Dwayne Kelly v R
| Jurisdiction | Bahamas |
| Judge | Sir Hartman Longley, P |
| Judgment Date | 19 September 2018 |
| Neutral Citation | BS 2018 CA 131 |
| Court | Court of Appeal (Bahamas) |
| Date | 19 September 2018 |
| Docket Number | SCCrApp No 250 of 2015 |
IN THE COURT OF APPEAL
The Honourable Sir Hartman Longley, P
The Honourable Mr. Justice Isaacs, JA
The Honourable Sir Michael Barnett, JA (Actg)
SCCrApp No 250 of 2015
Mr. Richard Boodle, Counsel for Appellant
Mr. Terry Archer, Counsel for Respondent
Criminal Appeal — Appeal against Conviction — Murder — Misdirection-Dying Declaration — Proviso — Retrial
On the evening of the 12 th May 2012, Philario Simmons was shot twice in the back while in the area of Meadow Lane off East Street. He asked them to call an ambulance for him because he did not want to die. He was asked who had shot him and replied ‘Rummy from Palm Beach Street’. The appellant was known as ‘Rummy’. The appellant was charged with the murder of Philario Simmons. He was found guilty by a jury after trial and sentenced to 37 years imprisonment. He appeals his conviction and sentence.
Held: appeal allowed, conviction and sentence quashed matter is remitted to the Supreme Court for retrial.
A proper direction would have been to tell the jury that they ought to have rejected the evidence of the purported dying declaration since there was no evidence that the deceased saw who shot him. The burden was on the prosecution and in this regard they had failed. But it is clear that the judge was echoing the words of crown counsel who had suggested in his cross-examination of the appellant at page 209 of the transcript that the appellant had shot the deceased after the deceased had turned to run from him. That assertion was denied by the appellant in the presence of the jury and so the judge's reference to it in his summation could have misled the jury on the facts therefore it was a clear misdirection.
There was no evidence (advanced) that the deceased had seen his shooter. It may have been left to inference but whether he did (see his shooter) or not was a live issue. If he did not, the jury should have been directed not only that he did not see his assailant but that in those circumstances he may well have concocted the story that it was the appellant who had shot him because of the prior incident, in which case the evidence would have no value. On the facts of the case it was incumbent on the judge to tell the jury the unvarnished truth about the state of the evidence. If the jury was going to be asked to draw an inference they had to know what evidence they could rely upon to do that. And in any event they would have had to have been told that they did not have to draw the inference.
On the facts of this case, we are unable to say whether the jury accepted or rejected the evidence of Carlos Darville given the conflict or whether had the jury been properly directed they would have convicted. The error of the learned trial judge in our view questions the safety of the appellant's conviction. In this instance we do not believe that this is a proper case for the application of the proviso to s.13(1) of the Court of Appeal Act.
Judgment delivered by the Honourable
On the evening of the 12 th May 2012, the deceased Philario Simmons was shot while in the area of Meadow Lane off East Street. He was shot twice in the back and died from the two gunshot wounds. According to the pathologist the shots were not fired at close contact since there was no evidence of soot. The two wounds had a path from right to left and travelled upwards. Several persons were in the area at the time and either heard or saw the shooting but none except one identified the appellant as the shooter. Most persons scattered after the shooting. But when they returned and found Simmons on the ground he asked them to call an ambulance for him because he did not want to die. When he was asked who had shot him he said ‘Rummy from Palm Beach Street’ had shot him. He told this to several person who came on the scene including police officers. The appellant was known as ‘Rummy’ to the police officer and to one of the persons on the scene, Parreneka Davis. The appellant also lived in Palm Beach Street.
The one person who identified the appellant as the shooter was called ‘Cj’, Carlos Darville. He was a very close friend of the appellant and in fact referred to him as family and cousin. They had lived together for a short time. The appellant admitted that Carlos Danville was like family and that they were close friends.
Philario Simmons succumbed to his injuries and the appellant was eventually arrested and charged with his murder.
At the trial the statement made by the deceased on the scene before he died when asked who had shot him that it was “Rummy” who shot him was admitted, presumably, as a dying declaration.
Additionally, the witness Carlos Darville gave evidence. He said he had accompanied the appellant to the scene of the shooting and he saw the appellant take a gun from his back pocket and shot the deceased several times. He ran afterwards. However, it emerged during the trial that the witness Darville who was also known as ‘CJ’ admitted he had made a statement to the police shortly after the shooting and claims the shooter was someone named Errol. In cross-examination he retracted that statement saying he had only made it because he lived across the street from the appellant and was afraid. He said that was why he had not immediately identified the appellant as the shooter. Other witnesses attested to the fact that ‘CJ’ was on the scene. In fact Perraneka Davis had said she knew both ‘Rummy’, the appellant, and ‘CJ’ and that she had seen “CJ’ and another tall slim gentleman come on the scene that night before the shooting but she could not identify the other person and at a subsequent identification parade she did not pick out the appellant as the shooter even though he was on the parade.
It emerged that CJ had also been questioned by the police as a suspect in the shooting apparently since he was seen by witnesses to leave the scene shortly after the shooting.
The appellant gave evidence in his defence and denied he was the shooter.
The jury convicted him and he was sentenced to 37 years imprisonment.
Several Amended grounds of appeal were filed. They are as follows:
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1. That the learned trial Judge erred in law when he accepted as a dying declaration evidence of the deceased when he uttered the words “RUMMY” did this to me.
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2. The learned trial Judge erred in law when he permitted evidence of character in evidence that was prejudicial to the Appellant.
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3. The conviction is unsafe and cannot be supported by the evidence having regard to the circumstances of the case.
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4. The learned trial Judge did not adequately put the Appellant's case to the Jury.
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5. The learned trial Judge erred in law when he failed to give the Jury instructions that they should take precautions and they should scrutinise carefully the hearsay evidence of what the deceased had allegedly said.
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6. The learned trial Judge erred in law when he failed to give a Turnbull warning as it relates to the dying declaration of the deceased and the evidence of Carlos Darville as both deal with the issue of identification.
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7. The learned trial Judge failed to warn the jury of the need for as it relates to the evidence of Carlos Darville because when he gave the interviews to the police he was a juvenile.
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8. The learned trial Judge misdirected jury when he directed them on the previous inconsistent statement and directed them that the only evidence he was concerned about was the statement given, from the witness box.
Grounds 1, 2 and 6 were withdrawn at the outset of the appeal and ground 8 was later withdrawn. Of the remaining grounds we thought there was only merit in grounds 4 and 5.
The complaint in ground 3 was that there was no evidence that any witness saw the actual shooting. A review of the transcript clearly reveals the witness Carlos Darville aka ‘CJ’ said he saw the appellant take a gun and shoot the deceased. At page 171 line 30 Darville states;
“A. After coming from putting in the numbers, we were walking through Meadow Lane. I was going home. We were going back through Palm Beach Street…. So I saw the shooting take place. I turn around and run and in the opposite direction.
Q. When you say you saw the shooting take place, where did the shooting take place?
A. Through Meadow Lane.
Q. And when you say you saw the shooting, were you through Meadow Lane when the shooting take place?
A. Yes, sir.
Q. Who all was through Meadow Lane with you?
A. Two other girls and two other fellas on motorbike. Some more people were on the side of the road. They were fixing cars and what not, like, in a little yard.
Q. When you say you saw the shooting, do you know who did the shooting? Tell us what happened?
A. I stopped as we were passing through the corner, I stopped for like a brief second. I was hailing one of the girls who I did know.
Q. And then what happened?
A. I saw him pull the handgun from his back pocket, and he open fire, and I run in the opposite direction.
Q. Do you know who he open fire on?
A. The fella who they call Phillie or something like that — Philario.
There was no merit in that ground.
The complaint in ground 7 was that the judge had not properly warned the jury about the evidence of Carlos Darville. That was not the case as the learned judge stated,
“This is a trial where the case against the defendant depends on the correctness of the identification by him; not only by Carlos Darville, but also by the deceased Philario Simmons, which the defence says – which the defence alleges to be mistaken.
I must therefore warn you of the special need for caution before convicting the defendant in reliance on evidence of identification.
There have been wrong convictions in the past as a result of such mistakes. An apparently convincing witness...
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