Jonathan Armbrister v R
| Jurisdiction | Bahamas |
| Judge | Dame Anita Allen, P,Mr. Justice Isaacs, JA |
| Judgment Date | 31 August 2017 |
| Neutral Citation | BS 2017 CA 133 |
| Docket Number | SCCrApp. No. 232 of 2012 |
| Court | Court of Appeal (Bahamas) |
| Date | 31 August 2017 |
IN THE COURT OF APPEAL
The Honourable Dame Anita Allen, P
The Honourable Mr. Justice Isaacs, JA
The Honourable Ms. Justice Crane-Scott, JA
SCCrApp. No. 232 of 2012
Mr. Jerone Roberts, Counsel for the Appellant
Mr. Terry Archer, with Mr. David Cash, Counsel for the Respondent
R v Clarke and Another [2008] 2 All ER 665 distinguished
R v Leeks [2009] EWCA Crim 1612 applied
R v Morais [1983] 3 All ER 161 distinguished
R v Newland [1988] QB 402 mentioned
Cannonier v Director of Public Prosecutions [2012] 5 LRC 381 considered
Dwayne Lester Henderson, et al v Commissioner of Police MCCrApp & CAIS No. 172 of 2013 mentioned
R v Clarke and another [2008] 2 All ER 665 considered
R v Featherstone [1942] 2 All ER 672 mentioned
R v Firth [1938] 3 All ER 783 considered
R v Gray [1995] 2 Cr App Rep 100 mentioned
R v Leeks [2009] EWCA Crim 1612 applied
R v Morais [1988] 3 All ER 161 considered
Civil appeal - Conspiracy — Armed Robbery — Voluntary Bill of Indictment — Amendment — Bad Character Evidence — Co-Accused — Out of Court Statement — Proper Direction — Criminal Procedure Code, Ch. 91
On 22 May 2011 John Bull's flagship store on Bay Street was the subject of a brazen daylight robbery. The perpetrators smashed the store's showcase with a hammer and stole a number of Rolex watches.
Following a police investigation, the appellant and two others were arrested in connection with the robbery. The appellant was charged with conspiracy to commit armed robbery, armed robbery, receiving and causing damage. He was found not guilty for the offences of armed robbery and causing damage, there was a hung jury in relation to the offence of receiving, and he was found guilty and therefore convicted for the offence of conspiracy to commit armed robbery. It is against that conviction that the present appeal was launched.
Held: appeal allowed, conviction and sentence quashed.
per Allen, P: Section 150 of the Criminal Procedure Code (CPC) governs, inter alia, the amendment of an information. Authorities demonstrate that where an order for amendment was not made, the error was fundamental as the amendment of an indictment is a serious matter and not a mere matter of formality. However, in the present case an order for amendment of the indictment was made but the indictment was not thereafter endorsed. Bearing in mind that the judge exercised her judicial function of considering the application to amend, it cannot be said that the failure to undergo the administrative function of endorsement proved fatal to the trial. I do not believe that Parliament intended that an accused should have his otherwise valid indictment invalidated because an amendment to the indictment was not endorsed.
per Isaacs, JA: Two factors must be present before the out of court statement of one co-accused can be regarded as evidence against another: 1) evidence proving the existence of the conspiracy must be first adduced; and 2) the statement must have been made in furtherance of the common design. The second factor identified above is absent in the present appeal. Collins' alleged confession does not fall within the category of a statement made in pursuance or furtherance of the conspiracy. At the time of its making, the conspiracy had already concluded.
The decision to discharge a jury or to continue with the trial lies in the discretion of a trial judge and must depend on the nature and extent of the disclosure. It is not unusual in the course of a trial that some material prejudicial to an accused is disclosed improperly or inadvertently. Not every revelation will warrant the drastic medicine of discontinuance of the trial.
It is unfortunate that the cousin's words, “Jonathan you on your own. You get yourself in problems again…” were heard by the jury, particularly in circumstances where they may have been uttered by Superintendent Fernander purposely, in view of the scrupulous care taken during the voir dire to avoid them being mentioned. His decision to reveal the cousin's utterance may be viewed as deliberate in the circumstances. In the face of this it was incumbent on the learned trial judge to discharge the jury. Failure to do so was a material error. Section 150(2) mandates that “a note of the order for amendment shall be endorsed on the information”. Once that is done, the endorsed information is treated for the purposes of all proceedings in connection therewith as having been filed in the amended form. The Judge in the present case acceded to the application to amend the information hence the offences subsequently pleaded to by the appellant and his co-accused and which were deliberated on by the jury flowed from the order of the Judge. There was a valid information in existence and it was not rendered invalid by the lack of an endorsement of the amendment order. The fact of itself that there was no endorsement on the indictment is not, in our view, in any way fatal to what subsequently occurred. If the proposition contended for by the appellant was to be accepted it would elevate form over substance in circumstances where there has been no prejudice suffered by the appellant and, but for the lack of a minor administrative act, the trial of the appellant was conducted altogether fairly. It could not have been Parliament's intention that where a judge has given anxious consideration to an application to amend an information and acceded to the application, the failure to record his authorisation, a minor procedural error, would vitiate an otherwise properly conducted trial.
Judgment delivered by the Honourable
I have read in draft the judgement of my brother Isaacs, JA and I agree with his disposition of the appeal and reasons, therefor. However, I wish to add a few words of my own with respect to the appellant's complaint about the amendment of the voluntary bill of indictment (VBI).
The facts which gave rise to the amendment are as follows. On 9 May 2012 the appellant and two co-accused were arraigned on indictment 180/8/2011 (the original indictment); that indictment contained multiple offences arising from the brazen daylight robbery of John Bull on 22 May 2011.
The original indictment contained five counts; the first was conspiracy to commit armed robbery, the particulars being that the appellant and his coaccused (DC and JC), being concerned together, conspired to commit armed robbery.
The second count was for the armed robbery, the particulars being that the appellant and his co-accused, being concerned together, whilst armed with an offensive instrument, to wit, a firearm, did rob Dorothy Marshall of 12 Rolex watches valued at $385,680, the property of John Bull.
Count three did not concern the appellant but count four of the indictment charged the appellant with the offence of receiving.
The fifth and final count of the indictment charged the three accused men, being concerned together, with the offence of damage, the particulars being that they unlawfully caused damage to five Rolex watches and one glass showcase.
On 23 August 2012 the Crown indicated to the Court that they would not be offering any further evidence against JC, thereafter the judge directed the jury to return verdicts of not guilty against him and he was discharged. The trial continued against the appellant and his co-accused DC.
On 2 October 2012 after the final Crown witness had given evidence, but before the Crown closed its case an application was made to amend the particulars, not the statements of offence, of counts 1, 3 and 5 of the original indictment.
In principle, the amendments were to remove any reference to JC. As such, the particulars of count one, if amended, would read that the appellant and DC, being concerned together and with another, did conspire to commit armed robbery.
The proposed amendment to count two was two-fold; firstly, to remove the reference to JC and secondly, to remove the name Dorothy Marshall and substitute John Bull; so that the particulars, if amended, would read that the appellant and DC, being concerned together and with another, did rob John Bull of 12 Rolex watches valued at $385,680, the property of John Bull.
The particulars of count five if amended, would be amended in the same manner as the amendments made to count one so that they read that the appellant and DC, being concerned together and with another, did unlawfully cause damage to five Rolex watches and one glass showcase.
Notwithstanding that the application for amendment was objected to, the judge, having considered the application, allowed the amendments and the appellant and his co-accused were re-arraigned on that indictment (the amended indictment). The amended indictment was filed and became indictment number 180B/8/2011.
Following the application for amendment the Crown closed its case. Subsequent thereto, the jury found the appellant guilty on count one, however, there was a hung jury on count four. He was, therefore, convicted and sentenced for the offence of conspiracy to commit armed robbery and a retrial was ordered for the offence of receiving. He was found not guilty on counts two and five.
On appeal, Counsel for the appellant submitted, inter alia, that:
“In light of section 150(2) of the Criminal Procedure Code (CPC) [Tab34], it is submitted that there was no valid VBI before the jury, and in the circumstances the trial was a nullity.”
He relied, by analogy, on the cases of R v Morais [1983] 3 All ER 161, R v Clarke and Another [2008] 2 All ER 665 and R v Newland [1988] QB 402.
Section 150 of the Criminal Procedure Code (CPC) governs, inter alia, the amendment of an information and, so far as relevant, provides as follows:
“(2) When an information is amended under the provisions of this...
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