Finlayson v R

• Jurisdiction: Bahamas
• Court: Court of Appeal (Bahamas)
• Judge: Blair-Kerr, P.,Duffus, J.A.,Luckhoo, J.A.
• Judgment Date: 11 March 1980
• Neutral Citation: BS 1980 CA 14
• Docket Number: Criminal Side No. 17 of 1979
• Date: 11 March 1980

Court of Appeal

Blair-Kerr, P.; Duffus, J.A.; Luckhoo, J.A.

Criminal Side No. 17 of 1979

Finlayson

and

R

Criminal Law - Appeal against conviction — Attempted murder

Judgment of the Court:

1 The appellant was charged with attempted murder contrary to section 338 of the Penal Code and in the alternative with causing grievous harm contrary to section 296 of the Penal Code. On 14th May, 1979, he was convicted of attempted murder and sentenced to six years imprisonment. On 15th May 1979 he gave notice of his desire to appeal on the ground that, under all the circumstances of the case, the verdict of the jury is unsafe and unsatisfactory.

2 Section 12(1) of the Court of Appeal Act Ch.34 reads as follows:–

“12(1) The Court on any such appeal against conviction shall allow the appeal if the court thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence or that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law, or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal.”

3 Section 4(1) of the English Criminal Appeal Act 1907 was in the same terms; and obviously section 12(1) was copied from the English statute.

4 Section 4(1) of the 1907 Act was amended in 1966 and the powers of the English Court of Appeal in criminal matters is now contained in section 2(1) of the Criminal Appeal Act 1968, which, so far as relevant, reads:–

“2(I) Except as provided by this Act, the Court of Appeal shall allow an appeal against conviction if they think (a) that the verdict of the jury should be set aside on the ground that under all the circumstances of the case it is unsafe and unsatisfactory…”

5 In R v. Cooper [1969] 1 All E.R. 32, Widgery, L.J., giving the judgment of the English Court of Appeal, said:

“It has been said, over and over again throughout the years that this court must recognise the advantage which a jury has in seeing and hearing the witnesses, and if all the material was before the jury and the summing up was impeccable, this court should not lightly interfere. Indeed, until the passing of the Criminal Appeal Act 1966 -- provisions which are now to be found in section 2 of the Criminal Appeal Act 1968 -- it was almost unheard of for this court to interfere in such a case. However, now our powers are somewhat different, and we are indeed charged to allow an appeal against conviction if we think that the verdict of the jury should be set-aside on the ground that under all the circumstances of the case, it is unsafe or unsatisfactory. That means that in cases of this kind the court must in the end ask itself a subjective question, whether we are content to let the matter stand as it is, or whether there is some lurking doubt in our minds which makes us wonder whether an injustice has been done. This is a reaction which may not be based strictly on the evidence as such; it is a reaction which can be produced by the general feel of the case as the court experiences it.”

6 In Stafford v. D.P.P. [1973] 3 All.E.R. 762, this passage from the judgment of Widgery, L.J. was cited with approval by Viscount Dilhorne, who said (p.764):–

“Under the 1907 Act it might not have been possible to say that a verdict was unreasonable or not supported by the evidence of that a miscarriage of justice had occurred and so squash the conviction although considerable doubt was felt as to its propriety. So, in 1966 a wider discretion was given to the court by Parliament and section 4(1) was amended.”

7 The 1968 Act has no application in this jurisdiction. The powers of this Court on an appeal by a person convicted on information in the Supreme Court are contained in Section 12(1) of the Court of Appeal Act; and it is not a ground of appeal that under all the circumstances of the case the verdict of the jury is unsafe and unsatisfactory.

8 Upon the appeal coming on for hearing, Mr. Knowles, counsel for the appellant, abandoned that ground and sought leave to argue the following three grounds:–

• (1) that the rewriting of the summing up by the learned judge is wrong in law and may lead to a miscarriage of justice;

• (2) that the learned judge failed to properly direct the jury as to the law applicable to the offence causing grievous harm and attempted murder;

• (3) that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence.

9 The basis for the first ground of appeal was a memorandum dated 15th February 1980 addressed by the learned trial judge to the Registrar of this Court a copy of which was made available to counsel and to the Court. The relevant part of the memorandum reads as follows:–

“On the 14th May, 1979, the appellant was convicted in the Supreme Court of the offence of attempted murder, and sentenced by me to six years imprisonment at hard labour. He appealed against his conviction and sentence by a Notice of Appeal dated the 15th of May 1979, which was filed in the Court on the 17th of May, 1979. Despite this, it was not until some time during the week beginning the 4 ^th of February, 1980, nearly nine months after the date of the conviction, that I was presented with a transcript of what purported to be my summing up in the case, and asked to verify it.

I read this transcript with horror because never before has such gibberish ever been attributed to me. Whole phrases were omitted from sentences sometimes changing their meaning, in other instances rendering a sentence utterly meaningless. Several passages were wrongly punctuated with the same result. Words, which the context made it obvious could never have been used, were introduced. And to cap it all, there were several blank spaces in the transcript indicating that the shorthand writer either never heard what was said, or was quite unable to reproduce what was said. In fact, the document handed to me made it clear that the concluding portions of the summing up were altogether omitted…I have since investigated the circumstances in which the summing up was reproduced. Mrs. Theophilus who was the shorthand writer who took the notes, resigned from the service some time in August of 1979. Apparently she had not up to that time transcribed the summing up from her notes. I do not know whether she had by then been requested by the Court of Appeal Registry to do so. After she left, Miss Carey who is a junior stenotypist, attempted to read Mrs. Theophilus' notes. Mrs. Theophilus uses a much more advanced system of outlines and abbreviations than that to which Miss Carey is accustomed. Miss Carey did her best to make something of Mrs. Theophilus' notes and produced the summing up which eventually reached the Registry. She asked Mrs. Theophilus to check what she, Miss Carey, had produced but Mrs. Theophilus failed to do so.

Fortunately, I usually sum up the law applicable to any given case on the basis of notes, which I take into court with me. I have therefore had no difficulty in correcting those passages in the transcript, which purport to deal with the law. The passages dealing with the facts have been so hopeless that I have been obliged to re-write a great deal of them. As for the concluding portions of the summing up which I have already pointed out are altogether omitted, I have had to draw largely on my recollection to fill in the gaps.

I should be obliged if you would bring this memorandum to the attention of the President of the Court of Appeal. I do not claim to have an infallible memory, and I cannot with honesty vouch for the fact that the passages dealing with the evidence and which I have had to write from recollection represent the very words that I did use. I believe, however, that they convey the substance. It will be for the Court of Appeal to decide whether in the circumstances they wish to treat the re-written summing up as authentic or order a new trial.

10 Mr. Knowles relied on the decisions of the English Court of Appeal in R. v. Payne and Spillane (1971) 56 C.A.R. 9 and R. y. Kluczynski [1973] 3 A ll E.R. 401. Before dealing with those cases, it should be observed that rules 18 and 20 of the English Criminal Appeal Rules 1968, so far as relevant, provide as follows:–

• “18(1) Except as provided by this rule, the whole of any proceedings in respect of which an appeal lies (with or without leave) to the court shall be recorded by means of shorthand notes or, with the permission of the Lord Chancellor, by mechanical means.

• (2)…

• (3) Where it is not practical for such proceedings to be recorded by means of shorthand notes or by mechanical means, the judge of the court of trial shall direct how and to what extent the proceedings shall be recorded.

• 20(2) (a) Verification of a transcript of the shorthand notes taken by an official shorthand writer of any proceedings shall be by a certificate by the person making the transcript that --

  • (i) he has made a correct and complete transcript of the notes to the best of his skill and ability; and

  • (ii)

  • (ii) the notes were either taken by him and were to the best of his skill and ability a complete and correct account of those proceedings…”.

11 We do not find the Kuczynski decision of any assistance to us. In that case very experienced shorthand writers recorded the judge's summing-up. The judge heard that his decision was being appealed and he asked to see a draft of the transcript of his summing-up in order to revise it. Roskill, L.J., giving the judgment of the court said (p.402):–

“It is important that it should be appreciated that judges are not entitled to revise transcripts of their summing-up.”

12 And, having referred to rule 20(2) of the Court of Appeal Rules 1968, Roskill, L.J. continued thus:–

“The obvious task of the shorthand-writers and the...