Quincy Johnson v R
| Jurisdiction | Bahamas |
| Judge | Sir Hartman Longley, P |
| Judgment Date | 18 February 2019 |
| Neutral Citation | BS 2019 CA 11 |
| Court | Court of Appeal (Bahamas) |
| Date | 18 February 2019 |
| Docket Number | SCCrApp No. 142 of 2015 |
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. 142 of 2015
Ms. Sonia Timothy, Counsel for the Appellant
Mr. Roger Thompson, with Ms. Jameca Basden, Counsel for the Respondent
R. v Fergus (Ivan) (1994) 98 Cr. App. R. 313 considered
Johnson v R (2017) 91 WIR 23 applied
R v Turnbull (1976) 63 Cr.App.R 132 considered
R v Galbraith (1981) 73 Cr.App.R. 124 considered
Criminal Appeal - Attempted Murder — Burglary — Possession of Firearm — Identification Evidence — Section 170 Criminal Procedure Code
Kasheena Barry was awakened around 3:30 a.m. on the morning of 23rd of June, 2012 to a man in climbing in her bedroom window. She ran from the room. Earl Carey heard a scream, and he ran into Barry's bedroom. There he said he observed a dark male halfway through the window. The man reached for a gun that was on the bureau and fired a shot at Carey's head. A struggle ensued and Carey was hit in the eye and the ears during the struggle. The intruder left. The defendant was arrested. Earl Carey identified the defendant as the male that he struggled with on 23 June 2012 during an identification parade at CDU. The appellant was charged and convicted for burglary, possession of a firearm with the intent to endanger life and attempted murder. He now appeals his convictions and sentences on the grounds inter alia, that the case should have been withdrawn from the jury at the close of the prosecutions case and that the conviction is unsafe.
Held: appeal dismissed; convictions and sentences affirmed.
Essentially, two grounds of appeal were agreed and they may be taken together. The appellant complains that the case should have been withdrawn from the jury at the close of the case for the prosecution and in any event the conviction is unsafe and unsound. Counsel for the appellant relied upon the well-known principles set out in the cases of Galbraith and Turnbull. She contended that the evidence of identification was poor and that the case should have been withdrawn from the jury.
In my judgment the following weaknesses in the identification evidence ought to have been
obvious: the only description of the appellant that was given by Earl Carey is that he was dark. No
physical description was given. When Carey first saw the appellant he was coming through a window and apparently had a gun in hand. As Carey approached the man the gun went off and smoke filled the room. While he wrestled with the assailant there is no evidence as to how long during that confrontation which lasted two minutes did he have actual sight of the assailant face. However, Carey had two opportunities to see the assailant: first when he saw him coming through the window. At that time, he said nothing obstructed the face of the assailant. He saw him. Second, he moved toward the assailant to prevent the assailant from shooting him. He wrestled with him for about two minutes.
[C]onsidering the two specific opportunities that Mr. Carey had to observe the person he says is the appellant, that is —when he was coming into the home and while wrestling with him for two minutes —in circumstances where there had been no obstruction to view the face of the appellant, I am firmly of the view that notwithstanding the weakness pointed out, the evidence was sufficiently credible in the round to call upon the appellant to make a defense. I would therefore reject Ground 1 of the appeal.
Judgment delivered by the Honourable
This is an appeal against convictions and sentences for Burglary, Possession of firearm with intent to endanger life and Attempted Murder. The appellant was sentenced to 10 years imprisonment for Burglary and Possession of firearm with intent and 17 years for Attempted Murder. All sentences are to run concurrently.
The sole issue was whether the appellant had been correctly identified as the person who had committed the offenses or was this is a case of mistaken identification and whether in the circumstances the verdict is unsafe.
The case for the prosecution was that Kasheena Barry, Earl Carey, Rayven Barry and others were the occupants of a home at Ruth Boyd Subdivision on 23 June, 2012. Kasheena Barry was the first person to arrive home on 22 June, 2012, and she retired to bed at approximately 11:00 p.m. after ensuring that all windows were closed. Around 3:30 a.m. on the morning of 23 June, 2012, Barry was awakened and she saw a man in the window of her bedroom. All of his body except for one of his legs was already in the room. Barry and the man looked at each other. The man picked up a gun from the bureau by the window. Barry claimed she got out of the bed and ran out of the room. As she was running out of the room, she heard a gunshot.
At the same time, Earl Carey was working in his bedroom. He heard a scream, and he ran into Barry's bedroom. He said the light and television were on in that room, and as he entered the room, he said he observed a dark male halfway through the window. He said there was nothing obstructing his view of the man's face. The male, he said, or the man reached for a gun that was on the bureau. He raised the gun towards Carey's head and fired and then the room was filled with smoke. Carey ran toward the male or the man and he held on to the gun. He struggled with the man in an attempt to prevent the man from aiming the gun at him and shooting him. The struggle lasted two minutes. Carey was hit in the eye and the ears during the struggle. At one point during the struggle Carey saw Rayven Barry in the room. The male eventually left.
Sometime later, Barry discovered that the window had been pried open and the screen was pushed onto the bedroom floor. The defendant was arrested by the police and interviewed by Sergeant 2904 Knowles on the 5 August, 2012. At the time, he denied being responsible for the commission of any offences.
On the 8 August, 2012, Earl Carey viewed participants on an identification parade at CDU that included the appellant. He identified the defendant as the male that he struggled with on 23 June 2012. The defendant was the participant with number six.
The defendant's case is that on 23 June, 2012, he was at his home at Carmichael Road with his girlfriend Timothea Darling. The defendant agreed to attend an ID parade. He was placed on an ID parade along with other people. Prosecution witness Earl Carey walked down the line and said he did not see the person who committed the offence. Three ladies including prosecution witness Kasheena Barry, walked down line. Kasheena Barry picked number three. The defendant was number six. According to the defence no one identified him.
The defendant raised the defense of alibi.
The jury rejected the defense and convicted the appellant of all offenses.
There can be no question that the pivotal and perhaps only issue was one of identification.
In this regard I wish to refer to the sage words of Lord Justice Steyn in R. v Fergus (Ivan) (1994) 98 Cr. App. R. 313 which have not lost their force over time. He said:
“The law on identification
Before we turn to the specific grounds of appeal, it is necessary to consider briefly the approach of our law to identification evidence. The issue of the identification of an offender is possibly one of the commonest questions of fact that juries have to consider. It is also one of the issues most susceptible to error. Visual identification of an offender not known to the observer is a particularly fallible process. That perception was powerfully articulated in the Devlin Report: See Report to the Secretary of State for the Home Department of the Departmental Committee on Evidence of Identification in Criminal Cases, April 29, 1976. The report stated (at para. 8.1):
“We are satisfied that in cases which depend wholly or mainly on eye-witness evidence of identification there is a special risk of wrong conviction. It arises because the value of such evidence is exceptionally difficult to assess; the witness who has sincerely convinced himself and whose sincerity carries conviction is not infrequently mistaken.”
Lord Devlin's report stated at paragraph 8.4 :
“We … wish to ensure that in ordinary cases prosecutions are not brought on eye-witness evidence only and that if brought, they will fail. We think that they ought to fail, since in our opinion it is only in exceptional cases that identification evidence is by itself sufficiently reliable to exclude a reasonable doubt about guilt.”
In Scotland, the Bryden Committee reported two years later: Identification Procedure under Scottish Criminal Law (Cmnd 7096 (1978)). While recognising the fallibility of visual identification, this report argued that such evidence was not as unreliable a basis for conviction, in Scotland, as the Devlin report had argued: see paragraph 1.03. The report emphasised in particular the requirement for corroboration in Scotland. The English courts responded to the problem of visual...
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