Henry Sean Darren Gay v The Director of Public Prosecutions

JurisdictionBahamas
CourtCourt of Appeal (Bahamas)
JudgeSir Michael Barnett, P,Mr. Justice Isaacs, JA,Madam Justice Bethell, JA
Judgment Date26 September 2022
Neutral CitationBS 2022 CA 128
Docket NumberSCCrApp No. 55 of 2020
Between
Henry Sean Darren Gay
Intended Appellant
and
The Director of Public Prosecutions
Intended Respondent
Before:

The Honourable Sir Michael Barnett, P

The Honourable Mr. Justice Isaacs, JA

The Honourable Madam Justice Bethell, JA

SCCrApp No. 55 of 2020

IN THE COURT OF APPEAL

Criminal appeal — Rape — Proper approach to extension of time applications — Identification evidence — Witness changing her description of her assailant — Application to declare a mistrial and discharge the jury — Rogue's gallery — Identification parade — Circumstantial evidence — Whether sentence imposed was unduly harsh

In April 2014 the virtual complainant (“the VC”), along with her parents, were visiting their vacation home in San Salvador. The VC went for a bike ride one morning and on her way home a man approached her and raped her. The intended appellant was arrested within an hour of the rape being reported to the police. He was later tried for and convicted of rape. The primary evidence against the intended appellant was the VC's identification of him as her rapist.

The VC gave a description of her attacker to the police and to a nurse on the day of the incident. The following day she was shown a number of photos and identified the intended appellant as the person who raped her. Upon being asked whether she was sure that the man she selected from the photo line up was her attacker she replied that she was sure as she could never forget his eyes. The VC also identified the intended appellant at the trial. During cross examination the VC admitted that the description which she gave of her attacker was of a man with a gap in his teeth. At the trial, however, she admitted that that description was mistaken. She admitted that she became aware that her description of her attacker was wrong after a prosecutor drew to her attention that the man she identified in the photo as her attacker did not have a gap in his teeth. The VC maintained, however, that the intended appellant was the man that raped her.

The intended appellant was found guilty by the jury and convicted of the offence of rape. He was sentenced to 20 years' imprisonment. He now seeks an extension of time within which to appeal both his conviction and sentence.

Held: application for an extension of time refused. Conviction and sentence affirmed.

per Barnett, P: The intended appellant is seven months out of time and the reason provided for the delay is, inter alia, that the intended appellant was dependent on the prison authorities to transmit his documents to the Court. This is an inadequate excuse. Having regard to the issues raised on the extension of time application the Court considered the prospects of success. Being satisfied that the intended appeal met the threshold of a realistic prospect of success and was not a fanciful or unarguable appeal, and as the Court had been furnished with full written and oral submissions on the merits of the appeal, the application for an extension of time was considered by me as the appeal itself.

The appellant complains that the judge erred by not declaring a mistrial following what he calls a material non-disclosure on the part of the Crown. The judge refused the application. The trial judge's ruling on the application by the appellant to declare a mistrial was eminently fair. The change of description by the VC was a matter for the jury as it affected the reliability and credibility of the VC's identification of the appellant.

The appellant also complains that the judge inaccurately summarized the VC's identification evidence for the jury. The inconsistency in the description of the appellant and the VC's attacker was drawn to the attention of the jury. It was up to the jury to evaluate the reliability of the VC's evidence. Having considered the judge's direction on identification to the jury, the judge was not required to do any more than she did.

Another of the appellant's complaints relates to the photo line up adduced at trial, having regard to the appellant's peculiar physical features. The judge cannot be faulted for exercising her discretion to admit the identification evidence.

The appellant also complains about the judge's treatment of circumstantial evidence. In the present case, any defect in the directions on circumstantial evidence was not fatal, nor did it make the conviction unsafe.

Finally, the appellant complains that his sentence is unduly harsh. It is settled law that an appellate court will not interfere with or set aside a sentence as being unduly severe unless the sentence was beyond that which a reasonable judge could impose. A twenty-year sentence does not fall outside the range of reasonableness and, therefore, there is no basis upon which this Court could interfere with the sentence imposed by the trial judge.

George Prince Williams v R SCCrApp. No. 229 of 2014 considered

Johnson v R [2017] 1 BHS J No. 98 considered

Kelly v R [2015] EWCA Crim 817 considered

Sherry v R [2013] UKPC 7 mentioned

Taborda v R SCCrApp. No. 171 of 2017 considered

Thurston v R [2005] 1 BHS J No. 9 considered

per Isaacs, JA: The factors to be considered on an application for an extension of time are the length of the delay, the reasons for the delay and the prospects of success. The length of the delay in this case is seven months. The delay is inordinate. The reasons provided for the delay relate, inter alia, to the pandemic, the lack of assistance of counsel and dependence on the prison authorities. The reasons provided for the delay are inadequate.

The test on an extension of time application is whether the proposed grounds of appeal provide a sufficient basis for the Court to conclude that one of them is likely to succeed. This is a precondition to the appeal itself being considered. In the present case, being satisfied that none of the grounds raised had any prospect of success, the extension of time application ought to be refused and it is unnecessary to enter into a consideration of the appeal.

Alexander Williams v Regina SCCrApp. No. 155 of 2016 considered

Commissioner of Police v Linty Stuart MCCrApp. No. 139 of 2016 considered

Errol Knowles v Regina SCCrApp. No. 79 of 2017 mentioned

Garvin Adderley v Regina SCCrApp. No. 250 of 2017 mentioned

George Prince Williams v R SCCrApp. No. 229 of 2014 considered

Marco Ingraham v Regina SCCrApp. No. 109 of 2019 mentioned

Sherry v The Queen [2013] UKPC 7 considered

The Attorney General v Omar Chisholm MCCrApp. No. 303 of 2014 mentioned

per Bethell, JA: It has been the long-standing practice of this Court to hear extension of time (EOT) applications, and if granted, to go onto consider the full merits of the appeal. None of the intended appellant's proposed grounds of appeal has any prospects of success. I would refuse the EOT application and affirm the conviction and sentence.

Kesnor Lexidor v Regina SCCrApp. No 76 of 2017 considered

Renaldo Armbrister v The Commissioner of Police MCCrApp. No. 111 of 2021 considered

APPEARANCES:

Mrs. Romona A. Farquharson-Seymour, Counsel for the Intended Appellant

Mr. Eucal Bonaby and Miss Skyler Deveaux, Counsel for the Intended Respondent

Sir Michael Barnett, P

Judgment delivered by the Honourable

1

. This judgment should be read in conjunction with the judgment of Isaacs, JA, with who Bethell, JA agrees; because we appear to share different views as to the approach of the Court to this application, we have separate judgments.

2

. This is an application for an extension of time to appeal against a conviction and sentence for rape. The application is being made seven months out of time.

3

. I say seven months because the applicant (who was not represented by counsel) made it known to the Court and to the prosecution that he wanted to appeal his conviction seven months after he was convicted. The application for an extension of time was renewed after this Court appointed an attorney to represent him and who realized that an application to extend the time was necessary.

4

. The reason offered for the delay is the fact that the applicant was incarcerated and dependent on the efficiencies of the prison system to receive the Form 1 and send the completed Form 1 to the Court. The applicant was represented by counsel at the trial, but counsel's brief ended with the trial and did not include the consideration of any appeal.

5

. This is an inadequate excuse. Time frames imposed for appeals must have some meaning and finality in criminal litigation is an important aspect of the administration of justice. This is particularly so for victims of crimes who will always suffer prejudice by any delay in appealing a decision after trial.

6

. However, because the proposed appeal raised issues as to the quality of the identification evidence and the conduct of prosecution counsel in the course of the prosecution of the case, we considered the prospects of the success of the appeal. I was satisfied that the application for an extension of time to appeal in this case met the threshold of a realistic prospect of success to warrant an extension of time. It was not a fanciful or unarguable appeal. It must be recalled that realistic prospects of success does not mean that the appeal will succeed nor does it mean that the appeal is likely to succeed. It could not, in my judgment, be said that the appeal had “no prospects of success” as suggested in Sherry v R [2013] UKPC 7.

7

. As we had full written and oral submissions on the merits of the appeal, I considered the application for the extension of time as the appeal itself.

8

. As this Court said in its judgment in the case of George Prince Williams v R SCCrApp. No. 229 of 2014 delivered on 4 May 2022:

“14. It would not have been in the interest of justice, and it would have been a waste of judicial time if the Court only determined whether the appeal had some realistic prospect of success to be further argued again at a...

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