The Attorney-General v Kevin Andrews
| Jurisdiction | Bahamas |
| Judge | Mr. Justice Isaacs, JA |
| Judgment Date | 26 October 2020 |
| Neutral Citation | BS 2020 CA 145 |
| Court | Court of Appeal (Bahamas) |
| Docket Number | SCCrApp. No. 212 of 2017 |
| Date | 26 October 2020 |
IN THE COURT OF APPEAL
The Honourable Sir Michael Barnett, P
The Honourable Mr. Justice Isaacs, JA
The Honourable Mr. Justice Evans, JA
SCCrApp. No. 212 of 2017
Ms. Kendra Kelly, Counsel for the Appellant
Mr. Murrio Ducille, Counsel for the Respondent
Bennett v Benn (1965) 7 WIR 414 applied
Director of Public Prosecutions v Varlack [2008] UKPC 56 considered
Farquharson v R [1973] A.C. 786 considered
Levison v Republic [2015] 1 LRC 626 applied
R v Galbraith [1981] 1 WLR 1039 considered
R v Hayter [2005] UKHL considered
R v Spinks [1982] 1 All ER 587 applied
Taibo (Ellis) v R (1996) 48 WIR 74 mentioned
The State v Abdool Azim Sattaur and another (1976) 24 WIR 157 applied
Criminal appeal — Accessory after the fact — Appeal against a directed acquittal — Hearsay evidence — Reopening of the no case to answer application — Sections 88A and 448 of the Penal Code
The respondent and another, TD, were charged with murder, attempted armed robbery and burglary for the 28 October 2014 home invasion of Emma and Glen Cartwright. During the incident the Cartwrights' son, Robert, was shot and later died of his injuries. Before he died, however, the Crown's case is that Robert was able to fire his shotgun in the direction of the intruders, wounding one of them, the respondent's co-accused, TD.
The prosecution's case is that the respondent and TD left the scene and went to the home of the respondent's girlfriend where the respondent arranged for his girlfriend's roommate to transport TD to the Princess Margaret Hospital. Upon arrival at the hospital a police officer enquired of TD how he had been injured; he is alleged to have responded that he had been stabbed. A nurse, however, informed the police officer that the wound was a firearm wound, not a stab wound. TD was arrested at the hospital. He and the respondent were later charged with the aforementioned offences.
At their trial, following the close of the prosecution's case, a submission of no case to answer was made. In relation to the respondent the trial judge found that only the lesser offence of accessory after the fact only should be left to the jury for consideration. Two days later the judge allowed the no case submission to be re-opened and ruled that the respondent did not have to be called upon to answer any of the charges. The Crown now appeals that ruling.
Held: appeal dismissed.
Section 88A of the Penal Code defines an accessory after the fact as one who, knowing that another has been a party to an offence, assists that other person for the purpose of enabling that person to avoid the due process of law.
At its essence, the Crown's case is that the respondent was in the company of TD; who was the person shot during the home invasion in Blair. Further, that TD presented himself to the hospital for treatment but lied about his injury. However, there is no evidence linking TD to the scene in Blair and no evidence that TD was the person shot. While there is a statement purportedly from TD placing himself and the respondent at the scene that statement cannot be considered as evidence against the respondent. Upon being arrested the respondent told the arresting officer that he saw blood on TD and therefore asked his girlfriend to take him to the hospital. Considering the Crown's evidence in the round it could not rise above suspicion that the the respondent was aware TD had committed an offence.
To be guilty of the offence of accessory after the fact the evidence must have revealed that the respondent assisted TD to avoid the due process of law, knowing him to have committed an offence. There was no intent by the respondent to assist TD avoid capture or the due process of law disclosed or inferred from the respondent's efforts to get TD to the hospital. The Crown's evidence in this case fell far short of the requisite standard of proof. In the circumstances the judge cannot be faulted for reopening the no case to answer submission and changing her ruling thereon.
Judgment delivered by the Honourable
. The appellant applies to the Court pursuant to section 12(1)(A) of the Court of Appeal Act, to appeal the decision of Madam Justice Renae McKay (“the Judge”) handed down on 21 September 2017, wherein the Judge, having already ruled pursuant to section 129(3) of the Penal Code (“the PC”) that the prosecution had satisfied the court that the respondent had a case to answer for the lesser offence of accessory after the fact, contrary to section 448 of the PC, nevertheless allowed Counsel for the respondent, Mr. Ducille, to reopen the no case application. The appellant complains that the Judge allowed this, even though Mr. Ducille provided no reason for the Judge to reconsider her decision other than that he had not been personally present during the testimony of certain witnesses for the Prosecution; and the Judge, having reconsidered the no case application, acceded to it and subsequently directed the jury to unanimously acquit the respondent of the offences with which he had been charged; and failed to leave the lesser offence of accessory after the fact for the consideration of the jury.
. The solitary ground of appeal is that the decision of the Judge to direct the acquittal of the respondent is erroneous in point of law.
. Much of what is given by way of background has been gleaned from the facts as the Prosecution believed them to be. So, with that caveat, I begin.
. Tiano D'Haiti (“D'Haiti”) and the respondent were jointly charged with murder, contrary to sections 290(2)(c)(i) and 291(1)(a) of the PC, attempted armed robbery, contrary to sections 83 and 339(2) of the PC, and burglary, contrary to section 363 of the PC.
. It was alleged that on 28 October 2014, after 1:00 am, D'Haiti, the respondent and others, including the respondent's little brother, Larad Harrison aka “Poo Boy”, broke into the home of Emma and Glen Cartwright (“the Cartwrights”) which they shared with their son, Robert ‘Andre’ Cartwright (“Robert”). The men awoke all the residents of the home during their attempt to gain entry into the home; and they were confronted by Robert who was armed with a shotgun. The intruders shot Robert but he was able to fire his shotgun in the direction of the intruders and wound D'Haiti. Robert later died from his wounds.
. D'Haiti and the respondent fled the scene and went by the respondent's girlfriend. The respondent arranged for D'Haiti to be taken to the hospital by his girlfriend's roommate. The respondent accompanied D'Haiti and the roommate on the journey to the hospital but at some point, he made the driver stop and he exited the vehicle. On arrival at the Accident and Emergency entrance of the Princess Margaret Hospital (“the PMH”) D'Haiti encountered a police officer who enquired of D'Haiti how he had come to be injured. D'Haiti is alleged to have responded that he had been stabbed. As D'Haiti was being taken into the hospital by a nurse, the nurse told the officer the wound was a firearm wound. D'Haiti was arrested while at the PMH. He and the respondent were subsequently charged with a number of offences arising out of the incident.
. After the Prosecution had closed their case, on 18 September 2017, and during a response to the no case submission made by Counsel for the defendants, the Crown submitted that the lesser charge of accessory after the fact, contrary to section 448 of the PC should be left to the jury in relation to the respondent. On 19 September 2017, the Court ruled that D'Haiti be called upon to answer all charges against him and that the respondent be called upon to answer the section 448 offence. On 21 September 2017, after allowing arguments pertaining to the no case submission to be re-opened, the Court ruled that the respondent did not have to be called upon to answer any of the charges, including the section 448 offence.
. On 26 September 2017, D'Haiti was found guilty on all charges by the jury. On 5 April 2018, he was sentenced to forty-nine years for the count of murder, twenty-five years for the count of attempted armed robbery and twenty years for the count of burglary.
. The 19 September 2017 ruling of the Judge on the “first” no case to answer submission made by Mr. Ducille said, inter alia:
“I reviewed the evidence of all the Prosecution witnesses and while I accept the submission of Mr. Ducille, with respect to the first limb that there is no evidence which connect (sic) his client Kevin Andrews to the events of that faithful (sic) morning in October. I accept with respect to Mr. Andrews, the submission of Ms. Kelly, with respect to (sic) alternative as she put it before the court. That is for the offence accessory after the fact, which is contrary to section 448 of the Penal Code.
So, I call upon Andrews to answer the charges in respect to that…” (page 409 of the transcript)
. The next day Mr. Ducille persuaded the Judge to re-open the issue of whether his client should have to make a case; and the Judge ruled on the “second” no case submission as follows:
“This is my ruling. I've had benefit of the additional submission (sic) and I've reconsidered the law as well as all of the evidence, with respect to propose (sic) alternative charges of accessory after the fact contrary to section 88(a). “While there is circumstantial evidence to an event, the evidence is of a tenuous nature”. And further I must accept Mr. Ducille (sic) submission that there's nothing before the Court to suggest that Mr. Kevin Andrews assisted Mr. D'Haiti for the purpose of enabling Mr. D'Haiti to avoid the due process of the law.” (page 465 of the transcript)
. Interestingly, the application made by the Crown for the Judge to consider calling on the respondent to answer...
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