Patrick Knowles v R
| Jurisdiction | Bahamas |
| Judge | Sir Hartman Longley, P |
| Judgment Date | 12 December 2018 |
| Neutral Citation | BS 2018 CA 206 |
| Court | Court of Appeal (Bahamas) |
| Docket Number | SCCrApp. No. 222 of 2016 |
| Date | 12 December 2018 |
COMMONWEALTH OF THE BAHAMAS
IN THE COURT OF APPEAL
The Honourable Sir Hartman Longley, P
The Honourable Mr. Justice Jones, JA
The Honourable Sir Michael Barnett, JA (Actg.)
SCCrApp. No. 222 of 2016
Ms. Marianne Cadet, Counsel for the Intended Appellant
Mr. Venal Collie, Counsel for the Intended Respondent
Cassell and another v R [2017] 4 LRC 1 applied
R v Jogee and Ruddock v R [2016] UKPC 7 applied
Criminal appeal — Extension of time — Guiding principles on an application for an extension of time — Armed robbery — Possession of an unlicensed firearm — Possession of ammunition — Application of the proviso
The intended appellant entered a convenience store armed with a handgun and held up the customers therein; the cashier was forced to give him the money from the cash register. It was alleged that the intended appellant told an employee of the store “don't try nothing like you did the last time”. As the intended appellant was exiting the store he was shot by an armed police officer and fell just outside the store. Following his hospitalization the intended appellant was charged with the offences of armed robbery, possession of an unlicensed firearm and possession of ammunition.
At his trial the intended appellant did not give evidence and his case was a denial of the charges.
The jury found him guilty of the offences on the 19 th April, 2016 and he was sentenced on the 15 th July, 2016 to 18 years imprisonment for the armed robbery and 12 years imprisonment for the firearm offence. He filed an appeal five weeks out of time and therefore has applied for an extension of time within which to appeal.
application for extension of time dismissed. Convictions and sentences affirmed.
On an application for an extension of time the guiding principles are well known. They are the length of the delay, the reason for the delay, the chances of success, and the question of prejudice to the respondent.
The pivotal issue in this case was the prospects of success of the appeal. The intended appellant complained that the judge ought to have discharged the jury once evidence came out that he had committed a similar offence at the crime scene previously. He further complained that the judge had no jurisdiction to hear the firearm and possession of ammunition matters.
Regarding the discharge of the jury, notwithstanding the prejudicial comment which was heard by the jury, the proviso would have been applied as no miscarriage of justice occurred; the intended appellant was shot while exiting the store and was apprehended thereafter. Even if the comment had not been made the jury would inevitably have convicted.
Based on the Privy Council decision in The Attorney-General v Hall the Supreme Court had no jurisdiction to try the firearm offences. However, the case of Jogee and Ruddock provides that ‘where a conviction has been arrived at by faithfully applying the law as it stood at the time, it can be set aside only by seeking exceptional leave to appeal to the Court of Appeal out of time. That court may grant such leave if substantial injustice can be demonstrated, but it will not do so simply because the law applied has now been declared to have been mistaken.’
Delivered by the Honourable
. This is an application for an extension of time within which to appeal against conviction and sentence for the offenses of armed robbery, possession of an unlicensed firearm and ammunition.
. The intended appellant was convicted on the 19 th April, 2016 and sentenced on the 15 th July, 2016 to 18 years imprisonment for the offence of armed robbery and 12 years imprisonment for the firearm and ammunition charges to run concurrently. He, therefore, had until the 5 th August, 2016 to file his appeal within the allotted 21 days. However, his appeal was filed on the 13 th September, 2016. He was, therefore, out of time by almost 5 weeks.
. The guiding principles on an application for an extension of time within which to appeal are well known. They are the length of the delay, the reason(s) for the delay, the chances of success, and the question of prejudice to the respondent.
. The delay is relatively short in the circumstances. However, the focus in this case has primarily been the chance or prospect of success of the appeal.
. The facts are brief.
. The case for the prosecution was that the intended appellant entered a convenience store armed with a handgun and held up the customers forcing the cashier to give him money that was in the cash register. As the intended appellant was about to make his departure from the store an armed police officer fired two shots hitting the intended appellant who fell outside as he was exiting the store. The police and ambulance were called. The intended appellant was taken into custody. First he was hospitalized and then he was charged with the offenses.
. The police witness who shot the intended appellant identified the intended appellant as the person who had entered the store and used a handgun to hold them up.
. The intended appellant did not give evidence but had the statement of two witnesses, including one who was held up but was not fit to testify, read into evidence. His case appeared to have been a denial of the charges.
. The jury, who visited the locus in quo, convicted the intended appellant of all offenses by verdicts of 7–2 and the intended appellant sought to appeal his conviction. His grounds of appeal, as amended, were as follows:
(i) That the learned judged erred in law and fact when the jury was not discharged due to the prejudicial statement of Ms. Saunders, which suggested that the Appellant had committed a similar offense at the crime scene a month before.
(ii) That the learned judged erred in law and fact, to call upon the Appellant to lead a defense having regard to the fact that the prosecution had not established essential elements of its case and that the evidence was unreliable.
(iii) In directing the jury, the learned judge failed in warning the jury, sufficiently or at all, that if proven mere presence at the scene of a crime is insufficiently to support a conviction for armed robbery.
(iv) In directing the jury, the learned judge failed to point out and to warn the jury, either sufficiently or adequately how the jury was to deal with weaknesses, inconsistencies and discrepancies of the prosecution's case and its effects on the prosecution's evidence.
(v) The learned judge failed to adequately direct the jury in reference to Identification and or the dock identification by prosecution witnesses.
(vi) That the learned judge erred in Law and fact and did not have the jurisdiction to hear the firearm and possession of ammunition matters.
(vii) Having regard to the above mentioned, the conviction is unsafe and unsatisfactory. Further no reasonable tribunal, properly directed on the law and seized of the facts could have come to the conclusion to convict
Ground 1 — That the learned judged erred in law and act when the jury was not discharged due to the prejudicial statement of Ms. Saunders, which suggested that the Appellant had committed a similar offense at the crime scene a month before
. The words in respect of which complaint was made are: “don't try nothing like you did the last time”. These were the words the witness Ms. Saunders claimed the assailant said to the shelf boy, Michael Miller, who would give evidence for the intended appellant by having his statement to the police entered. In that statement there is no reference to such a remark.
. Counsel complained that the prejudicial effect of the statement was that the intended appellant was admitting to having robbed the store on a previous occasion. There may have been some force in that submission. He further complained that the judge did nothing to remove the prejudicial effect of the statement from the minds of the jury.
. No doubt a judge has a discretion when prejudicial information is elicited innocently. Sometimes the best course of action is to say nothing. However, reference was later made to the statement.
. It was difficult for me to separate this from any other confession by a defendant. True it was prejudicial, but they were his words, uttered in the course of an armed robbery. These were not words uttered on some other occasion which the prosecution sought to admit. This was not exclusively evidence of character. I failed to see how this can be compared to the disclosure of a rogues gallery or a list of the defendant's antecedents.
. The cases to which the intended appellant makes reference all concern either the intentional or inadvertent admission of material that was...
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