Oscar Ingraham v R

• Jurisdiction: Bahamas
• Judge: Mr. Justice Jones, JA
• Judgment Date: 25 April 2020
• Neutral Citation: BS 2020 CA 17
• Court: Court of Appeal (Bahamas)
• Docket Number: SCCrApp. No. 159 of 2017
• Date: 25 April 2020

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

SCCrApp. No. 159 of 2017

Between

Oscar Ingraham

Appellant

and

Regina

Respondent

APPEARANCES:

Appellant appeared Pro Se

Mr. Patrick Sweeting, Counsel for the Respondent

Attorney-General v Omar Chisholm MCCrApp. No. 303 of 2014 applied

Franky Eugene vs. The Attorney-General SCCrApp. No. 221 of 2015 distinguished

Marriott (Garland) v R [2012] JMCA Crim 9 considered

Oscar Ingraham v Queen SCCrApp. No. 309 of 2016 followed

R v Ogden (Richard) [2013] EWCA Crim 1294 applied

R v Turnbull [1977] Q.B. 224 mentioned

Reid v Queen (1978) 27 WIR 254 applied

Criminal appeal — Extension of time application — Rape — Armed robbery — Burglary — DNA testing — Y-STR DNA testing

On Friday 28 October 2011 around 4:30am MG's home was broken into; the assailant robbed her of cash and raped her. MG testified that the assailant did not touch anything in her home, did not wear a condom and ejaculated into her. Following the ordeal MG was transported to the hospital where, as per usual, a rape kit was performed and bodily samples (blood and hair) were obtained from her. The appellant gave sworn evidence and denied that he robbed and raped MG. He further testified that on 29 June 2012 he went to the Princess Margaret Hospital for medical attention and denied that any blood was extracted from him on that date or the day after. Nevertheless, the appellant was convicted in the court below and sentenced to 25 years for the offence of rape, 14 years for the offence of armed robbery and 7 years for the offence of burglary. The sentences were to run concurrently with each other but 15 years of the sentence imposed was to run consecutively with the sentence recently imposed upon the appellant by another judge for a similar offence. The appellant sought leave from this Court to appeal out of time.

Held: application for an extension of time within which to appeal granted. Appeal allowed; appellant's conviction and sentence set aside. No retrial ordered.

The factors to be considered on an application for an extension of time are well known; length of the delay, reason(s) for the delay, the prospects of success of the appeal and the prejudice to the respondent, if any.

The appellant was 1 year and 4 months out of time and submitted that the reason for the delay is that he gave his completed appeal form to an inmate to deliver to the prison's post office with the hope that it would be transferred to this Court. He submitted that it was only after he had not been summoned by the Court that he began writing letters to explain his dilemma. Regarding the prospects of success the appellant contended, firstly, that there was insufficient evidence to support his conviction and, secondly, that the trial judge failed to explain to the jury the evidential significant of the DNA evidence.

The appellant's attack on the respondent's case was on the basis of the DNA evidence which, the respondent alleged, connected him to the offence. That connection was made by the presence of Y-STR DNA found on MG's vaginal swab. The results of the Y-STR DNA testing revealed that the appellant could not be excluded as a contributor and all patrilineal male relatives of the appellant also could not excluded as a contributor of the DNA profile obtained. As there was no other evidence presented which could have given the DNA evidence its significance (for example motive or opportunity) the trial judge ought to have directed an acquittal at the no case submission stage. By not directing an acquittal the safety of the conviction was affected.

Having rejected the no case submission the trial judge's directions to the jury with respect to DNA testing fell short of what was required in a case where the primary evidence was based on Y-STR DNA.

Given the deficiencies in the DNA and other evidence brought by the prosecution the Court was of the view that it was not in the interest of justice to order the retrial of the appellant.

REASONS FOR DECISION

Mr. Justice Jones, JA

Judgment delivered by the Honourable

1 . Charles J, and a jury convicted Oscar Ingraham (“the appellant”) in the court below on information no. 54/ 2/2013 for the offences of rape, armed robbery and burglary. He was sentenced to 25 years, 14 years and 7 years, respectively; the sentences were to run concurrently.

2 . At his sentencing on 1 March 2016 the trial judge was aware that the appellant had recently been sentenced before Bethel, J. for a similar offence. As the judge determined that the appellant “pose[d] a potential danger to women and society as a whole” she ordered that the appellant should serve 15 years of the sentence imposed by her consecutively with the 28-year sentence handed down by Bethel, J.

3 . A letter from the appellant seeking an extension of time to appeal was received by this Court on 27 July 2017 and Criminal Form No. 1, completed by the appellant, was received by the Court on 18 October 2018.

4 . On 18 June 2019 we heard and agreed to the appellant's extension of time application. Having heard the arguments on his prospects of success, we allowed the appeal and set aside the appellant's convictions and sentences. We did not order a retrial, having regard to the evidence led. We promised to provide our reasons at a later date. This we now do.

BACKGROUND

5 . On Friday 28 October 2011 around 4:30am someone broke into the home of MG, the virtual complainant, (“the VC”). The assailant robbed her of cash and raped her. According to the VC the assailant touched nothing in her home, did not wear a condom and ejaculated into her.

6 . Following the ordeal the VC called the police and she was transported to the hospital where the usual “rape kit” was performed upon her and blood, along with hair samples, were taken from her.

7 . The appellant gave sworn evidence and denied that on 27 October 2011, around 4:30am or on Friday, 28 October 2011, he entered the home of the VC, robbed and raped her. He recalled that on 29 June 2012 he went to the Princess Margaret Hospital for a ruptured eardrum and a swelling on his left cheek. He denied that any blood was extracted from him on 29 June 2012 or on 30 June 2012.

EXTENSION OF TIME APPLICATION

8 . The factors to be considered on an application for an extension of time are well known: the length of the delay, the reason(s) for the delay, the prospects of success of the appeal and prejudice to the respondent, if any. See Attorney-General v Omar Chisholm MCCrApp. No. 303 of 2014.

Length of the delay

9 . Section 17(1) of the Court of Appeal Act provides that a person desirous of appealing to this Court must do so within 21 days. The appellant was sentenced on 1 March 2016 and thus his appeal ought to have been filed by 22 March 2016. However, the first intimation this Court received of the appellant's desire to appeal was not until his letter of 27 July 2017; 1 year and 4 months out of time.

Reason(s) for the delay

10 . His reasons for the delay are outlined in his 5 March 2019 submissions. He stated that he received an appeal form from the prison within the allocated time but once completed he gave the form to an inmate to deliver the same to the prison's post office with the hope that it would be transferred to the Court of Appeal. After not being summoned by the Court he began writing letters to the Court explaining his dilemma.

Prospects of success

11 . The appellant contended that his conviction was unsafe and unsatisfactory for two reasons. First, there was insufficient evidence to support his conviction. Second, the case having been sent to the jury, the trial judge failed to explain to the jury the evidential significance of the DNA and other evidence in the case.

(a) Was there sufficient evidence to support the appellant's conviction?

12 . The appellant attacked the respondent's DNA evidence which sought to identify him as the VC's assailant. Patrick Sweeting (“counsel for the respondent”) contended that the appellant's DNA linked him to the offences for which he was convicted by the jury. He pointed to the evidence of the DNA expert Ms. Shelly Johnson (“Johnson”) who performed a DNA test on the VC's blood and vaginal swabs; and, on the blood sample taken from the appellant using the STR DNA and the Y-STR DNA tests. Johnson explained the difference between the STR DNA test and the Y-STR DNA test at page 280:32 – 281:17:

“STR analysis is the theory of yourself you're looking at your DNA nucleus of the cell, you're looking at DNA. You're giving (sic) half of your nuclear DNA from your mom and half from your dad, that's what make (sic) you unique. Most DNA between individuals…is 99.5 to 99.7 percent that's what gives you two eyes, two ears, two legs…there is only a small difference between us and that is what nuclear DNA is…targeting areas that is (sic) unique to each individual.

Y-STR is a type of DNA it is targeting male specific particular DNA its targeting the Y chromosome you're inheriting that from your…father…Your male specific DNA you inherit from your father, you pass it down from generation to generation with the same profile. It is not a unique identifier.”

13 . Johnson's evidence was that the vaginal swab of the VC was tested but no male DNA profile was obtained using the STR DNA analysis. She concluded that the appellant was excluded as being a contributor using this test. However, the vaginal swab was then subjected to male specific DNA testing and a Y-STR DNA profile was obtained. Those results revealed that “Oscar Ingraham cannot be exclude[d] as a contributor…All patrilineal male relatives of Oscar Ingraham also cannot be excluded as contributors of the Y-STR profile obtained…”

14 . The VC did not identify her assailant at an identification parade. The sole identification evidence was...