Rashad Mcphee v R
| Jurisdiction | Bahamas |
| Judge | Sir Michael Barnett, JA |
| Judgment Date | 25 April 2019 |
| Neutral Citation | BS 2019 CA 89 |
| Date | 25 April 2019 |
| Docket Number | SCCrApp. No. 9 OF 2017 |
| Court | Court of Appeal (Bahamas) |
COMMONWEALTH OF THE BAHAMAS
IN THE COURT OF APPEAL
The Honourable Mr Justice Isaacs. JA
The Honourable Madam Justice Crane Scott, JA
The Honourable Sir Michael Barnett, JA
SCCrApp. No. 9 OF 2017
Ms. Marianne Cadet, Counsel for the Intended Appellant
Ms. Cassie Bethell with Mr. Eucal Bonaby, Counsel for the Intended Respondent
Aritis v R; Flowers v R [2014] 1 BHS J No 119 applied
Barry Wizzard v The Queen JM 2001 CA 15 mentioned
Brian Ramkin and Carl McHargh SCCA 72 & 73/2004 mentioned
Carlington Tate v R (2013) JM CA Crim 16 mentioned
Durante Davis v R SCCrApp. No. 299 of 2016 mentioned
Grant v R [2006] UKPC 2 considered
Julian Revello Stuart v R SCCrApp. Nos. 223 of 2016 and 267 of 2016 applied
Kevaughn Bethel v R SCCrApp. No. 265 of 2016 applied
R v Adams (2008) 1 Crim App Rep 35 considered
R v O'Neal Smith SCCA 113/2003 mentioned
Criminal appeal — Extension of time application — Armed robbery — Attempted armed robbery — Section 66 of the Evidence Act — Whether “all reasonable steps” have been taken to locate a witness — Lucas direction — Failure to adequately and sufficiently put the defence's case to the jury — Whether the judge erred by not ordering the Crown to disclose the Record of Interview and Statement of a suspect turned witness
On 12 May 2012 the intended appellant and two others, EK and CD, were traveling along Key West St when a group of boys began to approach them. They encountered a male, Heuton Lloyd, in a red Honda and, according to the intended appellant's record of interview, EK instructed the man to exit the vehicle but he did not. EK pulled out a firearm and shot Lloyd. EK attempted to start the vehicle but was unsuccessful and they ran away. Following a police investigation, the intended appellant and EK were charged with the murder, armed robbery and attempted armed robbery of Lloyd. CD gave a statement to the police in terms similar to the intended appellant.
At the trial the Crown relied on two records of interview with the intended appellant, a confession statement made by him and the statement of CD, which was admitted into evidence pursuant to section 66 of the Evidence Act. Following a voir dire CD's statement was admitted on the ground that he could not be found after all reasonable steps had been taken to find him and the admission of his statement would be the primary subject of attack on appeal. The intended appellant also submits that a Lucas Direction was required, that his case was not adequately and sufficiently put before the jury and that the judge erred by failing to make an order for the disclosure of CD's Record of Interview and Statement.
application for an extension of time dismissed. Convictions and sentences affirmed.
Whether “all reasonable steps” have been taken to find a witness is very much fact sensitive. Indeed, there are two criteria which must be met on a section 66 application: 1) whether “all reasonable steps” had been taken to find the witness and he could not be found; and 2) whether the statement ought to be admitted “in the interests of justice.
In each individual case the judge must evaluate the evidence of which they must be satisfied beyond reasonable doubt that “all reasonable steps” have been taken to locate the witness and that given the particular circumstances of the witness e.g. his last known address, relatives, workplace (if any) contemporaneous connections and contacts he cannot be located. It is important to warn prosecutors and trial judges that section 66 applications should not be permitted to become the norm and should not be lightly granted.
Regarding the intended appellant's submission that a Lucas Direction was required, the mere fact that during the course of a trial including a summation by the judge a reference is made to the fact that an accused may be lying does not in itself require what has been called “a Lucas Direction”. In this case the Crown did not rely on any lies told by the intended appellant to prove its case. The evidence which was relied on was made clear throughout the summation. There was nothing in the trial judge's directions to the jury that suggested that the prosecution was relying on the lies of the intended appellant to prove its case. In this Court's judgment there was nothing in the judge's summation which warranted a Lucas direction. There was nothing to suggest that the Crown was relying on the lie told by the intended appellant relative to the giving of a false name nor relative to his alibi to prove his guilt.
The intended appellant further complained that his defence was not adequately and sufficiently placed before the jury. The case for the intended appellant was a denial of knowledge or involvement in any of the offences. However, a review of the transcripts reveals that the intended appellant's defence was clearly put before the jury.
With respect to the intended appellant's challenge that the judge erred by not ordering disclosure of CD's Record of Interview and Statement, the Court is of the view that the trial judge fell in error when she refused to make an order simply on the ground that “disclosure was at end”. The judge did not rule that disclosure was unnecessary or the disclosure sought was irrelevant. The judge simply said that it was at end. It cannot be at end if the disclosure was necessary to ensure a fair trial. However, it is clear from the authorities that not every breach of the obligation to disclose will result in a trial being unfair and the Court is satisfied that the intended appellant was not hampered in any way with the preparation of his defence by the failure to obtain the documents sought.
Judgment delivered by the Honourable
. This is an appeal by the intended appellant against his convictions for armed robbery and attempted armed robbery. The intended appellant together with Errol Knowles was charged with the murder, armed robbery and attempted armed robbery of Hueton Lloyd. After a trial before a judge and jury he was convicted of the armed robbery and attempted armed robbery but the jury was unable to reach a verdict on the murder charge.
. The critical evidence led by the prosecution against the intended appellant was the evidence contained in two Records of Interview with the intended appellant as well as in a confession statement made by him. In addition, the prosecution relied upon a statement of Carlos Darville (“Darville”) which was read at the trial following a successful application under section 66 of the Evidence Act. Darville did not appear at the trial to give evidence and his evidence was not tested by cross examination.
. It is the admission of the evidence of Darville that would be the primary subject of attack by the intended appellant on appeal.
. Because of their importance I set out the Records of Interview, the Confession Statement of the intended appellant and the witness statement of Darville in their entirety.
. First Record of Interview of the intended appellant:
“Question No. 1: Do you understand the caution I have just read to you and your right to have present a parent, legal guardian and to seek private communication with this person or a legal representative at your parent's expense.
Answer to Question No. 1: Yes, I understand and my mother Sherreck Forbes is here with me.
Question 2: Do you know of a street called Key West Street?
Answer: Yes, sir.
Question 3: It's my information that you normally hang through Key West Street with a group of males. What do you have to say about that?
Answer 3: I don't hang out. I only go through this (sic) and hail them.
Question 4: It's my information that you on Saturday, 12th of May, 2012, sometime around 1:40 a.m., being concerned with others while in the area of Key West Street, armed with a handgun did (sic) intentionally cause injuries to one Hueton Lloyd, resulting in his death. What do you have to say about that?
Answer 4: Yes, sir.
Question 5: Do you wish to give a written statement under caution reference to this matter?
Answer 5: Yes, sir.
Question 6: Do you wish to read and sign your answers?
Answer 6: Yes, sir.”
. Second Record of Interview of the intended appellant:
“Question No. 1: Do you understand the caution I have just read to you and your right to have present a parent guardian and to have present an attorney at the expense of that parent or guardian?
Answer No. 1: Yes, sir.
Question No. 2: Is there a parent or guardian you wish to have present during this interview?
Answer No. 2: Yes, my mother is here sitting next to me.
Question No. 3: Do you wish to have a lawyer present at expense of your mother?
Answer No. 3: No, sir.
Question No. 4: It is my information that you on Saturday 12th of May, 2012, in the area of Key West street was present when a male known as Errol Knowles alias Lil' Yankee, armed with a handgun, shot another male known as Hueton Lloyd, resulting in his death. What do you have to say about this?
Answer No. 4: Yes, sir.
Question No. 5: On Tuesday 14th August, 2012, while at the Central Detective Unit it is my information that you gave officers certain information that suggested you are the person responsible for the shooting death of Hueton Lloyd. What do you have to say about that?
Answer No. 5: Yes, sir.
Question No. 6: Why did you give officers this information as to you being responsible for the death of Hueton Lloyd?
Answer No. 6: Cause I scared of Errol.
Question No. 7: Do you wish to give a statement reference to the events of this incident?
Answer No. 7: Yes, sir.”
. Confession Statement of the intended appellant:
“I Rashad McPhee wish to make a statement. I want someone to write down what I say. I have been told that I need not say anything unless I wish to do so, and that...
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