Stuart v R
| Jurisdiction | Bahamas |
| Judge | John, J.A. |
| Judgment Date | 23 March 2015 |
| Neutral Citation | BS 2015 CA 33 |
| Docket Number | SCCrApp & CAIS No. 68 of 2012 |
| Court | Court of Appeal (Bahamas) |
| Date | 23 March 2015 |
Court of Appeal
John, J.A.; Conteh, J.A.; Adderley, J.A
SCCrApp & CAIS No. 68 of 2012
Mr. Roger Gomez Jr., counsel for the appellant.
Ms. Darell Taylor with Mr. Randolph Dames, counsel for the respondent.
Boucher v. R (1954) 110 CCC 263 applied
Greenough v. Eccles (1859) 5 CB (NS) 786 mentioned
R v. Banks [1916] 2 K.B. 621 mentioned
R v. Francis 28 February 2008 ; unreported Barbados mentioned
R v. Mushtaq [2005] U.K.H.L. 25 applied
R v. Toppin 75 W.I.R. 76 applied
The State v. Solomon 33 W.I.R. 149 applied
Criminal Law - Appeal against conviction — Armed robbery — Threats of death — Whether the appellant had a fair trial — Whether the conduct of the virtual complainant in the presence of the jury was prejudicial to his trial — Whether there was a miscarriage of justice — Whether the prosecuting counsel forced the victim to give evidence notwithstanding his unwillingness to testify — Hostile and unfavourable witness — Refreshing memory.
The appellant was convicted after a trial before a judge and jury for the offences of armed robbery and threats of death. During the trial the complainant began giving his evidence but subsequently became reluctant and vehemently expressed that he was unwilling to testify further. The judge explained to the complainant that the prosecutor had a right to continue questioning him and he could make the decision as to how he would answer those questions. Due to the manner in which the complainant was being questioned the judge asked the prosecutor whether he was going to make an application to deem him a hostile witness, the prosecutor answered affirmatively and continued his questioning.
appeal dismissed.
The complainant had given viva voce evidence of the elements necessary to establish the offences with which the appellant was charged. Notwithstanding the complainant's subsequent unwillingness to testify the jury heard the evidence given by all of the witnesses, inclusive of that of the complainant. Having heard all of the evidence they were satisfied beyond a reasonable doubt that the appellant was guilty of the offences, as charged. As an appellate court we must be slow to interpret the subsequent reluctance of a witness to testify as an irregularity that warrants the intervention on appeal.
On 3rd February 2011 after a trial before Madame Justice Indra Charles and a jury at the Criminal Assize in Nassau the appellant was found guilty of armed robbery and threats of death. He was sentenced to a term of twelve years for the armed robbery and one year for the threats of death. The judge ordered that the sentences should run concurrently.
The brief facts are that on Monday 26th July 2010 sometime around 11:30 pm, the complainant went to Buttonwood Street, Pinewood Gardens to his cousin's residence in his 2005 Dodge Ram F-150. While outside his cousin's house he saw a man whom he knew as ‘Slow’, the appellant in this case, The appellant asked the complainant for a ride but the complainant refused. The appellant then produced a handgun from his waist and pointed at the complainant. The complainant then handed over the keys to his vehicle. The appellant got into the truck and sped off in a northern direction.
On Tuesday 27th July 2010 around 12:30 am while at East Street South Police Station, the complainant saw police officers bringing in the appellant. The complainant identified the appellant as the man who robbed him of his truck. In the presence of the police the appellant threatened the complainant with these words: “I will kill you, I will head shot you.” The complainant then asked the appellant,” why you steal my truck and pull gun on me?” The appellant answered “yeah I take your truck, if you tell them anything I will kill you and your family.”
The sole issue in this case is whether the appellant had a fair trial, that is to say, whether the conduct of the virtual complainant in the presence of the jury was prejudicial to his trial and resulted in a miscarriage of justice.
There is in every criminal trial one overriding requirement: to ensure that the accused person is fairly tried. To safeguard the fairness of the trial a number of rules have been developed to ensure that the proceedings, however hotly contested and however highly charged, are conducted in a manner which is orderly and fair. These rules are well understood and are not in any way controversial. We think it pertinent to state one of the most important ones.
The duty of prosecuting counsel is not to obtain a conviction at all costs but to act as a minister of justice; R v. Banks [1916] 2 K.B. 621 at 623. The role of the prosecutor was very clearly described by Rand, J. in the Supreme Court of Canada in Boucher v. R (1954) 110 CanCC 263 at 270 where he said:
“It cannot be over-emphasised that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength, but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.”
The appellant makes a number of complaints. First, he complains that prosecuting counsel forced the victim to give evidence notwithstanding his unwillingness to testify. Counsel directed us to several instances recorded in the transcript which he submitted was evidence of his complaints.
The victim, Everette Johnson Jr., was the first witness to testify. He gave his name, address and when asked to identify the accused he pointed him out. He was asked whether he recalled Monday 26th July, 2010 and he responded in the affirmative. Prosecuting counsel then asked him to tell the court the nature of the contact he had with the appellant that evening. Johnson responded in this way:
“He ran through the corner sweating and look like he was a little disturb, A situation I don't know what he was saying. I was standing through the corner that's Chestnut he ran through looking little disturb and ask me for a ride and whatever; I told him I was not giving him a ride or whatever and that's when the situation went down.
Q. What situation?
A. Well, he pull a firearm or whatever and took the keys for the truck and left.
The appellant at that stage of the trial complained of feeling unwell and the court was about to adjourn until the following day when the witness indicated that he wished to say something. The transcript at page 23 reads as follows;
The witness: “Like I was saying, I wouldn't waste the court's time. I don't want to go along with this case. I am sorry. I ga' be honest, i move on this is two years. I really don't want to go on with this case. This ain't me, like I say I believe in giving him a chance. I is a young person, even despite he threatened me no one buy me out, no one threaten me. I don't want to do that to him. I have God in my heart. I don't live day to day on people. Ain't no one do nothing for me. I live on God. I don't want to be here today. I really didn't want to do this. I am very sorry to the jurors.”
The court then enquired of the witness: You wouldn't want to go further with this case?
The witness: No, ma'am.
The court: Mr. Thompson, I think Mr. Johnson we have heard what you have said, but I am concerned about the accused also not being in a good state for us to continue. I think we have to adjourn. You don't want to come back here?
The witness: No, ma'am
The trial judge then proceeded to tell the jury: “there are certain directions I will have to give you. I don't want him to collapse in front of us” (a reference to the appellant who had complained of being unwell).
Then the trial judge said to the jurors before the adjournment:
“Mr. Foreman and members of the jury, you see for yourself what has happened and this is what happens sometimes in trials. I have to give the accused as everyone else a fair chance in the court. You heard what the complainant is saying. Before I give you certain directions I think it's important unless counsel agrees in the absence of his client, normally it's difficult to give anything in the absence of the accused.
Mr. Allen, what do you feel? If you agree to certain procedures being done nothing can challenge it at that stage?
Mr. Allen: Yes, my lady, I am his counsel, I am representing him. It's not as if he is unrepresented. If you're minded to proceed then I will be guided. “
The witness again interposed: “I really don't want to come back here. I wouldn't mind proceeding with this case. Like I say, I don't want to jail the man. I don't want to go along with this no more, sorry, that's all I have to say.
The trial judge then told prosecuting counsel: “I don't know how far you can go, Mr. Thompson.
Mr. Thompson: Well, my lady; there will be no further questions.
The Court: I think I would have to direct you Mr. Foreman to enter a ‘not guilty’ verdict on the two counts.
The trial judge further opined: “It is sad that I would have to bring you back here tomorrow, but let me do what is right, what I am used to in my 12 years as a judge, I have never dealt with a case in the absence of the accused. I prefer him to be here. I have heard the evidence of Mr. Johnson, if he doesn't come here tomorrow we have already heard him and I will continue to give you the appropriate directions tomorrow.
The judge, in the presence of...
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