Rolin Alexis v R

• Jurisdiction: Bahamas
• Judge: Mr. Justice Isaacs, JA
• Judgment Date: 15 January 2019
• Neutral Citation: BS 2019 CA 006
• Docket Number: SCCrApp No 193 of 2015
• Court: Court of Appeal (Bahamas)
• Date: 15 January 2019

IN THE COURT OF APPEAL

Before:

The Honourable Sir Hartman Longley, President

The Honourable Mr. Justice Isaacs, JA

The Honourable Sir Michael Barnett, JA (Actg)

SCCrApp No 193 of 2015

Between

Rolin Alexis

Appellant

and

Regina

Respondent

APPEARANCES:

Mr. Stanley Rolle, Counsel for the Appellants

Mr. Vernal Collie, with Mr. Francis Wilson, and Mr. Perry McHardy, Counsel for the Respondent

Anatole Bernard McQuay v Regina Criminal Appeal No. 25 of 1996 Mentioned

Arthurton v R (British Virgin Islands) [2004] UKPC 25 Mentioned

Bethel (Bethel (Christopher) v The State (NO. 2) (2000) 59 WIR 451 Mentioned

Bethel v The State [1998] 55 WIR 394 Considered

Ellen aka Erlande Branchador v Commissioner of Police MCCrApp No. 79 of 2009 Mentioned

Maxo Tido v The Queen [2011] UKPC 16 Mentioned

Maxwell v DPP [1935] A.C. 309 Mentioned

Mitcham v The Queen [2009] UKPC 5 Considered

Pop v The Queen [2003] UKPC 40 Considered

R v Clinton [1993] 2 All E.R. 998 Considered

R v Criminal Cases Review Commission, ex p Pearson [1999] 3 All ER 498 Considered

R v Irwin [1987] 2 All ER 1085 Considered

R v Lake (1976) 64 Cr App Rep 172 Mentioned

R v Wallace and Short (1978) Cr App Mentioned

R v. Sean Cooper [1969] 1 Q.B. 267 Considered

Stafford v The State [1999] 1 LRC 91 Followed

Stirland v DPP [1944] All ER Annotated Vol. 2 Considered

Teeluck v State of Trinidad and Tobago [2005] 1 WLR 2421 Considered

Troyanna Ferguson v the Commissioner of Police MCCrApp No. 231 of 2013 Considered

Watson v Regina SCCrApp. No. 23 of 2007 Considered

Criminal Appeal — Appeal against Conviction — Murder — Use of Composite sketch — Evidence Act Sections 40, 66 and 171 — Defence Counsel's conduct of the trial

On 21 July 2011, Mr. Dessaline Nicholas was sitting in his vehicle parked his yard through Florida Court. Ms. Annastacia Ellis his girlfriend came out of the house and got into the car. As she did so he was approached by a gun man and was shot in the head. He died soon thereafter. Ms. Ellis gave a statement to police. The appellant was tried for the murder of Mr. Nicholas. The prosecution applied unopposed to have Ms. Ellis’ statement read into evidence, and was successful. The appellant was convicted and now appeals his conviction.

Held: appeal allowed; conviction quashed, sentence set aside. Hereby order that the case is sent back for trial as soon as is practicable.

As a matter of fairness, bearing in mind that the person who provided the information did not attend at the trial, the court ought to have declined to allow the evidence of the sketch artist to be led since it would have been next to impossible for the defence to have impeached the sketch without the provision of the information used to create it.

Further, the evidence of the sketch artist was hearsay because there was no mention in Ms. Ellis’ statement that she provided any information for the creation of a sketch and there was no suggestion that at the time she allegedly gave the description, the appellant was present. One of the principal reasons for the hearsay rule is to exclude declarations whose veracity cannot be tested by cross-examination.

In my view, the effect of the repetitive reference to the finding of this unrelated firearm raised the “real possibility or danger that the jury would have been prejudiced against the appellant”.

That the appeal could turn on whether Counsel provided the requisite care and attention to his client's case affords an opportunity to impart a salutary lesson to lawyers in general and defence lawyers in particular.

Counsel ought to have taken the point that the statement could not be admitted without the Crown satisfying the preconditions for such admission. Second, he deprived the appellant of the opportunity to put to Ms. Ellis his familiarity with her and left the appellant's bare allegation and that of his witness of such familiarity susceptible to attack by the Prosecution as a fabrication.

Although the jury would subsequently be told by the Judge that the firearm had nothing to do with the case they had to consider, in my view he muddied the waters by giving the direction contained in paragraph 32 above. It could not have been lost on the jury that the murder charge they were considering involved a shooting and the appellant was allegedly in possession of a firearm at the time of his apprehension which was “suggested” to be the gun that killed Dessaline. Although it is expected that the jury would heed the injunction of the Judge about the firearm having nothing to do with the case, it is the insidious nature of prejudice that it can remain despite all efforts to remove it.

The confession contained in the record of interview presents a strong case against the appellant but its potency is diluted by the manner in which the appellant's case was conducted, for example, Counsel raising the matter of the firearm being found during the appellant's arrest, not objecting to the introduction of Ms. Ellis’ statement into evidence and not calling Mr. Dion Smith as a witness. In the premises, I am left with a lurking doubt about the safety of the appellant's conviction.

As I have stated before, the confession made by the appellant is powerful evidence against him but that must be contrasted with the unease one experiences as a result of the manner in which the appellant's case was conducted and the inadmissible material that was placed before the jury. While not convinced of the appellant's innocence I am unable to shrug off my lurking doubt that his conviction (given the circumstances outlined above) is not safe. In the premises therefore I would quash his conviction and set aside the sentence.

Nevertheless, I am satisfied that the justice of this case requires that there be an order for a re-trial; hence I order that the appellant undergo a new trial as soon as is practicable.

Mr. Justice Isaacs, JA

Delivered by The Honourable

1 On 19 April 2018 we heard Counsel's submissions and reserved our decision on this appeal. We render it now and for the reasons which appear later in this judgment, I would allow this appeal.

Brief Facts

2 Around 6:40am on 21 July 2011, Mr. Dessaline Nicholas (“Dessaline”) was sitting in his vehicle in the yard of his residence through Florida Court. He was waiting for his girlfriend, Ms. Annastasia Ellis, to leave the residence. Ms. Ellis was walking to the front of Dessalines’ vehicle when she noticed two men standing up the street on Florida Court, north of her location. One of the men wore a dark blue pullover with a hood that was over his head and blue long pants. At that time his back was towards her so she could not see his face. This man stood 5'4 to 5'5 in height. The other man wore a white piece of cloth over his head. He stood as though he was looking through the corner. He stood about 5'6 to 5'7 in height. Both men were of dark complexion.

3 Ms. Ellis did not pay much attention to the men because she thought they were going to work. As she sat in the car and closed the door, Dessaline reached to close his door. That was when she saw the same man in the white t-shirt, run up to the car and point a gun directly at Dessaline's head and fire. The man wore fired colored orange lens Oakley shades on his face. As Ms. Ellis tried to get out of the car, the other man started to shoot at her. This happened at the same time as the man in the white was shooting. Ms. Ellis was able to exit the car and hide behind it.

4 The men started to run away and while they were running Ms. Ellis glimpsed the face of the man who wore the white t-shirt. She went back to the car where she noticed that Dessaline was still breathing but he had a gunshot wound to his forehead. Ms. Ellis was later to tell the police that she may have been able to identify the man who wore the white t-shirt if she was to see him again. She described the gun that the man had as black and it was like the mini type machine gun with a long clip. Both men held their guns with their right hands.

5 At the appellant's trial, Ms. Ellis did not appear but the prosecution applied to have the statement she gave to the police read into evidence. The application was not opposed by the appellant's Counsel, Mr. Mario Gray. The prosecution also relied on an alleged confession contained in a record of interview made by the appellant and a video recording taken while the appellant was out on inquiries with the police officers in addition to a composite sketch of the alleged assailant composed by a police sketch artist under the directions of Ms. Ellis. That was the totality of the evidence connecting the appellant to the murder.

6 The Judge conducted a voir dire to determine whether the confession had been voluntarily made and concluded that it was voluntarily made; and that both the record of interview and video recording could be put into evidence for the jury's consideration.

7 The appellant testified on his own behalf and called two witnesses: Angela Johnson and Lisa Leonard. The appellant's case was that he did not shoot Dessaline because at the material time he was at the Corner Motel on Carmichael Road. He alleged the confession statement was obtained by force and that he was coached as to what he should say both in the record of interview and the video recording; and it was not voluntary. The appellant alleged also that he told the Police to conduct an identification parade, to see if he really was the person who Ms. Ellis saw the morning of the shooting. He claimed to be very familiar with Ms. Ellis. There is no evidence that an identification parade was held.

8 The appellant was convicted on 13 May 2015; and sentenced on 24 July 2015 to forty-five years. However, the Judge took into consideration the two years and four months which the appellant had spent on remand, and sentenced him to a period of imprisonment of forty-two years and eight months with effect from the...