Leonardo Wright v The Attorney General
| Jurisdiction | Bahamas |
| Judge | Sir Michael Barnett, JA |
| Judgment Date | 09 August 2019 |
| Neutral Citation | BS 2019 CA 121 |
| Court | Court of Appeal (Bahamas) |
| Docket Number | SCCrApp Side No. 138 of 2018 |
| Date | 09 August 2019 |
IN THE COURT OF APPEAL
The Honourable Madam Crane-Scott, JA
The Honourable Sir Michael Barnett, JA
The Honourable Mr. Justice Evans, JA
SCCrApp Side No. 138 of 2018
Ms. Christina Galanos, Counsel for the Intended Appellant
Ms. Jacqueline Burrows, with Mr. Vernal Collie, and Mr. Angelo Whitfield, Counsel for the Intended Respondent
Broadhurst v. R [1964] A.C. 441 mentioned
Julian Revello Stuart v R BS 2018 CA 120 followed
R v Goddard [2007] EWCA Crim 3134 applied
R v Hanson R v Pickstone R v Gilmore [2005] All ER (D) 380 (Mar) considered
R v Leroy Owen Lesley [1996] 1 Cr App R 39 applied
R v Lucas [1981] QB 720 considered
R v Patrick [1999] Lexis Citation 2706 considered
Reid v R (1978) 27 WIR 254 applied
Criminal Appeal — Application for an Extension of Time — Appeal against Conviction — Armed Robbery — Alibi direction — Lucas direction — Proviso — Evidence of Bad Character
On 23 May, 2015, Ms. Iris Davis was robbed of her cell phone while working at Superwash Minnie Street and Robinson Road location. She identified the appellant on an identification parade and he was arrested and charged. His defence was that he did not commit the robbery and that he was at a birthday party at the time and he called the host of the party as a witness at trial. He was convicted. He now appeals his conviction on the ground inter alia that the judge erred when he permitted the Crown to question a defence witness on previous convictions which did not involve dishonesty and also that the judge failed to direct the jury on how to treat the evidence of the previous convictions of a defence witness.
Held: appeal allowed.
The application to recall should have been made in open court and contained in the Record of the trial. This would enable an appellate court to determine the basis upon which the application to recall was being made and the reasons for the court acceding to or refusing such an application and any limits on the scope of the cross examination that may have been imposed by the trial judge.
The appellant does not complain about the introduction of evidence of the matters relating to stealing and dishonesty but asserts that the evidence relating to the offences of obstruction, assault and resisting arrest had no probative value in relation to Ms. Gibson's credibility but was simply introduced for its prejudicial effect.
We agree. In our judgment, the introduction of that evidence was wrong.
A proper alibi direction must tell the jury in clear and unambiguous terms that (a) it is for the prosecution to disprove the alibi and (2) that a false alibi is sometimes given to bolster a genuine case.
Delivered by The Honourable
After the hearing of the Application for an Extension of Time for appealing, we acceded to that application and treated that hearing as the appeal itself. We allowed the appeal and quashed the conviction and sentence. We did not order a retrial. We promised to give our reasons. This we now do.
On 29 May 2017, the appellant's trial commenced before Mr. Justice Hilton. He was charged with one count of armed robbery contrary to section 339(2) of the Penal Code. The particulars of the offence were that the appellant on Saturday, 23rd May, 2015 at New Providence while armed with an offensive weapon, to wit a firearm, robbed Iris Davis of one Motorola cellular phone.
The appellant pleaded not guilty.
The case in the court below against the intended appellant was based on the testimony of the virtual complainant alone.
On 23 May, 2015, the virtual complainant, Ms. Iris Davis was at Superwash situate on Minnie Street and Robinson Road working the 7:00 am to 3:00 pm shift as a cashier. At approximately 3:00pm, while sitting in the cashier's cage, someone swung her around in her chair and said “don't watch nothing”. Initially she thought that it was a co-worker pranking her. Upon facing the person she noticed that the person had a T-shirt resting on the top of their head, which she knocked off. At that point she knew that it was no joke as she saw a gun in the person's hand. The gunman looked at her and grabbed the T-shirt and placed it back over his head before leaning over, grabbing her cell phone and walking out slowly. Ms. Davis further stated that she had the gunman under observation for about two to three minutes and the distance between the two of them was about one to two feet as he was standing over her. She further testified that she was able to get a good look at his face and that she had seen him in Superwash a few times prior to the day in question.
On 4 June, 2015 sometime around 6:45 pm, Ms. Davis identified the appellant on an identification parade. That same day the appellant was interviewed and said that he did not rob anyone. He did not at that time give an alibi.
At the trial the appellant gave evidence. He testified that on the day in question at around 3:00 pm, he was at his baby mother's house with his little girl, through Johnson Alley, at a birthday party for his baby mother's next son. He stated further that he was not at Superwash on Robinson Road on 23 May, 2015 and that he has never been in that particular Superwash.
He told the Court that while he was in custody at the Central Detective Unit (CDU) on 4th June, 2015 Officer Rolle took him out of the cell and asked him if he wanted to sign and go on an ID parade. In response he said that he didn't want to go on an ID parade because he didn't do anything. He said that at that point, an Inspector shoved him and as a result of being shoved, his hand hit on the side counter top inside a desk that was in the room, which caused him to sustain an abrasion on his left arm. He contends that as the Inspector was trying to force him and he knew that he didn't do it, he decided to participate in an ID parade. He acknowledged that he signed the ID parade form. He stated that the persons who were placed on the ID parade alongside him did not look like him as one of them was a bright fellow with crutches on, another one was a slim light skinned fellow whom he knows as Basil, who is also a rasta, and another participant was a fellow from Wulff Road Police Station who was also locked up with him He said that he didn't remember how all of the participants looked, but he knew that they did not fit his general description and that the police got the participants from the cell block.
He also stated that he informed Magistrate Andrew Forbes of his whereabouts on 23rd May, 2015 when he was arraigned.
The appellant called five witnesses to testify on his behalf.
Among the witnesses was Shantell Gibson (“Ms. Gibson”) who told that court that on 23 May, 2015 at around 3:00 pm, she was at home with her children preparing for her grandson's party which was held at her house. She said that the appellant arrived at her house at about 2:30 pm. She said that at about 2:45 pm she asked him to build a small bar in the yard for them, which he did along with her son, Justin. She said that the appellant did not leave her yard.
On 9 June, 2017, the jury by a 6–3 verdict found the appellant guilty of the offence and on 18 October, 2017, he was sentenced to ten (10) years imprisonment.
The appellant appeals that conviction.
Ground 1 and 2 can be dealt with together. They are that the trial Judge erred when he permitted the Crown to question a defence witness on previous convictions which did not involve dishonesty; and failed to direct the jury on how to treat the evidence of the previous convictions of a defence witness.
At the trial the Crown made an application to have Ms. Gibson recalled for the purposes of impeaching her character. That application is not in the record. According to Ms. Burrows, who appeared for the Crown in this appeal and was junior counsel for the Crown at the trial, the application was made in Chambers and off the record.
This is not correct. The application to recall should have been made in open court and contained in the Record of the trial. This would enable an appellate court to determine the basis upon which the application to recall was being made and the reasons for the court acceding to or refusing such an application and any limits on the scope of the cross examination that may have been imposed by the trial judge.
It is important to note that not only was the way in which the recall of Ms. Gibson handled incorrect; the basis for recalling was not one which should have been allowed. Having read the transcripts of the cross-examination of the Ms. Gibson, there was no justifiable reason for her to have been recalled by the Crown. In Blackstone 1993, the learned authors state;
“ Evidence to Rebut Answers in Cross-examination as to Credit
D14.6 Although a withness's answers to question going only to his credit are generally final there are important exceptions to the rule, notably where the question related to previous conviction, a previous inconsistent statement, possible bias or reputation for untruthfulness. It follows that where the accused or other defence witness is asked in cross-examination a question going to his credit and the question is such that the witness's answer is not final, then the prosecution must be allowed to reopen their case to adduce evidence to rebut a denial given in cross-examination.” [Emphasis added]
Ms. Gibson was never asked about any previous convictions while being cross-examined. Therefore, there was no denial made by the witness regarding her ever being convicted of any crime. There was nothing for the prosecution to seek to rebut and as such there was no reason for the Crown to request for the witness to be recalled. In my opinion the judge was wrong to have acceded to the application.
There is no record of any...
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