Dean v R

• Jurisdiction: Bahamas
• Judge: Sawyer, P.
• Judgment Date: 25 June 2009
• Neutral Citation: BS 2009 CA 41
• Docket Number: SC Criminal Appeal No. 7 of 2008; CAIS No. 46 of 2008
• Court: Court of Appeal (Bahamas)
• Date: 25 June 2009

Court of Appeal

Sawyer, P.; Osadebay, J.A.; Blackman, J.A.

SC Criminal Appeal No. 7 of 2008; CAIS No. 46 of 2008

Dean

and

R.

Appearances:

Mr. Murrio Ducille for the appellant.

Mr Franklyn Williams for the respondent on 15 and 29 December, Mr B Turner, Director of Public Prosecutions, Mr Crispin Rolle with him for the respondent on 12 March, 2009.

Evidence - Admissibility — Dying declaration.

Sawyer, P.

1 Around 10.57 a.m. on 26 June, 2003, an incident occurred in the area of South Beach, New Providence in which a young man nicknamed “Scalpy” was alleged to have pointed a gun at Geren Kelly but the clip containing the bullets dropped from the gun and Geren Kelly ran off. Sometime after 7.00 p.m. on the same day, a second incident occurred, this time in the Carmichael Road area. In that incident, Geren Kelly was shot; he died later the same evening at the Princess Margaret Hospital.

2 After he was shot, Geren Kelly was taken to the Carmichael Road Police Station where Geren Kelly's brother, Corporal 2001 Jason Kelly (hereafter “Cpl. Kelly”) was stationed, by a man called “Mickey”.

3 At the station, Geren Kelly told his brother, “Jason, Scalpy just shoot me.” Corporal Kelly said that he noticed blood was on Geren's shirt, his arm and his neck. According to Corporal Kelly, Geren had been brought into the station by Cordell and Mickey who were holding him up as he could not hold himself up; none of the other witnesses who were at the station that night mentioned seeing anyone by the name of Cordell. Corporal Kelly also stated; “They laid him into the chair, I said to him, ‘Geren, you are going to be all right, relax.”

4 Mr Ducille objected that all that evidence was hearsay. The learned judge nevertheless allowed that evidence to be given

5 Corporal Kelly was invited to continue giving his evidence by the prosecutor. He then said: “After that, he say, ‘Man, Jason man, Scalpy shoot me.’ I said, ‘Who Scalpy?’ He said ‘Scalpy shoot me and Mario was the driver in the Sentra or Nissan’. I then enquired for Mario.”

6 Mr Ducille again objected and the learned judge agreed with Mr Ducille's objection and said that the evidence could not be allowed.

7 Corporal Kelly estimated that Geren Kelly remained at the Carmichael Road Police Station approximately 20 minutes before an ambulance came there and transported him to the Princess Margaret Hospital where he later died.

8 Corporal Kelly also stated that while Geren Kelly was still at the station, he kept saying “Jason, this is it” — see page 17 of the transcript. At page 19 of the transcript, Corporal Kelly added that Geren Kelly had told “Michael and… Cordell” he love them and thanked them for bringing him to the station; no other witness mentioned any such statement having been made by Geren Kelly while at the station. When counsel for the prosecution tried to question Corporal Kelly further in relation to “Scalpy” Mr Ducille objected and the learned trial judge agreed with Mr Ducille and therefore did not allow the question to be asked. That was on 27 November, 2007.

9 On 28 November, 2007, following further legal argument, the learned judge, no doubt acting in accordance with section 146 of the Evidence Act, (Ch. 65) allowed Corporal Kelly to be recalled having noted Mr Ducille's objection to that course. Section 146 of the Evidence Act, (Ch. 65) provides that the “court may in all cases permit a witness to be re-called, either for further examination in chief or for further cross-examination, and if it does so, the parties have the right to further cross-examination and re-examination respectively.”

10 The prosecutor then asked Corporal Kelly –

“Q. Now your answer to me was yes, sir, at the time. What did he say about Scalpy at that time in the police station?”

And Corporal Kelly replied –

“A. He said, ‘Jason, this is the same Scalpy that tried to shoot at me earlier in South Beach, Scalpy from Sunshine Park.’“

11 Mr Ducille also objected to Woman Detective Constable Victoria Dames giving evidence about what Geren Kelly had said while at the Carmichael Police Station, Constable Dames testified that sometime after 7.45 p.m., on 26 June, 2003, while she was on duty at the Carmichael Police Station, two dark males entered the station; one was dressed in a black, long pants with a dark coloured shirt with blood on it, coming from the chest area. The other male gave his name as Michael Collie.

12 Constable Dames said that she heard the man who was bleeding say, “Man, Officer, I know who shoot me.” He said, “Scalpy from Sunshine Park shot me.” Constable Dames continued: “He said again, ‘Man Officer’, (twice) ‘I know who shoot me.’ He also said that ‘Mario was driving a gray Sentra or Sunny, when Scalpy came out of the same vehicle and shot me.’” Constable Dames said that she then asked him why Scalpy shoot him — this man tried to shoot him and he replied, ‘Me and this man have a case in court together.’ There is no evidence on the record that any investigation was carried out to see whether there was in fact any kind of case (civil or criminal) between Geren and the appellant so as to confirm the accuracy of Geren's identification of the appellant as the person who shot him. Mr Ducille therefore submits that this case is distinguishable from the case of Nembhard v. The Queen [1981] 1 W.L.R. 1515 which was also one of a dying declaration by a police officer to his wife shortly after he was shot at his gate. In that case, the police officer told his wife; “I am going to die,” … “You are going to lose your husband. It is Neville Nembhard. Miss Nembhard's grandson that shot me and take my gun. Your husband did not do him anything. Just as I came through the gate and turned to lock the gate I saw him over me, and you husband could not help himself.” The deceased's wife was the only witness as to identity in that case and she explained that Neville Nembhard had lived for 10 years with his grandmother in a house across the street from her own house and was well known to her and her husband, as Neville Nembhard himself subsequently testified. Mr Ducille submits that this case is clearly distinguishable on its facts from Nembhard's case because in the latter, the police officer clearly identified his assailant as someone whom he knew and had known for ten or more years. Here, it is submitted, the deceased's assailant is identified by a nickname “Scalpy” and his residence as being Sunshine Park whereas the appellant used to live at St Vincent Road which is not part of Sunshine Park and there is no evidence to the effect that “Scalpy of Sunshine Park” is the same person as Vincent Dean of St Vincent Road. Now, it is a notorious fact that in The Bahamas, perhaps because of the small size of the population and coupled with the interconnectedness of families, many — if not most — persons are known by nicknames since many formal names are similar and nicknames are used to distinguish between persons with similar formal names. An identification of a person by a nickname from a particular subdivision or street would be sufficient for persons familiar with the culture of this country to decide whether they are satisfied so they feel sure that that was a reference to a particular person. In our judgment, the identification evidence in this case was not tenuous as was the evidence in Daley's case but is similar to the evidence in Nembhard's case.

13 The evidence of Michael Collie (who, apparently is the same person called “Mickey” by Corporal Kelly) was that on the evening of 26 June 2003, he saw Geren Kelly, whom he had known for about 18 years or so from about a block away when he went to take his children to his mother's house. He drove up to him and they had a brief conversation. Geren walked by his father's house and Michael Collie drove about a block and half away. As he was getting ready to make a u-turn, a dark coloured Sunny or Sentra passed by and Geren bent down to the car for a second or two, as if he knew the person. As Michael Collie made a u-turn on the corner, he heard shots fired; he looked in his rear view mirror and saw a medium built guy standing by a “black (perhaps that should be ‘back’) door”. As he turned around he saw Geren running past him so he drove through that corner but he didn't see Geren. As he was heading up towards Iguana Way, Geren Kelly was heading back through [the corner] so Michael Collie picked Geren up. As Michael Collie was turning right to go to the hospital, Geren touched him to “make a left by Carmichael Road Police Station”, he said his brother was down there,

14 Michael Collie estimated that they were at the Carmichael Police Station for approximately 5 to 8 minutes before the ambulance arrived. While they were waiting for the ambulance, he said that Geren was lying down on the couch in the station. It is not clear why this witness was not permitted to say what, if anything, he may have heard Geren say as he lay on the couch in the station since it appears that he was present at the same time when Corporal Kelly and Constable Dames were speaking with, and listening to, what Geren Kelly said as he lay on the couch in the police station. If the report of that conversation was admissible as an exception to the hearsay rule in respect of Cpl Kelly and Constable Dames, then it would equally have been admissible in respect of Mr Collie. Be that as it may, no argument was advanced in this court by either side about that so we say no more about it.

15 Detective Inspector Kimroy Ferguson testified that on the night of 3 October, 2005, he was present around 7.55 p.m., at the Central Detective Unit when he witnessed an interview being conducted by then Corporal 1298 Rahming with Vincent Dean, alias Scalpy, of Sunshine Park, in the presence of his then attorney, Tamara Taylor. The record of the trial does not indicate that there was any objection to the...