Peter Albee v The Commissioner of Police
| Jurisdiction | Bahamas |
| Judge | Mr. Justice Jon Isaacs, JA |
| Judgment Date | 18 August 2021 |
| Neutral Citation | BS 2021 CA 136 |
| Docket Number | MCCrApp. No. 153 of 2019 |
| Court | Court of Appeal (Bahamas) |
IN THE COURT OF APPEAL
The Honorable Sir Michael Barnett, P, Kt
The Honorable Mr. Justice Isaacs, JA (Actg)
The Honorable Madam Justice Bethell, JA
MCCrApp. No. 153 of 2019
Ms. Krysta Mason-Smith, Counsel for the Appellant
Ms. Linda Evanss, Counsel for the Respondent
B (a minor) v DPP [2000] 1 All ER 833 considered
Beckford v R [1987] 3 All ER 425 considered
R v Day [2015] EWCA 1646; [2015] All ER (D) 108 (Apr) distinguished
R v Mc Innes [1971] 3 All ER 295 considered
Criminal Appeal — Causing Grievous Harm — Appeal against Sentence — Appeal against Conviction — Whether Magistrate required to consider the honesty of the appellant's belief that he was in danger -Verdict Unsafe — Verdict Unsatisfactory
On 7 July 2017 the appellant was arraigned in the Magistrate's Court on the charge of Causing Grievous Harm contrary to Section 270 of the Penal Code, Chapter 84. On 4 September 2019 the appellant was convicted and sentenced to eighteen (18) months imprisonment. On that same day the appellant filed an appeal against his conviction and sentence on the grounds that the Magistrate's decision was unreasonable and could not be supported having regard to the evidence and that the verdict was unsafe and/or unsatisfactory.
Held: appeal is allowed. The conviction and sentence are quashed; the matter is remitted for retrial in the magistrates' court before a different magistrate.
The Magistrate failed to appreciate the effect the threats of death, made by Jak Cummins, may have had on the appellant. The appellant's apprehension of an immediate attack could not be said to have been held unreasonably. He may have honestly believed that Jak had entered the cottage intent on executing his threat to kill. The Magistrate was required to consider the honesty of the appellant's belief based on the fact that Jak admitted to making the threats. The appellant was entitled to have his case determined by the Magistrate on that basis. The Magistrate fell into error when she failed to adequately, or at all, consider the appellant's point of view.
If the appellant honestly believed that it was necessary to defend himself, the next step would be the Magistrate's consideration of the force used by the appellant having regard to the threat as he reasonably thought it to be. However, the Magistrate could not proceed to consider the next step because by her finding that the appellant did not honestly believe that he was in danger, she precluded any further consideration of whether the force employed was excessive and unjustified, as such the appellant's conviction is clearly unsafe and unsatisfactory.
Judgment delivered by The Hon. Mr. Justice Jon Isaacs, JA
. On 27 May 2021, having heard the submissions of Counsel, we reserved our decision in this appeal. We render it now.
. The appellant appeals the decision of Senior Magistrate Carolyn Vogt-Evans (“the Magistrate”) to convict him of causing grievous harm to one Jak Hannoby-Cummings (“Jak”). He relies on the following grounds found in his re-amended notice of motion filed on 10 May 2021:
“(1) That the decision was unreasonable and/or could not be supported having regard to evidence;
(2) The verdict is unsafe and/or unsatisfactory having regard to all the circumstances of the case;”
. On 5 July 2017, Mrs. Joeann Cummins was at her home in Palm Cay, New Providence having dinner with a friend when the appellant walked into her house. He appeared enraged and shouted, “I have been fired. Can you believe I have been asked to leave?” She testified that he also said, “Why should I have to leave or be fired?” Apparently, the Cummins' general manager had fired the appellant that morning. He continued talking but Mrs. Cummins told him she was not prepared to stand there listening to him; and she closed her door and spoke to her husband. It was her evidence that she told the appellant to leave that evening and to take his things.
. She went to her bed. She heard her son, Jak, scream, “I have been stabbed!” She ran to the cottage and saw Jak standing on the balcony. Her husband climbed the balcony. The appellant was standing on the balcony and said, “You're next.”. The appellant was waving a knife. She had not seen any altercation between Jak and the appellant.
. Under re-cross-examination by Mr. Ducille she was asked, and the witness responded, as follows:
“Q: I asked and you said he was told he could stay in the cottage that night, that's what you answered me when I asked.
A: Yes.”
. This evidence smacks of hearsay because it was Mrs. Cummings evidence that she had told the appellant to leave that evening and to take his things. Who told the appellant he could stay in the cottage that night? None in the Cummins family did so.
. Jak testified, inter alia, that:
“I went to the guest cottage where I reside. I tried to enter the front door; it was locked. I climbed up the balcony and went through those doors which do not lock. At that point Mr. Albee, I saw to the left darted into the bedroom. I proceeded to move the furniture he placed in front of the door. He grabbed me from behind, I pushed him away, and he stabbed me from the side. I received a large laceration (witness shows Court a twelve (12) inch scar). It was a knife with a blade this long (witness indicated about four (4) inches in length). I did not give him permission to stab me.”
. Jak described his injury and his treatment. He received 4 layers of stitches and he could not move his legs. He said he was unarmed at the time the appellant attacked him.
. Mr. Ducille cross-examined Jak. Jak admitted that he did not go into the cottage friendly toward the appellant but he went to move furniture. Although Jak is recorded as having earlier admitted that he and his father threatened the appellant's life, he later denied he and his father threatened to kill the appellant. Jak denied he and his father had planned to harm the appellant; and said that his intention was to remove the furniture that the appellant had placed in front of the door to the cottage.
. Aaron Cox, a security officer at Port New Providence, went to the home of Paul Cummins sometime after midnight on 6 July 2017. He spoke to Mr. Cummins and he later went to the “lodge” and called for the appellant to come out. Mr. Cox said the appellant came out and told him, “Mr. Cummins and his son came to his residence and carried on, trying to get inside the loft but he had it locked. That Jak came up on the balcony and tried to attack him and he tried to defend himself, that he stabbed him. The police came and he stated he stabbed him.”
. Under cross-examination by Mr. Murrio Ducille, Mr. Cox was asked if he had told the police that the appellant had told him he stabbed Jak because he and his father were trying to kill him. Mr. Cox replied he did not know about that; but Mr. Ducille put Mr. Cox's statement to him where he had said, “kill him”. Mr. Cox responded that the appellant had told him the Cummins had tried to break in; and he did not know “kill him” was in the report. He indicated that the appellant had said he had the incident recorded on his phone.
. Mr. Paul Cummins testified that the appellant was a boat captain for one of his clients; and that he allowed the appellant to live in the cottage on the grounds of his house about 8 to 10 weeks prior to 6 July 2017. Mr. Cummins went on to say, inter alia, the following:
“At about 11:30pm I was at home; I went to the cottage and rang the bell but there was no answer. My friend's car was outside, so I thought someone was at home. The lights were flicking on and off. I went home. One hour later my son Jak came home. We went to the cottage again, no answer, but the lights began flicking on and off. We took the spare keys but could not get in; something was jammed in the door. I told Jak to get on the verandah. I gave him a lift up to the verandah to open the door. He stepped in my hands, then 3–4 seconds later
I heard him scream “Dad I have been stabbed, help, help”. It was basically as he entered the property he was screaming for help. I shouted “Jak come down”, he said he can't, he won't let him out. I attempted to step over the balcony. Mr. Albee appeared with a knife and video me. He said “You get down, or you're next. Get down, I will let him go.” I got down. I see Jak appear on the balcony. His mother came to help me. He came off the balcony. He used the branches to break his fall, we caught him. Peter Albee videoed all of this.”
. Under cross-examination Mr. Cummins testified that the appellant had been terminated on 5 July 2017. Mr. Cummins denied the suggestion that he and Jak had threatened the appellant with death. He was asked about the appellant's occupation of the cottage and he said that occupation was without his consent; and he was asked if he could not wait until the following day and Mr. Cummins responded that the appellant had been told at 5 o'clock.
. Those police officers who came into contact with the appellant, PC 85 Dumaurier Johnson and 3681 Carey, testified that the appellant admitted to stabbing Jak; but that he had done so in self defence because Jak had attacked him.
. Dr. Alpheus Allick, an Accident and Emergency doctor, was working at Doctor's Hospital on 6 July 2017 when he saw Jak. Dr. Allick was permitted to refer to his notes and he said, inter alia:
“My findings were that of an approximately 30cm laceration starting on the interior chest as an abrasion on the anterior chest wall, continued increasing in depth around the lateral chest wall and continued to the left lower lumbar region (left lower back), depth of 4cm associated with that wound. I found the patient's lower limb (left leg) was weaker than that of the right. … The injury is a serious...
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