Edwardo Ferguson Aka Kofhe Goodman v R
| Jurisdiction | Bahamas |
| Judge | Sir Michael Barnett, P |
| Judgment Date | 14 June 2021 |
| Neutral Citation | BS 2021 CA 93 |
| Docket Number | SCCrApp & CAIS No. 35 of 2019 |
| Court | Court of Appeal (Bahamas) |
IN THE COURT OF APPEAL
The Honourable Sir Michael Barnett, P
The Honourable Mr Justice Isaacs, JA
The Honourable Mr. Justice Jones, JA
SCCrApp & CAIS No. 35 of 2019
aka
Mr. Stanley Rolle, Counsel for the Intended Appellant
Mr. Garvin Gaskin, DPP, with Ms. Cordell Frazier
Caryn Moss v The Director of Public Prosecutions; The Director of Public Prosecutions v Caryn Moss BS 2019 CA 93 considered
Day v Regina [2003] EWCA Crim 1060 considered
KW v Her Majesty's Advocate [2018] HCJAC 1 considered
Attorney General v Larry Raymond Jones et. al. SCCrApp. Nos. 12, 18 & 19 of 2007 applied
Criminal Appeal — Application for extension of time — Murder — Whether there was illegality/irregularity in the course of the trial — Conduct of Counsel — Conduct of JudgeFairness of trial — Whether verdict unsafe or unsatisfactory — Whether sentence was unduly harsh or severe
On 2 nd August 2013 the intended appellant, Edwardo Ferguson, was convicted of the 2011 murder of Marco Archer. He appealed his conviction, it was set aside and a retrial was ordered. At the retrial, Goodman was again convicted of the murder on the 30 th May, 2017 and sentenced to 55 years imprisonment on 7 th May 2018. On 16 th May, 2018 the appellant attempted to appeal his conviction however the Notice of Appeal was not received by the Court until 26 th November 2018. The intended appellant has filed an application for an extension of time and seeks to appeal his conviction and sentence on the basis that, inter alia, the conduct of the prosecution and defence counsel gave rise to a flaw in the trial process, the conduct of trial judge failed to ensure the fairness of the trial, and that evidence was wrongly admitted and/or rejected.
Held: the application for an extension of time is refused. The conviction and sentence are affirmed.
The proposed appeal has no prospects of success. There is simply no credible basis for accepting that the intended appellant's counsel did not take adequate or proper instructions or gave him bad advice. The intended appellant cannot show that he was prejudiced in any way by the decisions made by his counsel on his behalf. As to the conduct of prosecuting counsel, having read the transcript of the trial in its entirety there is no merit to the criticism by the intended appellant.
The intended appellant has not identified any evidence which was wrongly admitted and has identified no error in principle by the trial judge.
The term of fifty-five (55) years is not unreasonable having regard to the particular circumstances of this case and the established guidelines with respect to murder set out in the decision of Larry Raymond Jones and the Court will not interfere.
Judgment Delivered by the Honourable
. This is an application for an extension of time to appeal a conviction for murder and the sentence of 55 years imposed by the trial judge.
. On the 30 th May, 2017 Edwardo Ferguson aka Kofhe Goodman was convicted of the murder of a young 11 year old boy, Marco Archer.
. This was a retrial of the charge of murder. He was originally tried in 2012 and convicted. He successfully appealed that conviction on two grounds. One was the conduct of his counsel at that trial and on account of the pretrial publicity prior to the trial, which by majority it was held that it affected the fairness of the trial. This court set aside that conviction and ordered a retrial.
. It is significant to note that on that appeal he was represented by Mr. Wayne Munroe Q.C. Mr. Munroe did not represent Goodman at the first trial.
. On the retrial before Bethell J (as she then was) Goodman was represented by a team of lawyers headed by Mr. Munroe Q.C. On the 30 th May, 2017 Goodman was again convicted of murder. On the 7 th May, 2018 he was sentenced to 55 years less the 7 years he had already spent in custody.
. By a Criminal Appeal Form 1 dated the 16 th May 2018, Goodman sought to appeal his conviction of Murder and sentence of 55 years. The Form states that it was signed by Goodman on 16 th May, 2018 which would have been within the three weeks period imposed by section 17 of the Court of Appeal Act but was not received by this court until 26 th November, 2018.
. Goodman followed up with a letter to this court. The letter is undated but has the date of 11 th February, 2019 on the Department of Correctional Services Stamp on that letter. It appears to have been received by the court on the 21 st May, 2019.
. I pause to note parenthetically that on the 15 th May, 2018 the Attorney General filed an application for leave to appeal the sentence of 55 years imposed by the judge on the 7 th May, 2018.
. The matter appears to have first come before the Court on the 16 th October, 2019. At that hearing Goodman appeared on his own behalf. The Attorney General withdrew his application for leave to appeal the sentence and Goodman asked for the Court to appoint a lawyer to represent him on the appeal. The Court directed that the Registrar appoint a lawyer and the Office of Public Defender was appointed to act on his behalf.
. Suffice it to say that in October, 2019 all persons involved were not aware of the fact that Goodman had prepared a Notice of Appeal since 16 th May, 2018.
. The problem stemmed from the fact that Goodman inserted on the Form I the action number 306 of 2013. This was a mistake as that appeal was complete and this was an appeal from conviction and sentence before Bethell J in 2017 and 2018. It was clearly a mistake at the Registry.
. Although the application for an extension of time was not filed until September, 2020, having considered all matters, I am prepared to consider the dated of November, 2018 when the Form I was received by the Court of Appeal as the date when the court had notice of Goodman intention to appeal. I am also prepared to accept that Goodman prepared his Form 1 on the 16 th May, 2018 and the delay in getting the Form from the Prison to the Court was beyond his control. This court is well aware that in 2018 there were inordinate delays in getting completed Form I from the prison to the court. The problem still exists but is not as acute today as it was in 2018.
. In the circumstances the delay is not inordinately long and the delay has a reasonable explanation. I will now consider the prospects of success on the proposed grounds of appeal.
. Before considering the grounds of this appeal, I set out what the intended appellant himself says this case is about. He said:
“The prosecutions alleges that the [appellant] abducted the deceased with an intention to have sexual relations; that in the course of the abduction, the [appellant's] DNA was deposited onto the shorts of the deceased. Further, that the deceased (a minor) fought back and in consequence met his demise by blunt force trauma to the head.
The [appellant's] case through cross examination of prosecution witness and the record of interview (ROI) was a denial of the allegation of murder and the abduction of the deceased. Further, that at the time of the alleged abduction he was elsewhere in the company of his son and nephew”
. When the Form I was prepared and sent to the Court the grounds of appeal were as follows:
(1) ground: The trial judge error in the trial by law
(2) ground: The trial judge error / misdirect during her summons up to the jury (misdirect the jury)
Ground (3): Prosecutorial misconduct / failure
(4) ground: unfair trial
(5) inadequate direction during the judge direction before the jury
(6) irrelevant evidence / prejudice evidence introduce
I hereby state the reasoning why ground 2 are filed and why I state the trial judge misdirect the juror (the appellant never was place before the jury and the appellant was prejudice to the fact)
. Although the Form did indicate that Goodman may amend his grounds and I accept that it was not prepared by a lawyer, I note that there is no allegation or complaint with respect to the conduct of his counsel, Mr. Munroe.
. After his lawyer obtained full instructions from Mr. Goodman, the Notice of Appeal contained different grounds. I will consider each in turn.
Ground One
1. That some specific illegality or irregularity, substantially affecting the merits of the case was committed in the course of the trial:-
a. The conduct of learned defense counsel gave rise to a fundamental flaw in the trial process. The Applicant was denied due process in consequence thereof:-
i. failed to take adequate and proper instructions;
ii. failed to have [effectively] utilized, if at all, the evidence of the first trial;
iii. failed to alert the court of inappropriate and improper comment and or suggestions stated in the address to the jury by prosecution counsel;
b. The collective effect of these failings adversely impacted the fairness of the trial.
c. The conduct of Prosecution Counsel gave rise to a fundamental flaw in the trial process. The Applicant was denied due process in consequence thereof:-
i. willfully agreed to stipulate evidence of which was known to be false in its current state; having done so, then disingenuously used the evidence against the defense;
ii. deliberately assaulted the character of the Applicant which was designed to prejudice the mind of the jury towards the Applicant.
iii. that the collective efforts of prosecution counsel, intentionally or unintentionally, engaged and invoked bias in the mind of the juror when addressing matters that were not relevant or probative of anything in the case; this compounded the bias that had become apparent in the trial process.
d. The learned judge failed in law and in fact to ensure the fairness of the trial:-
i. fail to consider postponing the trial;
ii. failed to permit...
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