Scott v R

• Jurisdiction: Bahamas
• Judge: Allen, P:
• Judgment Date: 07 November 2016
• Neutral Citation: BS 2016 CA 128
• Docket Number: SCCrApp No. 163/2012
• Court: Court of Appeal (Bahamas)
• Date: 07 November 2016

Court of Appeal

Allen, P.; Crane-Scott, J.A.; Jones, J.A.

SCCrApp No. 163/2012

Scott

and

Regina

Appearances:

Mr. Murrio Ducille, with Ms. Crystal Rolle Counsel for appellant

Mr. Garvin Gaskin DPP, with Olivia Pratt-Nixon and Cephia Pinder-Moss, Counsel for respondent

Attorney General's Reference No. 4 of 1989 [1990] 11 CAR 336 mentioned

Balson v. The State [2005] UKPC 6 mentioned

Bhola v. The State [2006] UKPC 9 mentioned

Brown (Uriah) v. The Queen [2006] 1 AC 1 mentioned

Gilbert v. The Queen (Practice Note) [2006] 1 WLR 2108 mentioned

Jacob v. R (1997) 56 WIR mentioned

Jagdeo Singh v. State of Trinidad and Tobago [2005] UKPC 35 mentioned

Jerome Bethel v. Regina SCCRApp 19 of 2013 mentioned

Jones and National Coal Board [1957] 2 All ER 159 mentioned

Nigel Brown (appellant) v. The State (respondent) [2012] UKPC 2 mentioned

R v. Aziz (1995) 3 All ER 149 mentioned

R v. Hulusi and Purvis 58 Cr. App. R 378 mentioned

R v. Michel [2013] LRC 640 mentioned

R v. Scranage (2001) EWCA Crim 1171 mentioned

Randall v. R [2002] 5 LRC 678 mentioned

Teeluck and Another v. Regina [2005] UKPC 14 mentioned

Terrell Mingo Stubbs v. Regina SCCr. App. No. 31 of 1997 mentioned

Criminal practice and procedure - Attempted murder — Appeal against conviction and sentence — Whether the trial judge erred when putting the case of the defence to the jury — Jury correctly told it was a question for the jury on the evidence that they could find that the appellant inflicted unlawful harm intending to harm the virtual complainant — Whether the case was adequately and fairly summed up by the trial judge — Both the case of the prosecution and the defence were given — Whether the trial judge erred in asking questions of the witness — Questions were used to clear up points of evidence or to assist witness where they seemed not to have understand the purport of the counsel's questions — Guides to courts as to the limit of the exercise of a trial judge to ask questions; and the kind of interventions which would result in an unsafe conviction — Whether the trail judge erred in not giving a good character direction to the jury — Appellant had not raised it at trial and the nature and strength of the evidence in the present case wholly outweighed any assistance a good character direction as to the appellant's propensity and credibility would have afforded him — Whether the sentence was manifestly harsh and excessive — Trial judge had considered all of the matters urged in mitigation — Appeal dismissed — Considering the evidence given the verdict was safe — Appeal against sentence dismissed — Section 83(2) of the Penal Code — Section 168 of the Evidence Act.

Held: appeal dismissed, conviction and sentence affirmed

In light of the evidence before the court, it is difficult to see how the learned judge could have directed the jury relative to the attempted murder charge any more succinctly than he did. Indeed, he correctly told the jury it was a question for them whether on the evidence they could find that the appellant inflicted unlawful harm on Sheneka intending to kill her, and further that they had to find that the offence of murder was not completed because of circumstances independent of the appellant's will. It is to be noted that the evidence against the appellant on the charge of the attempted murder of his wife, was simply overwhelming, and no matter how fairly the case is put, it would naturally appear to be one-sided. Having read and considered the whole summing up it is clear that the learned judge put the appellant's defence of accident in the best way he could; and reminded the jury of all of the evidence relating to that charge, which was of assistance to him in his defence.

Section 168 of the Evidence Act provides that the Court in its discretion may ask any question in any form at any time to any witness, and with leave of the Court, any party may cross-examine the witness upon any answer given in reply to any such question. The discretion to ask questions by a trial judge must be exercised with due regard to his role in a trial, and subject to his duty to ensure the fairness of a trial. Having examined the questions to which Counsel referred the Court, and after anxious consideration, and application of the relevant principles, I am of the view that none of the impugned questions invited the jury to disbelieve the appellant's case; none made it impossible for his Counsel to properly defend him; none were so ‘prejudicial or irremediable that an appellate court would have to condemn the trial as unfair.’ Indeed, a sizeable portion of the discourse complained of was between the court and Counsel; and the other questions were either for clarification, or were simply innocuous. In the premises, this ground fails.

In the court below ‘good character’ evidence was not raised by Counsel for the appellant, and we have not been provided with any explanations for counsel's omission. Consequently, the questions for this Court are 1. whether the judge had a duty to raise good character on Counsel's failure to do so; 2. if he was under such a duty whether his failure to do so, and to give a good character direction, was fatal to the fairness of the trial, or to the safety of the conviction.

It emerges from the authorities, firstly, that while it is Counsel's duty to raise the issue of good character, in cases where it is obvious that good character may be in issue, the trial judge should enquire. Secondly, that only where there are good reasons for counsel's failure to raise good character, will that issue be ordinarily permitted to be raised for the first time on appeal, but at the end of the day once credibility was a crucial issue in the trial, and it is not possible to say that a jury would inevitably, or without a doubt have convicted, such failure will be fatal to the conviction.

As to the strength of the evidence against the appellant, and the nature of the issues in the trial bearing on the significance of a good character direction in this case, the prosecution depended to a large extent on the evidence of Sheneka, whose credibility was central to the issue whether the appellant intentionally stabbed her. There was no dispute that the knife he held inflicted the injuries on her; and the appellant's defence was accident, an assertion that Sheneka was lying. While the appellant's credibility was equally critical, there was other evidence, namely that of Sidney Evans and George Symonette, which negatived his version of events and consequently his credibility; and bolstered the case for the prosecution.

Moreover, the medical examination of Sheneka by Dr Tanya Garcia revealed fourteen stab wounds. All of this evidence when taken together contradicted the appellant's defence of accident; weakened his credibility; and bolstered the case for the prosecution. In my view, the nature and strength of the evidence in the present case wholly outweighs any assistance a good character direction as to the appellant's propensity and credibility would have afforded him. Plainly then the outcome of this case would not have been affected by a good character direction; and I am satisfied that the jury would have ‘inevitably without a doubt’ convicted him.

Having carefully considered the overwhelming evidence adduced by the prosecution; and after affording the case for the defence that same consideration; and in light of the impeccable directions by the judge to the jury, I am satisfied that the verdict is reasonable and wholly supported by the evidence. In the premises, I have no lurking doubt whatsoever as to the safety of this conviction

In this case, as in all decisions on sentencing, the sentencing court must assess and give appropriate weight to all of the relevant and competing circumstances. When considering an appeal from such an assessment, an appellate court will only find a sentence unduly severe where, it ‘falls outside the range of sentences which the judge, applying his mind to all the relevant factors, could reasonably consider appropriate. I wholeheartedly agree with the reasons given by learned judge for not giving the raised matters of mitigation any weight and would therefore dismiss the appeal against sentence.

Allen, P:

1 After a trial by jury before Senior Justice Jon Isaacs (as he then was), the appellant was convicted on 17 June 2012 of the attempted murder of Sheneka Colebrooke, his estranged wife. For that conviction, he was sentenced on 16 August 2012 to 34 years' imprisonment, reduced to 30 years after a discount of the time spent on remand.

2 The appellant was also tried at the same time for the murder of David Rolle, allegedly committed at the same date and time as the attempted murder of Sheneka Colebrooke. On the offence of murder, the jury was unable to agree a verdict, and the appellant was ordered retried for that offence. In the interim, the appellant appeals his attempted murder conviction and sentence to this Court. For the reasons which are hereinafter set out, I would dismiss his appeal, and affirm his conviction and sentence.

3 The Prosecution's case at trial was that on Sunday 20 December 2009, at midnight, Sheneka and David were walking through that portion of Palm Beach Street located between Balfour and Cordeaux Avenues in New Providence, when a white car sped towards them. David pushed Sheneka out of the way, and the car hit him. The driver, identified by Sheneka as the appellant, exited the vehicle armed with a knife, and allegedly asserted: “If I cannot have you no one can”, and attacked Sheneka.

4 The appellant began hitting and beating her, according to her testimony; and David attempted to stop him. The appellant then grabbed Sheneka and dragged her into the car. In an apparent attempt to rescue Sheneka, David allegedly broke the car glass to the rear...