Elshadae Ferguson v R

• Jurisdiction: Bahamas
• Judge: Mr. Justice Jones, JA,Sir Michael Barnett JA,
• Judgment Date: 30 April 2019
• Neutral Citation: BS 2019 CA 90
• Date: 30 April 2019
• Docket Number: SCCrApp No. 4 of 2016
• Court: Court of Appeal (Bahamas)

COMMONWEALTH OF THE BAHAMAS

IN THE COURT OF APPEAL

Before:

The Honourable Sir Hartman Longley, P

The Honourable Mr. Justice Jones, JA

The Honourable Sir Michael Barnett, JA

SCCrApp No. 4 of 2016

Between

Elshadae Ferguson

Appellant

and

Regina

Respondent

APPEARANCES:

Mr. Murrio Ducille with Mr. Avrom Thompson and Ms. Latia Williams, Counsel for the Appellant

Ms. Cordell Frazier, Counsel for the Respondent

Henry v The State [1986] 40 WIR 312 considered

R v Iqbal [1990] 1 WLR 756 mentioned

R v Martin [1988] 1 WLR 655 mentioned

R v O'Loughlin and McLaughlin (1987) 85 Cr App R 157 mentioned

R v Blithing (1983) 77 Cr. App. R. 86 considered

R v Iqbal [1990] 1 WLR 756 considered

R v Martin [1988] 1 WLR 655 considered

R v O'Loughlin and McLaughlin (1987) 85 Cr App R 157 considered

R v Patterson [2016] 2 BHS J No. 45 considered

R v Quinn (1990) Crim LR 581 considered

R v Rolle [1998] BHS J. No. 66 considered

R v Smith [1997] BHS No. 59A considered

Reid v Queen [1979] 2 All ER 904 considered

Scott and another v R [1989] A.C. 1242 considered

Stubbs v Queen SCCrApp No. 203 of 2013 considered

Criminal Appeal — Appeal against Conviction — Manslaughter — Evidence Act Section 66 — Death of a Witness — Hearsay Evidence — Whether a statement made to police is a document which is a part of or forms a part of a record complied by a person acting under a duty.

On 29 May 2012, Cordero Finley was shot while at the Baller's Club and later that same day he died from injuries sustained from a single gunshot wound to his head. The appellant was arrested and charged for the murder of Finley. At trial the prosecution was successful in its application under section 66 of the evidence Act to have the statement of a deceased witness, Julian Collie admitted into evidence. The appellant was convicted of manslaughter. He appealed his conviction on the ground, inter alia that the trial Judge erred in law in the exercise of her discretion to admit the statement of Julian Collie.

Held:

(Jones, JA dissenting) appeal dismissed, conviction and sentence affirmed.

per Barnett, JA: On the record point we are all agreed that the statement given to a police officer falls within section 66(1)(a). We do not agree with the decision in R v O'Loughlin and McLaughlin which was followed in R v Martin. We are agreed that the decision in R v Iqbal reflects the position in Bahamian law. It is our view that evidence of hearsay statements in the form of depositions and or proofs of evidence are admissible under section 66(i)(a) of the Evidence Act.

We differ from Jones JA on the authentication point; that is to say whether the appeal should be allowed on the basis that there was no evidence led by the Crown on the circumstances under which the statement was made and who took the statement.

Given that at the trial counsel withdrew his objection to the admissibility of the statement of Mr. Collie, in our view, the appellant cannot now on appeal be allowed to make that objection. There is no ground of appeal that the appellant was represented by incompetent counsel.

Secondly, a review of the judge's summing up make it clear that the court and the jury were well aware of the circumstances under which the statement of Collie was given and the care that must be taken in evaluating that statement.

per Jones, JA (dissenting): In her submissions before us, counsel for the respondent submits that the statement of Collie is part of the record as it was not only dictated by the deponent to the police, but forms part of the Voluntary Bill of Indictment (VBI). There were no authorities to support this submission which, at its highest, suggests that by attaching the statement as part of a VBI it becomes part of a record compiled under a duty for the purposes of s.66. However, the thinness of this argument is demonstrated by the fact that there was no evidence as to the circumstances surrounding the taking of the statement and to the identity of the person who took the statement or to whom the statement was dictated.

I take the view that the cases of O'Loughlin and Martin do not represent the law in The Bahamas on the issue of the admissibility of witness statements under s.66 of the Evidence Act 1996. The law in this jurisdiction is that evidence of hearsay statements in the form of depositions and or proofs of evidence are admissible under s.66 of the Evidence Act 1996. Accordingly, the statement of Collie constitutes a record compiled by a police officer acting under a duty from information supplied to him by a witness having knowledge of the facts.

From the provisions of the Evidence Act 1996 authentication is required, and the exercise of discretion in ensuring that it is done cannot be capricious. In our view, evidence of the circumstances surrounding the taking of the witness statement and the identification of the signature of Collie ought to have been led at the trial before its admission into evidence.

Counsel for the respondent contends there was no prejudice to the appellant as there was no objection to the admission of Collie's witness statement. They contend counsel for the appellant at trial objected to allowing the death certificate in evidence. This was later resolved to the appellant's satisfaction. Indeed, counsel for the respondent argued that counsel for the appellant at trial later engaged in editing of the statement to remove excessively prejudicial material before its admission. Second, there was no unfairness as Cameron Smith's evidence supported the identification of the appellant.

However, I have examined the transcripts and cannot see where Cameron Smith's evidence supported the identification of the appellant by Collie.

I am mindful of the admonition of the Privy Council in Scott that a trial judge should be reluctant to exclude statements of persons who have died, but I am satisfied for the reasons explained above that it would be unfair to admit the statement of Collie where there was no evidence led as to the circumstances under which the statement was given neither was there evidence from the person who took the statement from Collie.

I conclude that the respondent failed to comply with the statutory rules for the admissibility of the statement of Collie. Additionally, the trial judge's exercise of her discretion under s.66(4) of the Evidence Act was flawed when she admitted the evidence and placed it before the jury for consideration without ensuring it was authenticated. Even if the evidence was admissible, the trial judge failed to consider her discretion under s.178 of the Evidence Act whether to exclude Collie's evidence as having an adverse impact on the fairness of the proceedings. I do not consider this case to be appropriate for the application of the proviso under s.13 of the Court of Appeal Act. Accordingly, I would allow the appeal and quash the verdict and sentence of the appellant in the court below.

REASONS FOR DECISION

Delivered by The Honourable Sir Michael Barnett JA,

1 The appellant was convicted of manslaughter for the death of Codero Finley by a jury on the 29 May, 2015. On 3 April 2018, he appealed his conviction for manslaughter by an Amended Notice of Appeal filed in this court. We heard the appeal on 12 April 2018 and 23 April 2018 and reserved our decision. On 23 January 2019 we delivered our decision and promised to give our reasons. This we now do.

2 The respondent's case was that on the 29 May, 2012 sometime around 1:45 in the morning Elshadae Ferguson and Cordero Finley were at the Baller's Club on East Bay and Mackey Streets. An argument between the two ensued which resulted in the Appellant shooting Cordero Finley in the head causing his death. The appellant admitted to being at the Baller's Club at the material time but stated that he was dancing when the shooting took place. He denied involvement in the fatal shooting of the deceased.

3 The appellant was charged with the murder of the deceased. At trial the prosecution relied on the eye witness accounts of the shooting. The principal evidence against Ferguson was the statement of Julian Collie who was the only person who identified him as the person who shot the deceased Codero Finlay. Collie had died and hence could not attend to give evidence and the prosecution had his Statement -stating that Finley was shot by the appellant- read into evidence with leave of the Court pursuant to section 66 of the Evidence Act.

The Grounds of Appeal

4 The following grounds of appeal were filed on behalf of the appellant:

• a) The learned Trial Judge erred in law in the exercise of her discretion to admit the statement of Julian Collie;

• b) The learned Trial Judge erred in law by failing to adequately direct the jury as it relates to the treatment of the statement of Julian Collie (Identification Evidence);

• c) The learned Trial Judge erred in law when she failed to adequately direct the jury on how to treat the inconsistencies/ discrepancies in the evidence given by the witness;

• d) The learned Trial Judge erred in law when she failed to adequately put the defence of the appellant to the jury;

• e) The learned Trial Judge erred in law when she ruled that the appellant had a case to answer;

• f) The verdict is unreasonable and cannot be supported in regard to the evidence;

• g) The verdict is unsafe and unsatisfactory in regard to the circumstances of the case.

5 Counsel for the appellant in oral submissions rendered a single ground of appeal. That principal ground was that the statement of Collie was improperly admitted under that section. The attack is that the statement was not proven to have been made in compliance with section 66(1) of the Evidence Act inasmuch as there was no evidence led that it was taken in accordance with section 66(1)(a).

6 The submission had two limbs.

7 Firstly it is submitted that there was no evidence led as to who took the...