Jarvin Green v R
| Jurisdiction | Bahamas |
| Judge | Madam Justice Bethell, JA |
| Judgment Date | 04 October 2022 |
| Neutral Citation | BS 2022 CA 134 |
| Court | Court of Appeal (Bahamas) |
| Docket Number | SCCrApp. No. 73 of 2020 |
The Honourable Mr. Justice Isaacs, JA
The Honourable Mr. Justice Evans, JA
The Honourable Madam Justice Bethell, JA
SCCrApp. No. 73 of 2020
IN THE COURT OF APPEAL
Criminal appeal — Causing dangerous harm — Application for an extension of time for leave to appeal — Prospects of success — Provisio — No case submission — Whether jury properly directed on requisite intention — Fairness — Whether jury properly directed on intoxication — Section 13(1) and 17(1) of the Court of Appeal Act
The intended appellant was charged with Attempted Murder of Anthony Lightfoot contrary to section 292 of the Criminal Procedure Code Ch. 84. The intended appellant was found not guilty of the charge of attempted murder but guilty of the lesser charge of Causing Dangerous Harm. On 12 December 2019, the intended appellant was sentenced to 8 years imprisonment, less the 1 year spent on remand from the date of conviction. He now appeals his conviction. The intended appellant proposes four grounds of appeal, which are whether he had the intention to kill, whether an adequate direction on intention was given, whether unsubstantiated prejudicial evidence was brought before the jury and in all the circumstances, the verdict is unsafe. As the appeal was outside of the time prescribed, the intended appellant applied for an Extension of Time (“EOT”) for leave to appeal his conviction. The intended respondent opposed the EOT application on the ground that there is no prospect of success.
Held: Application for extension of time refused. Conviction and sentence affirmed.
It is settled principle that the Court considers four factors in exercising its discretion to grant an extension of time application: the length of delay, the reasons for delay, the prospects of success and prejudice, if any, to the respondent.
The intended respondent resisted the application on the single factor as to whether there was any prospect of success.
Whether the intended appellant intended to kill Lightfoot or intended to cause dangerous harm is a question to be determined by the jury on the evidence. The jury are the finders of fact.
Having considered the Judge's direction on intention, the Court is satisfied that the trial Judge gave an adequate direction.
During the trial, Counsel for the intended appellant took no objection to voice notes being played. However, the Court is satisfied that the jury was adequately directed to disregard what they had heard. In the Court's view, the playing of the voice notes was prejudicial to the intended appellant and the Court accordingly apply the proviso.
Notwithstanding there was no evidence for the issue of intoxication to be left to the jury, the Court finds that the trial Judge gave a balanced and fair direction covering the intended appellant's drug use.
Alexander Williams v Regina SCCrApp No. 155 of 2016 mentioned
Attorney-General v Omar Chisholm MCCrApp. No. 303 of 2014 mentioned
Bratty v Attorney-General for Northern Ireland [1963] AC 386 considered
Damien Stuart v The Attorney General SCCrApp No.173 of 2010 applied
Foote [1964] Crim LR 405 mentioned
Kennedy v HM Advocate 1994 JC 171 mentioned
R v Galbraith [1981] 1 WLR 1039 considered
Tyrone James Francis v Regina SCCrApp. No. 196 of 2019 considered
Ms. Brendalee Rae, Counsel for the Intended Appellant
Ms. Darnell Dorsette, Counsel for the Intended Respondent
Judgment delivered by the Honourable
. This is an application for an extension of time within which to file an appeal. The intended appellant seeks to appeal his conviction.
. The intended appellant was arraigned in the Supreme Court on 16 September 2019 on one count of attempted murder. He pleaded not guilty and a trial ensued.
. On 10 October 2019, the intended appellant was found not guilty of the charge of Attempted Murder, but was convicted of the lesser offence of Causing Dangerous Harm contrary to section 272 of the Penal Code, Chapter 84. The intended appellant was sentenced on 12 December 2019 to 8 years imprisonment after the trial Judge deducted 1 year spent on remand. The sentence was to take effect and run from 10 October 2019.
. On 13 March 2020, the intended appellant wrote to the Court indicating that he intended to appeal his conviction. His grounds of appeal are set out in an affidavit filed on 3 March 2022.
. The Court embarked on a hearing on whether leave should be granted to the intended appellant to file an appeal as the intended appellant did not file his appeal within the requisite time.
. Pursuant to s.17(1) of the Court of Appeal Act, the intended appellant had 21 days from the date of sentence to appeal his conviction, that is, on or before 31 December 2019. His letter of his intention to appeal was received some two and a half months out of time. The length of delay is measured from 31 December 2019 to the date of filing of the EOT application. There is no actual application for an extension of time before the Court. In his affidavit, the intended appellant states that he does not know if he is indeed out of time.
. It is settled principle that in exercising its discretion whether to grant or refuse an extension of time for leave to appeal the court considers four factors: the length of delay, the reason for the delay, the prospect of success and the prejudice, if any, to the respondent. See Attorney-General v Omar Chisholm MCCrApp. No. 303 of 2014; Alexander Williams v Regina SCCrApp No. 155 of 2016.
. At the hearing Counsel for the intended respondent opposed the extension of time on the single factor that there were no prospects of success. During the hearing, she indicated that she was not taking any issue with the timing of the appeal. The panel was content to hear the application on the single factor as to whether there were any prospects of success as the length of delay was not inordinate, nor did the intended respondent take any issue on the factor of prejudice.
. The intended appellant's grounds of appeal are against his conviction. They are as follows:
“GROUND 1
The Learned Judge erred when he failed to accede to the
No-Case
submission made by Counsel for the Defence as the prosecution failed to prove intention, which was a necessary element of both (sic) the offence of Attempted Murder.
GROUND 2
The Learned Judge erred when he failed to give an adequate direction to (sic) on, “intention.”
GROUND 3
A material irregularity occurred during the course of the trial, when
unsubstantiated, prejudicial evidence was brought before the jury,
which greatly affected the fairness of the trial.
GROUND 4
That in all the circumstances of the case, the verdict herein is unsafe
and unsatisfactory”
. During the hearing before the trial court, evidence was led that on 29 December 2018, the virtual complainant Anthony Lightfoot, known as “Outlaw”, was standing on the western side of Irish Spring Court Street. His house is located across the street on the eastern side from where he was standing. He was smoking a cigarette. The street runs north to south. It is a two-way street. He was at the side of the road near one of the pillars to the wall surrounding the house across the road from his home. It was early morning, day had already broken. He saw a white van driven by the intended appellant, whom he had known as “Links”, approaching him. The intended appellant was travelling south on the eastern side of the street. The intended appellant lived on the same street as Lightfoot, some 150 to 200 feet away. As the van got closer, it picked up speed, came across the street and hit him. He later awoke in the hospital. He had a wound to the back of his head.
. Crime scene photographs tendered into evidence showed the van on the western side of the street with extensive damage to the right front of the vehicle. It supported the evidence that the vehicle travelled across from one side of the street to the other side, hitting a pillar. It was common ground between the defence and the prosecution that the vehicle struck Anthony Lightfoot. That evidence is not in dispute.
. This evidence was supported by a statement of Dontae Demeritte who witnessed the event but had died prior to the trial. His unsworn statement was allowed to be read into evidence. He saw the white van driven by the intended appellant, pick up speed and swerve from one side of the road to the other side, hitting the pillar. He saw Outlaw's legs pinned to a white gate and his body was laid out on the ground face up. He was bleeding from the back of his head, and he was unconscious.
. According to Dontae Demeritte, the intended appellant got out of his vehicle and ran away. He was caught and brought back to where the van had stopped. He stated that he saw another person fighting the intended appellant and hitting him with a piece of wood whilst they were waiting for the police and the ambulance to arrive.
. Lightfoot also testified that just the day before, on 28 December 2018, the intended appellant had approached his home driving the same white van and had exchanged angry and abusive words with him. The intended appellant also worked at one time for Lightfoot for some two to three weeks. Lightfoot let him go. Since then, there was an issue between the two men.
. The intended appellant was arrested that same day at 8.50 am at the scene of the incident. He indicated to the officer that he was involved in a traffic accident. The white van was at the scene. The van was examined. As noted earlier, it had extensive damage to the front right section of the hood, front fender, right headlamp and bumper. The airbag had been deployed.
. Evidence was also led that the vehicle, when test driven, was operating satisfactorily.
To continue reading
Request your trial