The Attorney General v Shawn Knowles
| Jurisdiction | Bahamas |
| Judge | Sir Michael Barnett |
| Judgment Date | 02 November 2020 |
| Neutral Citation | BS 2020 CA 150 |
| Court | Court of Appeal (Bahamas) |
| Docket Number | SCCrApp. No. 194 of 2016 |
| Date | 02 November 2020 |
IN THE COURT OF APPEAL
The Honourable Sir Michael Barnett, President
The Honourable Mr. Justice Jones, JA
The Honourable Mr. Justice Evans, JA
SCCrApp. No. 194 of 2016
SCCrApp. No. 221 of 2016
Mr. Vernal Collie, Counsel for the Appellant in 194 of 2016 and Counsel for Respondent in 221 of 2016
Ms. Christina Galanos, Counsel for the Respondent in 194 of 2016 and Counsel for Appellant in 221 of 2016
Chevaneese Sasha Gaye Hall v Attorney General SCCrApp & CAIS No. 179 of 2014 mentioned
Kevin Hart v Regina SCCrApp. & CAIS No. 127 of 2010 applied
McGreevy v DPP [1973] 1 WLR 276 considered
R v Duffy (1949) 1 All E.R. 932 applied
Regina v Glen Michael Hall No. 92/2101/y3 considered
Reid v The Queen [1980] AC 343 followed
The Attorney General v Hall [2016] UKPC 28 followed
Xavient Taylor v R SCCrApp. No. 259 of 2017 mentioned
Criminal Appeal — Criminal Law — Appeal against conviction — Crown appeal against sentence — Manslaughter — Possession of Firearms — Proper verdict — Fundamental flaw in conviction — Whether the evidence adduced at the trial was insufficient to justify a conviction by a reasonable jury even if properly directed
On 30 July, 2011, Edward Braynen, Erica Ward and Chackara Rahming were murdered. The following day the appellant was found in possession of two Maverick guns and seven rounds of 12 gauge ammunition. One of the guns was found to be that which was used in the triple murders. He and another were charged with the murders and he was charged for possession of the guns and ammunition. The jury was not unanimous on the guilty verdict for murder and gave a verdict of guilty for manslaughter instead. He was also found guilty for the firearm offences. He appeals his convictions on numerous grounds inter alia, that the trial judge erred in rejecting the no case submission and permitting the case to go to the jury. The crown has appealed the sentence imposed.
Held: the appeal is allowed; the convictions and sentences quashed. The appeal by the Crown against sentence is dismissed.
The jury's “verdict” of 8 to 4 guilty of murder is not a verdict. It is the law that a jury is not entitled to consider the alternative verdict of manslaughter unless and until it had arrived at a proper verdict of acquittal on the murder charge. As there was no verdict on the murder charge, the judge could not have accepted a verdict on the alternative offence of manslaughter.
If the jury could not arrive at a true verdict on the murder charge the jury should have been discharged a new trial should have taken place. The jury could not consider a manslaughter charge unless it had found the appellant not guilty of murder. This they did not do. As the judge said a “verdict” of 8–4 guilty of murder is not a verdict. A guilty verdict must be unanimous. A not guilty verdict of murder may be 8 to 4 but a verdict of 8 to 4 guilty of murder is not a verdict that can be accepted.
No reasonable jury could without more be satisfied beyond reasonable doubt that the possession on the following day of one weapon from which bullets were fired at the scene of the murder meant that the person in possession of the gun was the person who committed the murder.
As to the issue as to whether the court should order a retrial on the murder charge, this is not a case which it is proper to order a retrial. To use the language in Reid “the evidence adduced at the trial was insufficient to justify a conviction by a reasonable jury even if properly directed. It is not in the interests of justice as administered under the common law system of criminal procedure that the prosecution should be given another chance to cure evidential deficiencies in its case against the accused.”
As to the offences under the Firearms Act for which this appellant was charged, they fall within category (ii) offences as defined in The Attorney General v Hall decision of the Privy Council and in the circumstances the Attorney General had no power to prefer a voluntary bill in relation to them. The Supreme Court therefore had no jurisdiction to hear those charges under the Firearms Act.
Judgment delivered by The Honourable Sir Michael Barnett, P:
This is an appeal by the appellant against his convictions for murder and against offences under the Firearms Act.
On the 20 January, 2016 the appellant along with a co-accused, Timothy Saunders, was arraigned on three counts of murder. The appellant was also arraigned on two counts of possession of an unlicensed firearm and one count of possession of ammunition.
The case for the Crown was that on 30 July, 2011, the appellant along with his co accused being concerned together did murder Edward Braynen, Erica Ward and Chackara Rahming. As to the firearm offences the particulars were that on the following day, 31 July, 2011, the appellant was found in possession of two Maverick guns and seven rounds of 12 gauge ammunition.
There were no eyewitnesses and the evidence against the appellant was the fact that he was found in possession of the murder weapon the following day. There was evidence that one Serrano Adderley shot the appellant's uncle and a friend of the uncle and attempted to kill the appellant about two weeks earlier. Erica Ward was a girlfriend of Serrano Adderley and was pregnant with his baby.
Following the taking of evidence the jury returned with a verdict of 8 to 4 guilty on the charges of murder and a verdict of 8–4 guilty on the charges of manslaughter. The appellant was also found guilty of the firearms and ammunition offences, also on a verdict of 8–4.
The appellant appeals all of the convictions.
There are several grounds of appeal with respect to the manslaughter conviction and one primary ground to the convictions under the Firearms Act. However, having regard to a fundamental flaw in the convictions we shall address only the fundamental flaw.
In his direction to the jury the judge said:
“You may conclude that there wasn't a joint enterprise to kill, and if you believe the evidence, if you accept the evidence that the prosecution presented, you may think that only Shawn had an intention to kill because the closest thing that you have to evidence of Shawn doing anything is the statement by Timmy, which he said he didn't make.
Timmy could only be convicted if you are sure of, one, that Shawn killed the people with intent to kill and that Timmy had the same intention.
If you think that Shawn, in this case, was provoked by the actions of Serano, and you can't come to a conclusion on murder because to find a person guilty of murder, the count has to be 12 zero, nothing else.
If you can't find anyone guilty of murder, if you think that Shawn was provoked sufficiently to do what he did, if you think he did anything, then you would have to consider manslaughter. That applies to both Shawn and to Timmy.
And when you consider manslaughter, in order to convict, at least eight of you have to vote guilty, that's eight, four; nine, three; 10, two; 11, one; 12 zero. All those are guilty.
To acquit of manslaughter, the converse is true. You have to vote eight, four; nine, three; 10, two; 11, one; or 12, zero, not guilty.
Six, six and five, seven are not verdicts, but if you get stuck at that point, you will get further directions.”
Not surprisingly the jury felt that it could consider a manslaughter verdict as well as a murder verdict at the time of its deliberation. They were not concerned about the technicalities as to what was a proper verdict. Based on the direction the jury must have felt that once they were not unanimous on a guilty verdict for murder they were entitled to consider the offence of manslaughter.
After deliberating for just over two hours the jury returned.
I set out verbatim the exchange:
THE CLERK: Mr. Foreman, ladies and gentlemen of the jury. Mr. Foreman, would you stand, please. Have you arrived at a verdict?
THE FOREMAN: Yes, your Worship, we have reached our verdict.
THE CLERK: Have you arrived at a verdict that you all agree?
THE FOREMAN: Yes, we have.
THE CLERK: On the charge on the first count of murder, how do you find the defendant, Shawn Knowles? Guilty or not guilty?
THE FOREMAN: Guilty.
THE CLERK: What's the count, please?
THE FOREMAN: Eight to four.
THE COURT: That's not guilty of murder. You said murder?
THE CLERK: Yes.
THE COURT: Murder is 12, zero.
THE CLERK: Yes. On the charge of manslaughter, how do you find the defendant, Shawn Knowles? Guilty or not guilty?
THE FOREMAN: Eight to four, manslaughter
THE CLERK: Guilty or not guilty?
THE FOREMAN: Guilty.”
The “verdict” of 8 to 4 guilty of murder is not a verdict. It is the law that a jury is not entitled to consider the alternative verdict of manslaughter unless and until it had arrived at a proper verdict of acquittal on the murder charge.
As there was no verdict on the murder charge, the judge could not have accepted a verdict on the alternative offence of manslaughter.
If the jury could not arrive at a true verdict on the murder charge the jury should have been discharged a new trial should have taken place. The jury could not consider a manslaughter charge unless it had found the appellant not guilty of murder. This they did not do. As the judge said a “verdict” of 8–4 guilty of murder is not a verdict. A guilty verdict must be unanimous. A not guilty verdict of murder may be 8 to 4 but a verdict of 8 to 4 guilty of murder is not a verdict that can be accepted.
This was precisely the issue that faced this court in Kevin Hart v R SCCrApp No. 127 of 2010.
In that case the jury returned a ‘verdict’ of 11 to 1 guilty of murder and the trial judge then directed the jury to consider the alternative...
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