Kesnor Lexidor v R
| Jurisdiction | Bahamas |
| Judge | Mr. Justice Isaacs, JA |
| Judgment Date | 22 March 2019 |
| Neutral Citation | BS 2019 CA 73 |
| Date | 22 March 2019 |
| Docket Number | SCCrApp. No. 76 of 2017 |
| Court | Court of Appeal (Bahamas) |
COMMONWEALTH OF THE BAHAMAS
IN THE COURT OF APPEAL
The Honourable Mr. Justice Isaacs, JA
The Honourable Madam Justice Crane-Scott, JA
The Honourable Mr. Justice Evans, JA
SCCrApp. No. 76 of 2017
Ms. Marianne Cadet, Counsel for the Appellant
Ms. Darnell Dorsette, Counsel for the Respondent
Attorney-General v Omar Chisholm MCCrApp. No. 303 of 2014 applied
Campbell v HM Advocate [2008] HCJAC 50 applied
Culpepper v The State [2000] All ER (D) 2477 considered
Donna Vasyli v R SCCrApp. No. 255 of 2015 mentioned
DPP v Selena Varlack [2008] UKPC 56 considered
Farquharson v The Queen [1973] A.C 786 considered
Kelvin Persad v The State of Trinidad and Tobago [2007] UKPC 51 considered
McDonald (James Scott) v HM Advocate [2010] HCJAC 95 considered
Questions of Law Reserved on Acquittal (No. 2 of 1993) (1993) 61 SASR 1, 5 considered
R v Galbraith [1981] 1 WLR 1039 applied
R v Hayter [2005] 2 All ER 209 considered
R v Hickey (30 July 1997, unreported) (the Carl Bridgewater case) mentioned
R v Rhodes (1959) 44 Cr App R 23 mentioned
R v Spinks [1982] 1 All ER 587 mentioned
Rashid Farrington v R SCCrApp. No. 3 of 2016 considered
The State v Khan (2012) 80 WIR 407 mentioned
Criminal appeal — Manslaughter — Application for an extension of time — Prospects of success — Fingerprint evidence — Confession of co-accused — Section 20(1) of the Evidence Act
On 23 December 2009 Tamar Morley was sitting in his truck in the parking lot of Super Value, Golden Gates when a man, alleged to be the appellant, armed with a handgun, entered the truck with the intention of robbing Morley who was shot during the struggle. Morley later succumbed to his injuries.
The appellant and another, Y, were charged with the offences of murder and armed robbery. The Crown's case was that Morley was killed by the appellant in the commission of the armed robbery and that he and Y, who had driven the appellant to the scene, were acting in concert.
Following a trial before a judge and jury the appellant and Y were acquitted of murder, but they were both convicted of manslaughter and the appellant was sentenced to 20 years and 6 months, having regard to the time he spent on remand awaiting trial. The appellant was found not guilty of armed robbery. He made an application to extend the time within which to appeal his conviction to this Court. The respondent opposed the application on the sole ground that the appellant's appeal had little to no prospect of success.
Application for leave to appeal out of time granted. Appeal allowed; conviction quashed, sentence set aside and no retrial ordered.
On an application for an extension of time the factors to be considered are the length of delay; the reason for the delay; the prospects of success and the prejudice, if any, to the respondent. Having regard to the appellant's prospects of success on appeal the application for an extension of time was granted.
The evidence in relation to the appellant was the discovery of a single fingerprint on the passenger side of the vehicle in which the deceased was shot and killed. On appeal Counsel for the appellant's attack was two pronged: 1) she challenged the fingerprint evidence; and 2) the use of Y's statement to support the Crown's case against the appellant. Regarding the fingerprint evidence, Counsel submitted that it was probative of nothing as there was no evidence adduced to give a time frame for when it may have been placed there nor was there evidence led of the identities of the other four fingerprints found. Indeed, there were four our other fingerprints found on the vehicle which were never identified as belong to particular persons. Further, the evidence revealed that finger marks could be lifted from a surface up to three years after they had been placed there. That fact combined with the presence of the other unidentifiable fingerprints ought to have caused the Judge to stop the trial and direct the jury to acquit the appellant.
Section 20(1) of the Evidence Act imposes a statutory limitation as to the use which may be made of an accused's confession. Indeed, any confession given which implicates a co-accused may only be considered as evidence against the maker unless the co-accused had somehow aligned himself with the statement during the trial and accepted the truth contained therein. The appellant did not accept Y's confession as representing the truth. The Judge when considering the no case to answer submission — and subsequently the jury in considering their verdict — must have been influenced by those references to the appellant's conduct in Y's confession to arrive at his decision.
Delivered by the Honourable
. The appellant was convicted of manslaughter on 15 February 2016 and sentenced subsequently to 22 years' imprisonment. Having regard to the 1 year and 6 months he previously spent awaiting trial his sentence was reduced to 20 years and 6 months' imprisonment. His Criminal Form 1 was received by the Department of Corrections on 13 March 2017 hence it may be inferred it was received by the Court thereafter. This meant his appeal was late; and he needed leave to extend the time within which to appeal.
. He made the requisite application for leave to extend the time within which to appeal. During the hearing of the application on 12 December 2018, the respondent indicated that their sole objection to the application rested on the contention that the appellant's appeal had little to no prospect of success.
. The prospect of success of an appeal is one of the four factors identified by the authorities that a court must consider when deciding to grant leave to appeal out of time. The other three being: length of delay; the reason for the delay; and prejudice, if any, to the respondent. (See, for example, Attorney-General v Omar Chisholm MCCrApp. No. 303 of 2014). Having heard the submissions of Counsel, we formed the view that the appellant's appeal stood a good chance of success. Hence, we granted him leave to appeal; and ultimately allowed his appeal.
. On 23 December 2009, Mr. Tamar Morley (“Rasta”) was sitting in his truck in the parking lot of Super Value located in the Golden Gates Shopping Centre, waiting on his wife when a man alleged to be the appellant, armed with a handgun, entered the cab of the truck with the intention of robbing Rasta. There was a struggle during the course of which Rasta was shot. He later succumbed to his injuries.
. The appellant was charged along with Valentino Yustare (“Valentino”) with the offences of murder and armed robbery. The prosecution's case at trial was that Rasta was shot and killed by the appellant in the commission of the armed robbery; and he acted in concert with Valentino, who had driven him to the scene.
. The trial commenced on 16 March 2015, before Mr. Justice Bernard Turner (“the Judge”); and on 15 February 2016, the jury acquitted the appellant and Valentino of murder but were unanimous in convicting them of manslaughter. On 12 April 2016, the appellant was sentenced to 20 years and 6 months' imprisonment, having regard to the time spent on remand awaiting trial.
. He appealed his conviction on the following grounds:
...“a. That the decision of the Learned judge was erroneous in point of law in that the learned Judge erred in law when he found inter alia that an essential element of the Crown's case was present, that is to say that the Appellant caused the death of Tamar Morley and that the Appellant being armed with an offensive instrument to wit a firearm robbed Tamar Morley.
b. That a material irregularity occurred in the trial, in that,
i. The learned judge failed to adequately and sufficiently put the case of the defence to the jury.
ii. the learned judge mischaracterized the evidence:
(a) In directing the jury, the learned trial judge erred in law, when he referred the jury to statement of the co accused Yustare, and did not clarify for the jury, the evidence was the viva voce evidence in the trial. In that regard the judge misdirected the jury on a major piece of evidence and contravened the appellant's right to a fair trial.
(b) in directing the jury, the learned judge failed in warning the jury, either sufficiently or at all that mere presence at the scene of a crime is insufficient to support a conviction on the bases of murder or armed robbery;
(c) in directing the jury, failed to point out and to warn the jury, either sufficiently or adequately how the jury was to deal with weaknesses, inconsistencies and discrepancies and its affect (sic) on a prosecution's evidence;
(d) in directing the jury made statements that belittle or denigrate the defence case
c. The conviction is unsafe and unsatisfactory for reasons that no reasonable tribunal, properly directed on the law and seized of the facts, could have come to the conclusion to convict.
d. The learned judge erred when he did not give a good character direction in reference to propensity of the appellant to commit the offence.
e. That the learned judge erred in law and in fact when the court wrongly applied the case of Loban v R and admitted the Record of Interview and Statement of the Co-accused.
f. That the learned judge erred when he applied Loban v R and admitted the Appellant's co-accused record of interview statement, when both the appellant and his co-accused objected to it being admitted and the co-accused did not rely on it.
(e) The learned judge erred when he allowed the prosecution to cross examine the Appellant based on the contents of the co-accused statement.
(f) Further that the Learned Judge erred in law and fact when he failed to direct jury that joint enterprise had not been established.”
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