Marco Ingraham v R
| Jurisdiction | Bahamas |
| Judge | Mr. Justice Jon Isaacs, JA |
| Judgment Date | 24 June 2021 |
| Neutral Citation | BS 2021 CA 102 |
| Docket Number | SCCrApp No. 109 of 2019 |
| Court | Court of Appeal (Bahamas) |
IN THE COURT OF APPEAL
The Honourable Sir Brian Moree, CJ
The Honourable Mr. Justice Jon Isaacs, JA
The Honourable Mr. Justice Roy Jones, JA
SCCrApp No. 109 of 2019
Mr. Dorsey McPhee, with Ms. Marianne Cadet, Counsel for the Appellant
Mr. Eucal Bonaby, Counsel for the Respondent
Alexander Williams v Regina SCCrApp No. 155 of 2016 considered
Attorney General v Omar Chisholm MCCrApp. No. 303 of 2014 considered
Commissioner of Police v Linty Stuart MCCrApp. No. 139 of 2016 considered
Ludlow v Metropolitan Police Commissioner [1971] A.C. 29 considered
Makanjuola; R v Easton [1995] 1 WLR 134, [1995] 3 ALL ER 730 mentioned
R v Donnelly and others [1986] Lexis Citation 2256 considered
R v Lesser (1939) 27 Cr. App. R. 69 considered
R v Miah and others [2003] All ER (D) 357 (Dec); [2003] EWCA Crim 3713 considered
R v Thompson [2005] 7 BHS J. No. 490 considered
Regina v Angelo Brennan SCCrApp. Nos. 9 and 10 of 2007 considered
Regina v Olugboja [1982] Q.B. 320 considered
Rodriguez John Pierre v Regina SCCrApp. No. 110 of 2019 mentioned
S.S. v Regina SCCrApp. No. 268 of 2015 considered
The Queen v. Rennie Gilbert [2002] UKPC 17 considered
Criminal Appeal — Appeal against Conviction-Application for Extension of Time — Rape -Prospects of Success -Exercise of Discretion — Joinder -Direction to Jury — Verdict unsafe-Whether sentence was harsh and excessive
In a joint trial on 4 August 2017, the intended appellant was found guilty of rape contrary to section 6 (a) of the Sexual Offences Act, Chapter, 99 and sentenced on 20 December 2017 to ten (10) years imprisonment. On 4 July 2019, the intended appellant filed an application for an extension of time to this Court to appeal the conviction and sentence citing that the delay was due to circumstances beyond his control and his belief that his family had been instructing attorneys on his behalf. His grounds of appeal are, inter alia, that the learned judge did not exercise her discretion to order separate trials, she failed to give a full direction on the issue of consent and corroboration and that the verdict was unsafe and the sentence excessive. After hearing arguments, the Court reserved its decision.
Held:— Extension of time application is refused; conviction and sentence are affirmed.
The delay in this case is inordinate; and no reasonable explanation has been provided for the delay. The failure of the intended appellant to launch a timeous appeal combined with the decided lack of prospects of success, compels me to conclude that the extension of time application must be refused.
The Judge did not err by not severing the trial of the intended appellant and his co-accused because no application for severance had been made. She directed the jury adequately on the issues of consent and corroboration and reminded them of the evidence of Ms. Telfort about her experience upon her arrival in Exuma until she was reduced into the custody of the police. The Judge left it up to the jury whether, if they believed Ms. Telfort's evidence to be true and whether she consented to have sexual intercourse with the intended appellant. In the sentencing of the intended appellant the Judge went below the limit imposed by statute when she sentenced the intended appellant to ten years imprisonment, the sentence could be regarded as unduly lenient. None of these grounds hold any merit.
Judgment delivered by The Honourable
. The intended appellant was convicted in a joint trial on the single count of rape contrary to section 6(A) (sic) of the Sexual Offences Act (“the SOA”) on 4 August 2017, and sentenced on 20 December 2017, to 10 years imprisonment less two months and three days spent on remand. The intended appellant did not launch an appeal against his conviction and sentence in the conventional sense until a letter dated 5 June 2019 was received in the Court's Registry on an unknown date; although notes made on the letter suggest it was received on or about 3 July 2019.
. On 4 July 2019, the intended appellant filed a Criminal Form No. 2 seeking an extension of time within which to appeal. Another application for extension of time (“EOT application”) was filed on 5 February 2021. It was supported by an affidavit filed on the same date. The affidavit sought to explain the delay that has occurred in this case, which delay is estimated at one year and eight months. The reasons proffered are:
“4. That at all material times I was led to believe that my family was instructing attorneys on my behalf to appeal.
5. That the delay in the court receiving my application for Appeal was due to circumstances beyond my control.
6. That lack of knowledge that my appeal is one year and 165 days late.”
. The intended respondent contended that the period of delay in this case is approximately sixty-eight months and nineteen days. They arrived at that figure by calculating the running time from on or about 10 January 2018, the time by which his appeal should have been lodged to 8 April 2021, the date that the Court heard the EOT application. They submitted, relying on Commissioner of Police v Linty Stuart MCCrApp. No. 139 of 2016, that time continued to run until the Court acceded to the EOT application.
. In Stuart (supra) the intended respondent had been convicted of unlawful sexual intercourse with a fifteen year old girl. His sentence did not include a period of incarceration; but a number of conditions with which he had complied by the time the intended appellant made their EOT application. In calculating the length of the delay in that case, Longley, P found that the intended respondent having been convicted and sentenced on 30 May 2016, and even though the intended appellant filed a notice of appeal one day out of time, the EOT application was not made until 26 November 2016. Moreover, the intended respondent had not been served with the EOT application and the amended notice of appeal until 29 June 2017. In his view more than two years had elapsed and the application was just coming on for hearing. The President concluded that the delay was inordinate.
. Criminal appeals are required to be filed within twenty-one days following the decision being appealed against. Section 17 of the Court of Appeal Act (“the COAA”) provides as follows:
17. (1) Where a person convicted desires to appeal to the court or to obtain the leave of the court to appeal under the provisions of this Part of this Act, he shall give notice of appeal or of his application for leave to appeal in such manner as may be prescribed by rules of court within twenty-one days of the conviction.
(2) The time within which notice of appeal or of application for leave to appeal may be given, may be extended at any time by the court.
(3) For the purposes of this section the date of conviction shall, where the Supreme Court has adjourned the trial of an information after conviction, be deemed to be the date on which such court has sentenced or otherwise dealt with the appellant.”
. The principles that are to guide a court when considering an application to extend the time for appealing are well known; and may be found in a number of decisions from this Court. I, however, will refer to Attorney General v Omar Chisholm MCCrApp. No. 303 of 2014 as an exemplar. At paragraph 12 of his judgment, Adderley, JA said:
“12. 1t is settled that in exercising its discretion whether to grant or refuse an extension of time the court considers four things: the length of the delay, the reason for the delay, the prospect of success, and the prejudice, if any, to the respondent.”
. Mr. McPhee relied on a prior decision of this court in Alexander Williams v Regina SCCrApp No. 155 of 2016 and referred us to paragraphs 11 and 15:
“11. 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 settled that in exercising its discretion to extend time, the Court considers four factors: the length of the delay; the reasons for the delay; the prospect of success of the intended appeal; and the prejudice, if any to the respondent.” and
“15. Inexorably, notwithstanding the length of the delay, and the absence of good or sufficient reasons for the delay, if the prospects of success of the intended appeal are good, then this Court would nevertheless grant an extension of time and hear the appeal, provided there is no prejudice to the other side.”
. There is no gainsaying that the Court is possessed of the power to extend the time for appealing. However, like all judicial discretions, the power is to be exercised judicially.
. The Court has over a number of years indicated that the four factors are to be weighed in the balance, and depending on the relative weight accorded to each factor, the scales of convenience will tip in favour of the applicant or not. The Court tends to view the prospects of success as being weightier than the other three but there may be occasions when the delay in appealing is so egregious that that factor is given the most weight
. It is important to have regard to the dicta of Humphrey, J in R v Lesser (1939) 27 Cr. App. R. 69, at page 71:
“There appears to be a danger of the rules which govern the proceedings of this Court being regarded as of no importance. The Court has listened to repeated applications for extensions of time for leave to appeal, which have been put forward as if the granting of such an application were a mere matter of form. While the Court is always willing to listen to such an application on the ground that the applicant did not understand what the points in issue were, or that he could not read or write, or on some ground of that kind relating to the particular case, it should...
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