Dino Shawn Smith v Director of Public Prosecutions

• Jurisdiction: Bahamas
• Judge: Sir Hartman Longley, P,Mr. Justice Milton Evans, JA,Madam Justice Crane-Scott, JA
• Judgment Date: 22 August 2019
• Neutral Citation: BS 2019 CA 124
• Court: Court of Appeal (Bahamas)
• Docket Number: SCCrApp No. 196 of 2018
• Date: 22 August 2019

IN THE COURT OF APPEAL

Before:

The Honourable Sir Hartman Longley, P.

The Honourable Madam Justice Crane-Scott, JA

The Honourable Mr. Justice Evans, JA

SCCrApp No. 196 of 2018

Between

Dino Shawn Smith

Appellant

and

Director of Public Prosecutions

Respondent

APPEARANCES:

Mr. David Cash, Counsel for the Appellant

Mr. Terry Archer, with Ms. Camille Gomez-Jones, Counsel for the Respondent

Criminal Appeal — Appeal against Conviction — Appeal against Sentence — Murder — Manslaughter — Alternative Counts — Dying Declaration — Identification Evidence — Turnbull Direction — Joint Enterprise Liability — Lies — Lucas Direction — Unsafe and Unsatisfactory Verdict — Unduly Harsh and Severe Sentence

Levardo Sherman Deveaux was the driver of a vehicle when he and the appellant left the Fowler street area. While in the vehicle Deveaux was shot in the back. He was taken to the hospital and during surgery succumbed to his injury. His sister told police that Deveaux had told her that he was shot by Dino. The appellant was arrested and charged with the murder of Deveaux. The appellant's defence was that he had not shot his friend Deveaux but had been riding with his friend to sell a gun to a Georgie who had accidently shot Deveaux while inspecting the gun. The appellant was acquitted of Deveaux murder but was convicted for manslaughter. He has appealed his conviction in the ground inter alia that the learned judge erred by failing to put direct the jury at all on the issue of joint enterprise and that in all the circumstances the conviction is unsafe and unsatisfactory.

Held: appeal allowed; conviction and sentence quashed.

per Evans JA,: the evidence clearly indicates that the deceased was shot by a person sitting in the back passenger seat immediately behind the driver's seat. In the confines of a vehicle it is unrealistic to think that the deceased would not know who was seated behind him. The undisputed evidence was that the deceased and the appellant were known to each other and had driven together in the car and according to the evidence given were still in the car together when the shooting took place. In these circumstances I don't accept that the failure to give a Turnbull Direction could have any significance to this case.

The evidence from the appellant at trial was that a third person one Georgie was also in the vehicle and was in fact the shooter. In my view it was therefore necessary for the learned judge to direct the jury as to the various options available to them as they considered the evidence and the fact that the Crown was alleging a joint enterprise to commit murder. On the evidence it was possible for the jury to find that Georgie was the shooter but not accidently as alleged by the appellant and they would then have to decide what the implications were for the appellant in those circumstances. The trial Judge was obligated to assist them with that decision by providing the appropriate directions. This she clearly did not do.

It is clear that where the defendant admits to having told lies there is no difficulty and the only question would be whether there is a dependence by the Crown, for proof of its case, on the lies told by the defendant. If the judge is satisfied that the crown intends to rely on those lies as proof of guilt or he reasonably envisages that there is a real danger that the jury may do so he ought to give the Lucas Direction.

In the present case it seems to me that the first of the four lies allegedly told i.e. that that Georgie shook the firearm and it discharged was clearly material to the question as to whether the shooting was accidental or intentional. The Crown's case was that the shooting was done intentionally and the appellant was asserting that it was an accident. This was a situation where if the jury found “beyond a reasonable doubt” that he lied it could and probably would lead to his conviction. As such a Lucas Direction was in my view required.

I have reviewed the summation of the learned judge and I was not able to find any indication that she at any time set out for the jury what aspect of the evidence gave rise to a partial excuse, which could reduce Murder to Manslaughter.

It can be gleaned that the learned Judge was directing the jury that if they found that the appellant was “ a party to an attack” but did not have the specific intent to cause death they could reach a verdict of Manslaughter. It is noted however, that she failed to indicate the aspect of the evidence, other than the appellant's claim of accident which could logically lead to a conclusion that there was no intent to kill the deceased in this matter.

in the absence of a proper direction as to the principles of joint enterprise the jury could construe this direction to mean that the appellant was “a party” to the attack on the deceased and thus also “a party” to the killing, even if they were of the view that Georgie was the shooter. This would be a problem as there was no evidence of a plan or any form of joint action leading to the killing of the deceased. A joint attack did not arise on the Crown's evidence nor on the evidence lead by the appellant. Any such finding would therefore be based on speculation.

Coutts [2006] 1 WLR 2154 mentioned

Devron Patterson v R SCCrApp. No. 213 of 2014 mentioned

Donna Vasyli v Regina SCCrApp. No. 255 of 2015 considered

Dwayne Kelly v Regina SCCrApp No 250 of 2015 considered

Foster [2008] 1 WLR 1615 mentioned

Jogee and Ruddock [2013] EWCA Crim 1433 mentioned

Krismar Espinosa v The Queen Criminal Appeal No. 8 of 2015 (Court of Appeal of Belize) considered

R v Barre [2016] EWCA Crim 216 followed

R v Burge and Pegg (1996) 1 Cr App Rep 163 followed

R v Lucas 1981 QB 720 followed

R v Turnbull and Others [1976] 3 All ER 54 mentioned

R v Vassell (Courtney) (2001) 62 WIR 258 considered

Regina v M [2019] EWCA Crim 1094 considered

Regina v Murray (Robert) [2016] 4 WLR 142 considered per Crane-Scott JA: in my view, on the evidence led, the Crown could not have it both ways. Having withdrawn its initial theory that the appellant had acted by himself as the principal (and only) offender in the deliberate murder of the deceased, on the basis of the amended indictment, the Crown had to establish that the appellant had participated in the crime (as discussed in Jogee, with the necessary conduct accompanied by the requisite mental element) in a joint enterprise with “Georgie” to murder the deceased. What Mr. Archer appears not to have recognized is that by introducing the amendment, the Crown was faced with the burden of establishing joint enterprise liability by adducing evidence or at least proved facts or circumstances from which an inference could be drawn that the appellant had acted in concert with and pursuant to a common intention with “Georgie” to murder the deceased. As their Lordships pointed out at paragraph 11 of Jogee, the appellant's mere presence in the vehicle at the time of the shooting without more, was simply not enough to discharge that heavy burden. As I see it, if ever there was the need for the jury in this case to have been given a clear direction on joint enterprise liability by the judge and provided with the necessary assistance as to how they could apply the law to the evidence, this was it.

The learned judge, inexplicably in my view, proceeded to direct the jury in relation to the offence of manslaughter, inviting them to find that if the appellant was “party” to an attack which involved unlawful killing which caused the deceased's death, but did not have the specific intent to kill the deceased, they could find the appellant guilty of manslaughter.

The jury should have been told that based on the doctrine of joint criminal enterprise, the law required the Crown to establish by evidence, that the appellant had acted in concert with “Georgie” (i.e. participated) with a common intent with “Georgie” to murder the deceased. The jury's attention should also have been adverted to the fact that in the appellant's record of interview, he had expressly denied Sgt. Richardson's suggestions to him that he had conspired with “Georgie” to kill the deceased and that they had shot the deceased and shared the proceeds of the sale of the gun. They should also have been directed that police suggestions in a record of interview are not evidence and further, that in the absence of evidence that the appellant had acted together with another to kill Levardo, any suggestion that the men were “in it together” and had acted in concert with a common intention to murder the deceased was no more than speculation and in the circumstances, the appellant was entitled to be acquitted of murder.

Having regard to the appellant's acquittal of murder, I am satisfied that the jury clearly rejected the contents of the dying declaration which purported to identify the appellant as the shooter. In those circumstances, given the complete absence of any evidence that the appellant had participated (i.e. acted together) with “Georgie” or anyone else (whether as principal or accessory) in a joint enterprise to murder or cause unlawful harm to the deceased, an order for the retrial of the appellant for manslaughter would, in my view, be perverse.

Adderley v. The Commissioner of Police [2015] 1 BHS J. No. 72 considered

Jogee and Ruddock v. The Queen [2016] UKPC 7 followed

Sir Hartman Longley, P

Delivered by The Honourable

1 . I have read the draft judgments of Crane-Scott JA and Evans JA. For the reasons given in their judgments I also would allow the appeal and quash the conviction and sentence.

Mr. Justice Milton Evans, JA

Delivered by The Honourable

The Honourable Sir Hartman Longley, P

2 . The appellant was tried before Hon. Mrs. Justice Grant-Thompson and jury on the charge of murder, between 26 February 2018 and 24 April 2018. The allegation was that Dino Smith on 10 July, 2017 did murder Levardo...