COMMONWEALTH of the BAHAMAS in the COURT of APPEAL Sccrapp

COMMONWEALTH OF THE BAHAMAS IN THE COURT OF APPEAL SCCrApp. No. 79 of 2015 B E T W E E N VALENTINO BETHEL Intended Appellant AND REGINA Intended Respondent BEFORE: The Honourable Dame Anita Allen, P The Honourable Mr. Justice Isaacs, JA The Honourable Ms. Justice Crane-Scott, JA APPEARANCES: Christina Galanos, Counsel for the Appellant Mr. Terry Archer, Counsel for the Respondent DATES: 29 October, 2015; 8 May 2016; 8 June 2016; 20 June 2016; 29 June 2016; 24 October 2017; 28 November 2017; 14 December 2017 *************************************** Criminal appeal – Extension of time – Length of delay – Reasons for delay – Prospects of success – Prejudice to the respondent - Murder – Armed robbery – Conspiracy to commit armed robbery – DNA – Lurking doubt The intended appellant was sentenced on 22 January 2015 to 40 years’ imprisonment on his conviction for murder; 25 years’ imprisonment for his conviction of armed robbery; and 15 years’ imprisonment for his conviction of conspiracy to commit armed robbery. He now applies for an extension of time within which to appeal those convictions. His application was filed on 1 April 2015 and supported by an affidavit filed over two years later on 21 November 2017. Held: application refused; convictions and sentences affirmed. When considering whether an extension of time ought to be granted four factors are to be considered; namely, the length of the delay, the reasons for the delay, the prospects of success of the appeal and any prejudice which the intended respondent may suffer. In the present case, more than two years elapsed before the intended appellant put himself in the position to move his application for leave; and no explanation is made for that period of delay. The delay and insufficiency of reasons for the delay notwithstanding, an application for the extension of time may still be granted if the prospects of success are good, and the extension of time does not prejudice the respondent. With respect to the intended appellant’s prospects of success: there is evidence from which the jury could reasonably have inferred that the intended appellant was in fact present, and participated in, and lent his support to the actions of the co accused who shot the deceased and shared the intention of the shooter to kill the deceased. Indeed, in his police report of interview he puts himself at Deadman’s Reef at the time of the incident; and his sworn explanation to the jury as to why he was there was obviously rejected by the jury as untrue, and was a ruse to explain the presence of his car near the scene of the incident. Moreover, the missing front licence plate and licence disc raises a reasonable and strong inference that they had been deliberately removed as a part of the plan to prevent the immediate identification of the vehicle the men intended to use in the enterprise. Inexorably, the evidence that the headrest of the intended appellant’s car contained blood from the deceased, strongly suggests that the intended appellant came into contact with him at the time of the shooting. Further, the brush stain of the deceased’s blood on the shirt the intended appellant was wearing at the time his arrest less than an hour after the shooting, also raises a strong inference that he was present and actively taking part in the incident when the deceased was shot. Indeed there is evidence that the deceased’s pockets where his wife said she had seen him put the gold were turned inside out might well be one explanation for the brushed blood on his shirt as a result of contact with the deceased’s body. Further, the finding of his DNA on a grey tam converted into a mask, and on a black shirt found 20 feet away from the car is another piece of cogent evidence strongly pointing to his active participation in the robbery and the murder. Indeed, the jury had the advantage of hearing all of the witnesses, and of observing their demeanour and were entitled to accept the evidence they felt was truthful, and reject that which they did not believe. The test to determine whether a verdict is unsafe or unsatisfactory is whether the overall feel of the case leaves the court with a lurking doubt that an injustice may have been done. None of the appellant’s grounds challenge the directions of the learned judge to the jury; and from a review of his directions, there is no basis for doing so. The intended appeal has no prospect of success and therefore the application for leave to extend the time within which to appeal is refused and the convictions and sentences stand. R v Cooper [1969] 1 QB 267 applied 2 J U D G M E N T Judgment delivered by the Hon. Justice Dame Anita Allen, P: 1. This is an application by the intended appellant for an extension of time within which to appeal his convictions for murder, armed robbery, and conspiracy to commit armed robbery following his trial by jury before Mr. Justice Hartman Longley (as he then was). His application was filed on 1 April 2015 and supported by an affidavit filed over two years later on 21 November 2017. 2. The intended appellant was sentenced by the learned judge on 22 January 2015 to 40 years’ imprisonment on the conviction for murder; 25 years’ imprisonment for conviction of armed robbery; and 15 years’ imprisonment for conviction of conspiracy to commit armed robbery. 3. His appeal ought properly to have been filed in the Court of Appeal within 21 days of the imposition of the sentences, namely, by 12 February 2015; but the intended appellant complains in his affidavit that, notwithstanding his having handed in his forms to the prison in time, namely, on 5 February 2015, he could give no explanation for why the forms had not been filed in the Court of Appeal. 4. As previously noted, more than two years, however, elapsed before the intended appellant put himself in the position to move his application for leave; and no explanation is made for that period of delay either. 5. The delay and insufficiency of reasons for the delay notwithstanding, an application for the extension of time may still be granted if the prospects of success are good, and the extension of time does not prejudice the respondent. 6. As to the prospects of success, the intended appellant asserts that the evidence adduced by the prosecution in the Supreme Court was wholly circumstantial; and sets out the following grounds on which he intends to rely if leave is granted: “1. The verdict is unreasonable or cannot be supported by the evidence; 2. The Learned trial Judge erred in law when he found the Appellant had a case to answer; 3. The Learned Trial Judge erred when he acceded to the Crown’s application to allow the statements of Marissa Roe into evidence pursuant to section 66 of the Evidence Act; 3 4. That under all the circumstances of the case, the verdict is unsafe or unsatisfactory; 5. The Appellant did not receive a fair trial.” 7. The evidence adduced by the prosecution was that on 19 January 2013, the deceased and his wife arrived home in their truck at Deadman’s Reef, Freeport, Grand Bahama, and exited the truck to make their way into their residence. As they were about to enter the residence, a masked gunman approached from the western side of the residence and ordered the deceased to get down. The deceased complied, but his wife fled to the neighbour’s house leaving her husband on the ground. As she fled, she heard sounds like two gunshots about a minute apart. 8. The police were contacted, and upon their arrival on the scene, they found the lifeless body of the deceased sitting in the driver’s seat of the truck with an apparent gunshot wound to the left chest; and his back pockets were turned inside out. The deceased’s wife noted that the gunman had worn a jacket with a hoody. She further described him as thin, and between 5 feet 4 and 5 feet 5 inches tall. 9. The deceased and his wife operated cash for gold stores, and the deceased’s wife testified that Shawn Collie, one of the intended appellant’s co-accused was their last customer on the day of the incident; he had come to sell a gold chain and a charm. She testified that he frequented their stores and she knew him as he spent considerable time in the stores. She further testified that when she and her husband left the store that evening, her husband had the gold he had bought that day in his back pocket. 10. On the same night as the shooting, the police received a call from one Johnny Dixon, who also resides in Deadman’s Reef. He reported to the police that the intended appellant, who he did not know at the time, banged on his front door and when he opened the door, the intended appellant told him that someone was shooting at him. He further told the police that he let the intended appellant in to await their arrival. When the police arrived a half hour later, the police cautioned and arrested the intended appellant, who told the police he only ran because they were shooting at him, that he came from his brethren Fish Boy. 11. The police transported the intended appellant from Johnny Dixon’s house, and while en route to the police station, the intended appellant allegedly told them that he had left his vehicle in the area but did not know where exactly.

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