Lathario Miller v R

• Jurisdiction: Bahamas
• Judge: Madam Justice Crane-Scott, JA
• Judgment Date: 13 December 2018
• Neutral Citation: BS 2018 CA 211
• Court: Court of Appeal (Bahamas)
• Docket Number: SCCrApp. No. 183 of 2015
• Date: 13 December 2018

COMMONWEALTH OF THE BAHAMAS

IN THE COURT OF APPEAL

Before:

The Honourable Madam Justice Crane-Scott, JA

The Honourable Mr. Justice Jones, JA

The Honourable Mr. Justice Evans, JA (Actg.)

SCCrApp. No. 183 of 2015

Between

Lathario Miller

Appellant

and

Regina

Respondent

APPEARANCES:

Mr. Roberto Reckley, Counsel for the Appellant

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

Alexander von Stark v. The Queen [2000] UKPC 5 considered

Anderson (Rupert) v. The Queen [1971] UKPC 25 considered

Bratty v. Attorney General for Northern Ireland [1961] A.C. 417 considered

DPP v. Leary Walker [1974] 21 WIR 406 considered

DPP v. Michael Bailey [1993] UKPC 45 considered

Durad Munroe v. The Attorney General SCCrApp. No. 52 of 2011 mentioned

Fazal Mohammed v. The State [1990] 2 A.C. 320 considered

R v. Marr [1990] 90 Cr. App. R 154 considered

R v. Nelson (Garfield Alexander) [1997] Crim. LR 234 considered

R v. Stockwell [1993] 97 Cr App R 260 mentioned

Peter Michael v The Queen [2009] UKPC 41 mentioned

Spencer v Director of Public Prosecutions [2014] 5 LRC 613 mentioned

Stafford v. The State (1998) 53 WIR 417 applied

Warren Thomas Jackson v. The State [1998] UKPC 44 considered

Criminal Appeal — Murder — Expert evidence — Jury not given standard direction on expert evidence — Whether judge erred in not leaving possibility of accident for jury's consideration — Whether appellant deprived of defence of accident — Whether a miscarriage of justice actually occurred — Proviso — Section 13(1) Court of Appeal Act.

On the 25 ^th September, 2010 Marco Smith and the appellant got into an altercation with respect to money owed by the appellant to Smith. Following a heated exchange the parties parted ways. The Crown's case is that the appellant encountered Smith thereafter and fired shots at him, killing him. The shooting was witnessed by Otishka Gibson who gave evidence in support of the Crown's case. The appellant gave sworn evidence and told the jury about the earlier altercation he had with Smith; he told the jury that during the altercation Smith used profanities, threatened his late mother and threatened to send him to join his mother. He testified that later on the day of the altercation he ran into Smith. Following an exchange of words he says the appellant pulled out a gun and he, upon seeing the gun, charged towards the deceased and they hassled for the gun. He says that in the midst of the struggle the gun went off. Following a trial before a judge and jury the appellant was convicted of the murder and sentenced to 40 years imprisonment less the 3 years and 3 months spent on remand. The appellant now appeals his conviction and sentence on a number of grounds.

The appellant complains that the judge failed to give the jury the standard direction on how they should approach the expert evidence and opinions of the forensic pathologist, Dr. Sands. Crown Counsel acknowledged that the standard direction as not given but submitted that the absence of such direction did not affect the fairness of the trial. The appellant also complains that this error of the judge was compounded by the judge mischaracterizing Dr. Sands' about there being no evidence of ‘close-range discharge’ on the skin surrounding the entry wounds which in the expert's opinion had caused death. Another of the appellant's complaints is that the judge failed to address the jury on the issue of accident which, he says, arose on the evidence.

Held:

Appeal dismissed. Conviction and sentence affirmed.

As is well-known, the purpose of adducing expert evidence (both of fact and of opinion) in a criminal trial is to assist the jury in areas of science or other technical matters upon which they cannot be expected to form a view without such expert assistance. In the absence of the required direction from the judge, the jury in this case was left without any guidance as to how they should approach Dr. Sand's expert findings as a forensic pathologist made during her post-mortem examination; and further, with no guidance as to how they should approach the opinions and conclusions which she gave at the trial based on the results of her physical findings.

Depending on the circumstances, a judge may have to fashion his jury instructions so as to draw the jury's attention to the significance of the evidence which an expert witness has given. This may involve drawing a clear distinction on the one hand between the evidence which the expert has given as to his or her findings following the witness' physical examination of an object; and any opinions or conclusions which the witness has given in respect of his findings, based on his or her expertise on the other. The jury in this case was given no instructions on how to treat with expert evidence. The Court agrees that the judge mischaracterized Dr. Sands/ evidence by directing them that the shooting was not at close range and was not closer than two to three feet.

Accident as a complete defence to a charge of murder is well known. If accepted, it essentially amounts to a finding that death was not caused by a deliberate and voluntary act of the accused and further, was unintentional. During the course of investigations the appellant gave an out of court mixed statement whereby he stated that “he had pulled the trigger”. Based on this statement, while issues of provocation and self defence clearly arose, nothing in the statement was remotely capable of raising a prima facie issue of accident for the jury's consideration and the judge cannot not be faulted for not raising the issue of accident during his review of the evidence of that evidence. However, with respect to the appellant's sworn evidence, he told the jury that “in the midst of the struggle the gun went off”. This aspect of the appellant's sworn testimony was clearly inconsistent with what he had told police in his out-of-court statement and introduced for the first time before the jury, the remote possibility of an accidental or unintentional shooting. Thin though it was, aspects of the appellant's testimony raised the possibility of an accidental shooting and the Court is satisfied that the judge failed to directly address it in his instructions to the jury.

Notwithstanding the absence of the standard direction on expert evidence, the judge's mischaracterization of Dr. Sands' evidence and the judge's failure to leave accident to the jury, the Court is of the view that the jury would inevitably have convicted. Since there was no evidence from the appellant or from Otishka Gibson as to how far the appellant had been from the deceased when the gun discharged, the judge's mischaracterization of Dr. Sands' evidence neither detracted from the appellant's testimony that the gun had gone-off during the course of a struggle for possession of the gun; or from the evidence which Otishka Gibson gave about having seen the appellant standing over the deceased's body and firing more shots. The jury had before it the eye witness testimony of Otishka Gibson who described a deliberate shooting, that of Alma Rolle who described the damage from gunshots to her kitchen door and wall, the crime scene photos which showed the gunshot damage which Rolle spoke about, the evidence of Dr. Sands which explained that the deceased had four wounds in completely different locations and the appellant's statement given under caution that during the struggle with Smith he took the gun and pulled the trigger. The jury clearly rejected the appellant's version of events given in his sworn testimony.

Therefore, the Court is satisfied that even if the jury had been properly directed on all the matters identified they would, without a doubt, have convicted. In the result, the proviso to section 13 of the Court of Appeal Act is applied on the basis that no miscarriage of justice has actually occurred.

Madam Justice Crane-Scott, JA

Judgment delivered by The Honourable

Introduction

1 . The appellant was arraigned on the 1 ^st June, 2015 before Winder, J., and a jury on a voluntary bill of indictment which charged him with the murder on 25 ^th September, 2010 of Marco Smith.

2 . On the 8 ^th June, 2015, he was found guilty and later sentenced on the 10 ^th August, 2015 to 40 years less 3 years 3 months spent on remand, the sentence to take effect from the date of his conviction.

3 . A Notice of Appeal was filed on his behalf against his conviction and sentence on the 31 ^st August, 2015. Following a change in legal representation, the grounds of appeal were amended on the 3 ^rd April, 2018 and the appeal proceeded to a substantive hearing before us on the basis of the amended grounds.

The Amended Grounds of Appeal

4 . The Amended Notice of the 3 ^rd April, 2018 disclosed a total of six (6) grounds of appeal; five (5) against conviction and one (1) against sentence as follows:

• 1) The learned judge erred in law by not giving a direction on how the jury should treat expert evidence;

• 2) The learned judge erred in law by failing to give a direction on mistake/accident;

• 3) The learned judge erred in law by misstating the evidence;

• 4) The learned judge erred in law by failing to direct the jury on how to assess the credibility of a witness who gives evidence that is inconsistent to the extent that it is a material inconsistency;

• 5) The learned judge erred in law by inviting the jury to speculate;

• 6) The sentence is unduly harsh.

5 . Before considering the grounds of appeal, it is useful to set out by way of background, the respective cases for the prosecution and the defence in the court below.

The Crown's case

6 . The Crown's case was constructed on evidence adduced through the sworn testimony of 15 witnesses. The evidence included, inter alia, direct eye-witness testimony, crime-scene photographs, the pathologist's findings and oral testimony, the appellant's out-of-court record of interview...