Kiko Hanna v R

• Jurisdiction: Bahamas
• Judge: Mr. Justice Evans, JA
• Judgment Date: 20 October 2020
• Neutral Citation: BS 2020 CA 142
• Court: Court of Appeal (Bahamas)
• Docket Number: SCCrApp No. 214 of 2018
• Date: 20 October 2020

IN THE COURT OF APPEAL

Before:

The Honourable Sir Michael Barnett, President

The Honourable Mr. Justice Isaacs, JA

The Honourable Mr. Justice Evans, JA

SCCrApp No. 214 of 2018

Between

Kiko Hanna

Appellant

and

Regina

Respondent

APPEARANCES:

Mrs. Brendalee Rae, Counsel for the Appellant

Mr. Terry Archer, Counsel for the Respondent

Maxo Tido v The Queen [2011] UKPC 16 followed

Terrell Neilly v The Queen [2012] UKPC 12 followed

Alexander Williams v. Regina SCCrApp No. 155 of 2016 followed

R v Turnbull [1977] Q.B 224 followed

Bain v The Queen [2020] UKPC 10 followed

Robinson v The Queen [1985] AC 956 mentioned

Dunkley v The Queen [1995] 1 AC 419 mentioned

Mitchell v The Queen [1999] 1 WLR 1679 considered

Criminal Appeal — Extension of Time — Appeal against Conviction — Robbery — Right to fair trial — Unrepresented Defendant — Non-direction by judge

The appellant was charged with robbing Ms. Janeth Evans of her handbag and the contents thereof. During the trial the appellant's attorney requested in the presence of the jury that he be allowed to withdraw as counsel. The judge acceded to his request and instructed the appellant that he would need to instruct new counsel or represent himself. The appellant was able to find new counsel who requested a brief adjournment to get further instructions from the appellant. The Judge denied his request and counsel stated that in the circumstances he would not be able to represent the appellant, who was thereby left to represent himself. The appellant was convicted and now appeals his conviction on the grounds inter alia, that the judge erred in failing to discharge the jury after his trial attorney made statements which were prejudicial to him at the outset of the trial and that the Judge failed to give him adequate time or facilities to properly prepare his defence.

Held: appeal allowed, conviction and sentence set aside and a retrial ordered.

It is clear that it is always preferable that matters of this nature be dealt with in the absence of the jury. Counsel should have asked that the jury be excused before making his request to be released. Although counsel did not go into great detail he did indicate that the Accused was not taking his advice. This left the jury to speculate as to the nature of that advice and the danger is that as this was at the commencement of the trial they may have assumed that the advice was that he should plead guilty.

I have considered whether this was an appropriate case for the application of the proviso but I am not persuaded that it is. In my view the appellant was deprived of a fair trial by being required to undergo his trial unrepresented. The fact that the jury's verdict was 6 to 3 is a clear indication that they did not consider the evidence overwhelming and with proper representation he may have been acquitted.

The appellant in my view did not receive a fair trial as is guaranteed to him by the Constitution. The only proper remedy in these circumstances is for him to be given the benefit of that right and so I would order that a retrial take place. Both counsel for the appellant and the respondent were of the view that a retrial was appropriate unless the Appeal was decided on grounds 1 or 2(c).

When the matters impacting the intended appellant due to his having to represent himself are considered, I am constrained to find that he was prejudiced thereby. The authorities on this issue mostly deal with persons who were on trial for Murder. However, in my view a defendant who is facing a lesser charge is no less entitled to being permitted to have legal representation. In these circumstances I am satisfied that there is merit in these two proposed grounds of appeal and thus there are prospects of success.

Mr. Justice Evans, JA

Judgment delivered by The Honourable

1 This is an application by the intended appellant for an extension of time within which to appeal his conviction on the 22 March, 2018 for the offence of Robbery contrary to Section 339(1) of the Penal Code CHAP.84. The trial in respect of this matter commenced on the 12 March, 2018 and on the 22 March, 2018, the intended appellant was found guilty of Robbery by a jury of his peers (6–3). On the 5 July, 2018 the intended appellant was sentenced to five (5) years imprisonment.

2 The intended appellant, who was a minor at the time of the offence, was originally charged with Robbery with Violence contrary to section 339(2) of the Penal Code. However, on the 21 March, 2018, the learned Judge found that the evidence did not support the charge of Robbery with violence under section 339(2) of the Penal Code, therefore the charge of Robbery Contrary to section 339(1) was substituted.

THE PROSECUTION'S CASE

3 The prosecution's case was that the intended appellant, on Thursday, 3 November, 2015 at New Providence, having made preparation for using force or causing harm, did rob Janeth Evans of a handbag valued at $37.00 containing; one manicure kit valued at $10.00; one makeup kit valued at $50.00, cash in the amount of $41.00 and a black purse valued at $25.00.

THE APPELLANT'S CASE

4 The appellant's case at trial was that he was not the assailant in this incident and at the close of the prosecution's case he submitted that the facts of the case showed that the essential elements of the offence of Robbery were not proven.

THE APPEAL

5 On 24 October, 2018 the appellant signed a formal Notice of Appeal but it was not received into the Registry until the 29 October, 2018 and was thus filed out of time by 3 months and 3 days. In consequence a formal Notice of Application for Extension of Time within which to Appeal was filed within the Registry of the Court. On the 4 September, 2020, an Affidavit in support of the above-mentioned application was filed in the Registry outlining the prospective grounds of appeal.

6 The power to grant an extension of time within which to appeal to the Court of Appeal is given by rule 9 of the Court of Appeal Rules 2005. It is now well accepted that in exercising its discretion to extend time, the Court considers four factors: (i) the length of the delay; (ii) the reasons for the delay; (iii) the prospect of success of the intended appeal; and (iv) the prejudice, if any to the respondent. See Alexander Williams v. Regina SCCrApp No. 155 of 2016.

7 The respondent's objection to the extension of time was confined to the prospects of success of the intended appellant's proposed grounds of appeal so we have confined our considerations to that aspect of the intended appellant's application.

Ground 1: That the verdict could not be supported having regard to the evidence:

8 Mrs. Rae, counsel for the appellant submitted that while the learned trial judge was correct in finding that the charge of robbery with violence against the appellant, contrary to section 339(2) of the Penal Code, had not been made out by the prosecution, that the learned Judge was incorrect in leaving the charge of robbery contrary to section 339(1) to the jury, considering that the elements of that offence were also not successfully made out against the appellant.

9 Counsel observed that according to section 4 of the Penal Code, the offence of Robbery is defined as: “robbery” is stealing accompanied with actual violence, or threats of violence to any person or property, used with intent to extort the property stolen, or to prevent or overcome resistance to its being stolen”. It was her submission that at the close of the prosecution's case against the appellant, the charge of Robbery, as defined in the Penal Code, was not successfully made out by the prosecution.

10 Counsel argued that by his own admission, the learned Judge stated that there was no violence used in the incident only a statement by the complainant that the person who'd allegedly robbed her said, “ give me your bag.” The Judge went on to say that the bag was taken from the Virtual Complainant and there was nothing else other than that, and that, that constituted Robbery.

11 Mrs. Rae contended that the learned trial Judge was mistaken in his determination that the actions of the assailant in this incident, constituted Robbery, but rather, the actions of the assailant constituted the charge of Stealing from the Person, according to section 47 of the Penal Code. Section 47 provides that “a thing is stolen from the person if it be stolen from the body, clothes or immediate presence of a person”.

12 Counsel concluded that the learned Judge was incorrect in leaving the charge of Robbery contrary to section 339(1) to the jury, considering that the elements of that charge were not successfully made out against the appellant. Further that the facts of this case, at best support a charge of Stealing from the person punishable under section 140(1) (c) of the Penal Code, rather than Robbery. Section 140(1) (c) provides for a punishment of imprisonment for three months, or to a fine of five hundred dollars, or to both.

13 Mr. Archer, counsel for the respondent submitted that the learned Judge did not err in leaving the charge of Robbery to the jury. He further, submitted that the elements of the charge was, in fact, successfully made out. Counsel observed that the evidence in this matter is that on Tuesday, 3 November, 2015, sometime around 8am, the Virtual Complainant, Ms. Janeth Evans (“the VC”), was walking with her granddaughter through a shortcut on Carmichael Road when a male, dressed in a blue Nike hoodie, long jeans pants and blue/black slippers with white stripes, approached her and demanded her handbag. Further, she stated that the male approached her with his hand underneath his hoodie, which placed her in fear and, as a result, made her stumble and fall to the ground injuring her knee and cutting her finger. [See Transcript 19 March, 2018, page 50, lines 13–24]. The male then stood over her, grabbed her handbag and her cellular phone...