The Director of Public Prosecutions v Shannon Wilson aka Ramon Wilson
| Jurisdiction | Bahamas |
| Judge | Mr. Justice Jon Isaacs, JA |
| Judgment Date | 11 March 2021 |
| Neutral Citation | BS 2021 CA 42 |
| Date | 11 March 2021 |
| Docket Number | SCCrApp. No. 65 of 2019 |
| Court | Court of Appeal (Bahamas) |
IN THE COURT OF APPEAL
The Honorable Sir Michael Barnett, P
The Honorable Mr. Justice Isaacs, JA
The Honorable Mr. Justice Evans, JA
SCCrApp. No. 65 of 2019
Ms. Jacklyn Burrows, Counsel for the Appellant
Mr. Anthony Delaney, Counsel for the Respondent
Taibo v R (1996) 48 WIR 74 considered
Director of Public Prosecutions v. Varlack (British Virgin Islands) [2008] UKPC 56 (1 December 2008) considered
Mario Pinto v Regina SCCrApp Side & CAIS No. 34 of 2010 considered
Reg. v. Galbraith [1981] 1 W.L.R. 1039 considered
Criminal Appeal — Attempted Murder — No Case to Answer — Re-Trial — Section 12(1A) of the Court of Appeal Act — Section 12(1B) of the Court of Appeal Act — Section 129(3) of the Penal Code-Criterion on which trial should be allowed to continue-Whether Judge erred in directing the jury to discharge the respondent and return a verdict of not guilty
On 10 June 2016, police officers were dispatched to the area of Pinewood Gardens. Upon the arrival of the officers at the location, the respondent, Shannon Wilson and another male attempted to run away and were pursued by the officers. During the chase, one of the males turned and aimed a firearm in the direction of one of the officers in pursuit. The officer, Constable Brown, in response fired at the respondent Wilson and shot him in the back of his left thigh. The respondent was later arrested and charged with Attempted Murder, contrary to Sec. 292 of the Penal Code. On 1 May 2019, the trial began before the Honorable Justice Gregory Hilton. On 10 May 2019, the defence gave a submission of No Case to Answer. On 13 May 2019 Justice Hilton upheld the No Case submission and withdrew the matter from the jury and directed them to return a verdict of “not guilty”. On 16 May 2019, the appellant filed an appeal against the decision of Justice Gregory Hilton on the ground that the decision of the judge was erroneous on points of law and that the verdict be set aside and remitted to the Supreme Court for a retrial.
Held: Appeal allowed. The case is remitted back to the Supreme Court for retrial.
The Judge fell into error when he found as a matter of law, that the offence of attempted murder had not been made out on the Prosecution's evidence. The Judge was influenced by the fact that the respondent did not fire the handgun after he pointed it at the officer. The Judge ought to have found that as a matter of law the acts of the respondent were sufficiently proximate to amount to an attempt to murder Constable Brown; and then to have called upon the respondent to lead a defence.
Additionally, the Judge was satisfied that because he determined that the offence of attempted murder had not been made out, and because the firearms offences had not been charged initially, that it was not competent for the alternative firearm offences to be put to the respondent. However, Section 114 of the Criminal Procedure Code makes provision for such a case. There are no words limiting the generous ambit of sub-section 3 of section 114. As such, the judge should have considered that any lesser offence disclosed on the facts of the case may support a conviction on that lesser offence notwithstanding that the defendant had not been charged with that offence.
Judgment Delivered by the Honourable
. On 16 May 2019, the appellant filed an appeal against the decision of Mr. Justice Gregory Hilton (“the Judge”) given on 13 May 2019, to uphold a no case to answer submission made on behalf of the respondent; and as a consequence of his decision, the Judge went on to direct the jury to discharge the respondent on the count of attempted murder and to return a verdict of not guilty.
. We heard the submissions of Counsel on 14 January 2021, and reserved our decision. We render it now. For the reasons articulated later in this judgment, we allow the appeal and remit the case back to the Supreme Court for retrial.
. The circumstances surrounding the events that resulted in the respondent being charged before the courts for attempted murder are succinctly outlined in the appellant's “Summary of Facts” hence I set out their rendition:
“Summary of Facts
On 10 th June 2016, officers were dispatched to the area of Wild Guava Avenue and Cottonwood Street in Pinewood Gardens. When Constable 3569 Kendrick Brown and Inspector Addison Ferguson arrived at the location, they observed two (2) males standing in the area. One of the males who fitted the description they received, began to run while holding his waist. Officer Brown exited the police vehicle and pursued. Officer Ferguson also pursued behind Officer Brown. The male turned slightly to the right and pointed a sliver (sic) and black firearm in the direction of Officer Brown, who became in fear of his life, and fired one single shot from his service weapon at the male, which caused the male to stumble and the firearm flew from his hand.
The firearm, a Jimenez 9 millimeter pistol, with 7 unfired 9-millimeter rounds, serial number 345687 was recovered from the scene, and admitted into evidence. The male received a gunshot injury to the back of his left thigh, for which he received medical attention. Officer Brown identified the Respondent herein as the person whom he saw and chased, and who pointed the firearm at him.”
. On 1 May 2019 the trial of the respondent began before the Judge. The Prosecution called some seven witnesses in support of their case against the respondent; and another witness was called at the instance of the Judge. However, on 10 May 2019, the Defence made a submission of “No Case to Answer” on behalf of the Respondent; which said submission found favour with the Judge who then, on 13 May 2019, directed the jury to find the respondent not guilty of the charge.
. The appellant, being dissatisfied with the Judge's decision appealed to this Court pursuant to section 12(1A) of the Court of Appeal Act. The appeal is grounded in a single ground of appeal, namely, that the decision of the Judge was erroneous on points of law. The relief the appellant seeks is that the jury's decision be set aside, and the case be remitted to the Supreme Court for a re-trial pursuant to section 12(1B) of the Court of Appeal Act.
. The crux of the submission of no case by Mr. Cash, Counsel for the respondent in the court below, may be gleaned from the following passage found at page 131, lines 4 to 19, of the transcript:
“Now, my Lord, we say on that evidence alone it does not arise to the point of attempted murder. We say not only must there have been an intention to kill as it was murder, but there must have been some actual attempt.
Now my Lord, even if the firearm, as in this case was proven to have been a loaded firearm and was once, again my Lord, by Charles Bain, proven to be capable of discharging a shot my Lord, if someone were to point a firearm at another person based on the evidence of course our case is that he didn't, but I am going on the weakness of the prosecution's case, if someone were to just merely point a firearm at someone even though it's loaded, my Lord, that does not constitute an attempt to kill the person with intention to kill them.”
. Mr. Cash continued at pages 131–2:
“I would even go my Lord, a case where it maybe the police. The police is chasing after someone and they stay, stop and they draw their weapon, it does not mean that they attempted to kill the person. The gun itself does not kill. The gun kills when a round is loaded into it and it's fired and hits a person. And my Lord even if a firearm is fired, it could be fired without the intention to kill. And so, my Lord, in this case, I say that there is no case to answer on attempted murder, because the evidence does not rise to that standard, my Lord, so I would submit that he should not be called upon to answer to that charge.”
. It appears from the response of Ms. Burrows, Counsel for the prosecution, that they considered there was sufficient evidence adduced by them to cause the case to be placed into the hands of the jury. However, the Prosecution did not appear to have any great confidence in the soundness of their case because although pressing the Judge to find that the respondent did have a case to answer on the attempted murder charge, said at page 136 of the transcript, lines 17 to 21, the following:
“My Lord, we note that the Court might be of the view that sufficient Actus Reus for attempted murder charge may not be in place, but we wish the Court to note that it is open to give directions to the jury pursuant to Section 129(3) of the Penal Code.”
. In furtherance of her contention that the Judge could leave alternative offences to the jury based on the evidence adduced by the Prosecution during the trial, Ms. Burrows submitted at page 137, lines 15 to 22 of the transcript:
“That is my understanding of the evidence. In those circumstances my Lord, we submit that the Court is open to direct the jury to offences within the Firearm's Act Section 33 or Section 34 are applicable in these circumstances. Section 33; Possession with Intent to Engager life. Section 34 Possession with intent to Prevent Lawful Arrest or to put another in fear.”
. Mr. Cash responded that it was not competent for the Judge to substitute the firearms offences as an alternative to an attempted murder charge because those are not lesser charges, they are separate charges as they do not have as an element of causing some type of harm. (See the exchanges between the Judge and Mr. Cash at pages 145–8 of the transcript).
. I note here that section 129 of the Penal Code states, inter alia:
“129. With respect to cases where one act constitutes several offences or where several acts are...
To continue reading
Request your trial