Tiano D'Haiti v R

JurisdictionBahamas
CourtCourt of Appeal (Bahamas)
JudgeSir Michael Barnett,Mr. Justice Isaacs, JA,Sir Brian Moree, CJ
Judgment Date03 December 2020
Neutral CitationBS 2020 CA 174
Date03 December 2020
Docket NumberSCCrApp. No. 264 of 2018

IN THE COURT OF APPEAL

Before:

The Honorable Sir Michael Barnett, P

The Honorable Sir Brian Moree, CJ

The Honorable Mr. Justice Isaacs, JA

SCCrApp. No. 264 of 2018

Between
Tiano D'Haiti
Appellant
and
Regina
Respondent
APPEARANCES:

Mrs. Brendalee Rae with Ms. Marianne Cadet, Counsel for the Appellant

Ms. Kendra Kelly, Counsel for the Respondent

Capron v R SCCrApp. No. 13 of 2011 distinguished

Deenish Benjamin and Deochan Ganga v The State of Trinidad and Tobago [2012] UKPC 8 applied

Frankie Boodram v The State Criminal Appeal No. 17 of 2003 mentioned

Grieves and others v R [2011] UKPC 39 distinguished

Munroe v Attorney General [2013] 2 BHS J. No. 95 distinguished

R v Absolam (1988) Times, 9 July considered

Regina v Keenan [1989] 3 All ER 598 considered

Sharvargo McPhee v R [2016] UKPC 29 considered

Stafford v The State [1998] 53 WIR 417 applied

Criminal appeal — Murder — Oral admission — Verballing — Inconsistencies — Prejudicial statement — Lucas Direction — Judges' Rules — Force Standing Orders — Proviso — Sections 11 & 125 of the Police Force Act — Section 13 of the Court of Appeal Act

In the early morning hours of 28 October 2014 the prosecution alleged that the appellant and another entered the home of Glenn and Emma Cartwright in Blair Estates, and in the course of committing a robbery, shot and killed their son Robert Andre Cartwright. The evidence revealed that in the course of the incident the deceased retrieved his licensed shot gun and discharged it at the intruders. The evidence further revealed that there was blood and body tissue found at the crime scene which was collected to be tested. The prosecution also alleged that shortly after the home invasion in Blair, the appellant was taken to the Princess Margaret Hospital by one SD whom he had told that if anyone asked where she collected him from, she should say Carmichael Road. Upon the appellant's arrival at the hospital, he allegedly told Officer Dawkins, whom he met there, that he had been stabbed. While the appellant was in the hospital his blood was drawn and during this exercise, in the presence of two police officers, Maycock and Braynen, the appellant is alleged to have told those officers of his involvement in the murder. At the appellant's trial the doctor who drew the blood and was, therefore, present when the oral admission was alleged to have been made testified that she could not recall whether the appellant did in fact make such an admission. Officers Maycock and Braynen prepared reports of what they say the appellant told them but at no time did they ask the appellant to acknowledge the admissions made to them. Upon the appellant's arrest, while at the police station, on the advice of his counsel he did not give a statement to the police and he did not give any evidence at trial. The appellant's case, as put through cross-examination, was that the officers fabricated the alleged admission and that it never happened; that he never told Officer Dawkins he was stabbed and that he never told SD to say she collected him from Carmichael Road. The appellant was unanimously convicted of the offences of murder, attempted armed robbery and burglary.

On appeal the appellant complains, inter alia, that the judge did not direct the jury on the alleged breaches of the Force Standing Orders and the Judges' Rules relating to the alleged oral confession by the appellant; nor did she direct the jury on inconsistencies in the prosecution's evidence.

Held (Moree, CJ dissenting): appeal allowed. Submissions to be made on whether there ought to be a retrial.

per Barnett, P: The alleged oral admission by the appellant ought to have been recorded in the pocketbook of the officers and signed by both officers; the appellant also ought to have been invited to acknowledge what was said immediately. The judge failed to point out to the jury the failure of the officers to comply with the rules regarding the taking of oral statements. There was nothing in the judge's direction which warned of the dangers of relying on oral admissions.

The judge did not draw to the jury's attention that notwithstanding that samples of blood and body tissue were collected from the scene there was no evidence led by the prosecution that the appellant's blood or body tissue were found at the scene.

While some of the appellant's complaints have merit, others do not. However, when considered collectively it cannot be said that the meritorious complaints do not affect the safety of the verdict.

Belcon v R (1963) 5 WIR 526 mentioned

Benjamin and Ganga v The State of Trinidad & Tobago [2012] UKPC applied

Boodram v The State Criminal Appeal No. 17 of 2003 considered

Judges' Rules [1964] 1 WLR 152 applied

Sharvargo McPhee v R [2016] UKPC 29 applied

per Isaacs, JA: The judge's failure to warn the jury of the dangers associated with and the reasons for the need to make a contemporaneous record of an oral admission is an unnecessary cause of great concern. Technology could have been used to assist with the recording of the alleged oral admission.

The prosecution's case rests on the verballing of officers Braynen and Maycock; there is no forensic evidence linking the appellant to the scene despite the blood, body tissue, pellet holes etc. found at the scene.

It is trite law that even strong suspicion does not displace the presumption of innocence.

Judges' Rules [1964] 1 WLR 152 applied

R v Benedetto and Labrador [2003] UKPC 27 considered

R v Criminal Cases Review Commission, ex p Pearson [1999] 3 All ER 498 considered

Sharvargo McPhee v R [2016] UKPC 29 applied

per Moree, CJ: The Force Standing Orders provide that there must be a contemporaneous record of the interview or if that is not possible and adequate and accurate record must be made as soon as practicable thereafter. However, what transpired between the appellant and officers Maycock and Braynen in the hospital room was not an interview within the purview of the Force Standing Orders. Further, there was no breach of the Judges' rules.

Regarding inconsistencies in the evidence, what the appellant complains of cannot be regarded as inconsistencies. Even if they may be so regarded, the safety of the conviction is not affected by the inadequacies of the judge's direction in relation thereto.

In the circumstances of this case, while a more robust direction ought to have been given to the jury on the dangers of relying on the unacknowledged, disputed oral confession allegedly made by the appellant, no actual miscarriage of justice occurred in this case. Even if the jury had been properly directed, they would inevitably have come to the same conclusion.

Judgment delivered by the Honourable Sir Michael Barnett, P:

1

. This is an application for an extension of time within which to appeal against convictions of murder, attempted armed robbery and burglary.

2

. On the 26 September 2017 a jury unanimously convicted the intended appellant of the murder of Robert Andre Cartwright and on 5 April 2018 he was sentenced to 49 years imprisonment, 25 years imprisonment and 20 years imprisonment, respectively; less the 2 years, 10 months and 17 days spent on remand. He appeals those convictions.

3

. The factors to be considered on an extension of time application are well known: the length of the delay, the reasons for the delay, the prospects of success and the prejudice to the respondent, if any.

4

. By affidavit filed on 6 February 2020 the intended appellant swore that the delay is seven months and two weeks; that his reason for that delay is that the attorney hired by his family never got back to him and he was only able to collect a Form No. 2 when he appeared before the Prison Board. He does not know what became of that Form but he “began the process…of getting a form out to the Appeal Court.” and that he verily believes that there is merit in his appeal.

5

. At the hearing of the appeal on 24 February 2020 we focused on the intended appellant's prsopects of success.

6

. The prosecution's case was that the appellant together with another person entered the home of the victim in Blair Estates and whilst committing a robbery shot and killed him. During the course of the robbery, the prosecution claims that the victim shot the appellant.

7

. Evidence of the crime scene was that blood and body tissue was found and collected to be tested and examined.

8

. Shortly after the incident the prosecution alleges that the appellant was taken to the hospital by a female friend, Shecoya Davis and during the trip to the hospital asked her to tell anyone, if asked, that she picked him up from the Carmichael Road area, which is quite a distance away from Blair Estates.

9

. The prosecution led evidence that when he entered the hospital he told police officer Dawkins, whom he met at the hospital that he had been stabbed and not that he had been shot. It is to be noted that in his evidence Officer Dawkins said that the appellant was wearing no shirt. He was barebacked.

10

. The appellant's counsel in his cross examination challenged Officer Dawkins that the appellant never told him that he had been stabbed as no mention was made of that in Officer Dawkins' report prepared by him shortly after the incident. Dawkins confirmed that it was not mentioned in his report.

11

. Whilst in the hospital blood was taken by a doctor in the presence of two police officers. Whilst the doctor was taking his blood the prosecution's case was that the appellant told the two police officers, Maycock and Braynen, of his involvement in the murder. The doctor in her evidence at the trial said it was so long ago that she could not recall whether the appellant made that admission to the police officers.

12

. After they left the hospital, Officers Maycock and Braynen prepared reports in which they stated what they say the appellant told them. At no stage did they ask the...

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