Garvin Pratt v R

JurisdictionBahamas
CourtCourt of Appeal (Bahamas)
JudgeSir Michael Barnett, JA,The Honourable Sir Hartman Longley, P
Judgment Date12 April 2018
Neutral CitationBS 2018 CA 57
Date12 April 2018
Docket NumberSCCrApp. No. 41 of 2016

IN THE COURT OF APPEAL

Before:

The Honourable Sir Hartman Longley, P

The Honourable Sir Michael Barnett, JA (Actg.)

The Honourable Mr. Justice Evans, JA (Actg.)

SCCrApp. No. 41 of 2016

Between
Garvin Pratt
Appellant
and
Regina
Respondent
APPEARANCES:

Mrs. Ramona Farquharson-Seymour, Counsel for the Appellant

Ms. Cassie Bethell, Counsel for the Respondent

Attorney General v Larry Raymond Jones et al SCCr App. Nos. 12, 18 and 19 of 2007 applied

Davis v R [2002] BHS J No 11 applied

Grant (Steven) v R [2006] 88 WIR 354 considered

Prince Daniel McPhee v R SCCrimApp. No. 128 of 2012 mentioned

R v Nye and Loan 66 Cr. App. R. 252 applied

R v Mahmood [2013] EWCA Crim 742 considered

R v Russell-Jones [1995] 1 Cr. App. R. 538 considered

R v Turnbull 80 Cr. App. R. 104 considered

Ratten v R [1972] AC 378 applied

Rex v Dean [1942] O.R. 3–14 considered

Criminal appeal - Attempted murder — Possession of a firearm with intent to endanger life — Rogues' gallery — Failure to call a witness listed on the indictment — Availability of a witness named on the indictment — Failure to call an alibi witness — Withdrawal of charges from the jury — Corroborating witness with criminal record — Res gestae — Hearsay — Exceptions to the rule against hearsay — Dying declaration — Corroborating witness suffering from mental disease — Application of the proviso — Sentence — Section 39 Evidence Act

On the 31 st December, 2013 Adam Major was shot five times about the head and body; he was hospitalized and survived. While on the ground waiting for an ambulance he told his cousin that “Garvin Pratt” shot him. In the hospital he was shown a rogues' gallery and identified the appellant from the photos as the person that shot him. Major testified at the trial and identified the appellant as his assailant, Major's cousin also testified that Major told her the appellant shot him and the officer that visited the hospital and presented the rogues' gallery to Major testified that Major identified the appellant to him. The appellant was convicted and sentenced to 30 years' imprisonment for the offence of attempted murder and ten years imprisonment for the offence of possession of a firearm with intent to endanger life. He appeals both his conviction and sentence.

Held: appeal dismissed; conviction and sentence affirmed.

The appellant submitted that the judge was wrong to permit the out of court statements made by Major on the basis that they amounted to a dying declaration. Whilst it is improper to regard the statement as admissible as a dying declaration under section 39(2)(f) of the Evidence Act since Major was not dead, the judge in our view was entitled to admit it under the principle set out by the Privy Council in Ratten v R. That principle is that hearsay evidence may be admitted if the statement providing it is made in such conditions of involvement or pressure as to exclude the possibility of concoction or distortion to the advantage of the maker or the disadvantage of the accused. In this case the statement made by Major was spontaneous and made immediately after he was shot and was fearful that he was about to die. There was no real risk that he had time to make a false statement simply to incriminate the appellant or to concoct an erroneous story. In the circumstances, the trial judge was entitled to admit the evidence.

Complaint was made by the appellant against the failure of the Crown to disclose that Major's cousin had a criminal record and suffered from a mental disease. However, there is no evidence that the Crown was aware at the time of the trial that Major's cousin had a mental disease. The medical report upon which the appellant relies is dated the 16 th March, 2016 well after the trial of this matter and there is no evidence that at the time of the trial she had a criminal record.

The Crown closed its case without calling a witness named on the back of the indictment and the trial judge declined to call the witness as the court was of the view that it was not a case in which it should interfere. The appellant takes issue with this matter on appeal. The issue was ventilated before the trial judge and it was clear that the Crown opted not to call this witness as it formed the view that she was not a credible witness and it made the witness available, but he refused to call her. The trial judge's exercise of discretion cannot be faulted as it was done after due consideration of the law and in our judgment a proper application of the law.

The appellant complains that the charge of possession of a firearm with intent to endanger life was contained in the charge of attempted murder and therefore the judge erred by not withdrawing this charge from the jury. In the Court's judgment this argument is They are distinct offences. A jury could acquit a person of attempted murder on the basis of a lack of intent to kill but convict a person of being in possession of a firearm with intent to endanger life on the ground that the accused only intended to inflict serious harm. There was no reason why the trial judge should have withdrawn that charge from the jury.

The appellant submits that the trial judge erred by permitting the positive identification of the appellant by way of the rougues' gallery and also that the judge erred by failing to warn the jury not to make any conclusions about the appellant's character due to his photograph being in a rogues' gallery. In the Court's judgment the prosecution ought not to have led the evidence of the officer who showed Major the rogues' gallery. However, that evidence, once admitted, meant that the judge ought to have given a clear warning to the jury that they should not attach any significance to the fact that the accused was identified from an album of photographs held by the police. The jury should have been warned that the fact that a person may appear in a rogues' gallery did not mean that the accused was of bad character and the jury should not take that into account in evaluating any of the evidence or at all. Nevertheless, there may be circumstances where a warning may be worse for an accused as the jury may not be aware of the nature of the photos in an album. However, given the fact that the officer explicitly stated that the album was compiled from persons who had been shot or had been in police custody the warning was essential. If that photo gallery identification was the only identification of the appellant we would be satisfied that the irregularity would have been sufficient to quash this conviction However, given that the other evidence of identification was so compelling, the Court is of the view that the appellant would still have been convicted of both offences. In these circumstances, the proviso was applied.

Judgment delivered by the Honourable Sir Michael Barnett, JA (Actg.):

1

. This is an appeal against the appellant's 5 th May, 2015 convictions for the offences of attempted murder and possession of a firearm with intent to endanger life. Following his convictions he was sentenced on the 10 th February, 2016 by Bethel, J. to thirty years' imprisonment for attempted murder and ten years' imprisonment for possession of a firearm with intent to endanger life, less the time spent on remand awaiting trial.

2

. The facts which gave rise to the offences are not complicated.

3

. On the 31 st December, 2013 sometime between 7 and 8pm Adam Major was shot five times whilst near his aunt's home on Eighth Street, the Grove. He was shot about the body and was hospitalized for about 4 months. Major knew the appellant having attended both the same primary and high school. Whilst on the ground waiting for an ambulance he told his cousin Antonia Butler that “Garvin Pratt” was the person who shot him. During the trial Major testified that:

“My cousin dem came out 'cause they heard the shots. They were right in the front room. Antonia came out. When she saw me on the ground, so she came over me. At that point in time I thought I was going to die cause I would have hear the blood draining out, I was getting weak. Like when I saw her I told her who shot me cause like I say I don't know whether I would have died.”

4

. Whilst in hospital he was shown an album containing photos of various persons. The photos were of persons who have been arrested before by the police. He identified the photo of the appellant as the person who shot him.

5

. Major survived and at the trial gave direct evidence identifying the appellant as the person who shot him.

6

. His cousin Antonia Butler also gave evidence that whilst on the ground Major told her that the appellant shot him.

7

. After Major gave his evidence identifying the appellant as the person who shot him and Ms. Butler gave evidence that Major told her that the Appellant shot him, the prosecution adduced the evidence of the identification in the hospital. D/Cpl Ferguson who conducted the photo interview at the hospital gave evidence that Major identified the appellant from an album containing 12 photos of various persons. He was asked how the photos in the album were compiled. His response was:

“Once a person has been shot or in police custody and we would get information from a victim who give us certain description (sic) we have a database that have persons who were arrested before that's in the system and because of the similarity of the description given it generates the picture.”

8

. At the completion of the trial the jury gave a unanimous verdict of guilty on the two counts and, as noted, the appellant was sentenced to 30 years' imprisonment.

9

. The appellant appeals that conviction and sentence on the following grounds (grounds 1 and 2 were amended at the hearing of the appeal):

  • “1. That the Trial Judge erred in law and fact by permitting into evidence the positive identification of the Appellant by way...

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