Jermaine Missick v R

• Jurisdiction: Bahamas
• Judge: Mr. Justice Isaacs, JA
• Judgment Date: 25 June 2019
• Neutral Citation: BS 2019 CA 94
• Docket Number: SCCrApp. No. 251 of 2017
• Date: 25 June 2019
• Court: Court of Appeal (Bahamas)

IN THE COURT OF APPEAL

Before:

The Honourable Mr. Justice Isaacs, JA

The Honourable Madam Justice Crane-Scott, JA

The Honourable Mr. Justice Jones, JA

SCCrApp. No. 251 of 2017

Between

Jermaine Missick

Intended Appellant

and

Regina

Intended Respondent

APPEARANCES:

Mr. Nathan Smith, Counsel for the Intended Appellant

Mr. Patrick Sweeting, Counsel for the Intended Respondent

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

Decoyo Ferguson v R SCCrApp. No. 77 of 2009 considered

Durante Davis v R SCCrApp. No. 299 of 2016 considered

Prince Daniel McPhee v. Regina SCCrApp No. 128 of 2012 considered

R v Turnbull (1977) QB 224 considered

R v Galbraith [1981] 2 All ER 1060 considered

Reid v R [1980] A.C. 343 considered

Subramaniam v Public Prosecutor [1956] 1 WLR 965 applied

The State v Khan (2012) 80 WIR 407 considered

The State v Mitchell (1984) 39 WIR 185 considered

Criminal appeal — Murder — Application for an extension of time — Prospects of success — evidence — No case to answer — Hearsay rule — Exceptions to the hearsay rule — Res gestae — Dying Declaration — Sections 4(a) and 39(2)(f) of the Evidence Act

On 6 January 2014, Marcus Miller Jr. (Miller) was shot in the face at Gibson's Bar on Carmichael Road. Following the shooting Miller was transported to the hospital where he was visited by his father who asked him if he knew who shot him and he replied that “A man named Blue shoot me”. The reference to “Blue” was to the intended appellant's co-accused, Garvin Adderley. The day following the attack, on 7 January 2014, two officers from the Central Detective Unit visited Miller and recorded a written statement from him. Miller informed the officers that the intended appellant (who he referred to as Bats) and Blue were responsible for his injuries; he was able to give the physical descriptions of Blue and the intended appellant. There were four other witnesses to the event who provided statements to the police and subsequently testified during the trial. However, none of those witnesses were able to identify any of the shooters. On 14 January 2014, the day Miller died, his brother Tyrone was with him when he was visited by two police officers one of whom asked him “So it was Bats and Blue who shot you?” Miller replied, “Yes, sir.”

Inspector Missick testified that an identification parade was held on 31 January 2014 when Tyson Cargill positively identified the intended appellant as one of the persons responsible for the shooting death of Miller. At the time of the trial Cargill was deceased and therefore unable to give viva voce evidence on behalf of the Crown, but he had given a statement to the police.

At the trial application was made to admit Miller's statements pursuant to sections 4(a) and 39(2)(f) of the Evidence Act. After hearing the submissions of Counsel the Judge admitted the three statements into evidence as exceptions to the hearsay rule; the verbal statement in response to Miller's father was admitted as part of the res gestae; the written statement of 7 January and the response to the officer's question on 14 January as dying declarations.

Following a trial before a judge and jury the intended appellant was convicted and sentenced to 35 years' imprisonment. He now applies to extend the time within which to appeal his conviction.

Held: Application for an extension of time granted. Appeal allowed; conviction quashed and sentence set aside. No order for retrial.

The factors to be considered on an application for an extension of time are well-known; they are the length of the delay, the reasons for the delay, the prospects of success and any prejudice the respondent may suffer. In the present case the Court was of the view that the appellant's prospects of success was the most important factor to be taken into consideration hence, it weighed more heavily in the deliberations. As the Court was satisfied that the appeal had a reasonable prospect of success, the application was allowed and the appellant was granted leave to argue his appeal.

Counsel for the appellant argued, and Counsel for the Crown conceded, that the evidence of Inspector Missick was inadmissible hearsay. The Court is satisfied that this concession was rightly made as Inspector Missick's evidence did not fall within any of the exceptions to the hearsay rule. No application was made pursuant to section 66 of the Evidence Act to have the statement of Cargill admitted into evidence. As the evidence of Cargill had to be discarded the Crown had only Miller's evidence, purporting to identify the appellant.

Counsel submits that the evidence of Miller was unreliable and was contained in inadmissible forms: a witness statement to the police, after he had already told his father who shot him, and a response to a leading question by the police officers. This Court can find no fault with the Judge's decision to allow Miller's response to his father to be made a part of the Prosecution's case as it falls squarely within the ambit of the res gestae rule.

The issue of how the Judge treated Miller's written statement and his reply to the police officer's question is not without difficulty because the reply is inconsistent with the evidence relating to the shooting. The evidence adduced by the Crown suggests Miller was shot only once. So both Bats and Blue could not have shot him. This apparent error is at odds with the rationale for the admission of dying declarations, that is, they are likely to be true; and should have given the Judge pause before allowing the Crown to rely upon it. This was perhaps a case where the Judge ought to have exercised his judicial discretion to exclude this statement as unreliable.

This was a case where there was evidence against the appellant but it was of a tenuous nature. The quality of the identifying evidence was not good. Miller's evidence had to be examined in view of all of the circumstances surrounding the event and those circumstances militated against the accuracy of his identification. His evidence could not rise to the level of support of the Crown's case against the appellant. At the close of the Crown's case there was insufficient admissible evidence disclosed for the appellant to be called upon to present a case. The Judge ought to have acceded to the submission of no case to answer.

Mr. Justice Isaacs, JA

Judgment delivered by the Honourable

1 . The intended appellant was convicted of murder on 19 May 2017; and sentenced on 19 September 2017 to 35 years' imprisonment. He seeks to appeal his conviction and sentence on the grounds, inter alia, that the Judge: 1) should have upheld his no case to answer submission; 2) failed to give an adequate Turnbull direction on identification; 3) wrongly admitted a purported dying declaration into evidence; and 4) imposed a harsh and excessive sentence on him.

2 . However, the intended appellant's Criminal Appeal Form No. 1 to appeal against conviction and sentence (“the Form”) was not filed until 12 December 2017 — some two months beyond the time within which he ought to have brought his appeal. He applied to the Court for leave to extend the time within which to appeal using a Criminal Appeal Form No. 2 which was filed at the same time as Form No. 1. His affidavit in support of his application for an extension of time was not filed until 20 November 2018.

3 . On 11 March 2019, having heard the submissions of Counsel, we reserved our decision. We render it now. For the reasons that appear later in this judgment we accede to the application to extend the time within which to appeal and validate the Appeal Form with the grounds stated therein; and we allow the appeal, quash the conviction and set aside the sentence imposed. We make no order for retrial.

Background

4 . On 6 January 2014, Marcus Miller, Junior (“Marcus”) was shot to the face at the rear of Gibson's Bar located on Carmichael Road, next to Checker's Café, New Providence. With the assistance of friends who were present at the time of the incident, Marcus was transported to the hospital. Later that evening he was visited by his father, Marcus Miller, Senior. His father asked him if he knew who shot him and Marcus replied, “A man named Blue shoot me.” The reference to “Blue” was to the intended appellant's co-accused, Garvin Adderley.

5 . At trial, the Crown relied on three statements made by Marcus prior to his demise. The first was the verbal statement to his father; the second statement was reduced into writing by the police the day following the attack; and the third was a second verbal statement communicated to two police officers in the presence of Marcus' brother, Tyrone Miller.

6 . In his written statement, Marcus indicated that on 6 January 2014, sometime around 8:00 p.m. he left his residence and went to Gibson's Bar on Carmichael Road next to Checker's Cafe. Present at the bar were a number of his friends with whom he socialized that evening. While at the bar, the intended appellant's co-accused, Blue, approached him and told him to leave the bar as he was talking too loud. Marcus is recorded as saying that he knew Blue to be troublesome and therefore walked away and leaned on the truck of his friend.

7 . Blue, followed Marcus and placed his hand in Marcus' face and continued arguing with him. Marcus walked away again and sat on a stool only to be confronted again by Blue who continued arguing with him. Marcus, in his statement, said that he refused to answer Blue because he knew that Blue was looking for a reason to fight him. According to Marcus, at the same time this was happening, his friend Orlyn Young appeared and managed to calm Blue down. A short while later, Blue left the scene with another male in a silver Suzuki Swift.

8 . Marcus remained at that location with several of his friends, eating at the back of Gibson's Bar. According to Marcus while eating he heard a bang which sounded like...