COMMONWEALTH OF THE BAHAMAS IN THE COURT OF APPEAL SCCrApp No. 182 of 2010 BETWEEN: LEROY ROLLE Appellant AND THE ATTORNEY GENERAL Respondent BEFORE: The Hon. Mr. Justice, Blackman, JA The Hon. Mr. Justice John, JA The Hon. Mr. Justice Conteh, JA APPEARANCES: Mr. Geoffrey Farquharson, Counsel for the Appellant, Mr. Franklyn K. M. Williams, with Ms. Desiree Ferguson, Counsel for the Respondent DATE: 12th July 2011, 16th April 2012, 8th May 2012 ___________________________________________ JUDGMENT DELIVERED BY THE HON. JUSTICE JOHN, JA 1. On the 13 day of September 2010 before Snr. Justice Anita Allen (as she then was) and a jury the appellant and Makisha Brown (Makisha) were convicted of manslaughter following a trial for murder as a result of the death of Levano Brown (Levano) a 22 month old infant and Makisha’s daughter. The appellant was sentenced to a term of 25 years imprisonment and Makisha to 15 years imprisonment. 2. We heard the appellant’s appeal on 12 July 2011. At the conclusion of the hearing we reserved our decision to await the hearing and determination of Makisha’s appeal. Her appeal was heard and determined on 19 October 2011 when we allowed the appeal. At that hearing the Director of Public Prosecutions appeared on behalf of the Crown and very candidly admitted that after careful and mature deliberation she was satisfied that there was insufficient evidence to proffer a charge of murder against Makisha. At the close of the case for the prosecution a submission of ‘no case to answer’ was made on behalf of Makisha. The trial judge overruled the submission. The Director of Public Prosecutions in response to a question from the Bench conceded that she could not support the trial judge’s rejection of the ‘no case submission’ and agreed that the appeal should be allowed. As a consequence this judgment is concerned with the appellant only. 3. At the conclusion of the appellant’s appeal on July 12 the court invited the Attorneys to submit further skeleton arguments on the issue whether the evidence disclosed that the acts of the appellant were responsible for the death of Levano, that is to say, whether the admitted acts of violence upon Levano by the appellant were sufficient to be the substantial cause of death. That issue is addressed later on in the judgment. 4. It is a tragic case. The appellant then age seventeen was involved in an intimate relationship with Makisha who was 22 years of age and shared an apartment with her. He was not the father of Levano. Shortly after 5:00 pm on 16 March 2007 the appellant and Makisha took Levano to Skoorb’s Medical Centre which is situated opposite to where they lived. The appellant told the Doctor that Levano’s heart was 2 beating but he was not breathing. Dr. Maurice Brooks examined Levano who had a very faint heartbeat and was not breathing. Dr. Brooks asked Makisha what had happened to him and she said that he had a fever two days before, the fever broke, but the daddy (a reference to the appellant) beat him with a belt. The appellant admitted to Dr. Brooks that he did beat Levano with a belt. At the time of Dr. Brooks’ examination there were bruises on Levano’s chest, abdomen, leg and a mark on the forehead. Dr. Brooks summoned an ambulance and Levano was dispatched to the Princess Margaret Hospital. 5. Dr. John Neely together with a team of Pediatric Doctors attended Levano on admission to the Accident and Emergency Department. Dr. Neely said that Levano appeared to suffer from trauma. He was admitted to the I.C.U. where he subsequently succumbed to his injuries. An autopsy was performed by Dr. Caryn Sands who found that death was due to blunt force injuries to the head, torso and extremities. 6. Police Sergeant Wilson spoke to the appellant and Makisha at the hospital and the appellant told him that earlier that day he had beaten the child with a belt to the chest area. Sergeant Wilson arrested both the appellant and Makisha and took them to the Central Detective Unit. Woman Police Sergeant Brown interviewed the appellant at the Criminal Detective Unit and conducted a record of interview with him. She also recorded a statement from him. Counsel for the appellant objected to the statement and the record of interview being admitted into evidence on the ground of oppression. After conducting a voir dire the trial judge admitted both the written statement and the record of interview into evidence. 7. The appellant gave evidence on his own behalf. He denied causing any injury to Levano. He denied giving any statement to the Police and said he was forced to sign the document. His brother William Rolle also gave evidence on his behalf. Three Grounds of appeal were filed on behalf of the appellant. 3 8. Ground – 1 The Committal ought to have been quashed In support of this ground Counsel submitted that at the time of his arrest the appellant was a juvenile (17 years of age) and he was interviewed without an adult or attorney present. He further submitted that although the appellant admitted in the statement to having beaten Levano with a belt across his chest the medical evidence did not support the case for the prosecution that those injuries caused the death of the infant. 9. It is of some interest that at the commencement of the trial no application was made to quash the indictment nor was any application made to judicially review the finding of the magistrate that a prima facie case had been made out against the appellant. It was clearly open to the appellant to seek an Order for Judicial Review. The decision of the House of Lords in R v Bedwellty Justices, Ex p. Williams [1977] A.C. 225 is authority for that proposition. We therefore hold that it is not now open to the appellant to raise that issue on appeal. Accordingly this ground of appeal is unmeritorious. 10. Ground – 2 Failure to afford the Appellant Legal Representation On this issue the evidence is quite clear. The transcript shows that when the matter was called the appellant indicated to the court that he needed legal representation. The trial judge told him that on a previous occasion he had indicated to the court that he wished to represent himself. She then told him that it was not possible to have counsel that day and he said that he would represent himself. 11. He was placed in the charge of the jury and the matter was adjourned to the following day when the matter was yet adjourned at the request of the Prosecution to the next day when counsel in the person of Mr. McPhee appeared for the appellant. The matter was further adjourned to facilitate Mr. McPhee. At page 16 of the transcript the trial judge told the jury: 4 “Mr. Foreman and members of the jury, you recall yesterday I asked Mr. Rolle, because I had indicated he had wished to represent himself, which is his right, and I asked him again yesterday and he indicated firstly to me that if counsel could be assigned for him, he would prefer that, but he was willing to go on and represent himself. When I went back into chambers, I thought it would be in the best interest of justice that he be assigned counsel and so I asked the Registrar to get counsel for him and Mr. McPhee kindly, at very short notice, has agreed to represent him. I think it is in the best interest of justice that he is represented in such a matter. I beg your indulgence. As you have seen from coming here, justice grinds very slowly so I ask for your patience.” In light of the above we find no merit in this ground of appeal. 12. Ground – 3 The judge misdirected herself in law in admitting the written statement having regard to Rolle’s age at the time and his brother who witnessed the statement was not a competent person within the meaning of the judges’ Rules. 13. According to Sergeant Brown who interviewed the appellant, he told her he was eighteen years of age. However, shortly after the interview began, William Rolle, the appellant’s brother, came to the Central Police Station and brought the appellant’s passport which showed his date of birth. William Rolle’s presence at the police station was explained by Sergeant Brown in this way: She said under cross- examination by Mr. McPhee that she asked the appellant if he wanted somebody to be present during the interview and at that stage he told her that he was seventeen years old. In an attempt to verify his age Sergeant Brown said she called his brother 5 and asked him to attend at the station and bring along some form of identification for the appellant. 14. A ‘voir dire’ was held to determine the admissibility of the statement. The appellant gave evidence in which he denied giving the statement. On the contrary, he said he was beaten by Police Officers and forced to sign the statement. He further said that he never told the police he was eighteen years old. He maintained that at the time he was seventeen years of age and that is what he told the police. He also said that when the police took him to his home they retrieved his passport from a drawer in his room and that was prior to the recording of the statement.