Smith v R

JurisdictionBahamas
CourtCourt of Appeal (Bahamas)
JudgeDame Anita Allen, P,The Honourable Dame Anita Allen, P,The Honourable Mr. Justice Isaacs, JA,The Honourable Ms. Justice Crane-Scott, JA
Docket NumberSCCrimApp. No. 167 of 2015
Date30 August 2017

COMMONWEALTH OF THE BAHAMAS

IN THE COURT OF APPEAL

Before:

The Honourable Dame Anita Allen, P

The Honourable Mr. Justice Isaacs, JA

The Honourable Ms. Justice Crane-Scott, JA

SCCrimApp. No. 167 of 2015

Between
Clarence Smith
Appellant
and
Regina
Respondent
Appearances:

Mr. Murrio Ducille with Charisma Romer, Counsel for the Appellant

Mr. Basil Cumberbatch with Ms. Erica Duncombe, Counsel for the Respondent

Attorney General v Patrick Heffernan (No. 2) [1951] IR 20 considered

R v Cooper [1969] 1 QB 267 considered

David Richard Blenkinsop [1995] 1 Cr. App. R 7 applied

Dodson and Williams v R (1984) 79 Cr. App. R 220 considered

Marr (1989) 90 Cr. App. R 154 applied

R v Keane 65 Cr. App. R 247 applied

R v Robert Taylor [1950] NI 57 considered

R v Shephard [1993] A.C. 380 H.L applied

Roberts v R [1968] 13 WIR 50 considered

Stephen Stubbs v The Attorney General SCCrApp No. 16 of 2002 considered

Sterling v DPP [1974] AC 878 considered

Taylor v Chief Constable (1987) 84 Cr. App. R. 191 applied

R v Turnbull and Another [1977] QB 224 applied

Criminal appeal - Murder — Adjournment of trial for a period longer than the weekend — Video identification — Identification — Inconsistencies — Putting the defence's case to the jury

On 17 April 2012 two men entered Zelmar's Convenience store and shot Khanaochi Knowles. Mr. Knowles succumbed to his injuries and the appellant, along with another, were charged with his murder; the principal evidence against them being a surveillance video, from cameras within the store. The appellant's case, as put through the cross-examination of witnesses, was that the quality of the video was poor and therefore unreliable. Nevertheless, the jury found the appellant guilty and he was sentenced accordingly. He now appeals on several grounds.

Held:

appeal dismissed; conviction and sentence affirmed.

In order to succeed in overturning a conviction on the basis of a break in the trial, it would be necessary and relevant to show that the break was inordinate; that there was prejudice to the appellant as a result; and that this irregularity substantially affected the merits of his case. Simply showing that there was a break in the trial would not be sufficient to justify quashing the conviction.

Documentary evidence produced by a computer is only hearsay if what is produced is from the input of information by a person; and in any such case, such a document is only admissible if it falls within one of the exceptions in section 66, and the conditions in section 67 are met. Inexorably, the surveillance tape in question comes from a camera connected to a DVR system which was programmed to automatically record images of any events within its view without human intervention or in-put, and is real evidence, and not hearsay. However, in as much as it is a document within the meaning of section 2 of the Evidence Act, and is unquestionably produced by a computer, its admissibility depends on compliance with the provisions of section 67(1). The Court finds that the evidence of Dale Strachan and Mark McKenzie wholly satisfies the criteria of section 67(1), and that the tape was properly admitted into evidence by the learned judge.

Having considered the directions of the learned judge as a whole the Court was satisfied that the learned judge did not err in law as he explained to the jury the nature of inconsistencies; and told them how to treat them according to whether they found them to be minor or serious, and whether, and to what extent, their finding on the matter affected the credibility of the witness concerned. Moreover, the learned judge pointed out to the jury, the apparent inconsistencies between the identifying witnesses, and left it for the jury to decide, whether they found them to be inconsistencies, and if they did, whether, and to what extent it affected the quality of the identification evidence.

Having read the transcript, the Court was satisfied that the learned judge captured what was the essence of the defence, and that the defendant's case was adequately put to the jury.

The jury saw and heard the witnesses as they have evidence; the jury saw the incident as it unfolded on the videotape; were able to play it over if they needed to; and had clear directions as to the law to be applied.

Judgment delivered by the Honourable Dame Anita Allen, P :
Background:
1

On 18 May 2015, the appellant was convicted of the murder of Khanaochi Knowles before the Hon. Justice Roy Jones (as he then was) and a jury, and sentenced on 13 August 2015 to thirty-eight (38) years' imprisonment, to take effect from the date of his conviction.

2

The Prosecution's case at trial was that the appellant and another, who were both armed with guns, shot the deceased multiple times in Zelmar Convenience Store located in the Rock Crusher Road area, on 17 April 2012, and caused his death.

3

The evidence against the men consisted of a video surveillance recording made by cameras in, and around, the shop; and the identification of the men by two witnesses who viewed the video tape after the shooting.

4

The appellant in a record of interview denied the police's allegations of murder. He did not testify at trial; and the case put on his behalf through the cross-examination of witnesses was that the quality of the video was so poor that it was impossible for any person to correctly identify anyone on it, whether they were familiar with the person identified or not.

5

The appellant appealed his conviction by Notice filed 13 August 2015, as amended on 21 June 2017; and the appeal was heard on 22; 29 June 2017; and 3 July 2017 when we reserved our decision. We now render that decision; and for all of the reasons hereinafter set forth, the appeal is dismissed and the conviction and sentence of the learned judge are affirmed.

The Appeal:
6

By the aforementioned Amended Notice of Motion, the appellant proffers eight grounds of appeal.

Ground One — Delayed adjournment
7

The appellant's first complaint is that the learned trial judge erred in law when he adjourned the trial for a total of seven days without keeping the jury together and making proper provision for preventing them from holding communication with anyone on the subject of the trial.

8

I ought first to explain that the seven days complained about really comprised four business days, and a Saturday and a Sunday.

9

The reasons for the adjournment were said to be that a juror had an important appointment on the Wednesday, the judge was not available on the Thursday and Friday; and on the following Monday, one of the counsel involved in the trial, was not available.

10

When adjourning the trial on the Tuesday, the learned judge admonished the jury in these words at page 256 of the transcript:

“It's a long break, so be careful how you conduct yourself. Remember the oath that you have taken in relation to this matter. Do not discuss this case with anyone and do not allow anyone to have discussion with you on this case.”

The learned judge then adjourned the case to the following Tuesday.

11

In support of the complaint that the learned judge erred in allowing the case to continue after the break, the appellant relies on a case from this Court (differently constituted), namely, Stephen Stubbs v The Attorney General SCCrApp No. 16 of 2002; the West Indian case of Roberts v R [1968] 13 WIR 50; and the Irish cases of the Attorney General v Patrick Heffernan (No. 2) [1951] IR 20; and R v Robert Taylor [1950] NI 57.

12

Before considering the above authorities, I think it is necessary to set out the relevant provisions of the statute law of The Bahamas which governs the separation of juries after they are sworn in a case. In that vein, the Juries Act (Ch. 59 of the 2000 Revised Edition of the statute law of The Bahamas) provides in section 27:

  • “27. (1) In every case in the criminal jurisdiction of the court and in every civil case triable by jury, the judge may, if he thinks fit, permit jurors sworn and empanelled upon the trial thereof to separate and depart from the court during any adjournment of such trial before they have retired to consider their verdict upon each such juror taking the oath prescribed by subsection (3) of section 13 of the Oaths Act.

  • (2) The following provisions shall apply whenever the jury have not been permitted to separate–

    • (a) a proper provision shall be made for preventing the jury from holding communication with any person;

    • (b) the judge may allow one or more of the jurors to separate from the other jurors;

    • (c) jurors who are allowed to separate from the other jurors shall not hold communication with other persons except with the leave of the court;

    • (d) jurors who are allowed to separate shall remain in the charge of the officer of the court who has charge of them.”

13

The facts in Stubbs (above) show that the judge in that case adjourned the trial in the first instance because the mother of one of the empaneled jurors had died, and when she returned, one of the defendants took ill and the case had to be further adjourned. The break during that trial lasted some 3 weeks, and the Court found that given the extended break, and the bereavement of the juror, it was not possible to say that the appellant had a fair trial. Indeed, the ratio of the case was that the juror could not be safely relied on to fairly judge the case so soon after her mother's death.

14

Interestingly, the appeal was, as a result, allowed, and a retrial ordered with no evidence being led of what impact the mother's death had on the juror; no evidence that the appellant suffered any prejudice as a result of any such impact or the length of the break in his trial; and no error of law, nor misdirection was attributed to the trial judge.

15

In the case of Roberts (above), the jury was in fact...

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