Rahming, Jr. et. al. v R

• Jurisdiction: Bahamas
• Judge: George. P
• Judgment Date: 09 March 2000
• Neutral Citation: BS 2000 CA 2
• Docket Number: Criminal Appeal No. 21,22 & 23 of 1997
• Court: Court of Appeal (Bahamas)
• Date: 09 March 2000

Court of Appeal

George, P., Hall and Ganpatsingh, JJ.A.

Criminal Appeal No. 21,22 & 23 of 1997

Rahming, Jr. et. al.

and

R.

Mr. Andrew Thompson for the 1st appellant.

Mr. Fayne Thompson for the 2nd appellant.

Mrs. Bobbi Cooke McIver for the 3rd appellant.

Mr. Bernard Turner, Actg. Director of Public Prosecutions with Mr. Vernal Collie and Ms. Hadassah Swain for the respondent.

Criminal law - Appeal against conviction for murder, robbery and kidnapping — Whether evidence supported the conviction.

Practice and procedure - Trial by jury — Whether correct procedures were used for empanelling jury.

George. P

1 On the morning of the 15th February, 1997 the dead body of Charles Virgill, a Cabinet Minister was found in a wellfield at the back of the Bahamas Electricity Corporation (“BEC”). As was to be expected, the death of such a prominent public figure must have shocked the community and it would appear that there was much public outcry, and anger. It was election time in The Bahamas and, some two days before, on the 13th February, at about 11.00p.m., the deceased and Edwin Brown the FNM's deputy election campaign manager of the governing party, the Free National Movement (“FNM”) had left a party rally for their respective homes. They were driving separate vehicles. The deceased was driving a white Hyundai Accent motor car which belonged to his wife. Among the possessions he had in it were a briefcase with, among other things, credit cards, FNM paraphernalia and T-shirts.

2 At some point along the route, Brown, who was behind the deceased, broke off and went his way. The deceased who lived with his wife and children in an apartment in a condominium at Silver Cay Club, New Providence, arrived in the parking lot and was leaving his car when two or three men pounced upon him and forced him back into the vehicle and drove off. His wife who was awaiting his return heard the vehicle drive off and recognised it to be hers. Two other residents of the condominium also saw a white car drive off after some men had had a tussle but they did not recognise whose car it was. As the car sped away a hat fell from the top of it. It was found and identified by Mrs. Virgil the next morning as her husband's. The deceased did not turn up at home the next day and failed to keep an appointment with Edwin Brown. The police were notified of his disappearance and investigations began. Within twenty-four hours all three appellants were arrested and, on the 17th February, placed before the magistrate's court on charges of murder, robbery and kidnapping. They were subsequently indicted for these offences and, after a trial that lasted upwards of seven months, were convicted on each count of the information. In respected of the count of murder they were sentenced to death, on the count of armed robbery to life imprisonment and on the count of kidnapping to ten years imprisonment. They now appeal against their several convictions.

3 In the afternoon of the 10th February the deceased's wife was invited to the CID. There she saw and recognised her car in the compound. It had two significantly different features — the windows which were of clear glass were now tinted and the registration licence not hers. The vehicle had been seen at about 5.20p.m. by two police officers, Smith, and Bullard, being driven along Cambridge Street. As a result of information that they had earlier received they pursued the motor car, but the driver managed to elude them and abandon it undetected. Smith had earlier been seen by Carla Thompson, a former girlfriend, and her mother driving a similar vehicle on Quarry Mission Road, Nassau. Later it was examined for finger prints. One was found on its side and, according to the fingerprint expert, it matched a print that had been taken from Smith.

4 Charles Rahming, who is known as ‘Junior’, was the first of the appellants to be taken into custody. He was arrested at his home at about 3.00a.m. on the 15th February and escorted to the Criminal Investigation Department. It was not then known that Virgill was dead. Rahming was interviewed by Supt. Hanna, who had overall command of the investigations, and told that he was suspected of kidnapping the minister and stealing his motor car. He was asked whether he was in a white Hyundai motor car, together with the second appellant, the previous day. He said that the second appellant had offered him a ride. The superintendent then told him that he suspected that Virgill had been killed and his motor car taken. Rahming's response was that he did not know of any killing. He also said that ‘Ellie’ and ‘Tones’ had a man tied up and he helped them throw some things near to a graveyard. He offered to be a prosecution witness. He was cautioned.

5 At about 3.55a.m. on the 15th February the second appellant Ellison Smith, who is called ‘Ellie’, was arrested. At the time he was with his girlfriend Nadia Bain in a room on the third floor of the Montagu Beach Inn hotel. Some police officers broke open the door of the room and he jumped through a window onto the roof of the hotel below, a distance of ten to twelve feet. As he jumped he was seen to throw a gun from his waist into some bush in the adjoining property. He was dressed in undergarments. He was arrested and the gun recovered. According to the police officers he was injured as a result of the jump, and shortly afterwards he was observed to be walking with a limp. According to two of the officers he needed some assistance to be taken off the roof. Arrested with him was his girlfriend and they were both taken to the Wullf Road Police Station and later to the Criminal Investigation Department (“C.I.D.”).

6 At about 4.00a.m. Supt. Hanna interviewed him. He had previously spoken to the officers who had arrested him. He enquired of him whether he was hurt. He gave a negative response but went onto say that he had “to watch [his] bad leg as it may start to bother him.” He was further asked whether his leg was then bothering him and he responded in the negative. The Superintendent cautioned him and told him that he was suspected of kidnapping and robbing Charles Virgill. He was also told that he need say nothing before he had spoken to a lawyer. He responded that he had no lawyer and that he had kidnapped no one. He was told that he was seen driving Mr. Virgil's car and he ran leaving the car after police officers saw him. He responded that: “I get that car from Frankie and I run because you all was looking for me. I did not want to get lock-up.” He was asked where Frankie could be found and he answered “I ain't know exactly; somewhere out East.” He was then put back on the bench. The Superintendent then spoke to Rahming in the serious crime Section. He told him that he suspected that Virgil had been killed and the car stolen. Rahming replied that he was no killer and suggested that he “check Ellie and Tones for that.” He then asked whether he would be put on bail and suggested that he could be a witness. The superintendent told him he could make no promises. Rahming then said that “Ellie and Tones said that they had tied up the man,” and he, Rahming, had help them to throw some things from the car in Augusta Street by the grave-yard. The Superintendent then put him to sit on the prisoner's bench and took Smith back to the serious crimes section. This was about 4.35a.m on the 15th February. He told him that Rahming had said that he and Tones took a car from a man, and that Rahming had assisted them in throwing some things from the car at Augusta Street. Smith replied that he did not know that it was Mr. Virgill. He admitted that they had robbed him but said that it was Tones who killed him. The Superintendent then asked Smith where the body could be found and he said “in the bush past the dump.” He asked Smith if he would show him the yard and he responded in the affirmative.

7 At about 5.12a.m. Rahming was brought back to the serious crimes section and asked whether he was willing to give a statement. He agreed and was again cautioned. The words of the caution were written out and he signed it. In that statement he said that:

“about 11.00a.m. on Friday I was just going outside when Ellie Tones pull-up in the white car and they asked me what I doing. They say come go with me. I een ask them where they going. I get in the car and they buy me one guiness and one spliff and I gone with them and they dump some papers up Augusta Street. When they come up there they come up on Blue Hill Road and turn through the B.E.C. power station cut and they just drive and I was penetrating the area because that's my first time that way. Tones said they just dust one there. I say dust what, and they say one human. Tones say he send one to fresh up the daisies. So after that I tell them to cant’ me home and I gone to bed because I was drinking and I did work late the other day. I does work with my old man who does sub-contracting work. When they leave me ‘Ellie’ jump out of the driver's seat and ‘Tones’ did drive and they gone. That night I was going in my gate and ‘Ellie’ call me and say wait. ‘Ellie’ tell me say boy, boy ‘Tones’ kill that man and he was telling ‘Tones’ don't hurt that man. I saw what — any way I gone to my bed. That is all. Tones say I was with them but that true. I only gone — I only know I see Ellie hide the gun they had in the yard. This was one 9 and I know he had the 357 too.”

8 He thereafter affixed his signature after it was read over to him. The statement was taken in the presence of Chief Inspector Saunders.

9 At 5.40a.m. Supt. Hanna again spoke to the second appellant in the Serious Crime section. Again Chief Inspector Saunders was present. He asked him if he desired to make a written statement. He said yes, and was cautioned In that statement which was signed by him he said:

“On Thursday night me and Tones was together. He met me through West Street. Then...