Marco Oliver v Attorney General
| Jurisdiction | Bahamas |
| Judge | Mr. Justice Jon Isaacs, JA |
| Judgment Date | 14 August 2019 |
| Neutral Citation | BS 2019 CA 122 |
| Court | Court of Appeal (Bahamas) |
| Docket Number | SCCrApp & No. 99 of 2018 |
| Date | 14 August 2019 |
IN THE COURT OF APPEAL
The Honourable Mr. Justice Isaacs, JA
The Honourable Madam Justice Crane-Scott, JA
The Honourable Sir Michael Barnett, JA
SCCrApp & No. 99 of 2018
Appellant Pro se
Ms. Linda Evans, Counsel for the Respondent
Attorney General v Omar Chisholm MCCrApp No. 303 of 2014 followed
Ferron Scavella v Regina SCCrApp No. 124 of 2009 considered
Gilson v R [1991] LRC (Crim) 756 considered
Jermicko Ferguson v Regina SCCrApp. No. 65 at 2017 considered
R v AS [2016] EWCA Crim 958 considered
R v Seymour [1954] 1 All ER 1006 considered
R. v Fernandez (Andrew Nigel) [1997] 1 Cr. App. R. 123 (1996) considered
Rauel Pierre v Regina SCCrApp No. 48 of 2017 mentioned
Regina v Michael Abnett and Florin Jeleru [2017] EWCA Crim 41 considered
Richard Munnings v Regina SCCrApp. No. 65 of 2017 considered
Criminal Appeal — Appeal against Conviction — Armed Robbery — Receiving — Causing Harm — Alternative counts — Misdirection — Inconsistent Verdicts — Unreasonable Verdict — Unsafe and Unsatisfactory Verdict
On 11 November, 2016, Desirade Clarke was leaving a store on Marathon Road when she was approached by a man dressed in a white T-shirt and dark coloured pants. The man was armed with a sharp object which he held at her neck and demanded she move over. When she refused, he then demanded the keys to her car. The man picked up the keys and drove off in her vehicle in which she had left her bag containing her wallet and purse. Ms. Clarke flagged down a motorist who allowed her use of her cellular phone to contact the police. It was at this time that Ms. Clarke noticed that she had been injured. Around 1pm that same day Mr. Richards was driving in the area of Claridge Road and noticed a man dressed in a black pants and white shirt running with a female's purse in his hand. He suspected that something was wrong and subdued the man until police arrived. The man that he subdued was identified as the appellant, he was cautioned and searched and thereafter arrested when a black clutch-like purse was found in one of his pockets. A handbag was also retrieved from the immediate vicinity of the appellant. Ms. Clarke was able to identify her bag at the police station and she also identified the appellant as her attacker. The appellant was tried and convicted for armed robbery, causing harm with intent to facilitate the commission of an offence and receiving. He has appealed his convictions on the ground inter alia that the learned judge failed to properly direct the jury on the alternative counts of armed robbery (stealing) and receiving and how to have approach them.
Held : appeal against the conviction for armed robbery dismissed; sentence affirmed. Appeal against the conviction for receiving is allowed; conviction quashed and the sentence imposed set aside.
The present case is one where there were verdicts that were legally inconsistent with each other on the face of the record. Verdicts are inconsistent in that sense where, for example, a person is convicted of being both thief and receiver or of attempting to commit an offence and committing that offence.
In order for the jury to convict the appellant of armed robbery they had to be satisfied that he was the person who robbed Ms. Clarke of her property while armed with an offensive instrument. They had to be sure that all of the elements of armed robbery are present. So, the jury had to be sure the appellant dishonestly appropriated a thing of which he is not the owner. They were unanimous in their verdict that the appellant was the armed robber.
Additionally, we observe that the Judge did not direct the jury on considering each count separately; and that they, having done so, could arrive at different verdicts in respect of each subject to the direction on alternative verdicts.
We are satisfied that there was a proper evidential basis for the conviction on the armed robbery count inasmuch as Ms. Clarke identified the appellant as the man who robbed her of her property while armed with a sharp object; and she had sufficient opportunity to view the appellant for what we consider was more than a fleeting glance. The Judge provided the jury with adequate directions on the issue of visual identification by witnesses so the jury was in a position to assess the quality of Ms. Clarke's visual identification of the appellant.
The Judge ought to have explained to the jury that the armed robbery count and the receiving count were laid in the alternative. He ought also to have discharged the jury from delivering a verdict on the receiving count once they had rendered their decision on the armed robbery count.
We are satisfied that having regard to the trial as a whole the appellant was afforded a fair trial and that the complaints levied in these grounds do not detract from that satisfaction to cause us to interfere with the convictions and sentences except to the extent that we have found the receiving count cannot stand.
In the premises, we are satisfied that there is some merit in ground 7; and that the two verdicts cannot stand together. We hold the view however, that this is a proper case for the employment of the proviso contained in section 13(1) of the Court of Appeal Act as no miscarriage of justice has occurred; and that the justice of the case demands that the appellant's conviction for armed robbery be upheld and the sentence of ten years and eight months imposed by the Judge be affirmed as well. However, we quash the conviction for receiving and set aside the “sentence” imposed by the Judge for that offence.
Delivered by The Honourable
On 8 May 2019, having heard the submissions of the appellant and Counsel for the respondent, Ms. Linda Evans, we reserved our decision. We render it now.
The appellant was convicted of armed robbery, causing harm with intent to facilitate the commission of an offence and receiving on 18 October 2017; and sentenced on 23 March 2018. On 27 April 2018 he filed his appeal. It is out of time since he ought to have filed his appeal within twenty-one days of 23 March 2018. He is some seven days late. Therefore, the appellant had to apply for leave to appeal out of time.
The application for leave was not supported by an affidavit explaining, inter alia, the reasons for the delay and the prospect of success, but in his notice of application for extension of time within which to appeal, the appellant stated that following his sentencing, he had made a request for the appeal forms to the authorities but had to wait on them to provide the necessary forms to launch his appeal; which they did not do until 27 April 2018.
As the appellant was un-represented we were prepared to adopt a more relaxed approach to his application than we would to an applicant who was represented by Counsel. Thus, we considered his application despite its shortcomings.
The factors that we bear in mind when confronted with an application for leave to appeal out of time are well known and have been rehearsed in Attorney General v Omar Chisholm MCCrApp No. 303 of 2014 and subsequent decisions of this Court. They are: 1) the length of the delay; 2) the reason for the delay; 3) the prospect of success; and 4) the prejudice, if any, to the respondent.
In that regard we view the length of the delay in this case as negligible; and the reason proffered for the delay is acceptable. Further, we are unable to perceive any prejudice inuring to the respondent should the appellant be granted the leave sought. The only factor which calls for our more anxious consideration is the appellant's prospect of succeeding on his appeal.
On 11 November, 2016, Desirade Clarke was leaving a store on Marathon Road. She had placed her bag in her car and was about to get in when she was approached by the appellant who was dressed in a white T-shirt and dark coloured pants and armed with a sharp object which he held at her neck. The appellant demanded she move over but she refused. He then demanded the keys to her car. She dropped them on the floor of the car and as he moved to retrieve them she was able to run away into the street crying out for help. As she did so she noticed that the appellant drove off in her vehicle in which she had left her bag containing her wallet and purse. In her haste to get away Ms. Clarke fell to the ground. She got up and managed to wave down a passing motorist who allowed Ms. Clarke to use her cell phone. It was at that time Ms. Clarke realized that she had received a cut to one of her fingers.
On 11 November 2016, about 1:40 p.m., Sergeant 2392 Storr went Penny Savings Bank Lane in the area of Claridge Primary School. There he located Ms. Clarke's vehicle which had crashed into the school's wall and received damages to the front section. He arranged for the car to be towed to the Internal Security Section of the Central Detectives Unit.
At approximately 1:50 pm. on 11 November 2016, Mr. Elvin Richards, an employee of the Princess Margaret Hospital was on his way back to his place of employment and had detoured to the street in the back of the Mall at Marathon at the request of some of his coworkers and was proceeding to make a purchase on their behalf from Bamboo Shack on Wulf Road. When he arrived in the area of Claridge Road he noticed a man dressed in a black pants and white shirt running. This man had a female's purse in his hand. Mr. Richards turned his vehicle around. It appears that by the time Mr. Richards encountered the man again about five minutes later, the man was walking from a yard. When he saw Mr. Richards he apparently thought Mr. Richards was a police officer as made some remarks to him to the following effect, “Officer, if you know what's good for you, you better carry your sissy …before you get shoot”. Mr. Richards accosted the man...
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