Glinton v R
| Jurisdiction | Bahamas |
| Judge | John, J.A. |
| Judgment Date | 15 April 2014 |
| Neutral Citation | BS 2014 CA 69 |
| Docket Number | SCCrApp & CAIS No. 113 of 2012 |
| Court | Court of Appeal (Bahamas) |
| Date | 15 April 2014 |
Court of Appeal
Allen, P.; John, J.A.; Adderley, J.A.
SCCrApp & CAIS No. 113 of 2012
Mr. Craig Butler with Ms. Krystal Saunders, Counsel for the appellant.
Ms. Darnell Dorsette with Mr. Patrick Sweeting, Counsel for the respondent.
Evidence - Appeal — No case submission — Criminal evidence — Circumstantial evidence — Accomplice — evidence — Whether the trial judge should have upheld a no case submission — Whether the trial judge properly directed the jury on circumstantial evidence — Whether special directions should have been given to the jury on how to properly construe the appellant's silence — Exceptions to the rule against hearsay evidence — Accomplice warning — Definition of “accomplice” — The proviso — Whether the trial judge properly directed the jury on the accomplice evidence — Appeal allowed — Conviction and sentence quashed.
In early 2006, the deceased was killed while attempting to make a bank deposit. In 2012, after three trials, the appellant was convicted of the deceased's murder.
appeal allowed, conviction and sentence quashed
It is not the function of the trial judge in considering a no case submission to choose between inferences which are reasonably open to the jury. The trial judge is concerned only with whether a reasonable mind could reach a conclusion of guilty beyond reasonable doubt and therefore exclude any competing hypothesis as not reasonably open on the evidence. We are satisfied that the trial judge was correct in rejecting the no-case submission as the evidence in this case was such that it was open to a reasonable jury to draw inferences from which they could properly conclude that the appellant was guilty.
Though the trial judge failed to give the complete circumstantial evidence direction as set out in the case law, we do not consider the omission to be of such a material nature as to amount to an error or misdirection as the trial judge explained to the jury, inter alia, that if there is one circumstance not consistent with guilt it breaks down the strength of the circumstantial evidence.
The authorities clearly show that it is within the sole discretion of the trial judge to determine whether or not an accomplice warning is required in a given case. The trial judge's choice, in this case, to not give an accomplice warning, was an improper exercise of his discretion. Vaughn Carey's evidence and accordingly his credibility were paramount to the prosecution's case. If the jury had any doubt about his testimony, the case for the Crown was bound to fail. As such the failure of the trial judge to warn the jury that Vaughn Carey was an accomplice and to give a warning about the care with which they should approach his evidence renders the verdict unsafe.
After careful consideration of the evidence this is not an appropriate case for the application of the proviso.
Following a trial before Jones J and a jury the appellant was, on the 17 th March 2012, convicted of the murder and armed robbery of Keith Carey. The appellant was sentenced to 57 years imprisonment for the murder and 30 years for the armed robbery, the sentences to run concurrently.
The facts were that on Monday, February 27 th 2006, the deceased Keith Carey, the operator of Esso-On-The Run, Carmichael Road, while approaching the Bank of The Bahamas on Harrold Road to make a deposit was accosted by a gunman who robbed him of the deposit bag he was carrying and shot him. He died the same day.
After an investigation, the appellant, who is also known as “Bumper,” along with Dwight Knowles, Dwight Knowles' cousin, Sean Brown and Vaughn Carey, a cousin of the deceased, were arrested and charged with conspiracy to commit murder, murder and armed robbery.
The 2012 trial was the appellant's third trial for these offences. At the first trial, the appellant along with Vaughn Carey, Sean Brown and Dwight Knowles was arraigned before Senior Justice Jon Isaacs but that trial was aborted.
At the conclusion of the second trial, Dwight Knowles and Sean Brown were convicted of armed robbery whilst the appellant was convicted of murder and armed robbery. The appellant appealed his conviction and was successful before the Court of Appeal, which quashed the convictions and sentences and ordered a re-trial.
The Prosecution's case against the appellant in the 2012 retrial was that the appellant robbed Keith Carey while armed with a firearm and shot him to death. Counsel for the appellant, Mr. Craig Butler, filed 15 grounds of appeal. However, as many of them related to the same issue, those grounds have been dealt with together under three broad categories, namely, no case submission, circumstantial evidence and accomplice evidence. These categories will be considered in turn.
No Case Submission
Grounds 1, 2, 3, 12 and 13 all related to the failure of the trial judge to uphold a submission of no-case to answer.
The complaints were as follows:
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i. All the evidence led by the prosecution can be said to be of a tenuous nature.
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ii. There was no nexus between the crime charged, the persons previously convicted and the appellant.
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iii. The prosecution did not provide any biological, medical any physical finger print evidence, no gun and no eye witnesses.
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iv. None of the witnesses tendered by the prosecution was able to place the accused together with the two other persons convicted of the offence on that day on the scene.
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v. The evidence of Vaughn Carey (who had been originally charged with the offences and against whom the Crown had entered a nolle prosequi) was an uncorroborated statement that when he confronted the accused in the yard at Her Majesty's Prison and asked him why he killed the deceased the appellant did not respond.
Before embarking upon the evidence that was before the jury at the close of the case for the prosecution it is necessary to remind ourselves of a statement made by Lord Carswell in delivering the judgment in Director of Public Prosecutions v. Selena Varlack, Privy Council Appeal No. 23 of 2007, an appeal from the Court of Appeal of The British Virgin Islands.
At para 21 of the judgment Lord Carswell said:
21. “The basic rule in deciding on a submission of no case at the end of the evidence adduced by the prosecution is that the judge should not withdraw the case if a reasonable jury properly directed could on that evidence find the charge in question proved beyond reasonable doubt. The canonical statement of the law, as quoted above is to be found in the judgment of Lord Lane, C.J. in R v. Galbraith [1981] 1 W.L.R. 1039, 1042. That decision concerned the weight which could properly be attached to testimony relied upon by the crown as implicating the defendant, but the underlying principle, that the assessment of the strength of the evidence should be left to the jury rather than being undertaken by the judge, is equally applicable in cases such as the present, concerned with the drawing of inferences.”
The principle in R v. Galbraith was recently summarised in this Court in the judgment delivered in Kemp v. Regina No. 201 of 2012. I would, nevertheless, restate the principles in summary form:
“(1). If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case. (2) The difficulty arises where there is some evidence but it is of a tenuous nature for example because of inherent weakness or vagueness or because it is inconsistent with other evidence. (a) Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case. (b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness's reliability or other matters which are generally within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty then the judge should allow the matter to be tried by the jury. There will of course, as always in this branch of the law be borderline cases. They can safely be left to the discretion of the judge.”
The prosecution called several witnesses. Though most of the evidence was circumstantial in nature, there was evidence from Vaughn Carey, a cousin of the deceased. Vaughn Carey worked at the service station and was working on the 27 February, 2006 when the deceased left to go to the bank carrying a red plastic bag. He said that a white Nissan Maxima with 3 persons left the gas station shortly after the deceased left for the bank. He further testified that whilst detained at Her Majesty's Prison, Fox Hill, he was in company with two of the other persons charged in this matter. It was sometime in 2008. The appellant who is also known as ‘Bumper’ was also present at Fox Hill. One of the persons told Vaughn Carey in the presence and hearing of the appellant that the appellant, Bumper, was responsible for killing his cousin. The person further told Vaughn Carey that Bumper ran up on the deceased at the bank, Keith saw him in the corner of his eye, he tripped on the step and threw the bag at him (the appellant) and that Bumper didn't have to shoot Keith Carey. He went on to say that the bag contained cash and cheques totalling $48,000 and it were divided amongst the three of them. According to Vaughn Carey the appellant made no response.
On arrest, the appellant told the police that he was with his girlfriend Shantell Humes for the entire day of the incident. Shantell Humes was a witness for the prosecution; she testified that the appellant was not with her all day as he had alleged. She said that he dropped her to work that morning shortly after...
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