Victor Johnson AKA Ninja v R
| Jurisdiction | Bahamas |
| Judge | Mr. Justice Isaacs, JA |
| Judgment Date | 03 May 2019 |
| Neutral Citation | BS 2019 CA 92 |
| Date | 03 May 2019 |
| Docket Number | SCCrApp. No. 143 of 2017 |
| Court | Court of Appeal (Bahamas) |
COMMONWEALTH OF THE BAHAMAS
IN THE COURT OF APPEAL
The Honourable Mr. Justice Isaacs, JA
The Honourable Sir Michael Barnett, JA
The Honourable Mr. Justice Evans, JA
SCCrApp. No. 143 of 2017
Ms. Christina Galanos, Counsel for the Appellant
Ms. Kendra Kelly, Counsel for the Respondent
Armbrister v R (2011) 79 WIR 41 considered
Crosdale (Rupert) v R (1995) 46 WIR 278
Devron Patterson v. Regina SCCrApp No. 213 of 2014 mentioned
Jonathan Armbrister v R SCCrApp. No. 232 of 2012 considered
Mitchell v R (1998) 52 WIR 25
R v Burge and Pegg (1996) 1 Cr App Rep 163 applied
R v Featherstone [1942] 2 All ER 672 considered
R v Firth [1938] 3 All ER 783 considered
Von Stark v R [2000] 4 LRC 232 applied
Criminal appeal — Unlawful sexual intercourse — Disclosure of prejudicial evidence — Judge revealing the decision of a no case submission to the jury — Lucas direction
On the 16 June 2014 the 11 year old VC and her 9 year old sister were at home alone while their mother was at work. The VC went next door to ask her mother's friend, B, a question. At that time the appellant came to B's door and the VC returned to her home. The appellant went to the VC's home and emptied a bucket for her. Thereafter, the VC said that she was hungry at which time the appellant stated that he would buy them something to eat and left to get his car. When he returned he took the VC, her sister and VC's friend, E, to a green shack and parked at its side; he then invited the three girls inside. As they were about to leave the appellant instructed the VC to come into the car and told the other two girls to remain in the shack. Once in the car the appellant placed his hand in her pants and then into her vagina. Afterwards the appellant took the three girls to a take-a-way- restaurant to buy food. After they bought the food the VC told the girls they should leave. When they got home E's mother inquired as to their whereabouts and advised that the police had already been contacted. The police collected the girls and took them to the police station where the VC told them what happened with her and the appellant. A medical exam revealed that the VC's hymen was partially intact and the opening of her vagina was redder than normal. Nearly a month following the incident the appellant was arrested for the offence of rape. He denied knowing the VC and said he had no knowledge of the incident. Nevertheless, he was charged with the offence of unlawful sexual intercourse. During the trial the appellant represented himself, gave alibi evidence and stated that he had never driven a car in his life; he also called two witnesses to that effect. Following his trial the jury found him guilty, he was convicted and sentenced to 8 years imprisonment. From that sentence 5 years were deducted having regard to the time spent on remand and the time that this matter was hanging over the appellant's head. He appealed against his conviction and sentence.
appeal allowed; conviction quashed and sentence set aside. No retrial ordered.
The appellant complained that there was damaging evidence arrayed against him which was extensive and led before the jury. That evidence was introduced by the appellant, Crown witnesses, by a defence witness and, in some instances, by the Judge. Counsel complained that this evidence was highly prejudicial and had absolutely no probative value; and consequently, was simply irrelevant. In the present case, after the prejudicial evidence was disclosed there was no application to discharge the jury but it must be remembered that the appellant was undefended during the trial. That factor was of some moment to this Court because of the role the Judge plays in a criminal trial, that is, he is to ensure that the trial is fair. This Court found that the evidence prejudicial to the appellant during his trial was persistent and could not be described as inadvertent. It was sufficient to have caused the Judge to discharge the jury and order that a new trial take place. By failing to discharge the jury, this Court was satisfied that the appellant's trial was not fair and that his conviction should be quashed.
The appellant further complains that the judge revealed her decision on the no case submission. Although the jury was not informed by the Judge of her reasons for rejecting the no case submission she had, by her earlier mention of the purpose of the exercise and her subsequent indication that she would now call on the defendant to lead a defence, signaled to the jury that she was satisfied that the Prosecution's case was strong and the appellant's case, unmeritorious. This may have influenced the jury's opinion of the appellant's credibility and led to their rejection of his case.
Another of the appellant's complaints was the failure of the Judge to give a Lucas Direction. The Judge herself alluded to the untruthfulness that arose in the case. Having raised it, she ought to have given the jury a proper direction along the lines as that found in Appendix 1 of the Judicial College's Crown Court Bench Book.
Delivered by the Honourable
. The appellant was convicted on 26 May 2016, and sentenced on 1 June 2017, of unlawful sexual intercourse. He was sentenced to eight years imprisonment and from that sentence, the Judge deducted the four years spent on remand and one year to take into consideration the amount of time that his matter had been hanging over his head and so ultimately the appellant was sentenced to a term of three years imprisonment to run from 1 June 2017.
. On 10 April 2019, we heard the submissions of Counsel and allowed the appellant's appeal, quashed his conviction and set aside his sentence; with reasons to follow. We render those reasons now.
. On the morning of 16 June 2014, the virtual complainant, KM, who was 11 years old at the time (“the VC”) was at home sleeping along with her sister, SM, who was 9 years old at the time (“SM”) and their mother, DM. At about 8:00 am that morning, the mother left the VC and SM home alone to go to work.
. After the VC got up that morning, she noticed an oven in their house and so she went in the back to her mother's friend, Bradley, to ask him if he had given her mother the oven. During this time, the appellant who she knew as “Ninja” came to Bradley's door as she was whispering to Bradley in his ears if he had given her mother the oven. The appellant then asked her why she is telling secrets; and he began to talk about her older sister, A, in disparaging terms.
. The VC went back to the front by their door. The appellant came and asked her if he could throw out their bucket and she responded, “Do whatever you want.” The appellant then emptied the bucket and cleaned it out while the VC started to clean off her mother's bed. The appellant then came into their house and started to sweep. The VC instructed him to give the broom to SM and he stated that he could sweep better than SM.
. Subsequently, the VC was watching Madea while jumping up and down in the bed and saying that she was hungry, at which point the appellant stated that he would buy them something to eat. He then told them that he was going in the front by the Haitian man to get his car. Once the appellant returned with a car, the VC, SM and three of their friends: E, D and A got into the car. After riding around for a couple of minutes, the appellant stated that he could not take all of them because the police might stop him. He then stopped in the back of the Big Yard on Wulff Road where A and D got out of the car and jumped over a wall.
. Thereafter, only the appellant and the three girls remained in the car. The appellant then took them to a green shack and parked on the side of it. He invited the three girls to come inside. Once inside, the appellant instructed them to go in the car and get a DVD player, which they did. Once back inside, the appellant called the VC inside a separate room and once she was in there, the appellant told her something in her ears but she did not know what he said because he was speaking softly. The appellant then put his hand around her neck and she told him that her head was hurting and she wanted to go home, at which point the appellant told her to go. However, as the VC was going outside, the appellant put his hand in the way and said “No. I go drop y'all home”.
. As they were about to leave the appellant instructed the VC to come into the car and he told SM and E to remain in the green shack. Once in the car the appellant moved the VC's hand, placed his hand in her pants and then put his hand in her vagina. The VC states that she kept on moving his hand. While this was happening, the VC said that she saw SM and E staring out of the window.
. Afterwards, the appellant called SM and E out of the shack so that they could leave. The appellant then took them to Jean's to get them some food. Once there, he told the VC and SM to go and order the food and E remained in the front seat of the car with him. The VC testified that when she received the food, she gave the appellant back his change and she instructed E to get out of the front seat and “let's go”. The appellant said: “Wait! Stop!”. However, they kept on walking at which point the appellant said: “E, I coming back for you and I coming round there when you come from school.”
. When they returned home E's mother asked them where they were and they told her. She then informed them that the police had already been contacted. Thereafter, a police car picked them up and took them to a police station where the VC told them what had transpired between her and the appellant.
. After speaking to the police, the VC and her mother were taken to a hospital where Dr. Arlington Lightbourne examined her. His...
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