Stanford Pinder v The Director of Public Prosecutions
| Jurisdiction | Bahamas |
| Judge | Sir Michael Barnett, P |
| Judgment Date | 24 October 2022 |
| Neutral Citation | BS 2022 CA 144 |
| Docket Number | SCCrApp No. 3 of 2021 |
| Court | Court of Appeal (Bahamas) |
| Year | 2022 |
The Honourable Sir Michael Barnett, P.
The Honourable Mr. Justice Isaacs, JA
The Honourable Sir Brian Moree, JA
SCCrApp No. 3 of 2021
SCCrApp No. 4 of 2021
IN THE COURT OF APPEAL
Criminal appeal — Murder — Attempted murder — Appeal against conviction — Appeal against sentence — Paraplegic — Identification evidence — No case submission — Alibi — Prejudicial evidence — Misstating evidence — Cautionary direction — Confession — Juvenile confession statement — Voluntariness — Appropriate adult — Private communication — Effect of medical disability on sentence — Beach of Police Force Standing Orders — Whether the judge erred in allowing the confession statement and video recording of the interview to be admitted into evidence — Proviso — Section 13 of the Court of Appeal Act — Sections 20 & 178 of the Evidence Act
The appellants Stanford Pinder (“Pinder”), and Leroy Fawkes (“Fawkes”), who was a juvenile at the time of the offence, being concerned together with another, were charged with the murder of Leonardo Sweeting and attempted murder of Robert Munroe, Phillip Rolle and Patrayer Finlayson. The particulars are that on 23 February 2017, the Neely family was having a social gathering on Scott Street, mourning the death of a relative. Around 7:00 pm, three men walked through the corner and indiscriminately opened fire on the Neely's residence. Pinder and Fawkes were arrested and charged in connection with the shooting. On 8 May 2019, after a trial in the Supreme Court, both appellants were found guilty of all counts. On 22 December 2020, Pinder was sentenced to 30 years imprisonment for murder and 20 years on each count of attempted murder to run concurrently. Fawkes was sentenced to be detained during the court's pleasure on the charge of murder and 15 years on each charge of attempted murder to run concurrently. However, considering the time spent on remand, 27 months was deducted from both appellants' sentences. Both appellants now appeal their convictions.
Both appellants appeal on the grounds of identification, inconsistent evidence, misstatement of material evidence, alibi, the judge's direction on voluntariness, lack of a cautionary direction, prejudicial evidence and the judge's summation. Pinder further appeals the rejection of his no case submission and his sentence on the basis that it is unduly severe due to him being a paraplegic at the time of sentencing. Fawkes further appeals the judge's decision to admit his confession statement into evidence.
Held: Both appeals are dismissed; the convictions and sentences are affirmed.
Relative to the judge's direction on inconsistencies, the jury heard the evidence and the judge gave a direction to the jury on inconsistencies which, in the Court's judgement, was fair.
Concerning the complaint on misstating the evidence, the Court finds that the identification evidence of Bryan Neely, an eyewitness, was clear and unequivocal.
Regarding the alibi direction, the Court finds that it was not as full as it should have been. However, there is no doubt that the defect in the alibi direction had no effect on the safety of the verdict.
With respect to the complaint of the judge's direction on voluntariness, the direction does not make clear that if the jury had any doubt as to whether the confession was given voluntarily, it must reject the confession as the prosecution would not have discharged its burden to prove that the confession was given voluntarily. The direction seems to suggest that the jury had to be “satisfied
that the confession was not given freely”. That is not the law. If the jury had any doubt as to whether the confession was voluntarily given it must reject the confession statement.
Regarding Pinder's challenge to the judge's decision not to accede to his submission of no case to answer, the judge's decision cannot be faulted as the circumstances in which the identification was made was a matter for the jury.
Relative to Fawkes' complaint on the admission of the confession statement, the Court is satisfied that the failure by the police officers to afford Fawkes' mother a private communication and inform her of her role during the interview were serious breaches of the proper practice set out in the law and recognized in the Police Force Standing Orders. Accordingly, the Court finds that the trial judge erred by admitting the confession statement.
Had the case for the prosecution against Fawkes been solely on his confession there would have been a compelling case to support the contention that Fawkes' conviction would be unsafe. However, having regard to the quality of the identification evidence against Fawkes, the Court has no lurking doubt as to the safety of the conviction and accordingly applies the proviso to section 13 of the Court of Appeal Act.
Regarding Pinder's complaint on sentence, the Court recognizes that as an appellate court, fresh evidence could be accepted regarding an appellant's medical condition to assist in determining whether to allow an appeal against sentence on the basis that the sentence in all the circumstances is unduly harsh. However, the Court does not accept that Pinder's evidence on his disability is such to warrant the interference with the sentence imposed.
Attorney General v Larry Raymond Jones et al. SCCr App Nos 12, 18 & 19 of 2007 considered D'Haiti v R SCCrApp No 264 of 201 considered
Franklyn Edgecombe v R SCCrApp No. 144 of 2015 considered
Leroy Rolle v Attorney General [2012] 2 BHS J No 14: applied
R v Galbraith 1981 2 All ER considered
R v Hall (Daniel) [2013] EWCA Crim 82 considered
R v Qazi (Sa-raj) [2011] 2 Cr App R (S)8 considered
R v Stevenson [2018] EWCA Crim 318 considered
RC v HM Advocate [2019] HCJAC 62 considered
Shavargo McPhee v Queen [2016] UKPC 29 (JCPC 2015/0040) applied
SS v Regina SCCrApp. No. 268 of 2015 distinguished
Mr. Stanley Rolle, Counsel for the Appellants
Ms. Darnell Dorsett, Counsel for the Respondent
These two appeals were heard together.
The appeals are by two appellants, Stanford Pinder (“Pinder”) and Leroy Fawkes (“Fawkes”), against their convictions for murder and three counts of attempted murder.
The appeal by Pinder is against both his conviction and sentence. The appeal by Fawkes is against his conviction only.
The appellants were charged being concerned together with another with committing murder and attempted murder. The particulars were that they, on Thursday, 23 February, 2017, at New Providence, being concerned together and with another, did murder Leonardo Sweeting and attempted to murder Robert Munroe, Phillip Rolle and Patrayer Finlayson.
The trial commenced on 25 March 2019 in the Supreme Court, with some 25 witnesses being called.
The primary evidence against both of the appellants was identification evidence by two prosecution witnesses. In addition to the identification evidence, an out of court statement by Fawkes given to the police was admitted as evidence against him.
At the trial, identification evidence was given by two primary witnesses, namely Bryan Neely and Renisha Neely.
At the trial, Bryan Neely (“Bryan”) testified that he had seen Pinder prior to 23 February 2017. First, he was friends with Pinder's brothers since the seventh grade and was shown pictures of Pinder before. Secondly, he had seen Pinder in rap music videos on YouTube and Facebook before the night in question. During the commission of the offence, Bryan observed Pinder as he walked into the light through a chain link fence without anything obstructing his view. Pinder was standing about 20 feet away from Bryan, shooting a black and silver firearm.
Bryan Neely also testified that he had known Fawkes prior to 23 February 2017. Fawkes had lived with Bryan from primary school until eighth or ninth grade. On the night in question, Bryan observed Fawkes as he walked into the light through a chain link fence for two to three minutes without anything obstructing his view. Fawkes was about 20 feet away from Bryan, shooting a black firearm.
At pages 77 – 84 of the transcript, Bryan Neely, in his examination in chief, said:
“A.I see three guys come. They come shooting, so I duck down and I look through the fence and I see two persons who was in the courtroom right now.
THE COURT: “I see two persons --.”
THE WITNESS: Who person inside the courtroom.
BY MS. KELLY:
Q. Now what were these two persons doing?
A. They was shooting the gun.
Q. Were you able to see both guns?
A. Yes, ma'am.
Q. Can you describe -- firstly, before we get to that, you say you see the two persons in this courtroom.
A. Yes, ma'am.
Q. Now before that night, had you ever seen these persons before?
A. Yes, ma'am.
Q. Do you know their names?
A. Yes, ma'am.
Q. Can you tell us their names, please?
A. One is Leroy Fawkes, and the next one is ‘Smooth’.
Q. Do you know his real name?
A. Stanford Pinder or something like that.
Q. Is that his name?
A. Yes, ma'am.
Q. But you know him as?
A.' Smooth'.
Q. So let me take you to Leroy Fawkes. Before 23 February, 2017, when you saw him shooting, had you ever seen him before?
A. Yes, ma'am.
Q. Where?
A. He did live by us.
Q. He lived with you.
A. Yes.
Q. How long?
A. That was like from primary school to like junior school.
Q. When he was in primary school?
A. Yes, ma'am
…
And on that night -- firstly, was anything blocking your view of him?
A. No, ma'am.
Q. Were you able to see his face?
A. Yes, ma'am.
Q. How long did you have him in your observation?
A. Two to three minutes.
Q. And that's how long he was in front of you?
A. Yes, ma'am.
Q....
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