Deon Burrows v The Commissioner of Police
| Jurisdiction | Bahamas |
| Judge | Mr. Justice Jon Isaacs, MB, JA |
| Judgment Date | 29 February 2024 |
| Neutral Citation | BS 2024 CA 23 |
| Docket Number | MCCrApp No. 116 of 2023 |
| Court | Court of Appeal (Bahamas) |
The Honourable Mr. Justice Jon Isaacs, MB, JA
The Honourable Madam Justice Maureen Crane-Scott, JA
The Honourable Mr. Justice Milton Evans, MB, JA
MCCrApp No. 116 of 2023
IN THE COURT OF APPEAL
Criminal Appeal — Criminal Procedure Code, section 235(2) — Extension of Time Application — Length of the Delay — Reason(s) for the Delay — Prospects of Success — Prejudice to the Respondent — Overall Justice of the Case — Interference with Findings of Fact of a Tribunal of Fact
The intended appellant was convicted by the Magistrate of possession of an unlicensed firearm, possession of ammunition, and 2 counts of assault with a deadly weapon. He was sentenced by the Magistrate to two and a half years' imprisonment on the firearm charge, one year on the ammunition charge and eighteen months' imprisonment on each count of assault with a deadly weapon.
The intended appellant appealed his conviction, but it was later than allowed by statute. The matter was heard as an extension of time application; the intended respondent objected to the application on the prospects of success of the appeal.
Held: Extension of time application refused, conviction is affirmed.
The factors to be considered on an extension of time application are: a) length of the delay; b) reason(s) for the delay; c) prospects of success; d) prejudice to the respondent. Additionally, a court must give consideration to the overall justice of the case.
An appellate court should be slow to overturn findings of fact by a lower tribunal. It should hesitate long before interfering with a finding by the tribunal pertaining to the credibility of a witness, unless the party challenging such a finding can show the tribunal has committed an error of reasoning that is sufficiently serious and fundamental to undermine the conclusion.
We find no fault in the Magistrate's decision not to accept the evidence of the intended appellant and his witness. As a tribunal of fact, the Magistrate was entitled to come to the conclusion that he did. There is no basis for interfering with his approach to the credibility of witnesses.
There was also no error of principle disclosed in the reasoning of the Magistrate, and nothing to suggest that he took into account matters that he ought not to have or he failed to consider matters that he should have.
Attorney General of Canada v Bedford, et al 2013 SCC 72; mentioned
Attorney General v Omar Chisholm MCCrApp No. 303 of 2014; followed
Mnyandu v Padayachi [2017] 3 LRC 170; mentioned
Rodriguez Jean Pierre v The King [2023] UKPC 15; followed
R v Cairns [2013] EWCA Crim 467; mentioned
Woolmington v DPP [1935] AC 462; mentioned
Intended Appellant, Pro se
Ms. Darnell Dorsette, Counsel for Intended Respondent
We heard this application on 15 February 2024, and dismissed it. We promised to put our reasons in writing, and this we now do.
On 11 May 2023, the intended appellant was convicted by Stipendiary and Circuit Magistrate Samuel McKinney (“the Magistrate”) of possession of an unlicensed firearm, contrary to section 5(b) of the Firearms Act (“the Act”); possession of ammunition, contrary to section 9(2)A of the Act; and (2 counts) of assault with a deadly weapon, contrary to section 265(5) of the Penal Code. That same day, he was sentenced by the Magistrate to two and a half years' imprisonment on the firearm charge, one year on the ammunition charge and eighteen months' imprisonment on each count of assault with a deadly weapon. The sentences were to run from 11 May 2023.
On 9 June 2023, the intended appellant filed a Criminal Form No. 1 appealing his conviction. The intended appellant was required to give notice of his appeal within seven days following the date of his sentencing, as required by section 235(2) of the Criminal Procedure Code (“the CPC”). He failed to give notice within the time limited to appeal; hence, he requires the leave of the Court to appeal. Leave is sought by filing an application to extend the time within which to appeal (“EOT application”). Although the intended appellant did not file an EOT application, he was appearing pro se. Accordingly, rather than insisting that he make the EOT application by submitting a Criminal Form No. 2, we heard his application; the intended respondent objected to the application solely on the prospects of success of the appeal.
In determining EOT applications, the Court takes into account a number of factors: see Attorney General v Omar Chisholm MCCrApp No. 303 of 2014 and Rodriguez Jean Pierre v The King [2023] UKPC 15.
In Chisholm, this Court, differently constituted, identified four factors to be considered: a) length of the delay; b) reason(s) for the delay; c) prospects of success; and d) prejudice to the respondent.
In Rodriguez Jean Pierre, the Privy Council found that there were additional matters than those mentioned in Chisholm for the Court to consider. At paragraph 27 they said:
“ 27. Furthermore, it should not be thought that the four criteria identified in Williams are the only relevant criteria when considering an extension of time. It will be necessary to consider the overall justice of the case. In the Board's view, further relevant considerations will normally include the gravity of the offence and the severity of the sentence imposed. Considerations of legal certainty will also be highly relevant. There is an important public interest in the finality of legal proceedings, the efficient use of judicial resources, good administration and the interests of other litigants ( Liburd v The Queen (Court of Appeal of the Eastern Caribbean) per Barrow JA at para 4; R v Thorsby [2015] 1 WLR 2901 per Pitchford LJ at para 13). It will also be necessary to take account of the interests of victims of crime and their families, and of witnesses.”
The thrust of Chisholm and Rodriguez Jean Pierre is that the Court should consider the factors and criteria to arrive at a decision which reflects the “ overall justice of the case”.
The intended respondent's opposition to the EOT application solely on the prospects of success meant that the intended appellant had to satisfy us that his grounds of appeal were meritorious. There would be little justification in hearing the substantive appeal if his grounds were without merit.
The lone ground set out by the intended appellant was, “ The reason why I will (sic) like to appeal this case is because the lack of evidence from prosecution. (sic)”
In his oral submissions, the intended appellant attempted to augment his ground by arguing that the Magistrate was biased because the Magistrate was a former police officer and preferred the police officers' evidence over that of the intended appellant. We refused to entertain this argument as it was not one of his grounds and we required the intended appellant to focus on his ground that his conviction was based on a lack of evidence.
The intended appellant submitted that the Magistrate should not have rejected his evidence and the evidence of his witness, Adrius Austin (a Defence Force officer), in preference to the evidence of the police officers, particularly Patrick Rolle. The latter had testified that he was in Prime Time Night Club (“PTN”), at the material time, when he observed the intended appellant with a firearm in his hand held in a downward position by his side.
The intended appellant's account in court was that he was in PTN when a group of men tried to rob him of his neck chain. One of the men, who wore an orange shirt, produced a firearm but the intended appellant was able to take the weapon away from the man and ran out of PTN followed by the men. He fired the weapon in the air to scare them off and, subsequently, he saw the flashing lights of a police vehicle. He ran towards the vehicle to tell the police what had happened. He heard an officer telling him to stop but, before he could comply, he was shot.
The account of the intended appellant about what transpired in PTN was supported in large part by Adrius Austin who testified that he was at PTN as a promoter and also assisted with providing security for the event. He testified that he noticed a commotion in PTN. He went on to say as follows:
“ I noticed a male wearing an orange shirt who appeared to be under the influence of alcohol approached the defendant and there was [a] scuffle.
The male wearing the orange shirt reach [t]o the front of his trousers.
The scuffle got intense and...
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