Farrington v R
| Jurisdiction | Bahamas |
| Judge | Dame Anita Allen, P,Crane-Scott, JA,The Honourable Dame Anita Allen, P |
| Judgment Date | 27 July 2017 |
| Neutral Citation | BS 2017 CA 74 |
| Docket Number | SCCrApp. No. 96 of 2014 |
| Court | Court of Appeal (Bahamas) |
| Date | 27 July 2017 |
IN THE COURT OF APPEAL
The Honourable Dame Anita Allen, President
The Honourable Mr. Justice Jon Isaacs, Justice of Appeal
The Honourable Madam Justice Crane-Scott, Justice of Appeal
SCCrApp. No. 96 of 2014
Mr. Murrio Ducille, Counsel for the Appellant
Mrs. Olivia Nixon, Counsel for the Respondent
R v. Galbraith [1981] 2 All ER 1060 Applied
Dennis Reid v. The Queen [1980] A.C. 343 Applied
R v. Graham; Kansal; Ali; Marsh and others [1997] 1 Cr. App. R. 302 Followed
Criminal Appeal - Appeal Against Conviction — Appeal Against Sentence — Murder — Identification — Confession — Unsafe and Unsatisfactory Verdicts — Verdict unreasonable and cannot be supported having regard to the evidence — Retrial — New Trial
Criminal Law - Murder — Appeal against conviction and sentence — Retrial — New trial — Identification — Confession — Whether verdict unsafe and unsatisfactory — Whether verdict against weight of evidence — Appeal allowed.
On 17 February 2012 Ms. Tanarje Hunt and her uncle Mr. Stephen Sherman were robbed as they returned to his home. Mr. Sherman was shot and killed sometime during the robbery. Ms. Hunt gave a description of the assailant but never identified the appellant. The appellant confessed to the crimes but later stated that the confession was obtained through violence and oppression. He was tried and convicted on 8 October 2013, of 2 counts of Armed Robbery, Conspiracy to commit Murder and Murder. He was sentenced to 15 years for each offence of Armed Robbery and two sentences of life imprisonment on the Conspiracy, and Murder convictions. He appealed the convictions and the sentences imposed alleging inter alia, that the trial judge erred in law when he allowed the confession statement and Record of Interview to be admitted in evidence and in allowing the case to be considered by the jury seeing that Ms. Hunt's identification at the trial of the gunman, did not fit the description of the appellant. Further, he appealed that the verdict is unreasonable and cannot be supported having regard to the evidence, the verdict is unsafe and unsatisfactory having regard to the circumstances of the case and also that the sentence (s) is (are) manifestly harsh and excessive.
Held: (Crane-Scott JA dissenting) Appeal allowed, the convictions and sentences set aside, and a new trial ordered.
per Allen P: Tanarje Hunt was the only eyewitness to the events of 17 February 2012 wherein she and her uncle were robbed and her uncle shot and killed by the robber. Her description of the person who robbed them and killed the deceased, and her ability to identify that person were never tested as she did not take part in an identification parade, and never identified the appellant as the man who committed the crimes. She identified the assailant as being a ‘short, dark man’ and the confession by the appellant, a light skinned slim man that he shot and killed the deceased could not both be true. In determining the facts, the jury could not accept both the description of the assailant given by Ms. Hunt, and the confession by the appellant that he was the gunman. It is only if the jury rejects the description of the gunman given by Tanarje Hunt, and is still satisfied that he made the confession, and that it is true, could they properly convict him. In my view, this case then fell within limb 2(b) of Galbraith, and was properly left by the learned judge for the consideration of the jury.
It would follow however, that the learned judge ought to have pointed out the material inconsistency between the description given by Tanarje Hunt of the assailant, and the appellant's actual appearance in his summing up. He ought to have directed the jury to take that factor into account in determining whether the appellant had confessed to something which might not be true, consistent with his allegation that he did not voluntarily confess.
In my view, the judge's failure to alert the jury to this material inconsistency and to direct them of its possible benefit to the appellant's case, is a mis-direction. Consequently, while there is evidence on which the appellant may be properly convicted by a jury properly directed, due to this misdirection by the learned judge the verdicts are unsafe.
The verdicts of the jury in this case should be set aside not because of the insufficiency of the evidence but because the summing up was not evenly balanced, and the jury not properly directed. The case therefore may properly be retried so that proper directions may be given, and the interests of justice may be served.
Galbraith [1981] 1 WLR 1039 Followed
Reid v The Queen [1979] 2 All ER 904 Distinguished
per Crane-Scott JA: It is axiomatic that the appearance of inconsistencies and discrepancies in the evidence is a normal, if not inevitable, part of any trial, whether civil or criminal. In criminal trials it is generally for the jury, as the judges of the facts, to resolve such conflicts in the evidence and to determine the true facts of the case. Where a case is one where the evidence is fit to go before the jury, it is the task of the judge to instruct the jury how to identify and deal with inconsistencies and discrepancies when they appear in the evidence. However, as limb 2(a) of Galbraith clearly establishes, situations may arise on the one hand, where at the close of the prosecution case, the evidence which has been led is so tenuous in character (whether due, for example, to inherent weakness or vagueness or because it is inconsistent with other evidence) that the trial judge is under a positive duty, following a no-case submission, to stop the case and withdraw it from further consideration by the jury. On the other hand, limb 2(b) of Galbraith clearly also envisages that there will also be cases where, despite inconsistencies and discrepancies which may have arisen on the evidence, the prosecution evidence as a whole is such that its strength or weakness falls to be determined by the jury as the tribunal of fact and, inter alia, where on one possible view of the facts there is evidence on which a jury could properly come to the conclusion that the accused is guilty.
At the close of the Crown's case, it is clear that the confession and record of interview obtained from the “tall, slim, bright male” suspect which the judge had earlier admitted into evidence, now stood in stark conflict with the evidence of the eye-witness who unequivocally told the court that that the armed robbery offences and the murder had been committed by a “short, dark…very dark” man.
In my view, given the state of the evidence at the close of the prosecution case, this discrepancy was not one which a jury, even if properly directed could resolve and it would be unsafe to leave such a case to the jury. Given the state of the evidence, I am satisfied that the prosecution evidence taken at its highest, was such that a jury properly directed could not properly convict on it. In short, at the close of the prosecution case, the case fell squarely in limb 2(a) of Galbraith and the judge was duty bound to withdraw the case from the jury's consideration.
I am satisfied that the learned judge erred in not withdrawing the case from the jury under limb 2(a) of Galbraith(ground 3); and that the verdict is therefore unreasonable, cannot be supported having regard to the evidence ( ground 7) and is unsafe and unsatisfactory in all the circumstances of the case (ground 6).
It seems to me that even though the circumstances of this case are not exactly on all fours with Reid, this is nonetheless a case which arguably falls somewhere near to the other extreme of the continuum (also identified in Reid) on the basis that a retrial ought not to be ordered because the prosecution evidence adduced at the trial was so tenuous that it was insufficient to justify a conviction by a reasonable jury even if properly directed.
The nature of the discrepancy which had arisen at the close of the case was not one which could be resolved by the jury being permitted to make a choice between Tanarje Hunt's physical description of the gunman on the one hand and the physical description of the suspect arrested by Detective Constable Beauford King from whom a written confession and record of interview had allegedly been obtained on the other. In my view, without more, there is no way that the jury could reasonably reject Tenarje Hunt's evidence as to the physical description of the gunman, without severely undermining the entire basis on which the confession and record of interview was obtained. In short, at the close of the prosecution case, a very real doubt had arisen on the evidence as to the connection between the gunman described by Tenarje Hunt and the suspect who had given the disputed confession and record of interview. The Crown's case viewed as a whole at its close was inherently contradictory, completely irreconcilable and ought never to have been left for consideration by the jury.
Having balanced the competing interests of justice in this case, I am satisfied that despite the seriousness of these offences, the prevalence of such crimes in this jurisdiction and the interest of persons in this community in knowing that persons who are guilty of serious crimes are brought to justice and should not escape it, the prosecution evidence in this case is so inherently contradictory and tenuous in character that it is not in the interests of justice to order a new trial and I decline to do so.
I would allow the appeal, quash the appellant's four convictions and the associated sentences and direct a judgment and verdict of acquittal to be entered in relation to each conviction.
Delivered by The Honourable
. The appellant was tried and convicted by a Jury in the Supreme Court before Jones J. (as...
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