Tinker v R
| Jurisdiction | Bahamas |
| Judge | Sawyer, P.,John, J.A. |
| Judgment Date | 27 September 2010 |
| Neutral Citation | BS 2010 CA 193 |
| Docket Number | CAIS No. 107 of 2009 |
| Court | Court of Appeal (Bahamas) |
| Date | 27 September 2010 |
Court of Appeal
Sawyer, P.; Blackman, J.A.; John, J.A.
CAIS No. 107 of 2009
Mr. Wayne Munroe, Messrs Jairam Mangra and Roberto Reckley with him for the appellant.
Ms. Jillian Williams, Ms. Darnell Dorsette and Mr. Simon Crispin Rolle with him for the respondent.
Criminal Practice and Procedure - Appeal — offence of armed robbery — whether the right of legal representation was afforded to the appellant — prejudice to the defence — whether the appellant was afforded adequate time to prepare his defence — whether the judge erred in admitting the confession statement — whether the judge misrepresented the evidence — Conviction quashed — Appeal allowed.
On 1 May, 2009, following a trial before Allen, Snr. J. and a jury, Dario Gary Tinker, (“the appellant”) along with Mark McKenzie were found guilty of the armed robbery of Patrick Lavarity of some $10,000.00 in cash and a 1997 Chevrolet Astro van, the property of Good Hope Security Company (“the van”). On 3 July, 2009, the appellant was sentenced to nine years in prison and McKenzie was sentenced to eight years in prison on 13 July, 2009.
In his skeleton arguments, counsel for the appellant set out four grounds of appeal, as follows:
“1. The appellant was not afforded the right of legal representation the serious charge of armed robbery thereby prejudicing his defence/trial.
2. The appellant was not afforded adequate time to prepare his defence thereby adversely prejudicing his ability to have a fair trial.
3. The Learned Judge erred in admitting the confession statement of the appellant.
4. The learned Judge misdirected the jury on the issue of identification. That identification evidence was only applicable if they do not accept the confession of the appellant.”
Around 10.00 a.m., on 28 April, 2006, Mr. Patrick Lavarity drove a Good Hope Security van to New Bethlehem's Pre-School on Independence Drive. He parked the van under a large tree, went into the pre-school and spoke with Mrs. Mable Farquharson, the manager of Good Hope Security who handed him the payroll for the security company.
Mr. Lavarity went back to the van with the payroll and as he got into the van a voice shouted, “Hand me the money.” At that point Mr. Lavarity observed two males — one with a knife and the other with a handgun. The man with the knife stayed on the driver's side of the van while the other went to the passenger side. At that point, Mr.. Charles Falconer, who was a passenger in the van, fled across the East-West Highway. The man with the knife reached into the van and took the bag with the payroll; he also pulled a tam over his face while the other man pointed the hand gun in Lavarity's direction. Mr. Lavarity got out of the van and the keys dropped to the ground. The man with knife held it in a threatening manner, pushed Lavarity, got the keys, and then got into the driver's seat and drove off with the gunman in the passenger's seat.
A shod time after the van sped off — estimated as ten to fifteen seconds — a police patrol vehicle with officers Fox and Palmer arrived in the area of the pre-school. Their evidence was as they approached the area, they saw scuffling between Lavarity and a man and the van speed off. They followed the van as it headed west and south into Garden Hills. While they were following the van, the officers said that the passenger fired shots at them so they returned fire. The driver lost control and crashed into a utility pole while the male passenger fled into the bushes. As the passenger fled, he was seen to drop an object and a tam. The driver was arrested at the scene of the crash.
Mrs. Iva Johnson testified that around 10.00 a.m., on 28 April, 2006, she was at Soldier Road visiting her mother when she saw the appellant in her mother's yard bleeding. She asked him why he was bleeding and he replied that his friend shot him and that he wanted to go to his mother. Mrs. Johnson was driving the appellant to his mother when Sgt. Percentie said he arrested the appellant and had him taken to the Princess Margaret Hospital to be medically examined.
Mr. Amos Daniels testified that he saw the appellant and another man at the New Bethlehem church shortly before the armed robbery; he said he noticed the appellant on two occasions, first when the appellant asked him if everything was cool and secondly when the appellant asked him for water. Mr. Daniels said he went to get the water but when he returned the appellant and the other man had left. About three to five seconds later he saw one of the security employees running across the highway. On 1 May, 2006, Mr. Daniels identified the appellant at an identification parade conducted by Inspector Fernander.
According to the prosecution's evidence, the appellant also confessed to participating in the armed robbery in an interview which was recorded by the police and in a written confession –see pages 419–425 of the transcript.
The appellant, who represented himself, gave evidence on oath as did his co-accused McKenzie. He testified that on the 28 April, 2006, he and his girlfriend had an argument so he went out jogging as that is how he cleared his head. He usually used Orange Blossom as that is where he could have peace of mind. By the time he had walked up the hill, he heard sirens and gunshots and it looked as if the police were chasing a van. He then decided to avoid that area so he turned back and went down the hill which was rocky. It was as he descended the hill he said he felt a burning sensation in his back, felt a spot in his hand and felt he was bleeding. He said Ms Johnson gave him water and the police took him to the hospital. The appellant also said that he was beaten by the police and that the police fabricated the confession. He reasoned that the police framed and charged him with the offences to cover up the fact that they had shot a man who was jogging.
The appellant said he was not identified by Mr. Lavarity, with whom he had worked before, as one of the men who robbed him nor was he identified by anyone as a man who committed an armed robbery in broad daylight and without a mask and that there was no forensic evidence such as fingerprints linking him to the crime. In effect he was emphasizing the fact that the evidence of visual identification by Mr. Daniels did not, in itself, place him as one of the armed robbers and he was not identified by Mr. Lavarity, a man with whom he admittedly had worked before the incident, coupled with the fact that the police had not in fact arrested him on 28 April, but had simply sent him by ambulance to the hospital and the fact that while he was charged with escape, in fact he was acquitted of that charge; as reasons why a stronger direction regarding the reliability of the visual identification. In addition, the appellant points out that the evidence of him being wounded in the exchange of gunfire between the police and one of the men in the van was not supported by the physical evidence of damage to the van which was all on the driver's side and none on the passenger side which, in turn made his explanation of being shot while out jogging more credible than the police's evidence that he was shot during the high-speed chase.
The appellant pointed out that the learned judge interrupted him more than once when he was attempting to cross-examine the prosecution witness Officer Fox about the number of rounds of ammunition he had been given on the morning of the incident. The importance of that evidence, he says, was that it showed the police officers to be untruthful and although their credibility was important to a decision as to the identity of the second man involved in the robbery, yet the learned judge interrupted the appellant more than once inquiring whether that evidence was relevant, thereby giving the impression that the learned judge favoured the prosecution witnesses.
The firearms examiner testified that the flare gun recovered from the bushes in Garden Hills where it was allegedly dropped by the second man as he fled from the van, was not capable of firing the .20 gauge shotgun shells recovered from inside the van although as adapted it could fire .12 gauge shotgun shells.
Mark McKenzie testified that he committed the armed robbery under duress by the appellant and he identified the appellant as the man with the gun during the robbery.
When the appeal came on for hearing on 1 September, 2010, after the appearances had been given, and a discussion that went on from shortly after 10.15 a.m., until 10.40 a.m., and in answer to a question from John, J.A., the appellant said that he did not want Mr. Munroe and his team to represent him in the appeal. We therefore released Mr. Munroe and his team. In answer to another question by John, JA, the appellant indicated that he was prepared to represent himself in this appeal and to do so then. We took the usual mid-morning adjournment at that point to enable him to organise his papers more conveniently.
The appellant's first ground of appeal set out in counsel's written skeleton arguments is that he was not afforded the right of legal representation on the serious charge of armed robbery thereby prejudicing his defence at the trial. And the second is like it in that the appellant complains that he was not given adequate time to prepare his defence thereby prejudicing his defence at the trial.
In his written submissions, counsel for the appellant accepts that on 10 December, 2008, the date for trial was fixed for 6 April, 2009 by the then Chief Justice, Sir Burton Hall. On that date, the appellant made a constitutional motion for relief because of the delay between his arrest and the trial; the learned Chief Justice ordered that the motion be presented before a judge sitting in criminal matters. That motion was...
To continue reading
Request your trial