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

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;

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. The police collected his clothing which he wore at the time of his arrest, and took a blood sample from him; and collected his car keys.

12. While processing the scene of the crime later that evening, the police located the intended appellant’s vehicle which was locked and had been parked through a service road, approximately a quarter of a mile from the deceased’s residence. Inside the vehicle which the police unlocked by using the intended appellant’s key, they found, among other things, his passport, and suspected blood on the headrest of the driver’s seat. They also observed that the front licence plate and the car’s licence disc were missing from the car. The following day police also found, in the vicinity of the car, a black t-shirt, and some 20 feet away from the car, a grey tam with eye holes cut out.

13. A sample of the suspected blood from the headrest, and the items collected outside the car were submitted for DNA analysis, which confirmed the presence of blood on the headrest of the driver’s seat, and concluded that it matched the blood of the deceased. The deceased’s blood was also found on the intended appellant’s white shirt which he had been wearing at the time he was arrested. Moreover, the evidence showed that the DNA of the intended appellant was found on the black t-shirt and the grey tam. Inspector Sheria King, a forensic scientist, described the blood stain on the white shirt of the intended appellant as being larger than a quarter in size, and was in the nature of a brush pass, namely her view was that it was transferred by touch as opposed to it being splattered by force.

14. A confrontation was conducted between the intended appellant and Rico Stuart also known as ‘Fish Boy’, who maintained he did not know the intended appellant had been to his house on many occasions, and had his telephone number. He said he knew of no plan for the intended appellant to visit him on the night in question.

15. The prosecution’s case continued with the evidence of Omar Rolle, one of the prosecution’s key witnesses. He testified that a few weeks before he was contacted by Shawn Collie, his cousin and the intended appellant’s co-accused, who invited him to a meeting to be held at Burger King in the downtown area of Freeport to put things together for a job which he identified as relating to the cash for gold proprietor, the deceased. Omar testified that he told Shawn Collie that he needed a gun because he was not going to do no job unarmed.

16. Omar Rolle said he accepted Shawn Collie’s invitation and upon his arrival at Burger King on the day agreed, he met Shawn Collie, the intended appellant, and Natario and Harrison Walkins. At the meeting, Shawn Collie told Omar Rolle in the presence of the intended appellant and the others, that he had sold some gold to the deceased who had two residences, one uptown and the other in the Rocks which he wanted back. He also told them that when they hold up the deceased and his wife, they were to bring him all the gold and they could keep the money for themselves. He allegedly warned them not to hurt the woman; and repeated his instructions to kidnap both of them, but not to hurt the woman. Omar Rolle said he interpreted that instruction to mean, “do what you want with the man”. Further, Omar Rolle testified that he reported the plan to the deceased and to the police prior to the incident.

17. The other evidence against the intended appellant included a police record of interview, in which he placed himself in Deadman’s Reef at the time of the incident. His explanation was that his car shut down on him when he went there to see Fish Boy and could not find his house; and after hearing shots, he went to Johnny Dixon’s house, who called the police. He maintained he thought someone was firing at him.

18. Also before the jury on behalf of the prosecution was the DNA analyst report which was admitted into evidence through Michelle Tracy Johnson, formerly employed at Fairfax Identities Laboratory, under section 66 of the Evidence Act. The learned trial judge at page 473 of the transcript found there would be no prejudice to the intended appellant, nor unfairness resulting from the admission of the DNA results in the absence of Marissa Roe, the DNA analyst who did the testing and prepared the report.

19. The prosecution’s case against the intended appellant was not that he was the shooter, but that he was concerned together with the shooter who they allege was Natario Walkins.

20. At the end of the prosecution’s case, a no case submission was made on behalf of the intended appellant. The learned judge at page 575 of the transcript, did not accede to the submission, and the intended appellant was called upon to answer.

21. In his defence, the intended appellant gave evidence on oath. He admitted he was in Deadman’s Reef on the evening of 19 January 2013, but said that he was there to visit a friend Rico Stuart, aka Fish Boy who had asked him previously to cut up some cars for him. He explained that he did not know the area well, as he had only been there on two previous occasions, as he usually dropped Rico on the corner when he dropped him home. He said however on the night in question when he turned through the corner trying to find Rico’s house, his car cut off and would not restart. He described the area as bushy, with unpaved roads and no streetlights; and further intimated he was unable to contact Rico because he had no minutes. He recounted that he got out of his car with his keys and cellphone, and as he was walking, he heard gunshots and he was afraid as he knew that his girlfriend’s ex-boyfriend had a vibe with him, and he thought someone was shooting at him.

22. He said further that he ran away while dialing 911, and ended up at Johnny Dixon’s house; was arrested there and transported to the police station at Eight Mile Rock. He alleged that while in police custody, Sgt Johnson beat him; and another officer put an evidence bag over his head. The intended appellant also accused Sgt. Johnson of planting the blood on the headrest, and his DNA on the tam.

23. The intended appellant also denied knowing Omar Rolle, or any of the other men with whom he was accused. He denied meeting with them at Burger King; denied knowing the victim; denied driving to Deadman’s Reef with Natario and Harrison Walkins; denied wearing a black shirt on the night in question; denied parking his car in the area of the deceased’s residence; denied knowing anything about the robbery or the shooting; and denied he was the look-out for his co- accused.

24. It was suggested to the prosecution’s witnesses by the defence, that the DNA evidence was possibly contaminated as the police moved from the scene to the car collecting samples while not wearing a special suit, booties and not changing gloves. This was met by the evidence of Criminal records officer Shemeko Arthur, who testified that he wore a tilex suit, footies and gloves when examining the scene around the truck where the body was found, and that he changed these when he examined the car and the area around it.

25. Under ground 1 of the intended grounds, Counsel for the intended appellant asserted that the verdicts for murder and armed robbery cannot stand as there is no evidence that the intended appellant was concerned together with the others in committing the said offences; in ground 2 she complains that the learned judge erred in finding the intended appellant had a case to answer; and in ground 3, the verdict is challenged on the basis that it is unsafe or unsatisfactory.

26. Grounds 1 and 2 may be merged; and in this regard, the intended appellant relies heavily on the evidence of Ryan Pinder at page 302 of the transcript, that one of the intended appellant’s cohorts, namely, Natario Walkins confessed to him that he decided to shoot the deceased because he saw the deceased looking at the intended appellant who did not wear a mask, and decided to shoot him because he could not take the chance; in other words, that he could not take the chance of the deceased recognizing the intended appellant.

27. In this vein, Counsel’s argument is that Natario Walkins decided to shoot the deceased on an impulsive, spur of the moment, rash decision and there was no evidence that the intended appellant shared that intention common with Natario Walkins to shoot and kill the deceased. Counsel also asserted that there was in fact no evidence that the intended appellant even agreed to act together with others in furtherance of the commission of armed robbery.

28. In the first place, there is ample evidence from a participant in the meeting, Omar Rolle, that the intended appellant was present at the meeting at Burger King and had been a part of the planning to kidnap, and rob the deceased and his wife. There was evidence from the reported words of Shawn Collie from which the jury could reasonably have inferred the common intention of all of the participants that a weapon was to be used to facilitate the armed robbery of the gold and money from the deceased and his wife, and the intention to use such force against the man as was necessary to achieve their purpose.

29. This was implicit from what they were directed to do, and obviously agreed that they should not hurt the woman. Moreover, there is evidence from which the jury could reasonably have inferred that he 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.

30. 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 that he was there because he was looking for Fish Boy and his car broke down and he ended up at Johnny Dixon’s house because he was shot at by someone he believed had previously dated his girlfriend, 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.

31. 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.

32. 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 at Johnny Dixon’s house 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.

33. 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.

34. As to the evidence of Ryan Pinder, and Counsel’s submission that Natario Walkins went beyond the plan and shot and killed the deceased, that was a question of fact for the jury to be considered in light of all of the evidence described above which strongly suggests he was concerned together with Natario Walkins and others in the commission of the armed robbery and the murder.

35. That evidence was before the jury, they 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.

36. The jury, following the directions of the judge, must have found that the men, including the intended appellant, combined to effect the common purpose of robbing the deceased and his wife, and of doing whatever was necessary to achieve that purpose extending even to killing.

37. In the premises, and for all of the above reasons, I am satisfied that the applicant’s chances of success on appeal on grounds 1 and 2 are slim.

38. In the intended ground 3, the intended appellant complains that the learned judge erred when he acceded to the Crown’s application to admit Marissa Roe’s report pursuant to section 66 of the Evidence Act.

39. The application was made by the prosecution pursuant to section 66 (1) and (2)(a)(ii) of the Evidence Act, to be allowed to adduce the DNA analysis report compiled by Marisa Roe who could not be contacted. The learned judge held a voir dire in which Michelle Johnson and Erica Kemp were called to give evidence of the efforts made to secure Marisa Roe’s attendance to give evidence.

40. It emerged from the voir dire that neither Marisa Roe, who performed the DNA analysis under the supervision of Michelle Johnson, nor Michelle Johnson was, at the time of trial, employed with the DNA laboratory hired by the Government of The Bahamas to conduct DNA analyses on its behalf as that laboratory has since closed its doors. That notwithstanding, the laboratory is under a duty to the Government of The Bahamas to produce the reports, and to give that DNA evidence in court in relation to the matters for which they were engaged.

41. Section 22 of the Evidence Act (the Act) provides:

“Where the court has to form an opinion on the identity or genuineness of handwriting, or upon a point of foreign law, or of science, art, trade, manufacture or any other subject requiring special skill or knowledge, evidence may be given of the opinion of persons who in the opinion of the court are

experts in such subjects and of any facts which support or are inconsistent with such opinions”.

42. Section 66 of the Act provides:

“Subject to section 67 a statement in a document shall be admissible in any criminal proceedings as evidence of any fact stated therein of which direct oral evidence would be admissible if-

(a) the document is or forms part of a record compiled by a person acting under a duty from information supplied by a person (whether acting under a duty or not) who had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with in that information; and

(b) any condition relating to the person who supplied the information which is specified in subsection (2) is satisfied.”

43. In the premises, I am again satisfied that on this ground the applicant’s prospect of success is slim.

44. After a lengthy voir dire, the learned judge acceded to the application and allowed the evidence to be given by Michelle Johnson, who, having satisfied the learned judge of her qualifications and experience was declared a DNA analyst, and was allowed to give opinion evidence. Indeed, she was qualified in her own right to give the evidence. Apart from her qualifications, she supervised the testing and the production of the report by Marissa Roe.

45. As to ground 4 that the verdict is unsafe or unsatisfactory, the test is whether the overall feel of the case leaves the court with a lurking doubt that an injustice may have been done. This dictum by Lord Widgery CJ in R v Cooper [1969] 1 QB 267, continues to provide guidance in this regard; and the following is excerpted from page 271 of his judgment:

“This is a case in which every issue was before the jury and in which the jury was properly instructed, and, accordingly, a case in which this court will be very reluctant to intervene. It has been said over and over again through the years that that this court must recognize the advantage which a jury has in seeing and hearing the witnesses, and if all the material was before the jury and the summing up was impeccable, this court should not lightly interfere.”

46. Suffice it to say that 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.

47. In the premises, I see no prospect of success of the intended appeal on any of the grounds, and I would therefore refuse the application for an extension of time within which to appeal; and the convictions and sentences stand.

______The Honourable Dame Anita Allen, P

48. I agree.

______The Honourable Mr. Justice Isaacs, JA

49. I also agree. ______The Honourable Ms. Justice Crane-Scott, JA