Garvin Adderley v R
| Jurisdiction | Bahamas |
| Judge | Mr. Justice Isaacs, JA |
| Judgment Date | 01 April 2020 |
| Neutral Citation | BS 2020 CA 32 |
| Court | Court of Appeal (Bahamas) |
| Docket Number | SCCrApp. No. 250 of 2017 |
| Date | 01 April 2020 |
IN THE COURT OF APPEAL
The Honourable Mr. Justice Isaacs, JA
The Honourable Madam Justice Crane-Scott, JA
The Honourable Mr. Justice Jones, JA
SCCrApp. No. 250 of 2017
Ms. Marianne Cadet with Mr. Stanley Rolle and Ms. Brendalee Rae, Counsel for the Intended Appellant
Mr. Patrick Sweeting, Counsel for the Intended Respondent
Attorney-General v. Omar Chisholm MCCrApp. No. 303 of 2014 applied
Deangelo Johnson v R SCCrApp. No. 111 of 2017 considered
DPP v. Selena Varlack [2008] UKPC 56 mentioned
Durante Davis v R SCCrApp. No. 299 of 2016 applied
Ellis Taibo v. The Queen [1996] UKPC 68 mentioned
Jermaine Missick v R SCCrApp. No. 251 of 2017 applied
Junior Reid v. R. (1993) 4 All ER 95 mentioned
R v Brown [2019] EWCA Crim 1143 considered
R v Cooper [1969] 1 All ER 32 applied
R v. Galbraith [1981] 2 All ER 1060 considered
R v Turnbull (1977) QB 224 considered
R. v. Williamson No. 34 of 1995 considered
Ratten v The Queen [1972] 2 AC 378 considered
Regina v Bedingfield (1879) 14 Cox CC 341 mentioned
Reid v R [1980] A.C. 343 applied
Stafford v Director of Public Prosecutions [1973] 3 All ER 762 applied
Criminal appeal — Application for an extension of time — Cause of death — Identification evidence — Whether jury should have been discharged after prejudicial portion of statement admitted into evidence — No case to answer submission — Hearsay — Inadmissible hearsay — Res gestae — Dying declaration — Lurking doubt — Section 17 of the Court of Appeal Act — Section 39 of the Evidence Act
On 6 January 2014 Marcus Miller Jr. (Marcus) was shot to the face while at Gibson's Bar located on Carmichael Road. Following the shooting he was transported to the hospital. While at the hospital he was visited by his father and in response to his father's question as to whether he knew who shot him Marcus replied “A man named Blue shoot me.” The reference to Blue was to the intended appellant. At trial the Crown relied on statements made by Marcus prior to his demise; the statement to his father, a statement to the police made the day following the attack and reduced into writing and a second verbal statement to two police officers, made in the presence of Marcus' brother. During the trial the statements of who shot Marcus were admitted by the trial judge as exceptions to the Hearsay Rule and as part of the res gestae. None of the other witnesses that testified at the trial were able to identify any of the alleged shooters. An individual, Tyson Cargill, identified the intended appellant on an identification parade but he did not participate in the trial, as by that time he was deceased and the Crown did not make an application to have his statement admitted into evidence. The fact that Cargill identified the intended appellant was testified to by Inspectors Missick and Taylor, the officers that conducted the identification parade.
The intended appellant was convicted of murder on 19 March 2017, sentenced to 35 years' imprisonment on 19 September 2017 and filed his Criminal Form No. 1 on 8 November 2017. He then filed a summons and supporting affidavit on 23 April 2019.
Held: application for leave to appeal out of time granted. Conviction quashed and sentence set aside. No order for a re-trial.
Any appeal not filed within twenty-one days (as per section 17 of the Court of Appeal Act) requires an application for an extension of time within which to appeal. On such an application the factors to be considered are the length of the delay, the reasons for the delay, the prospect of success on appeal and the prejudice, if any, to the respondent. In the present case the Court was of the view that the prospect of success was the most important factor for consideration.
The intended appellant challenged the trial judge's decision alleging a number of material irregularities and the judge's decision to reject his no case submission.
Notwithstanding the intended appellant's allegation that an element of the offence was missing, the Court is of the view that there was ample evidence adduced by the prosecution from which the judge could conclude, prima facie, that the intended appellant caused Marcus' death.
In the round, having regard to the identification evidence led, the evidence was manifestly unreliable and could not provide a proper basis on which a jury properly directed could convict. The trial judge directed the jury to exercise great care and caution if they relied on Cargill's identification. This direction proved fatal to the jury's verdict because it invited the jury to deliberate on inadmissible hearsay. Cargill's identification evidence ought to have been discarded and, therefore, that only left Marcus' identification of the intended appellant. In this vein the jury should have been directed on the factors enunciated in R v Turnbull. Marcus' statement, while it does address the lighting conditions under which the observation was made, it does not address factors such as length of the observation and the distance from which the observation was made.
At the close of the Crown's case there was, in our view, insufficient admissible identification evidence adduced to link the intended appellant to the shooting of Marcus. In the premises he should not have been called upon to present a case. The judge ought to have acceded to the submission of no case to answer in the circumstances.
Judgment delivered by the Honourable
. The intended appellant was charged jointly with his co-accused Jermaine Missick (“Missick”), in the Supreme Court for the 6 January 2014 murder of Marcus Miller, Jr. “Marcus”. On 19 March 2017, he was convicted of murder; and on 19 September 2017, he was sentenced to 35 years' imprisonment at The Bahamas Department of Corrections.
. On or about 8 November 2017, the intended appellant filed a Criminal Form No. 1 in the Court's Registry. According to section 17 the Court of Appeal Act, an appeal must be filed within twenty-one days of the conviction; and if that is not done, the intended appellant requires the leave of the Court for an extension of time within which to appeal.
. The appellant filed a summons seeking the leave of the Court to appeal his conviction and sentence on 23 April 2019. It was supported by an affidavit sworn to by the intended appellant wherein he sought to explain the reasons for his tardiness, his prospects of success and his proposed grounds of appeal.
. In Attorney-General v. Omar Chisholm MCCrApp. No. 303 of 2014, this Court identified four factors to be considered when hearing an extension of time application:
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(a) The length of delay;
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(b) The reason for the delay;
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(c) The prospect of success on appeal; and
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(d) Prejudice, if any, to the Respondent.
. We were of the view that the intended appellant's prospect of success was the most important factor for our consideration hence the other three factors did not weigh as heavily in what we will refer to as the “scales of convenience”, to wit, those factors that are more favourable to the intended appellant's position than those which are not, during our deliberations.
. Notwithstanding that the Form 1 was received by the Court since around 8 November 2017, an application for an extension of time was not filed until 23 April 2019. Thus, the delay in this case is in excess of sixteen months. The delay is inordinate.
. At paragraphs 4 and 5 of his affidavit the intended appellant sought to explain his delay and averred as follows:
“4. That the delay in the court receiving my application for Appeal is not my fault and was circumstances beyond my control. I was without counsel and I lacked the financial means.
5. That I made several request (sic) in reference to my appeal.”
. The reasons proffered are not entirely satisfactory because impecuniosity is not a sufficient reason for not launching an appeal timeously. Although the intended appellant does not specify to whom his “several requests” were directed, it is a notorious fact that persons on remand have no control over when appeal forms are made available to them or when the completed forms are transmitted to the Court of Appeal on their behalf. We therefore accept that this reality could have contributed to the delay and find the intended appellant's explanation for the delay not unreasonable. However, there was no perceptible prejudice inuring to the intended respondent if the Court was to accede to the application.
. We turn now to the issue of whether the appeal has a reasonable prospect of success. The grounds enumerated in the intended appellant's affidavit at paragraph 7 disclose the following:
“(a) That the learned judge erred in law when he found that an essential element of the crown's case was not present, that is to say that it was me that caused the death of Marcus Miller, whilst armed with an offensive instrument.
(b) That a material irregularity occurred in the trial, in that:
(i) That the learned judge erred in law and fact, when the jury was not discharged due to the prejudicial statement of Marcus Miller which suggested that the Appellant had committed a similar offence before. Further that a more robust direction should have been made to the jury in relation to the prejudicial statement.
(ii) That the learned Judge erred in law and fact, when it found that the Appellant had a case to answer. In that the prosecution had not established essential elements of their case and the evidence was unreliable.
(iii) In directing the jury, the learned judge failed to point out and to warn the jury, either sufficiently or adequately how the jury was to deal with weaknesses, inconsistencies and discrepancies of the prosecution's case and its effect on the prosecution's evidence.
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