Ormand Leon v The Director of Public Prosecutions

JurisdictionBahamas
CourtCourt of Appeal (Bahamas)
JudgeSir Michael Barnett, P
Judgment Date25 May 2022
Neutral CitationBS 2022 CA 077
Docket NumberSCCrApp. No. 51 of 2016
BETWEEN
Ormand Leon
Applicant
and
The Director of Public Prosecutions
Respondent
Before:

The Honourable Sir Michael Barnett, P

The Honourable Madam Justice Crane-Scott, JA

The Honourable Mr. Justice Evans, JA

SCCrApp. No. 51 of 2016

IN THE COURT OF APPEAL

Criminal appeal — Application to reopen a concluded appeal — Exceptional circumstances

On 10 September 2018 the Court dismissed the applicant's appeal against conviction and sentence. He now applies to have his appeal reopened and fresh evidence admitted.

Held: Application to reopen the appeal is refused.

While there exists a jurisdiction to reopen a concluded appeal, there must be exceptional circumstances for the court to exercise that discretion.

Each of the points relied on by counsel for the applicant as constituting exceptional circumstances could have been argued during the appeal. The applicant is seeking to reargue his appeal on different grounds. This is not the basis upon which the jurisdiction to reopen an appeal could be exercised.

It is only in exceptional circumstances will a court reopen a decided appeal. This is not one of them.

Daniel Coakley v R SCCrApp. No. 15 of 2017 mentioned

Dwight Liburd v The Queen HCRAP 2008/003 considered

Edney Burrows v R; Thaddeus Williams v R SCCrApp. Nos. 12 & 13 of 2021 mentioned

George Prince Williams v R SCCrApp. No. 229 of 2014 mentioned

R v Yasain [2016] QB 146 mentioned

APPEARANCES:

Mr. Geoffrey Farquharson, Counsel for the Applicant

Ms. Darnell Dorsette, Counsel for the Respondent

Sir Michael Barnett, P

Judgment delivered by the Honourable

1

This is an application by Ormand Leon (“Leon”) to reopen an appeal and if reopened to adduce fresh evidence on the hearing of the reopened appeal.

2

On 11 November 2015 Leon was convicted of murder and sentenced to prison for 45 years, less time spent on remand. A summary of the facts of the case may be found in the headnote of the judgment of this Court, delivered on 10 September 2018.

3

On 10 July 2011 Leon and another person, Denis Mather, went in search of Francisco Hanna as Hanna had, on an earlier date, injured Leon's brother. Leon and Mather wanted to shoot Hanna.

4

They obtained a vehicle and drove in the Wilson Tract area. Once there they saw Hanna but, on the belief that he spotted them in the vehicle, they drove away, secured another vehicle and returned in search of Hanna. Once they found him Leon, who was the driver of the vehicle, stopped to allow Mather, who was armed with a 9mm pistol, to exit the vehicle. Leon drove a short distance away and then heard about five gunshots. He picked up Mather who was running through a shortcut. Mather, once inside the vehicle with Leon said “That's how you deal with fools” and they left the area. Leon and Mather were arrested for Hanna's murder. When interviewed by the police Leon participated in a record of interview and made a statement admitting his involvement in the offence. As a result, he and Mather were charged with Hanna's murder. On the direction of the judge the appellant's co-accused was acquitted, however, the jury found Leon guilty of murder.

5

Leon appealed his conviction on the following grounds:

“1) Evidence was wrongly rejected and inadmissible evidence was wrongly admitted.

2) That under all the circumstances of the case the verdict is unsafe and unsatisfactory.

3) That the conviction was erroneous in point of law.”

6

On his appeal he was represented by experienced counsel. In that appeal Leon attacked: 1) the judge's direction on joint enterprise; specifically on his failure to adequately direct on the issue of intention; 2) the failings of his trial attorney; and 3) the failure of the judge to direct the jury on the issue of the appellant's drug use and the impact it had, if any, on the appellant's ability to form the requisite intent to kill.

7

The appeal was dismissed on 10 September 2018.

8

Now represented by different counsel, Leon, by motion filed on 25 February 2022, more than three years after his appeal was dismissed, seeks:

“…leave to reopen his appeal on the ground that the failure of the Respondent to conduct an investigation into whether the investigating officers in his matter perpetrated a perversion of justice and that the directed acquittal of his sole co-defendant shows that the dismissal of his appeal represents real injustice.”

9

The jurisdiction of this Court to reopen an appeal is now well established. Following the decision of the English Court of Appeal in R v Yasain [2016] QB 146 this Court has acknowledged the existence of the jurisdiction; Edney Burrows v R; Thaddeus Williams v R SCCrApp. Nos. 12 & 13 of 2021; Daniel Coakley v R SCCrApp. No. 15 of 2017 and George Prince Williams v R SCCrApp. No. 229 of 2014. These cases establish that, in criminal cases with the compelling need for finality, the exercise of the jurisdiction to reopen an appeal must be restricted to exceptional circumstances.

10

Recognizing the need to show exceptional circumstances, counsel for Leon, in his written submissions, identified the exceptional circumstances as:

“19. It cannot be countenanced that the circumstances in which the statement was obtained from the witness Noel, and the direction for an investigation by the Learned Judge; and that Judge's order having been ignored by the Respondent, is anything but exceptional.”

11

In oral argument, at the hearing, counsel for Leon amplified his submission on the exceptional circumstances. It is found in the following exchange:

“THE PRESIDENT: What are the exceptional circumstances that (sic) are relying upon as a basis for reopening the appeal?

MR. FARQUHARSON: What we say is truly exceptional, my Lords, are these things: First and foremost, the court would be aware that Delano Noel, who was a juvenile witness in the trial in the court below was an escapee from the boys school. And the court would have seen that counsel for the respondent would have referred to the fact that Mr. Leon himself was an escapee in the course of his trial. And, my Lords, we think that it is beyond exceptional that there should be two escapees involved in the same trial, my Lords. We hope that that remains exceptional.

...

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