Smith v R

JurisdictionBahamas
CourtCourt of Appeal (Bahamas)
JudgeJohn, J.A.
Docket NumberSCCrApp & CAIS No. 9 of 2013
Date02 December 2014

Court of Appeal

Allen, P.; John, J.A.; Adderley, J.A.

SCCrApp & CAIS No. 9 of 2013

Smith
and
Regina
Appearances:

Mr. Murrio Ducille, counsel for the appellant.

Mr. Neil Brathwaite, Asst. DPP, counsel for respondent.

Criminal Practice and Procedure - Attempted murder — Appeal against conviction and sentence — Record of interview — Whether the trial judge materially erred in admitting the record of interview where the trial judge failed to direct the jury in his summation that the co accused statement was not evidence against the appellant — Consideration of Gunewardene [1951] 35 Cr App R 80 — Identification Evidence — Whether the trial judge misdirected the jury when it stated that they had the identification from both virtual complainants where only one virtual complainant had provided evidence of the facial features of the appellant — Visual identification by photograph — Whether the visual identification of the Appellant should be accepted where the persons on the parade looked different to the Appellant — Turnbull direction — Appeals allowed and convictions and sentences quashed — Section 20 of Evidence Act Chap 65

John, J.A.
1

On 24th October, 2012 after a trial before Senior Justice John Isaacs as he then was, and a jury, the appellant together with another person was found guilty on two counts of attempted murder contrary to section 292 of the Penal Code Chapter 84 and sentenced to 15 years imprisonment on each count, the sentences to run concurrently. Against these convictions and sentences the appellant has appealed.

2

The incident took place on Paradise Island on the evening of 31st October, 2009. The victims Dwayne DeCosta and Troy Feaste were both security officers attached to Paradise Security Services at Atlantis and were on duty at the time of the incident.

3

According to the evidence shortly after 5:00 pm on the 31st October, 2009 Dwayne DeCosta together with Troy Feaste took up duty at the Marina Village on Paradise Island. They both patrolled the area until about 8:00p.m. They then walked towards the Marina Dock Master's office which is located at the southern end of the Marina Village, where they saw two young men proceeding north into the Marina. They intercepted the two men and enquired of them what they were doing in the area.

4

DeCosta described one of the men as dark and wearing a striped Polo shirt and dark trousers. The other person was fair in complexion and wore a green shirt, dark trousers and cornrow plaits in his hair. The fairer of the two gave his address as Dolphin Drive and the two men proceeded on their way. DeCosta and Feaste continued their patrol walking south towards the southern entrance of the Marina Village where they remained for about 20 minutes before returning north, when, in the vicinity of the Marina Village Dock Master's office, they saw the two men again only this time they were entering a restricted area.

5

DeCosta approached them and questioned them about their presence in that restricted area. He demanded from them some form of identification, and then invited them to step from behind the gate to a lighted area for further questioning. The dark man walked ahead of DeCosta and the other man followed with DeCosta at the rear.

6

Having walked some 2-3 steps ahead of DeCosta the fairer of the two men spun around and pointed a firearm at DeCosta and shots rang out. At the same time DeCosta heard his colleague Troy Feaste screaming and the appellant and the other man ran off. Medical assistance was summoned and the two injured officers were taken to Doctors Hospital.

7

The appellant has filed a series of grounds of appeal by way of an Amended Notice of Appeal; the disposition of the appeal, however, turns on two grounds, namely:–

  • (1) The learned trial judge erred in law when he admitted the Record of Interview of the appellant along with the Record of Interview and Statement of his co-accused as they were of no probative value.

  • (2) The learned trial judge erred in law when he failed to direct the Jury adequately on the issue of identification.

GROUND 1 — RECORD of INTERVIEW
8

Counsel for the appellant submitted that the Record of Interview of the appellant was not a confession and consequently ought not to have been admitted into evidence. He further submitted that the Record of Interview of the co-accused was wholly exculpatory and its admission into evidence could only have operated to prejudice the case for the appellant. counsel relied on the provisions of Section 20 of the Evidence Act Chapter 65 and Gunewardene 119511 35 CrApp R 80: where Lord Goddard Chief Justice said inter alia,

“If we were to lay down that the statement of one prisoner could never be read in full because it might implicate, or did implicate, the other, it is obvious that very difficult and inconvenient situations might arise. It not infrequently happens that a prisoner, in making a statement, though admitting his or her guilt up to a certain extent, puts greater blame upon the co-prisoner, or is asserting that certain of his or her actions were really innocent and it was the conduct of the co-prisoner that gave them a sinister appearance or led to the belief that the prisoner making the statement was implicated in the crime. In such a case that prisoner would have a right to have the whole statement read and could, with good reason, complain if the prosecution picked out certain passages and left out others. The statement was clearly admissible against Hanson and was read against her, and although in many cases counsel do refrain from reading passages which implicate another prisoner and have no real bearing on the case against the prisoner making the statement, we cannot say that anything has been admitted in this case which was not admissible, and the judge gave adequate and emphatic directions to the jury on the subject”

9

In response to that submission, counsel for the Crown submitted that in his record of interview the appellant acknowledged that he did speak to the security officers but denied that he shot them. The co-accused in his statement admitted that he was there but was not part of any joint enterprise. He further stated that he did not know that the other person had a gun and he ran after the first shot was fired.

10

The trial judge ruled as follows:–

“Mr. Ducille, the Court does not accede to your application on the basis that notwithstanding that it is not entirely inculpatory it does place your client on the scene in circumstance where at least two of the witnesses alleged they spoke to him twice that night; once when they allowed them to leave and the other when it resulted in what they say was gunfire----well fire crackers and the resulting injuries. In the circumstances the Court finds both inculpatory and exculpatory portions of the statement. He places himself on the scene Mr. Ducille. The evidence of the two witnesses suggests that he remained on the scene. While he may have said that he left, it will be a matter for the jury to determine whether he did so or not. The same argument holds for the accused man … The Court finds that in relation to both, the Records of Interview are admissible”

11

The Evidence Act, Chapter 65 so far as is material provides:

  • “20(1) In any proceedings a confession made by an accused person may be given in evidence against him in so far as it is relevant to any fact in issue in the proceedings and is not excluded by the Court in pursuance of this section

  • 20(5) in this Act.. “Confession includes any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not and whether made in words or otherwise.”

12

There is no doubt that the statement made by the co-accused incriminated the appellant. That is not an unusual occurrence where two or more persons are charged together with complicity in the same crime. It is always open to counsel for the appellant in such a case to ask the judge to exercise his discretion and order a separate trial, but no such application was made in this case. Where no separate trial is ordered it is the duty of the trial judge to impress upon the jury in emphatic terms that the statement of one accused not made on oath in the course of the trial is not evidence against the other and must be entirely disregarded. See Gunewardene supra

13

That issue arose for determination in the case of Lobban v. Regina [1995] 2 CrApp R 573. The facts were as follows:–

Three murders were committed during an armed robbery in Jamaica. The appellant and a co-defendant were charged with the murders. In his statement under caution to the police the co-defendant admitted driving three unknown men to and from the scene of the robbery but denied knowing their intentions. At the end of his statement he identified the appellant from a photograph in a newspaper as being one of the robbers. The prosecution tendered the co-defendant's statement as part of its case against him. Counsel for the appellant, in the absence of the jury, asked the judge to direct the exclusion of the final part of the statement implicating the appellant. Prosecuting counsel and the co-defendant's counsel objected, and the judge ruled that the statement should be admitted in its entirety. The appellant subsequently gave evidence, was cross-examined and called one witness. Counsel for the co-defendant made a belated but successful submission of no case to answer and the co-defendant was acquitted on the judge's direction. In his summing-up the judge directed the jury that the co-defendant's statement was not evidence against the appellant and that they should disregard it entirely. The appellant was convicted on all three counts of murder. His application for leave to appeal against conviction to the Court of Appeal of Jamaica was dismissed. On appeal to the Privy Council it was submitted inter alia, that (1) the judge...

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