Director of Public Prosecutions v Jamal Miller
| Jurisdiction | Bahamas |
| Judge | Mr. Justice Turner, JA |
| Judgment Date | 05 March 2024 |
| Neutral Citation | BS 2024 CA 28 |
| Docket Number | SCCrApp. No. 46 of 2023 |
| Court | Court of Appeal (Bahamas) |
The Honourable Sir Michael Barnett, P
The Honourable Mr. Justice Evans, JA
The Honourable Mr. Justice Turner, JA
SCCrApp. No. 46 of 2023
IN THE COURT OF APPEAL
Criminal Appeal — Possession of a firearm with intent to endanger life — No Case to Answer — Whether the trial judge erred — Identification evidence — Circumstantial evidence — Turnbull Guidelines — Galbraith Principles
On the evening on 21 March 2020, a series of events unfolded involving the respondent and the police officers in the vicinity of Farrington Road and Rock Crusher area. It commenced with the respondent borrowing a vehicle, a blue Nissan Cube, from a friend. Later, police officers observed the borrowed vehicle, heavily tinted, being driven on Farrington Road. Pursuing the vehicle, the officers apprehended the respondent, who identified himself as Jamal Miller. However, upon searching the vehicle, nothing illegal was found, leading to his release. A few hours thereafter, officers came across the same vehicle parked on Saunders Road and conducted an investigation, during which they discovered a bullet on the driver's seat. When attempting to re-apprehend the respondent, he fled, and officers alleged that he fired shots at them. In June 2020, the respondent was subsequently arrested and charged with three counts of Possession of Firearm with intent to endanger life, with officers identifying him through photo line-ups. In February 2023 the trial against the respondent commenced. At the conclusion of the prosecution's case, the Counsel representing the respondent submitted a “No Case to Answer”. On 6 March 2023, the judge instructed the jury to return formal verdicts of Not Guilty for each of the three counts, resulting in the respondent's acquittal and discharge. On 17 March 2023, the appellant, the Director of Public Prosecutions (DPP) filed a Notice of Application for leave to appeal the acquittal, asserting that the learned judge erred in ruling that the respondent had no case to answer. The Court reserved its decision on 5 December 2023.
Held: Appeal allowed. The decision of the learned judge is set aside and remitted to the Supreme Court for trial before another judge.
The judge erred in her assessment of the evidence and in her conclusion that there was not enough alternative evidence for consideration. The evidence, at the very least, supports the identification of the respondent as the person in possession of a firearm, based on the testimony of the police officers who witnessed the respondent firing shots at them. If this evidence had been taken into account, the judge would have had to acknowledge that there was a valid basis for the jury to convict if they believed the evidence. Therefore, according to rule 2(b) of Galbraith and section 170 of the CPC, the judge should have determined that there was a case to answer. The judge erred by misapplying the relevant authorities.
McGreevy v Director of Public Prosecutions [1973] 1 WLR 276 considered
R v Galbraith [1981] 2 All ER 1060 applied
Mr. Terry Archer, Counsel for the Appellant
No appearance by or on behalf of the Respondent
By VBI No. 98/6/2020, the respondent herein was charged with three counts of Possession of a firearm with intent to endanger life. The trial, before McKay J. and a jury commenced on the 20 th February 2023 and at the close of the case for the prosecution counsel on behalf of the respondent made a no case to answer submission.
After consideration of those submissions, on the 6 th March 2023 the Learned Judge directed the jury to return formal verdicts of Not Guilty in relation to each of the three counts, at which point the respondent was acquitted and discharged.
The Director of Public Prosecutions, the Appellant herein, filed a Notice of Application for leave to appeal against verdict of acquittal on the 17 th March 2023, with the sole ground being:
“ That the learned trial judge erred in law when she ruled that the Respondent did not have a case to answer at the close of the case for the Prosecution.”
The respondent did not appear at the hearing of the appeal, despite being served with the Notice of Appeal, the Submissions and a notice of the hearing date.
The case for the appellant at the trial, as gleaned from the evidence of the eleven witnesses called by the prosecution, was that on Saturday, 21 st March, 2020, sometime after 5:00pm the respondent borrowed a vehicle belonging to the girlfriend of Jamal Major, a friend of his, who knew him for about 12 years. The respondent dropped off Jamal Major at Arawak Cay and left driving in the vehicle, a blue Nissan Cube, licence plate number 5308. This fact was not denied by the defence at the trial.
Jamal Major knew the respondent to live off Farrington Road, adjacent to Rock Crusher road, and returned to that area later that evening to the collect the vehicle. When he got to the back of Rock Crusher road, he met the police with his girlfriend's vehicle on a wrecker. He informed the police that he was the owner of the vehicle and was subsequently locked up.
Jamal Major stated that the keys to the vehicle were subsequently returned to him by the respondent at some point after he was released from custody, approximately five to seven days later. This assertion was not challenged by the defence at the trial.
Sometime around 7:30 pm on Saturday 21 st March 2020, Sergeant 2301 Deno Gaitor, and PC's Cumberbatch and Cadet were on mobile patrol in a marked police vehicle travelling east on Farrington Road. They each testified to observing a heavily tinted, blue Nissan Cube, license plate No, SN5308 travelling west on Farrington Road. According to their testimony, they pursued this vehicle with sirens, horn and lights with the pursuit ending on Trelawney Close, a dead end road off Farrington Road opposite Rock Crusher. The respondent, who was the only person in the vehicle at the time, was apprehended and gave his name as Jamal Miller of No. 111 Trelawney Close. He wore a gray shirt and black pants and had cornrows in his hair. He remained in police custody for about 15 to 20 minutes. The officers searched the vehicle and found nothing illegal. He was subsequently released.
About an hour later, at about 8:30 pm, the same officers received information from police control room and as a result proceeded to Lightbourne Avenue, off Farrington Road and then on to Saunders Road in the Rock Crusher area. They stated in their testimony that as they turned on to Saunders Road they observed a blue Nissan Cube, license plate No. SN5308 which they each recognized as the same vehicle that they stopped earlier through Trelawney Close. The vehicle was parked on the northern side of the road.
The officers testified that they looked through the windshield and observed a single bullet on the driver's seat. They also observed that the respondent was walking along a pink building headed in their direction and that he was wearing the same gray shirt and black pants. The officer's shouted at the respondent to stop and he ran along the pink building and to the rear of that building. PC's Cumberbatch and Cadet ran after the respondent and Sergeant Gaitor stayed with the vehicles.
PC's Cumberbatch and Cadet each testified that while running away he fired shots at them and that they returned fire. They further testified that the respondent ran into nearby bushes and up a hill, evading the officers.
Sgt Gaitor testified that after the other officers took off in pursuit of the respondent, that he heard shots and then observed the respondent emerge from nearby bushes and fire five shots at him, but that he did not return fire since other people were in the area. He also testified that while he was still at this scene, that a person who gave his name as Jamal Major came there and was arrested.
The respondent was eventually arrested on the 2 nd June 2020 in relation to three counts of Possession of a Firearm with intent to endanger life. On that same date, Sgt. Gaitor picked him out of a photo lineup while at CDU, that lineup had been prepared by a Sgt. Johnson and included a photograph of the respondent taken that day, after he was in custody. When interviewed on that same date, the respondent denied ever borrowing a blue Nissan Cube from Jamal Major and indicated that he could not recall where he was at the time of the alleged incident.
On the 3 rd June 2020 PC Cumberbatch and PC Cadet separately identified the respondent on a 12 man photo line-up.
At the close of the case for the prosecution, counsel on behalf of the respondent gave detailed submissions in relation to the evidence,...
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