Xavient Taylor v R
| Jurisdiction | Bahamas |
| Judge | Mr. Justice Evans, JA |
| Judgment Date | 12 May 2020 |
| Neutral Citation | BS 2020 CA 43 |
| Court | Court of Appeal (Bahamas) |
| Docket Number | SCCrApp. No. 259 of 2017 |
| Date | 12 May 2020 |
IN THE COURT OF APPEAL
The Honourable Sir Michael Barnett, P
The Honourable Mr. Justice Isaacs, JA
The Honourable Mr. Justice Evans, JA
SCCrApp. No. 259 of 2017
Mr. Murrio Ducille with Ms. Crystal Rolle, Counsel for the Appellant
Ms. Kendra Kelly, Counsel for the Respondent
Aubrey Carlston Darling v Regina SCCrApp. & CAIS No. 155 of 2017 applied
Daniel v The State [2014] 3 LRC 402 considered
Garvin Pratt v R SCCrApp. No. 41 of 2016 applied
Kevin Hart v Regina SCCrApp. & CAIS No. 127 of 2010 applied
Regina v Deangelo Johnson, Phillip Rolle, Mario Whyms, and Charvis McPhee 142/5/2014 considered
The Queen versus Dorian Clare and Demetri Clare No. 165/7/2011 considered
Criminal appeal — Manslaughter — Self defence — Application by Crown for witness statements to be admitted under section 66 of the Evidence Act — Judge not satisfied all reasonable steps taken to locate witness — Crown gives further evidence of efforts to locate witness — Witness statement admitted following evidence of further efforts to locate witness — Witness whose statement was admitted under section 66 of the Evidence Act subsequently located — Section 66 does not apply to a witness that was properly served but does not appear — Whether a jury that does not agree on a verdict of murder can be sent away to deliberate on a verdict of manslaughter — Section 66 of the Evidence Act
The appellant was charged with the 2009 murder of James Gardiner which was alleged to have occurred following an altercation between the two. The appellant acknowledged stabbing the deceased but maintained that he was acting in self defence. During the appellant's trial the statements of Vanessa Cooper and Bradley Williamson were admitted pursuant to section 66 of the Evidence Act. However, after the statements had been admitted, but before the trial ended the witnesses were located but they were not called upon to give evidence.
At the close of the trial the jury returned a verdict of guilty on the charge of murder (11–1). The judge could not accept the verdict and instructed the jury that if they could not arrive at a verdict on the charge of murder they should go on to consider the charge of manslaughter. Thereafter, the jury found the appellant not guilty of murder (12–0) but guilty of manslaughter (12–0). The appellant now appeals on the basis that, inter alia, the judge was wrong to admit the statements and that the verdict is unsafe.
Held: appeal allowed. Retrial ordered on the offence of manslaughter.
Section 66 of the Evidence Acts permits statements of witnesses to be admitted into evidence once a judge is satisfied that, inter alia, notwithstanding that all reasonable steps have been taken to locate a witness, the witness cannot be located. In the present case the trial judge preliminarily determined that she was not satisfied that the Crown had taken sufficient steps to locate Vanessa Cooper. Thereafter, she allowed the Crown to give further evidence of their efforts and consequently admitted the statement. In the Court's view once Vanessa Cooper had been located the prosecution had an obligation to call her as a witness or at minimum tender her for cross examination. In the circumstances of this case, however, the judge ought not to have admitted the evidence of Vanessa Cooper after determining that all reasonable steps to locate her had not been exhausted.
Relative to the witness Bradley Williamson, section 66 of the Evidence Act cannot apply to a witness who was found and served but does not appear. Therefore, the judge erred by allowing Williamson's statement to be admitted pursuant to section 66 of the Evidence Act.
The admission of both statements under section 66 of the Evidence leads to the conclusion that the verdict by the jury is unsafe and unsatisfactory having regard to the circumstances of the case.
Further, the judge was wrong to direct the jury that they could proceed to consider manslaughter in circumstances where they could not arrive at a verdict on the substantive charge of murder. It was clear, however, that the jury found the appellant not guilty on the charge of murder and therefore the appellant could only be retried on the charge of manslaughter.
Judgment delivered by the Honourable
. The appellant was charged with the murder of James Gardiner which was said to have taken place on Monday 2 November 2009 at New Providence, Bahamas. The jury, at his trial on 4 December 2017, found him not guilty of murder but guilty of manslaughter by a verdict of 12–0. He was subsequently sentenced to a term of 15 years in prison on 20 December 2017.
. The case for the respondent at trial was that on the evening in question the deceased went to the home of his girlfriend Tiffany Knowles and met the appellant there. The appellant is the father of a daughter of Tiffany Knowles. The deceased requested to talk to Tiffany Knowles who informed him that whatever was to be discussed could wait until the following day.
. The deceased demanded his DVD player which the appellant handed to him and told him to leave. The deceased, however, although he left the house did not leave the premises. An altercation took place between the deceased and the appellant during which the deceased was stabbed to the chest and died from the injury sustained. The Crown maintained that the appellant was the aggressor and that he went after the deceased with the knife which was used to stab the deceased.
. The appellant gave a statement to the police in which he acknowledged stabbing the deceased. He maintained, however, that he was acting in self defence. At trial the appellant gave evidence and maintained his position that the information he provided in his record of interview with the police was the truth.
. At trial the Crown called several witnesses including Tiffany Knowles, her daughter Samantha Cooper, and Inspector Philip Davis who was the investigating officer. The parties stipulated the report of Dr. Caryn Sands, the Pathologist; and the statements of Vanessa Cooper and Bradley Williamson were admitted by the trial judge under section 66 of the Evidence Act. Vanessa Cooper and Bradley Williamson were located before the trial was completed but after their statements had been admitted. However, they were not called to give evidence at the trial.
. At the end of closing submissions by the parties but before the learned judge commenced her summation the jury requested an opportunity to visit the locus. The trial judge acceded to that request but refused the request by Counsel for the appellant to allow Vanessa Cooper and Bradley Williamson to be present at the visit to the locus.
. At the close of the summation the jury retired to consider their verdict and after two hours returned with a “verdict” of guilty of murder 11–1. The judge directed them that she could not accept that as a verdict and advised them that if they could not agree on a murder charge they should consider manslaughter. The jury retired again and returned with a verdict of not guilty of murder 12–0 and guilty of manslaughter 12–0.
. The appellant filed his Notice of Appeal herein on 20 December 2017 which was later amended on 19 November 2019. The Notice contained 13 grounds which are set out as follows:
“1. The Learned Trial Judge erred in law when she allowed the statement of Vanessa Cooper to be wrongly read in evidence when the requirements of section 66(2)(c) of the Evidence Act had not been satisfied in that all reasonable steps had been taken to find her.
2. The Learned Trial Judge erred in law when she allowed the statement of Bradley Williamson to be wrongly read in evidence when the requirements of section 66(2)(c) of the Evidence Act had not been satisfied in that all reasonable steps had been taken to find him.
3. The Learned Trial Judge erred in law when she allowed the prosecution to recall Sgt. Marco Smith to give evidence after the close of the voir dire after satisfying herself that the prosecution had not established that all reasonable steps had been taken to find the witness Vanessa Cooper.
4. The Learned Trial Judge erred in law when she allowed the Jurors to ask questions of the Appellant at the locus beyond seeking clarification.
5. The Learned Trial Judge erred in law when she failed to rule that there should be a mistrial on the bases that the Jurors were allowed to question at large the Appellant at the locus.
6. The Learned Trial Judge erred in law when she failed to allow the witness (sic) Vanessa Cooper and Bradley Williamson to be present at the locus but, permitted D/Sgt. Dwayne Lloyd to be present when he was not requested by the jury, defence or prosecution.
7. The Learned Trial Judge erred in law when she ruled that the Appellant had a case to answer.
8. The Learned Trial Judge erred in law when she failed to adequately put the defence of the Appellant to the jury.
9. The Learned Trial Judge erred in law when she gave a Lucas Direction to the Jury which created the impression that the Appellant had lied and had a burden to prove his innocence.
10. The Learned Trial Judge erred in law when she stated that Insp. Davis made no mention of damage to the front windshield of the car in his evidence as there was an observation at the locus that the front windshield of the car was damaged.
11. The Learned Trial Judge erred in law when she affirmatively told the Jury that they should try to come to a unanimous verdict on murder.
12. The Learned Trial Judge erred in law when she directed the Jury to consider the verdict of manslaughter when they were not able to agree on a verdict of murder.
13. The verdict is unsafe and unsatisfactory having regard to the circumstances of the...
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