Javaro Davis v R

• Jurisdiction: Bahamas
• Judge: Mr. Justice Jones, JA,Mr. Justice Evans, JA,Sir Michael Barnett, JA
• Judgment Date: 05 February 2019
• Neutral Citation: BS 2019 CA 48
• Court: Court of Appeal (Bahamas)
• Docket Number: SCCrApp. No. 310 of 2014
• Date: 05 February 2019

IN THE COURT OF APPEAL

Before:

The Honourable Mr. Justice Jones, JA

The Honourable Sir Michael Barnett, JA (Actg.)

The Honourable Mr Justice Evans, JA (Actg.)

SCCrApp. No. 310 of 2014

Between

Javaro Davis

Appellant

and

Regina

Respondent

APPEARANCES:

Appellant appeared Pro Se

Mr. Vernal Collie with Mr. Donard Brown, Counsel for the Respondent

Maxo Tido v The Queen [2011] UKPC 16 applied

Munroe v The Attorney-General SCCrApp No. 152 of 2011 applied

R v Cambridge [1994] 1 WLR 971 applied

R v Kuljit Singh Dhillon [1997] 2 Cr. App. R. 104 applied

R. v Newell [1989] Crim. L.R. 906 allowed

Reid v Queen [1979] 2 All ER 904 applied

Terrell Neilly v The Queen [2012] UKPC 12 applied

Buckett v R (1963) 6 WIR 285 considered

Frank Sookram v The State (1971) 18 WIR 195

Munroe v The Attorney-General SCCrApp No. 152 of 2011 applied

R v Badjan (1966) 50 Cr App R 141 applied

R v. Marr (1989) 90 Cr App R 154 applied R v Reid (1999) Times, 17 August considered

Cairney v R [2013] 3 S.C.R 420 applied

Daniel v The State [2014] 3 LRC 402 applied

R v Acott [1997] 1 W.L.R. 307 applied R v Duffy [1949] 1 All ER 932 applied

Criminal appeal — Murder — Provocation — Failure to leave provocation to the jury — Identification — Alibi — Dock identification — Section 303 of the Penal Code

On the night of the 8 ^th and the early morning of the 9 ^th March, 2014 the deceased Rimardo Rolle and two of his friends, Bain and Porter, were at the Club Legends nightclub in Grand Bahama. According to the evidence of Bain, he, Porter and the deceased attempted to cross the dance floor when the appellant bumped into Porter. In response the deceased pushed the appellant who pulled a firearm from his waist and said “You want to feel this”? The appellant, thereafter, shot Rolle in the upper part of his chest. Both Bain and Porter identified the appellant as the shooter. Gaspard, the security officer at the nightclub, also identified the appellant as the shooter; he said he saw the appellant placing a firearm in his waist as he ran. The appellant gave sworn evidence and denied killing anyone; he said that he was at home on the night of the 8 ^th and his uncle supported his evidence in this regard. However, under cross-examination the appellant admitted to being at the club on the 8 ^th. He denied that he pulled a firearm from his waist, that he asked Rolle “You want to feel this” and that he shot anyone. The issue of provocation was withdrawn from the jury and they unanimously returned a verdict of guilty against the appellant. He was sentenced to 49 years imprisonment and he now appeals his conviction on the basis of identification and material irregularities which, he says, make his conviction unsafe. His appeal against sentence is based on his belief that the sentence imposed is unduly severe.

Held (Evans, JA concurring) (Barnett, JA (Actg.) dissenting): appeal allowed; conviction and sentence quashed. Retrial ordered.

per Jones, JA: The appellant makes multiple complaints regarding the directions of the trial judge with respect to the identification evidence. A review of the transcripts reveals that each of the complaints is without merit. Regarding the complaint by the appellant that the trial judge improperly permitted a dock identification, this Court has said on many occasions that dock identifications are not of themselves automatically inadmissible. The admission of a dock identification depends on the discretion of the trial judge. One of the circumstances to be considered is whether the defendant was well known to the witness before the incident and has previously identified him.

Further, the appellant complains that the trial judge, although leaving an alternative verdict of manslaughter with the jury based on lack of intent to kill, explicitly withdrew the issue of provocation from them. Under the Penal Code where the issue of provocation arises, the jury is required to consider whether there might have been a sudden and temporary loss of control on the part of an appellant sufficient to cause him to act as he had done. If the jury are not satisfied that provocation did not exist, their duty is to bring in a verdict of manslaughter. The burden of proving lack of provocation is on the prosecution. Where there is evidence that an accused had lost his self-control as a result of provocation, however small that evidence may be, the trial judge ought to leave the issue of provocation to the jury.

Regarding the appellant's defence of alibi, the trial judge is required to direct the jury, on that defence and any other defences raised on the evidence whether or not they are inconsistent with each other.

per Evans, JA (Actg.): The trial judge withdrew the issue of provocation from the jury because he felt that it did not arise on the prosecution's case nor was it relied on as a defence. In the circumstances the question for determination on appeal is whether on the evidence before the court the issue of provocation should have been left to the jury for their determination. If there was no evidence on which a possible defence could be considered then the decision of the trial judge cannot be faulted. However, if there was evidence the failure to leave provocation to the jury would be fatal because the appellant would have been denied a possible defence. The evidence of Porter and Bain leaves many questions unanswered; those questions are ones which ought to have been considered by the jury and a determination made by them as to whether the appellant was provoked.

The question has also arisen as to whether if provocation should have been left to the jury and it was not done, whether this affected the safety of the conviction. The principle is that an accused is entitled to have any possible defence which arises on the evidence, whether on the prosecution or defence case, put to the jury by the trial judge. A failure to do so will result in the accused not having a fair trial. In such a case the issue of the proviso does not arise as a conviction where there has not been a fair trial can never be safe.

per Barnett, JA (Actg.): A trial judge is not required to leave the defence of provocation where there is no air of reality to the defence. The responsibility of the judge is to look at all the evidence, not simply that of the defendant, and to ask himself whether, taking it at its most favourable to the defendant, the jury might conclude that he had lost control of himself. The evidence before the jury was not suggestive of the reasonable possibility that the defendant might have lost his self-control due to provoking conduct of the deceased. To suggest that a “bump” by the appellant in a bar which precipitated a return bump by a deceased caused the appellant to lose his self-control as to take out a gun and shoot the deceased in my judgment lacks an “air of reality” as there is absolutely no evidence from which a reasonable jury could infer that the appellant or any reasonable man could have or did lose his self-control. In the circumstances the trial judge did not err in failing to leave provocation to the jury. No properly directed jury acting reasonably could in my judgment find on that evidence the defence of provocation had been made out.

Judgment delivered by the Honourable Mr. Justice Jones, JA :

Introduction

1 . Javaro Davis (“the appellant”) was charged in the Supreme Court on one count of murder contrary to section 291 of the Penal Code. The particulars were that the appellant, while armed with a firearm, murdered Rimardo Rolle (“the deceased”) on 9 March 2014 at Grand Bahama. At a trial before Longley, Sr. J (as he then was) and a jury in the Supreme Court in Grand Bahama the appellant was found guilty and convicted by a unanimous verdict. On 25 September 2014 he was sentenced to 49 years imprisonment.

Background to the Trial

2 . At the trial before Longley, Sr. J (as he then was) the prosecution called six witnesses. The evidence of the deceased's mother Yolanda Liberal and the police report of ASP Robert Lloyd was agreed to be entered and read into evidence under s.19(2) of the Evidence Act 1996. The evidence of ASP Robert Lloyd was that:

“On Tuesday 11th of January 2014 (sic), at 4:00p.m., while at Central Detective Unit, Grand Bahama, I saw and spoke to suspect Javaro Davis, date of birth, 25th of September, 1992, of number 201 Rutherford Circle, Hudson Estates, who was in police custody for murder of Rimardo Rolle which occurred on the 9th March 2014 in the presence of Attorney Simeon Brown. I informed him of the police intention to put him on a police identification or group parade… He was advised by his lawyer not to participate. As a result, he declined to take part in any parade…”

3 . The case for the prosecution was contingent on three witnesses who identified the appellant. The first witness to identification was Carvel Bain (“Bain”) who recalled 8 March 2014, at about 11:30 pm he went to Club Legends in Freeport Grand Bahama. On entering the club, he saw and spoke with the deceased whom he knew for about fourteen years. Bain, the deceased and Ryan Porter (“Porter”) attempted to cross the dance floor after entering the club. In the process of crossing the dance floor the appellant bumped into Porter's shoulder. The deceased reacted to the bumping by pushing the appellant. The deceased placed himself between the appellant and Porter. The appellant pulled a firearm from his waist saying, “you want feel this?” The appellant fired a shot into the upper part of the deceased chest and the deceased dropped to the floor.

4 . The second witness who identified the appellant was Porter. He recalled arriving at Club Legends at or about 1:15 a.m., the following day. Porter met the deceased together with his other friends there. His evidence was that he knew the appellant for two years having seen him frequently in the Hudson and Pioneers Loop areas....