Shadrach Gibson v R

CourtCourt of Appeal (Bahamas)
JudgeSir Hartman Longley, P,Sir Michael Barnett, JA,Mr. Justice Evans, JA
Judgment Date15 October 2018
Neutral CitationBS 2018 CA 149
Docket NumberSCCrApp. No. 204 of 2016
Date15 October 2018



The Honourable Sir Hartman Longley, P

The Honourable Sir Michael Barnett, JA (Actg.)

The Honourable Mr. Justice Evans, JA (Actg.)

SCCrApp. No. 204 of 2016

Shadrach Gibson

Ms. Christina Galanos with Mr. Bjorn Ferguson, Counsel for the Appellant

Ms. Linda Evans, Counsel for the Respondent

Criminal appeal — Manslaughter — Joint enterprise — Being concerned together — Confession evidence — Mushtaq direction — Voluntariness of confession — Oppression

On the 9 th June, 2013 Sidney Brian Hart died from multiple stab wounds to the torso; the stabbing took place near AID on Wulff Road. Pearline McKenzie testified that she was sitting outside the Wulff Road Police Station when a man she knew as Fox Hill walked up to her and told her that a group of boys “jook him up” and the youngest one is ten years old. The appellant was arrested the same day at SuperWash on Wulff Road at which time he is alleged to have told the officer “Officer I was there but Takoyo jook him up.” He was searched by officers and a black flip blade knife was found in his right front pocket. The appellant was interviewed by police officers and allegedly told them, inter alia, that he knew Takoyo had a black flip knife and that as he and a group of his friends were walking along Wulff Road when they spotted the deceased on the opposite side of the road. Takoyo said let's cross the road and, knowing they were crossing the road to beat up the deceased, the group crossed the road. He told the officers that he and another stood there as Takoyo “jooked” the deceased. During the course of the trial objection was made to the Crown's reliance on the record of interview. A voir dire was held and the interview was admitted.

Surveillance footage was obtained from a nearby business and entered into the evidence as part of the Crown's case.

At the close of the Crown's case the appellant exercised his right to remain silent and did not call any witnesses. He was acquitted of murder but convicted of manslaughter on the 30 th March, 2016 and sentenced on the 11 th May, 2015 to 30 years' imprisonment. He now appeals his conviction and sentence.

Held (Longley, P dissenting): appeal allowed; conviction and sentence quashed. Retrial ordered.

per Longley, P: When considering a confession, the current state of the law requires the jury to be directed that if they consider that the confession was, or may have been obtained by oppression or in consequence of anything said or done which was unreliable, they should disregard it; this is known as giving the jury a Mushtaq direction. Such a direction is only required where there is a possibility that the jury may conclude (i) that a statement was made by the defendant, (ii) the statement was true but (iii) the statement was, or may have been, induced by oppression. Regarding the third limb, there must be evidence upon which the jury could have concluded that the statements allegedly given were obtained by oppression. If there is no such evidence then the requirements for a Mushtaq direction have not been activated and, in those circumstances, a judge cannot be faulted for not giving a Mushtaq direction to the jury. As such, there must be actual evidence of oppression before the jury from which the jury could reasonably conclude that the accused was oppressed at the hands of the police before there is a requirement on the trial judge to give a Mushtaq direction.

In the present case the appellant gave evidence at the voir dire of the alleged beating he received at the hands of the police; and the police officers denied the allegations of oppression. During the main trial the appellant did not give evidence of the alleged oppression and the police officers, again, denied the allegations. Suggestions made to the officers in cross-examination did not constitute evidence that the jury was capable of acting upon. Further, the evidence revealed that the doctor was not of the opinion that the appellant was abused by the police. The doctor accepted that the appellant was given prescription medication as a result of his complaint of pain. However, the fact that prescription medication was given to the appellant without any other factual basis to support it is insufficient in my view to permit a jury of reasonable men and women to draw the inference that the appellant was oppressed or brutalized at the hands of the police to give a confession.

In The Bahamas, where the right to give an unsworn statement from the dock has been abolished by statute, evidence of oppression would have to come from the accused person themselves by giving evidence on oath before the jury; or, if the accused opts to remain silent, from the examining doctor or some other witness.

Once there is evidence before the jury from which it is possible for them to conclude that the confession was obtained through oppression then a Mushtaq direction is required. This is not that case and the judge was not obliged to give a Mushtaq direction on these facts.

It is accepted that the judge misdirected the jury with the direction given; it also accepted that on the facts of the case a Mushtaq direction was not required. In accordance with the case of Barry Wizzard v R, where an inappropriate direction was given in circumstances where no direction was called for the inappropriate direction cannot have affected the safety of the jury's verdict.

Regarding the complaint against the judge's direction on joint enterprise, by his own words the appellant was clearly part of a joint enterprise with a group of men to cause harm, if not grievous harm or death. He knew one of the men to be armed with a lethal weapon. That plan, which was not disputed on the evidence, involved an unprovoked attack by a group of men upon an innocent man. With that plan in mind the group, including the appellant, crossed the road to encounter the deceased. The group had one plot in mind and that was to attack and beat up the deceased. The attack was carried out with fatal consequences. Takoyo, who by his own admission the appellant knew to be armed took out the knife and used it with lethal consequences in the course of the beating, which they planned. The appellant must have foreseen and contemplated, having regard to the plan, the use of the knife, if the circumstances warranted its use. The appellant was no innocent bystander. As the learned judge pointed out he did not withdraw from the plan, he rendered no assistance to the deceased and remained on the scene, no doubt with the aim of giving assistance to his comrades as may have been necessary.

There is a compelling case against the appellant based on these principles of joint enterprise as enunciated in Jogee and Ruddock. Both the conduct element and the mental element are present. The only question on the evidence was whether he was guilty of murder or manslaughter and that question turned entirely on the appellant's intention. If it was to encourage or assist in death then the appellant would be guilty of murder; if his intention was that harm should be inflicted and death occurred then manslaughter was the proper verdict. Critical to ascertaining the appellant's intention was his knowledge that Takoyo was armed with the knife but he nevertheless crossed the street with the group to attack the deceased. Further, critical to assisting the jury in determining the intention of the appellant was the surveillance video. The jurors had an opportunity which we, as an appellate court, did not have in seeing the surveillance footage.

Barry Wizzard v The Queen [2007] UKPC 21 applied Benjamin and another v The State (2012) 82 WIR 445 applied Jogee and Ruddock v R [2016] UKPC 7 applied

R v Liverpool Juvenile Court, ex parte R [1988] Q.B. 1 applied R v Mushtaq [2005] UKHL applied

per Barnett, JA (Actg): The direction given in the present case is fatally flawed because it invites the jury to give full weight to a confession, even in circumstances where the jury was satisfied or may have doubts as to whether the confession was given voluntarily or in the absence of oppression or unlawful conduct.

The President is of the view that in the absence of direct evidence of oppression it was not necessary to give directions to the jury as to oppression or unlawful means. The President considers that such evidence is necessary before a Mushtaq direction is required to be given and in the absence of that evidence no reasonable jury could in this case have found that the statement was not given voluntarily.

Once circumstances exist which a reasonable jury may have doubts as to whether a confession was obtained without oppression a Mushtaq direction is required. These circumstances may exist where an accused person gives evidence as to the circumstances under which the confession was obtained which suggest oppression by the police; where an accused person gives an unsworn statement to the effect that the confession was obtained by oppressive conduct and here in The Bahamas where the right to give an unsworn statement was removed by Parliament, the accused puts his case to the police witnesses in cross examination that the confession was obtained by oppressive conduct.

It is not the correct position that in the absence of evidence from the accused of oppression the jury was obliged to accept the evidence of the police witnesses that there was no oppression and that therefore there is no need for a Mushtaq direction. It is always the privilege of the jury to reject the evidence of any witness as untrue or not credible. They could reject or have reasonable doubts as to the police evidence as to the circumstances in which the confession was made. If they had reasonable doubts as to whether the statements were made without oppression they are entitled to reject the statements.

Arturo EK v R (Criminal Appeal No. 7 of 2010) considered Barry...

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