Valentino Yustare v R
| Jurisdiction | Bahamas |
| Judge | Mr. Justice Isaacs, JA,The Honourable Mr. Justice Isaacs, JA,The Honourable Ms. Justice Crane-Scott, JA |
| Judgment Date | 30 November 2018 |
| Neutral Citation | BS 2018 CA 70 |
| Docket Number | SCCrApp. No. 101 of 2016 |
| Court | Court of Appeal (Bahamas) |
| Date | 30 November 2018 |
IN THE COURT OF APPEAL
The Honourable Mr. Justice Isaacs, JA
The Honourable Ms. Justice Crane-Scott, JA
The Honourable Sir Michael Barnett, JA (Actg.)
SCCrApp. No. 101 of 2016
Mr. Murrio Ducille with Ms. Latia Williams, Counsel for the Appellant
Mr. Eucal Bonamy with Ms. Sybrena Deleveaux, Counsel for the Respondent
Allie Mohammed v State of Trinidad and Tobago [1999] 2 AC 111 distinguished
Anthony Henfield and Omar Rolle v Regina SCCrimApp. Nos. 34 & 35 of 2001 considered
Bethel v R [1987] LRC (Crim) 238 distinguished
Chan Wing-Sui v R [1985] AC 168 considered
DPP v Selena Varlack [2008] UKPC 56 applied
R v English [1997] 4 All ER 545 considered
Philip Farquharson v R [1973] WLR 59 applied
R v Galbraith [1981] 1 WLR 1039 applied
R v Jogee : Ruddock v The Queen [2016] UKSC 8 considered
R v Jabber [2006] EWCA Crim 2694 applied
R v Johnson (1966) 10 WIR 359 considered
R v Uddin [1999] QB 431 considered
Simmons (Ronald) and Greene (Robert) v R [2006] 68 WIR 37 distinguished
The State v Khan (2012) 80 WIR 407 applied
The State v Mitchell (1984) 39 WIR 185 applied
von Stark v R (2000) 56 WIR 424 applied
Questions of Law Reserved on Acquittal (No. 2 of 1993) (1993) 61 SASR 1, 5 applied
Criminal appeal - Manslaughter — Armed robbery — No case to answer submission — Admissibility of confession — Joint enterprise — Common design — Manslaughter left for consideration by the jury
On the 23 rd December, 2009 Tamar Morley was shot in his truck in the parking lot of Super Value's Golden Gates location. The appellant and his co-accused were charged with the armed robbery of Morley and with his murder. The Crown's case was that the appellant drove his co-accused to Super Value, knowing that his co-accused intended to rob Morley and also knowing that his co-accused was armed with a firearm. In support of its case the Crown relied on the appellant's record of interview and statement where he stated, in essence that, he waited in his car while his co-accused robbed and, following a struggle, shot Morley. At trial the appellant elected to give evidence on oath and essentially retracted his admissions in the record of interview and in his statement under caution. He was, nevertheless, convicted of manslaughter and armed robbery and sentenced to sixteen years and six months and ten years and six months imprisonment at hard labour respectively, to run concurrently.
The appellant appeals his convictions on the basis that the trial judge erred: firstly, by determining that he had a case to answer; secondly, that the confession statement was admissible and thirdly, by leaving manslaughter for consideration by the jury on the principle of common design. He also alleges that the verdict is unreasonable, cannot be supported by the evidence and is unsafe and unsatisfactory having regard to the circumstances of the case.
Held: appeal dismissed; convictions and sentences affirmed.
The locus classicus case of Galbraith illustrates the approach a judge should take when confronted by a no case submission. If there is evidence capable of supporting a conviction then the case ought to be sent to the jury. Alternatively, if the evidence is unsatisfactory or unsound such that no reasonable jury could convict on then the case ought to be withdrawn from the jury. The evidence arrayed against the appellant by the prosecution in the present appeal was: 1) he drove his co-accused to Super Value with the knowledge that it was the intention of his co-accused to rob Morley; 2) he was aware that his co-accused was armed with a firearm; 3) he waited as his co-accused exited his vehicle and entered Morley's; 4) he drove his co-accused from the scene; and 5) he profited from the proceeds of the robbery. The appellant did not, in his record of interview or his statement, expressly state he intended to participate in the armed robbery of Morley but a reasonable inference could be drawn by the Judge from the evidence sufficient to raise a prima facie case against the appellant.
Section 20(5) of the Evidence Act defines confession as “any statement wholly or partly adverse to the person who made it…” The appellant plainly made admissions adverse to his interests and in the circumstances both the record of interview and the statement fell within the definition of a confession found in section 20(5) of the Evidence Act. Further, during his record of interview the appellant makes it pellucidly clear that he consented to being interviewed in the absence of a lawyer and therefore there was no breach of his constitutional rights.
The clearest exposition on the law relative to common design in The Bahamas was stated by the Privy Council in Philip Farquharson v R [1973] WLR 596: “…the law is that as all join in the common purpose, so all join in the intention to carry out the common purpose. As all join in the understanding that force is to be used, so if force be used all join in the intention to use force. If the use of force leads to an inference…that the consequence, namely death, of that use of force was intentional, then all join in the intent to cause death, and are guilty of murder.” On the evidence the jury was entitled to find that the appellant was a part of the common design to rob Morley with a firearm. That circumstance combined with the account of the fight in Morley's vehicle raised a possible qualified defence to the offence of murder and so the Judge was obliged to leave manslaughter as an alternative for the jury's consideration.
Judgment delivered by the Honourable
. The appellant appeals pursuant to section 12 of the Court of Appeal Act, against his conviction for manslaughter and armed robbery in a trial held before Mr. Justice Bernard Turner (“the Judge”) in the Supreme Court; and for which he was sentenced on the 12 th April, 2016, to sixteen years and six months and ten years and six months imprisonment at hard labour respectively, to run concurrently.
. The grounds of appeal are as follows:
“1. The Learned Trial Judge erred in law when he ruled that the Appellant had a case to answer.
2. The Learned Trial Judge erred in law when he ruled the alleged confession statement admissible.
3. The Learned Trial Judge erred in law when he left the offence of Manslaughter to the jury on the principle of common design.
4. The verdict is unreasonable and cannot be supported having regard to the evidence.
5. The verdict is unsafe and unsatisfactory having regard to the circumstances of the case.”
. Mr. Tamar Morley (“Rasta”) was shot in his truck on the 23 rd December, 2009, in the parking lot of Super Value, Golden Gates branch, on the island of New Providence. He later succumbed to his injuries. The prosecution's case at trial was that the deceased was shot and killed by the appellant's co-accused, Kesner Lexidor (“Lexidor”), in the commission of an armed robbery. The prosecution's case against the appellant was that he was part of a common design with Lexidor in the commission of the armed robbery and murder. The evidence against the appellant rested primarily on his record of interview and his statement.
. In his record of interview he was asked a number of questions to which he responded. I extract the more pertinent portions after the caution was administered. They are as follows:
“Time interview commenced 10:51 p.m.
You are not obliged to say anything unless you wish to do so, but whatever you say will be taken down in writing and given the evidence. Valentino Yustare.
Q 1: Do you understand what I have just explained to you?
A: yes, ma'am.
Q2: Are you aware that you may have a lawyer present while I am speaking to you?
A: I en really know about them things you know. This my first time.
Q3: I will ask again for my record, you are okay with this interview being recorded on videotape?
A: Yes, ma'am.
Q4: I want to question or ask you if at this point you want to continue this interview without a lawyer being here?
A: Yes, ma'am.
Q5: I am going to ask you some questions. I have information that on Wednesday the 23rd of December, 2009, sometime around 10:30, 11 p.m. maybe before that time you and another male went to the Golden Gates Shopping Centre, Baillou Hill Road armed with a handgun where you tried to rob Tamar Morley as he sat in a white truck in Super Value parking lot and as a result of his struggling shot him causing his death. What if anything do you have to say about this?
A: What do you mean?
Q6: Do you know anything about this?
A: Yes, ma'am.
Q7: I understand you work at Cowpen Wholesale Liquor Store on Cowpen Road?
A: Yes, ma'am.
Q8: Do you know of anyone by the name of Tamar Morely?
A: No, ma'am.
Q9: On Wednesday the 23rd of December, 2009, last week Wednesday, were you at the liquor store if you can remember?
A: Yes, ma'am.
Q10: How you came to be there, were you working or hanging out?
A: Hanging out.
Q11: Since Wednesday did you hear of a man that was there had been shot and killed?
A: Yes, ma'am.
Q12: You know him?
A. Yes, ma'am.
Q13: Who was it?
A: I know him, they is call him Rasta, I don't know his name.
Q14: The man you calling Rasta did he drive there.
A: Yes, ma'am.
Q15: What kind of vehicle was he in?
A: White water truck, a Suzuki, one of them short set.
Q16: Where do you know Rasta from?
A: He used to live cross from the bar.
Q17: Were you there when Rasta left the bar?
A: Yes, ma'am.
Q18: Was Rasta drinking?
A: Yes, ma'am.
Q19: Did Rasta leave alone.
A: Yes, ma'am.
Q20: Who all was there if you can remember when Rasta left?
A: Me, Dwayne, Kesner and Earnest.
Q21: Just the four of you?
A: Yes, maam.
Q22: When you leave did you leave alone?
A: No, ma'am.
Q23: How...
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