceded to his no case to answer submissions and also that the verdict of the jury is unsupported by the evidence.

Held (Evans, JA (Actg.) dissenting): appeal dismissed; convictions and sentences affirmed.

per Isaacs, JA: The Crown's case is based on circumstantial evidence. Circumstantial evidence “is more likely the case of a rope composed of several cords. One strand of the cord might be insufficient to sustain the weight, but three stranded together may be quite of sufficient strength. Thus it may be in circumstantial evidence – there may be a combination of circumstances, no one of which would raise a reasonable conviction, or more than a mere suspicion; but the whole, taken together, may create a strong conclusion of guilt, that is, with as much certainty as human affairs can require or admit of”. The prosecution presented a strong circumstantial case against the appellant through their witnesses. The authorities do not denigrate circumstantial evidence as being worthless. Rather, they describe it as oftentimes being cogent evidence of an accused person's guilt.

The Crown's case against the appellant rose or fell on the evidence of Quetell. The matters disclosed on the Crown's case, if accepted, were capable of concluding the appellant's guilt beyond a reasonable doubt. At the close of the Crown's case, therefore, there was evidence which implicated the appellant in a plan to rob Shane and Tishka and strongly suggested he was present at Shane's house when the two persons were forcibly taken at gunpoint from the residence. Evidence of the appellant's presence at Shane's house was capable of being inferred from Tishka's relatives' evidence that she had gone to spend the night at Shane's house driving her sister's car on the 23 rd November, 2013 and by 4:00am or thereabouts, on Quetell's evidence, he was seen driving that car behind a jeep conveying, on Terrell's evidence, Shane and Tishka.

per Jones, JA: the case against the appellant was essentially based on circumstantial evidence and there is no distinction in principle between direct and circumstantial evidence in proving facts in a trial. All that is required is for the trial judge to give the jury appropriate directions.

In my view there is no evidential basis to support the view that the evidence of Quetell was unreliable or that she had an interest to serve by giving evidence against the appellant. Moreover, there was no evidence that she lied, made previous false complaints against the appellant, or that she bore any hostility to him.

per Evans, JA (Actg.): The learned judge in my view ought to have cautioned the jury that Quetell may have had an interest to serve when she gave information relative to the appellant's alleged involvement.

Regarding the conflict between Terrell's evidence and Quetell's evidence, where there is a significant dispute about material facts, the judge should succinctly identify the pieces of evidence in conflict, to focus the jury's attention on the issues they have to resolve.

There was no evidence that the appellant was ever at the scene where crime took place. There was no direct evidence that he knew what the plan was or that there was a plan. Quetell's evidence was uncorroborated and coming from an unreliable witness who possibly had an interest to serve; it had to be approached with caution and the jury ought to have been so advised. Finally, in my view the case for the appellant was not properly put to the jury by the trial judge and there is a serious concern relative to the whether they received proper directions as to how to assess the credibility of Quetell whose evidence was crucial. In these circumstances I have a lurking doubt as to the safety of their verdict.

Mr. Justice Isaacs, JA

Judgment delivered by the Honourable

1

. The appellant appeals his conviction by a jury of his peers in a trial before Madam Justice Indra Charles (“the judge”) for the offences of kidnapping, (two counts), contrary to section 282 of the Penal Code (“the PC”), conspiracy to commit armed robbery, contrary to sections 89(1) and section 339(2) of the PC and attempted armed robbery, contrary to section 339 of the PC. His appeal was filed on the 18 th January, 2017.

2

. The appellant was convicted on the 29 th March, 2016 on all counts and sentenced on the 17 th January 2017, to 8 years' imprisonment, on both counts of kidnapping, 10 years' imprisonment for the conspiracy to commit armed robbery and 15 years' imprisonment for the attempted armed robbery, all sentences to run concurrently. The sentences were reduced by 2 years and 4 months representing the time spent on remand. Therefore the appellant was required to serve 12 years and 8 months, commencing on the 29 th March, 2016.

Background Facts
3

. On the 24 th November, 2013, Tishka Braynen (“Tishka”) was at her boyfriend, Immigration Officer, Shane Gardiner's (“Shane”) home in Love Hill, Andros when they were both kidnapped and taken to Newbold Farm where they were both shot to death. Shane was buried in a shallow grave; and Tishka's body was dumped in a hole about six feet deep. It was not until about a month later that what remained of their bodies were discovered by two men, Anthony McKenzie and Eddie Green, who were out in the bush hunting hogs. Their bodies were so decomposed that their identification had to be accomplished by DNA testing of samples taken from them and samples of blood provided by their relatives.

4

. Suspicion fell immediately on the appellant and his co-accused: Zintworn Duncombe (“Zintworn”), James Johnson (“James”) and Cordero Saunders (“Cordero”) because on the very day Tishka and Shane went missing, Ms. Quetell Rahming (“Quetell”) reported to the Police she had seen the Immigration jeep usually driven by Shane, pass her early in the morning and being driven by Terell Mackey (“Terrell”). She also told of the appellant driving Tishka's sister's vehicle right behind the jeep. The appellant along with others were arrested by the Police. The appellant and his three co-accused were charged with multiple offences and taken before a magistrate; and in due course, a Voluntary Bill of Indictment was filed fast tracking the case to the Supreme Court.

5

. At the trial, the Crown called two key witnesses, one of whom was Terrell, a co-conspirator in the matter, but who gave evidence for the Crown. He testified that while in Fresh Creek, Andros, Zintworn, James, and Shawn Hinsey had planned to rob Shane and Tishka. Significantly, Terrell does not name the appellant as one...

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