Indrick Tilme v R

• Jurisdiction: Bahamas
• Judge: Mr. Justice Evans, JA
• Judgment Date: 03 February 2022
• Neutral Citation: BS 2022 CA 17
• Court: Court of Appeal (Bahamas)
• Docket Number: SCCrApp. No. 102 of 2020

Between

Indrick Tilme

Intended Appellant

and

Regina

Intended Respondent

Before:

The Honourable Mr. Justice Isaacs, JA

The Honourable Madam Justice Crane-Scott, JA

The Honourable Mr. Justice Evans, JA

SCCrApp. No. 102 of 2020

IN THE COURT OF APPEAL

Criminal appeal — Extension of time — Attempted murder — Burglary — Confession statement — Mushtaq Direction — Appropriate adult — Unrepresented defendant — Section 178 of the Evidence Act

Between the 8 and 9 July 2012 the home of Admiral Forbes was broken into. The intended appellant, who at the time was 16 years old, was charged with attempted murder and burglary. The only evidence against the intended appellant was a confession statement. At trial, the intended appellant denied his involvement in the offences and indicated that the statement was pre-written by the Police and that he signed the same as a result of oppression brought about by police brutality.

The intended appellant was convicted on 18 December 2016 for the offences of burglary and attempted murder. On 6 April 2017 he was sentenced to 10 years and 18 years imprisonment, respectively. The intended appellant now seeks an extension of time within which to appeal. The length of the delay is approximately 3 years and 5 months. The proposed grounds of appeal relate to the learned judge's failure to give a Mushtaq direction, the judge's admission of the statement into evidence and the judge allowing the intended appellant to represent himself after the withdrawal of his counsel.

Held: application for an extension of time allowed. Appeal allowed. Convictions and sentences quashed.

On an application for an extension of time the Court must consider: the length of the delay, the reasons for the delay, the prospects of success on appeal and the prejudice, if any, to the intended respondent.

Regarding the prospects of success, the intended appellant raised multiple issues during the voir dire. The ruling of the judge on the voir dire, however, cannot be located and the parties opted to proceed without it. This was not simply a case of credibility between the Police witnesses and the intended appellant. Of concern to the Court are the findings of the judge on the role of the appropriate adult, the production of a statement notwithstanding the lack of a record of interview and the judge's view on the role of the detention record. In the absence of the judge's ruling on the voir dire the Court cannot say whether it is satisfied that the judge properly exercised his discretion to admit the confession into evidence.

A Mushtaq direction is required where there is a possibility that the jury may conclude (i) that a statement was made by the defendant, (ii) the statement was true but (iii) the statement was, or may have been, induced by oppression. The judge in the present case failed to give a Mushtaq direction and incorrectly directed the jury that they may rely on the statement, even if they found that it was made as a result of oppression, if they are sure that the statement was made and that it was true. The confession statement was the only evidence connecting the intended appellant to the crimes.

There is no record of what transpired when the decision was made to proceed with the intended appellant being unrepresented. The procedure to be followed and the factors to be considered when there is a request by counsel to withdraw or a request by the accused person to terminate the services of his attorney during trial have been laid down by the Privy Council in the case of Simeon Bain v The Queen. The intended appellant's statement indicates that while in the home of Mr. Forbes he fired a shot to scare Mr. Forbes. The judge did not explain to the jury that if they accepted that the intended appellant fired the gun only to scare Mr. Forbes, he lacked the requisite intent to constitute the offence of attempted murder. Counsel would have drawn this issue to the attention of the judge so that the jury could have been specifically addressed on it.

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

Attorney General v. Omar Chisholm MCCrApp No. 303 of 2014 applied

Bain v The Queen [2020] UKPC 10 applied

Birkett v. James [1978] AC 297 mentioned

Deenish Benjamin and Deochan Ganga v The State of Trinidad and Tobago [2012] UKPC 8 applied

Dunkley v The Queen [1995] 1 AC 419 mentioned

Kadeem Bain & Tony Newbold v R SCCrApp. Nos. 263 and 311 of 2014 considered

Mario Taylor v Regina SCCrApp. No. 265 of 2017 considered

Mitchell v The Queen [1999] 1 WLR 1679 mentioned

R v Webb (1994) 74 A Crim R 436 considered

Rex v. Sussex Justices [1924] 1 KB 256 considered

Robinson v The Queen [1985] AC 956 mentioned

Rodriguez Jean Pierre v Regina SCCrApp. No. 110 of 2019 mentioned

Shavargo McPhee v The Queen [2016] UKPC 29 applied

Shadrach Gibson v. Regina SCCrApp. No. 204 of 2016 applied

Simmons & Anor v. R [2006] UKPC 19 considered

Valentino Dorsette v Regina SCCrApp. No. 224 of 2016 considered

Wallace and Another v R [1997] 1 LRC 350 mentioned

APPEARANCES:

Mrs. Brendalee Rae, Counsel for the Intended Appellant

Ms. Darnell Dorsette, Counsel for the Intended Respondent

Mr. Justice Evans, JA

Judgment delivered by the Honourable

BACKGROUND

1 . The intended appellant was charged with the following offences: (a) attempted murder contrary to section 292 of the Penal Code, Cap 84. The prosecution alleged that the intended appellant on Monday, 9 July 2012, at New Providence, did attempt to murder Admiral Forbes; (b) burglary contrary to section 363 of the Penal Code, Cap 84.

2 . The prosecution alleged that the intended appellant, between Sunday 8 July 2012 and Monday, 9 July 2012 at New Providence, in the night, did unlawfully break and enter the dwelling house of Admiral Forbes with intent to commit a felony therein, mainly stealing. The thrust of their case was that the intended appellant, who was at that time a sixteen-year old (16) minor, burgled and attempted to murder Admiral Forbes.

3 . The Prosecution's case was based solely on a self-incriminating confession, which was alleged to have been made by the intended appellant while in Police custody.

4 . At trial the intended appellant's case was that he never burgled or attempted to murder Admiral Forbes and that the statement relied upon by the Prosecution, was pre-written by the Police Officers and was signed by him as a result of oppression by way of police brutality.

5 . On 18 December 2016, the jury convicted the intended appellant of the offences of burglary and attempted murder and on 6 April 2017 the intended appellant was sentenced to 10 years imprisonment for the offence of burglary and 18 years imprisonment for the offence of attempted murder, to run concurrently.

THE APPEAL

6 . On 3 September 2020 the intended appellant signed a formal Notice of Appeal along with a Notice of Application for Extension of Time within which to appeal, both of which were received into the Court of Appeal's Registry on 22 September 2020 a difference of approximately 3 years and 5 months after the 21 day expiration date for appealing had passed.

7 . On 5 November 2021, a Summons and Affidavit were filed in support of his Notice of Application for Extension of Time, outlining the several grounds of appeal as follows:

“Ground 1

• a) The Learned Judge misdirected the jury on the issue of the alleged confession, by failing to give a proper Mushtaq Direction. The direction that was given, confused the jury rendering the trial unfair.

• b) The learned Judge erred when he admitted the record of interview into evidence:

  • i. The Appellant's infection that he incurred while in police custody as well as his need for pain medication, independent of his infection.

  • ii. In that the Officers' evidence show that they did not properly instruct the Appellant's sister of her role while sitting in on the taking of the statement, that was allegedly given by the Appellant;

  • iii. It was the Officer's evidence that questions were asked of the Appellant, but none of those questions were recorded nor was the Appellant cautioned before answering them.

  • iv. The contradictory evidence of the officers in reference to the Appellant's sister's inquiry as to whether he'd been beaten by the police.

Ground 2

The Learned Judge in failing (sic) to appreciate the unfairness of the trial and the serious prejudice suffered by the appellant given the withdrawal of the appellant's counsel and the inability of the appellant to properly defend himself against such a serious charge, pursuant to article 20(2)(c) of the Constitution of the Commonwealth of The Bahamas.

Ground 3

The verdict is unsafe and unsatisfactory having regard to the circumstances of the case;

Ground 4

The Learned Judge in his sentencing report, failed to take into account the time that I had spent on remand.”

8 . At paragraph 4 of the aforesaid Affidavit the intended appellant proffered his reason for the delay in filing his appeal in these terms:

“4. That I did not originally know that I could appeal my conviction and sentence, as I did not have an Attorney during my trial, then when I became aware I sent letters to the Court of Appeal for both of my convictions, however only one was heard at that time. During that appeal, I sent another letter to the Court of Appeal, through his (sic) attorneys, after which, sometime later I was able to sign a Notice of Appeal and an Extension of time Application at the same time, but it was filed out of the prescribed time.”

THE EXTENSION OF TIME APPLICATION

9 . The application for an extension of time to appeal came on for hearing before us on 6 December 2021. Mrs. Rae acknowledged the considerable length of the delay but argued that it was beyond the intended appellant's control and that in any event he had very good prospects of success. Ms. Dorsette for her part submitted that the delay was...