Valentino Dorsette v R
| Jurisdiction | Bahamas |
| Judge | Sir Michael Barnett, P,Mr. Justice Roy Jones, JA |
| Judgment Date | 27 May 2021 |
| Neutral Citation | BS 2021 CA 79 |
| Docket Number | SCCrApp. No. 224 of 2016 |
| Court | Court of Appeal (Bahamas) |
IN THE COURT OF APPEAL
The Honourable Sir Michael Barnett, P, Kt
The Honourable Mr. Justice Jones, JA
The Honourable Madam Justice Bethell, JA
SCCrApp. No. 224 of 2016
Mr. Ian Cargill, Counsel for the Intended Appellant
Ms. Linda Evans, Counsel for the Intended Respondent
Christopher Wallace v Regina SCCrApp & CAIS No. 126 of 2015 considered
Daniel Coakley v Regina SCCr App. No. 15 of 2017 considered
Ernest Lockhart and Anor v Regina SCCr App. No. 16 and 18 of 2006 considered
Rahming v R [2002] UKPC 23 considered
Regina v. Mushtaq [2005] UKHL 25 considered
R v Shawn Miller SCCrApp. No. 166 of 2011 applied Serrano Adderley v Regina SCCrApp. No 23 of 2014
per Barnett, P: The judge's statement that “There's no allegation that the defendant was beaten to make these oral or written statements on the 12 th of August 2009” was in my judgment not fair to the appellant as he clearly had given evidence that he was beaten from the beginning of his questioning by the police officers. The judge's direction, in my view, should have been more balanced. The direction ought to have made it clear that not only must the jury be satisfied that the statement was made; but also that they must not have any doubt that the statement was not made after the beating which the appellant claimed was inflicted on him whilst he was being questioned.
Criminal Appeal — Application for Extension of Time — Manslaughter — Attempted Armed Robbery — Prospects of Success — Whether Prejudicial Evidence by prosecution witness resulted in unfair trial-Mushtaq Direction -Whether the jury was told to consider whether the confession true is for them and was told of evid ence that could possibly affect reliability of confession-Circumstantial Evidence-Whether need for a Lucas Direction — Whether conviction and sentence was unduly severe.
On 7 August 2009, the intended appellant, while being concerned with others, and armed with a 9 millimeter gun, attempted to rob Tagia Soles Armony of a white 2008 Honda Accord. During the course of the attempted armed robbery, Tagia was shot when she refused to open the door. She died from the gunshot wound. The intended appellant was charged with murder and attempted armed robbery. On 25 February 2016 the intended appellant was found guilty of manslaughter and attempted armed robbery. He was sentenced to imprisonment for 25 years for the manslaughter conviction and sentenced to 15 years imprisonment for attempted armed robbery with both sentences to run concurrently from the date of conviction. The intended appellant seeks an extension of time within which to appeal his conviction and sentence.
Held:(Barnett, P concurring): application for extension of time to appeal is denied. The conviction and sentence is affirmed.
per Jones, JA: The directions by the trial judge to the jury during the trial and summing up were adequate to remind them of their duty to decide the case on relevant evidence alone. Furthermore, the case against the intended appellant including his confession and possession of the LG cookie cellphone was a compelling one. The judge in accordance with Mushtaq explained to the jury that the truth as to whether the confession was made and whether it was true was a matter for them to decide as the finders of the facts. He also directed them that it was for them to determine whether the confession was or may have been obtained by force or oppression. This was a proper direction. Accordingly, we have no lurking doubt as to the safety of the conviction. Counsel for the intended appellant has not provided any reasons why this court should interfere with the sentencing discretion of the trial judge and his application.
Judgment Delivered by the Honourable
. The intended appellant was convicted on charges of manslaughter and attempted armed robbery in the Supreme Court before Winder, J and a jury. He was sentenced to 25 years for manslaughter and 15 years for the attempted armed robbery. The sentences were to run concurrently from the 25 April 2016.
. The intended appellant was charged that while being concerned with another, he murdered Tagia Soles Armony on 7 August 2009. The prosecution's case was that sometime after 8:00 p.m. Tagia Soles Armony was confronted by the intended appellant along with two other men with the intention to steal a 2008 Honda Accord. During the attempted armed robbery, Tagia was shot when she refused to open the door to the vehicle. The intended appellant in his record of interview admitted his role in the robbery, which was to make sure that the police would not surprise them during the robbery. In addition, the intended appellant was aware of the presence of the firearm during the robbery. On the other hand, the intended appellant gave evidence on oath denying ever committing the offences, giving a record of interview, or signing it.
. The intended appellant now applies for an extension of time to appeal his conviction and sentence. On 2 November 2020, the intended appellant filed an amended Notice of Appeal setting out five intended grounds of appeal.
. The application to extend time was received at the Court of Appeal Registry on 13 September 2016, eighteen weeks, and five days after the intended appellant was sentenced and fifteen weeks late after the deadline for filing his application.
. The intended appellant in a letter addressed to the Court of Appeal on 22 November 2019, said that the delay was caused by the failure of the prison authorities on six occasions to forward his application to the court to progress his appeal. This disclosure has not been challenged by the intended respondent.
. Subject to any prejudice to the intended respondent, the intended appellant relies on the prospects of success of his application. In the first intended ground, counsel for the intended appellant contended that the intended appellant was prejudiced when the prosecution witness Bjorn Ferguson referred to him as being known to the police in the presence of the jury. This statement can be observed from the following exchange in cross-examination of the witness. Trial transcript at page 315 line 5 states:
“A. The first time I met him?
Q. Saw him.
A. In person?
Q. Yes.
A. He is known to the police.
Q. Let me direct my question. Let me direct my question.
THE COURT: Please direct your questions properly, Mr. Kelman.
MR. KELMAN: Guided. My Lord, guided.
MS. MARSHALL: My Lord, can we have a moment in the absence of the jury? Just myself and my learned friend,
My Lord
THE COURT: Yes”
. Counsel for the intended appellant argues that the statement of the witness was prejudicial to the intended appellant and resulted in an unfair trial. On the other hand, counsel for the respondent contended that statement was not prejudicial to the intended appellant as the trial judge gave the requisite warning to the jury to confine their deliberations to the evidence in the case. Nevertheless, counsel for the intended appellant contends that that the warning given by the trial judge was ineffective as it was not immediately given.
. On a review of the trial transcript, the first warning by the trial judge to the jury was made shortly after the prejudicial statement was made. It appears at page 335 lines 726:
“THE COURT:
…Ladies and gentlemen of the jury, just a reminder at it were, in respect of ensuring that you contain yourselves to only matters that are relevant to this trial. You might have heard the last witness made some reference to Mr. Dorsette being known to him. The fact that he knows Mr. Dorsette or Dorsette is known to him has no relevance insofar as the questions you are asked to consider in this trial. It is only the facts that comes out relative to whether or not Mr. Dorsette is responsible for the death of Ms. Soles, or whether he attempted to steal the vehicle of Mr. Gordon Soles. Those are the only matters you are to concern yourselves with. So, I ask you to ensure that your mind is open and contain (sic) to those issues. Again, I will give you more directions at the end of the trial. But for now I want to ensure that you don't go far away — that you may get some other thoughts in your minds.
. During the summation of the evidence and legal directions to the jury, the trial judge gave another warning to the jury in the following terms. This appears at page 547 lines 16–31 of the transcript:
“Ladies and gentlemen, it is here where I remind you, as I have cause to remind you on two earlier occasions that you must confine yourself only to the evidence which relates to this case to form your views of the defendant. That he may have been known to one of the officers in this case, cannot cause you to harbor any views against the accused. If you do so, you are not being true to the oath that you have taken as jurors. That he may have been investigated for other matters at the time of his arrest, even if it were true, should have no bearing on how you assess the credibility of the accused. You should have regards only to his evidence and the evidence of the witnesses as it relates to the investigation of the offences for which he is before you. That is the murder of Tagia Soles Armony and the attempt armed robbery, nothing else”
. Where the bad character of a defendant is inadvertently disclosed during trial the learned authors of Archbold 2005 gave the following guidance contained at paras 8203 and 204:
“Where it is accidentally elicited during the course of the case for the Crown that the defendant has been previously convicted the decision...
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