The Director of Public Prosecutions v Dervinique Edwards
| Jurisdiction | Bahamas |
| Judge | Grant Thompson J |
| Judgment Date | 29 January 2020 |
| Date | 29 January 2020 |
| Docket Number | CRI/VBI/68/3/2018 |
| Court | Supreme Court (Bahamas) |
IN THE SUPREME COURT
CRIMINAL DIVISION
The Honourable Madam Justice Cheryl Grant-Thompson
CRI/VBI/68/3/2018
Ms. Cassie Bethel for the Prosecution - Director of Public Prosecutions
Ms. Eleanor Albury for Dervinique Edwards and Mr. Devard Francis for Zaria Burrows
( R v Galbraith [1981] 1 W.L.R. 1039; Clayton Cox v Reginal, Criminal Appeal No. 70 of 1198; Taylor et al v R (1928) Crim App. R 20; Daley v R [1993] 4 All ER 86, PC; Taibo v the Queen (1996) 48 WIR 74 page 83(f-g); Crossdale v R (1995) 46 WIR 281 page 285; Director of Public Prosecutions v Selena Varlack [2008] UKPC 56 paragraph 21; Regina v Coutts [2006] 1 WLR 2154; Terrell Neilly v The Queen PC App. No 0112 of 2010 (Bahamas) paragraph 38; Hunte and Khan v The State, [2015] KPC 33 Privy Council Appeal No.0088 of 2012)
Supreme Court
Grant-Thompson J
The Defendants Dervinique Edwards and Zaria Burrows were charged with the Murder of 19 year old Breanna Mackey, contrary to section 291(1)(b) of the Penal Code, Ch. 84.
The issues are:
(i) Does Dervinique Edwards have a case to answer?
(ii) How do we treat the secondary party who alleged they were merely present?
(iii) When the former co-accused who is the Principal to the offence is convicted is it an abuse of process to put the secondary party to trial.
(i) The Defendant Dervinique Edwards does have a case to answer the court finds that it falls under limb 2(b) of the Galbraith test laid down by LCJ Lane and the triable issues are a question of fact for the jury;
(ii) The evidence for the prosecution will be grounded in a mixed statement contained in the unchallenged Record of Interview of Dervinique Edwards and the direct evidence of two witnesses Gordnal McKenzie and Nafatera Brown;
(iii) the issue of intention is relevant and the court has determined that manslaughter will also be left to the jury.
(1) I reminded myself that the general approach to be followed where a submission of ‘no case to answer’ has been made was described by Lord Lane in R v Galbraith [1981] 1.W.L.R. 1039 where he said:-
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“(1). If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case.
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(2) The difficulty arises where there is some evidence but it is of a tenuous nature for example because of inherent weakness or vagueness or because it is inconsistent with other evidence. (a) Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case.
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(b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness's reliability or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty then the judge should allow the matter to be tried by the jury. There will of course, as always in this branch of the law be borderline cases. They can safely be left to the discretion to the judge”.
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(2) I am of the view that this case falls within limb 2(b) of the test laid down by Lord CJ in Galbraith. On one view of the facts at a prima facie level the jury could find:
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(i) That there was a joint enterprise to attack Brianna whenever she was seen - evidenced by the actions in following her, cornering her, stabbing and beating her and leaving her thereafter without calling for or rendering medical assistance;
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(ii) That Dervinique was a part of this joint design - to ride with the girls - they are alleged to have come out of the car and beat the deceased whilst she was also being stabbed by the principal;
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(iii) That she left with the co-accused;
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(iv) That she was arrested hiding out with them all huddled together in a bathroom;
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(v) That it could be found that these were all factors indicating an intention to kill - that is 5 regular size women to beat an stab one - the reasonable and probable consequence would be death;
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(v) That it could also be found that she did not believe her actions would result in death and that she had no specific intention to kill - and so would only be responsible for Manslaughter;
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(vi) That she expressly did not withdraw from the joint enterprise by her actions;
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(vii) That in her words the jury could consider if she meant to withdraw and to consider if she was merely present; and
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(viii) That all of these are questions of fact and are for the jury and I will not usurp their function.
(3) Ms. Albury at first did not rely on Galbraith nor 170(1) of the CPC but her written submissions were made pursuant to Section 170(1) of the Criminal Procedure Code, the Second-named Defendant, Dervinique Edwards, has no case to answer as the prosecution did not establish a cogent prima facie case nor did they adduce sufficient credible evidence that a prima facie case had been made out against her client, to show that she was being concerned with others, and did murder Breanna Macke and had no case to answer.
(4) Ms. Albury further submitted that her submissions were two-fold and based on the abuse of process of the court when applying the principles set out in the cases of R v Jogee (2016) UKSC and Ruddick v The Queen 2016 UKSC 7 and a no case submission in accordance with the guidelines as set out in the celebrated case of R v Galbraith.
(5) It was submitted that it would be an abuse of the process of the court to allow the case to continue against Dervinique Edwards as the prosecution have already secured four convictions of the six females charged coupled with the evidence of the pathologist whose evidence was that several stab wounds caused the death of the accused. (see Justis Raham Smith v The Queen (Bermuda) (2000) UKPC 6 (28th February, 2000). There was evidence before the court that Thea Williams was the principle in the commission of the offence of Murder and was the principal person who inflicted several stab wounds upon the deceased which caused her death.
(6) It was further stated that it was an abuse of process, and that there is insufficient evidence before me that Edwards has the required intent or mens rea needed along with the necessary actus reus to convict her on the Offence of murder under Section 291 (1) (b) of the Penal Code notwithstanding that the prosecution's case is based on the common law common design/being concerned together or joint enterprise criminality. By the present Voluntary Bill of Indictment, Dervinique Edwards has been charged along with Zaria Burrows, The First-named Defendant with the offence of Murder in execution of a joint enterprise. From the outset, the court was invited to observe that the statutory offence of Murder contains an ingredient of mens rea.
(7) With regards to the ingredients of the offence of murder Ms. Albury submitted that there is dearth of evidence adduced by the prosecution from which the jury, when properly directed, may properly come to the conclusion that Dervinique Edwards inflicted harm to the deceased on the mentioned date. The evidence is that Thea Williams, who did not give evidence, inflicted harm with a knife. Such evidence was corroborated by the pathologist who told the court that several stab wounds caused the death of the deceased.
(8) It is therefore submitted that the prosecution does not have a prima facie case made out against Dervinique Edwards to require her to make a defence.
(9) On a submissions of ‘no case to answer’ the judge must be satisfied that a prima facie case has been made out against each defendant. The judge does not have to find at this stage that the prosecution has established the ingredients of the offence beyond a reasonable doubt. To establish a prima facie case, the prosecution should offer credible evidence in support of each element of the crime.
(10) The learned authors of Halsbury Laws of England (3rd Ed) page 750, para 1370 on the question of common design states:
“Where several persons are engaged in a common design and another person is killed, whether intentionally or unintentionally, by an act of one of them done in prosecution of the common design, the other persons present are guilty of murder, if the common design was to commit murder, or to inflict felonious violence, or to commit any breach of the peace and violently to resist all opposers.”
(11) It was submitted that the evidence produced by the prosecution is insufficient to support the charge set out in the indictment, and that the jury, when properly directed, could not properly arrive at a conclusion that Dervinique Edwards is guilty of the charge of murder being concerned together as set out in the indictment. Dervinique Edwards could not have been concerned with the First-named Defendant to cause the death of the deceased.
(12) Ms. Albury submitted that Section 203 of the Criminal Procedure Code Act (“the CPC”) states:
“At the close of the evidence in support of the charge, the court shall consider whether or not a sufficient case is made out against the Accused person to require him to make a defence, and if the court considers that such a...
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