Deiondre Demeritte v R
| Jurisdiction | Bahamas |
| Judge | Madam Justice Crane-Scott, JA |
| Judgment Date | 21 April 2021 |
| Neutral Citation | BS 2021 CA 56 |
| Docket Number | SCCrApp. No. 159 of 2018 |
| Court | Court of Appeal (Bahamas) |
IN THE COURT OF APPEAL
The Honourable Mr. Justice Isaacs, JA
The Honourable Madam Justice Crane-Scott, JA
The Honourable Mr. Justice Jones, JA
SCCrApp. No. 159 of 2018
Ms. Brendalee Rae for the Appellant
Ms. Abigail Farrington for the Respondent
Attorney-General v. Joseph Foulkes SCCrApp. & CAIS No. 8 of 2020; mentioned
Blake v. R [2017] 91 WIR 463; mentioned
Capron v. R SCCrApp & CAIS No. 13 of 2011; mentioned
Director of Public Prosecutions v. Selena Varlack [2008] UKPC 56; considered
Durad Munroe v. Attorney-General [2013] 2 BHS J. No. 95; mentioned
Grieves and others v. R [2011] UKPC 39; applied
McGreevy v. DPP [1973] 1 All ER 503; applied
R v. Barker (1977) 65 Cr. App R 282; applied
R v. Galbraith [1981] 2 All ER1060; considered
The Queen v. Jahnoy Walters ECSC High Court Case No. 5 of 2009; mentioned
Whyte and others v. R (2017) 91 WIR 403; mentioned
Criminal Appeal — Whether judge erred in rejecting no-case submission — Whether judge's directions on inconsistencies and discrepancies were inadequate — Whether verdict unsupported by the evidence — Circumstantial evidence — Whether judge erred in admitting witness statement of the virtual complainant who could not be found — Section 66 Evidence Act — Whether verdict — unsafe or unsatisfactory — Proviso to section 13(1) of the Court of Appeal Act.
The appellant was convicted of one count of murder contrary and two counts of attempted murder contrary to sections 291(1)(b) and 292 respectively of the Penal Code. He was subsequently sentenced to 58 years for murder and to 28 years for each count of attempted murder, the sentences to run concurrently from the date of his conviction.
In Re-Amended Grounds of Appeal the appellant alleged, inter alia, that the judge's decision to reject the appellant's no-case submission was erroneous (ground 1(a)); that the judge's directions on inconsistencies and discrepancies was inadequate (ground 1(b)); and that the jury's verdicts were unsafe or unsatisfactory (ground 3).
After hearing the respective submissions, the Court reserved its decision.
Held: Appeal allowed, the appellant's convictions for murder and attempted murder are quashed together with the sentences which were imposed. We will hear the parties on the issue of whether this is an appropriate case to order a retrial.
Dismissing ground 1(a), the case fell squarely within limb 2(b) of Galbraith. The task of resolving what to make of any inconsistencies and discrepancies which have arisen on the evidence is an integral part of the jury function. The learned judge in this case was correct to reject the no-case submission. Whether inconsistencies and discrepancies in the evidence are so material that they cause the jury to question the reliability of the evidence, is a matter which falls squarely within the province of the jury, not the judge.
Allowing ground 1(b), while the jury were given the customary directions on the various matters which might affect the testimony of witnesses, they were not given the usual direction as to what the judge meant by an inconsistency or a discrepancy; nor were they told that it is not unusual to find inconsistencies or discrepancies in the evidence and that they may arise for any number of reasons and that they may not necessarily mean that a witness is lying.
In order to assist the jury how to identify inconsistencies and discrepancies in the evidence, the general direction should attempt to explain what both terms actually mean. It is usual for juries to be instructed on the one hand, that an inconsistency in the evidence may arise where the evidence given by a witness from the witness stand differs from or is in direct conflict with what that witness may have said on a previous occasion, for example in a witness statement previously given to police, or in what he had said earlier from the witness stand. Juries are also told that a discrepancy on the other hand, can arise where the evidence of two or more witnesses conflicts with each other in relation to one or more aspects of the case
It is evident that the judge's directions were deficient in that not only were both terms used interchangeably by the judge himself, but neither term was properly explained, and ultimately, the jury was left with little guidance as to how they would begin their task of identifying an inconsistency or a discrepancy in the evidence if such had indeed arisen.
Furthermore, it is no part of the general direction on inconsistencies and discrepancies for a jury to be told (as the judge did) that if they have found an inconsistency “that is so grave and strikes at the root of what that witness has said” that they ought to “put the evidence of that witness aside and place no reliance upon it.”
It is certainly no part of the general direction on inconsistencies and discrepancies for a jury to be instructed that if as between two witnesses, what one witness has said caused then to doubt what another witness has said, “then you set aside that evidence that you have doubts in respect of”. Such an instruction would clearly be erroneous in law because it is not for the judge, but for the jury (as judges of the true facts in a criminal case) to determine for themselves what they make of any inconsistencies or discrepancies they find to have arisen, and to decide what evidence they reject or accept as true. To the extent that the judge's direction erroneously infringed that basic principle, it was a misdirection and wrong in law.
Allowing (ground 3), given the many material inconsistencies and discrepancies which arose on the evidence and given the misdirections of law and inadequacies in the judge's summing-up which we have highlighted, we have serious reservations about the safety of the jury's verdicts which we find to be unsafe and unsatisfactory.
Judgment delivered by The Honourable
The appellant was convicted on 13 April, 2018 of one count of murder and two counts of attempted murder contrary to sections 291(1)(b) and 292 respectively of the Penal Code, Ch. 84. On 12 July, 2018 he was sentenced to 58 years for murder and concurrently to 28 years for each count of attempted murder, the sentences all running from the date of his conviction.
On 17 July, 2018, within days of being sentenced, the appellant filed a Criminal Appeal Form No. 1 against his conviction. He identified the following reasons why his conviction should be quashed:
“The evidence does not support the convictions.
The court exercised its discretion wrongly in deciding the no-case submission.
The directions to the jury on inconsistent statement (sic) was weak and inadequate; the jury was not properly directed.
The summing up to the jury was imbalanced in favour of the prosecution.
The video-link application was wrongly decided and was faulty in court.
Any other ground that becomes apparent after the transcripts have been provided.”
After numerous adjournments during 2019, largely due to the unavailability of the trial transcripts and a change in the appellant's legal representation, he was assigned legal representation once again at the Crown's expense.
An Amended Notice of Appeal was filed on 28 January, 2020 purporting to add 4 new grounds of appeal. As we indicated to counsel for the appellant as far back as 3 March, 2020, the Amended Notice was very unsatisfactory. It failed to incorporate the initial un-numbered grounds which the appellant had filed and purported to add 4 new grounds beginning with ground 5 and ending with ground 8. Under each new ground the Amended Notice included numerous sub-paragraphs referencing pages of the transcripts, textbooks and case law authorities, more appropriate to submissions than to the proper articulation of a ground of appeal. Finally, the Notice failed to clearly differentiate the original grounds filed by the appellant from the new.
On 4 December, 2020, the appellant filed a Re-Amended Notice of Appeal abandoning many of the grounds in the earlier Notices, and setting out his revised complaints in the following terms:
“The verdict was unreasonable, unsustainable and could not be supported having regard to the evidence and under all the circumstances of the case the verdict was unsafe or unsatisfactory.
Ground 1 — That the verdict could not be supported having regard to the evidence.
a. The court exercised its discretion wrongly in dealing with the no case submission.
b. The jury direction to the jury on inconsistent statements was weak and inadequate and the jury was not properly directed.
c. There is no evidence to support the conviction of the attempted murder of Ashantia Smith. The jury ought to have been directed to give a not guilty verdict with respect to that count.
Ground 2 — That some specific irregularity or illegality substantially affecting the merits of the case was committed in the course of the trial.
a. The Court erred in law in exercising its discretion to admit the statement of Ashantia Smith pursuant to section 66 of the Evidence Act (the Act).
Ground 3 .
a. That under all the circumstances of the case, the verdict is unsafe or unsatisfactory.
Ground 4 .
a. That the sentence is unduly severe and excessive.”
Before considering the grounds, we set out by way of background, the respective cases for the Prosecution and the Defense at the trial.
The Prosecution's case was that sometime after 2.00 am on 9 th April, 2016, the virtual complainant, Grenville Thompson (Grenville) was in the company of his cousin, Calvin Thompson (the deceased) inside the “Big Game Club”. According to Grenville, the deceased went up to the bar and started talking to a lady friend, he knew as Ashantia Smith. Grenville then went to the restroom of the club; and...
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