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COMMONWEALTH OF THE BAHAMAS
IN THE COURT OF APPEAL
SCCrApp. No. 43 of 2014
B E T W E E N
RASHID DEAN
Appellant
AND
REGINA
Respondent
BEFORE: The Honourable Mr. Justice Isaacs, JA
The Honourable Ms. Justice Crane-Scott, JA
The Honourable Mr. Justice Jones, JA
APPEARANCES: Mr. Murrio Ducille, Counsel for the Appellant
Ms. Stephanie Pintard with Ms. Maria Zancolla-Willie, Counsel
for the Respondent
DATES: 7 June 2017; 18 September 2017; 6 November 2017; 19 February 2018
*************************************
Criminal appeal – Murder – Unsigned record of interview – Memory refreshing - Motive –
Questions by the judge or jury – Admission of a document – Whether jurors aware of the judge’s
decision on the voir dire – Putting defendant’s case properly before the jury - Whether sentence
unduly harsh
On the 14th
August, 2011 Oneika Johnson, a security officer, was found murdered in the security
booth at the Club Med Resort on San Salvador. Five days later her ex-boyfriend, the appellant,
was arrested and later charged with the offence. The prosecution relied on, inter alia, an unsigned
record of interview and the testimony of Johnson’s sister (tendered to provide a motive for the
killing).
Held: appeal dismissed; conviction and sentence affirmed.
There is no necessity for the Crown to prove a motive for the commission of an offence; but if
one is available, they are permitted to lead evidence of such motive. This must be accomplished,
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however, within the rules governing the production of evidence, to wit, the evidence is not
hearsay and it is relevant.
Relative to the questions put by the jury, as the triers of the facts jurors must be clear in their
minds what those facts are. Hence, they must be allowed to clear up any matters upon which they
will be called upon to deliberate. The only qualification is that the questions must be relevant and
admissible. The further condition for such questioning is that the proposed questions must be
screened by the trial judge to ensure compliance with the aforementioned qualifications. The
interventions of the judge were within the bounds of propriety. They did not sap the force of the
appellant's defence nor were they suggestive of his guilt. Further, they did not breach the
injunction that judges are not to stray into the arena.
With respect to the unsigned record of interview, it was for the judge having seen and heard the
witnesses to determine who to believe and what to believe. It was entirely open for the judge to
accept the evidence of the prosecution witnesses to find that the injuries to the appellant had
come about as a result of a fall and not at the hands of the police. Hence, an explanation for the
injuries had been given. It was for the judge having seen and heard the witnesses to determine
who to believe and what to believe. It was also open to the judge to conclude that there were no
circumstances during the taking of the record of interview which had an adverse effect on the
fairness of the trial.
Regarding the publication in the news media following the void dire that there was “no acquittal
for murder accused”, the Court found that there was no great prejudice occurred as the report
appeared in one newspaper only and on one broadcast channel; and the publicity was not
sustained nor pervasive. Further, the judge had quizzed the jurors on whether they read or heard
the offending reports and all had said they had not. In any event, in her summing up the judge
directed the jury to disregard anything they may have heard on the radio or read in the
newspaper.
The evidence led through various witnesses disclosed a short compass of time within which
Johnson came to meet her demise and that the appellant was in the vicinity of the security booth
at the material time. The cumulative effect of the prosecution’s circumstantial evidence provided
an irresistible inference that the appellant had inflicted the mortal wound to Johnson and the jury
was entitled to so find.
There was no error of principle disclosed on the record in the judge's sentencing remarks nor was
the sentence imposed by her on the appellant unduly harsh and excessive.
Bethel v R SCCrApp. No. 19 of 2013 applied
Bowe and Davis v R [2006] UKPC 10 mentioned
Callis v Gunn [1964] 1 QB 64 mentioned
Crossdale (Rupert) v R (1995) 46 WIR 278 applied
Dookee v DPP [2010] SCJ 71 considered
Donnason Knights v The Crown [1998] 53 WIR 125 mentioned
Karchav v The Commisioner of Police MCCrApp & CAIS No. 56 of 2015 applied
Larry Raymond Jones, et al v R, SCCrApp. Nos. 12, 18 and 19 of 2007 applied
3
Mitchell (David) v R (1998) 52 WIR 25 considered
R v Gumbs (1927) 19 Cr. App Rep 74 applied
R v Iqubal 1991 WLR 766 mentioned
R v Newry SCCrApp. No. 15 of 2002
R v Priestly (1965) 51 Cr. App. R. 1 considered
R v Sealy, [2016] CCJ 1 (AJ); [2017] 1 LRC 1 considered
R v Spencer [1987] 1 AC 128 mentioned
Randall v R [20021 5 L.R.C. 678 considered
Raymond Moss, Liston Gaitor and Sheldon Alleyne v R, Criminal Appeal Nos. 19, 20 and 21 of
1999 considered
Ronald George Simons and Robert G. Green v The Queen [2006] UKPC 19 mentioned
Samaroo and Ezaz v R [1953] LRBG 149 applied
Shazam Ibrahim and Surendranauth Chattergoon (1999) 58 WIR 258 mentioned
Steven Mott and Stephenson McKenzie v The Attorney General SCCrApp. Nos. 45 & 47 of 1995
distinguished
Terrell Mingo Stubbs v R SCCrApp. No. 31 of 1997 applied
J U D G M E N T
______________________________________________________________________________
Judgment delivered by the Honourable Mr. Justice Isaacs, JA:
1. The appellant was convicted of the murder of Oneika Johnson (“Oneika”) on the 11th
December, 2013. On the 26th
February, 2014, he was sentenced by Madam Justice Indra
Charles (“the judge”) to forty-one years’ imprisonment at hard labor.
2. On the 6th
November, 2017 we heard his appeal against his conviction and sentence; and
reserved our decision. We render it now.
Facts
3. On the 14th August, 2011, at about 7:00 a.m., Oneika reported to work at the Club Med
Resort on San Salvador where she worked as a Security officer. While at work she was
seen by other staff members on the property making checks of the property on a bicycle
as she normally did. Sometime after 9:00a.m., she spoke with Mr. Everette Jackson, the
owner of the Security Company for whom she worked. He had come to check on her.
Shortly thereafter she was discovered dead by an employee, Dessario Walker, who was
passing the security booth.
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4. Peter Butler, a co-worker from the Laundry Department received information which
caused him to go to the security booth; there he saw the deceased lying on the ground. He
thought she had fainted so he tried to get in to assist her but the door was locked. He
smashed a side glass window and cut his hand on the broken window in the process. He
had to attend a doctor for his injuries. The police came and were able to enter the booth
where they found Oneika with blood on her. A doctor came later and pronounced Oneika
dead. She had received sixteen (16) stab wounds to the body.
5. On the 19th
August, 2011, at the San Salvador Police Station, P.C. Cooper arrested the
appellant for the murder of Oneika. He was later charged for the offence. His trial
commenced on the 18th
November, 2013, before the judge and a jury in the Supreme
Court. The appellant was convicted of Oneika’s murder on the 14th
September, 2011.
Grounds of Appeal
6. The appellant’s grounds of appeal were as follows:
“1.The Learned Trial Judge erred in law when she allowed
prejudicial evidence to be given by the witness Janice Storr
about conversation with the Appellant.
2. The Learned Trial Judge erred in law when she allowed the
purported consent form of the Appellant although it was not
an exhibit.
3. The Learned Trial Judge erred in law when she admitted the
report of Detective Sergeant James Colebrooke in evidence
when it did not fall under any of the exceptions of the hearsay
rule.
4. The Learned Trial Judge erred in law when she allowed the
Jury to ask questions as if they were a part of the prosecution’s
team.
5. The Learned Trial Judge erred in law in admitting the
Record of Interview in evidence.
6. The Learned Trial Judge erred in law when she allowed the
witness Ruthmae Brown to give evidence of items from
Detective Sergeant James Colebrooke which was inadmissible.
7. The Learned Trial Judge erred in law when she allowed
photographs taken of a van by Detective Sergeant James
Colebrooke to be exhibited before the Jury as there was no
5
evidence to connect the van to the case. This was highly
prejudicial.
8. The Learned Trial Judge erred in law when she ruled that
the abolition of the unsworn statement from the dock was
constitutional.
9. The Learned Trial Judge erred in law when she ruled that
the reversal in the order of speeches was constitutional.
10. The Learned Trial Judge erred in law when she failed to
order a mistrial notwithstanding the fact that both the
electronic and written media had reported that the Judge had
ruled that the Appellant had a case to answer and the caption
read “no acquittal for murder accused.”
11. The Learned Trial Judge erred in law when she failed to
adequately and fairly put the defence to the jury.
12. The Learned Trial Judge erred in law when she allowed
herself to assume the role of an advocate in asking questions.
13. The verdict is unreasonable and cannot be supported
having regard to the evidence.
14. The verdict is unsafe and unsatisfactory having regard to
the circumstances of the case.
15. The sentence is manifestly harsh and excessive.”
7. Mr. Ducille abandoned grounds 2, 3, 8 and 9 which explains the numbering that appears
below.
Ground 1
8. The witness, Janice Storr, was permitted by the judge to give evidence of a conversation
the appellant had with his cousin and the deceased at the home she shared with the
deceased who was her sister, and another sister. Miss Storr was present for a part of the
conversation before going into another room. However, even while in the other room she
could hear the conversation as she readied herself for work; and even as she was leaving,
she added her view to the conversation. She told of returning home about eleven o'clock
and encountering the appellant who told her he had Justin's cell phone. Justin was a co-
worker of the deceased with whom the appellant thought she had a relationship. The
appellant asked to come into the home. Miss Storr was reluctant to let him in and he
6
managed to gain entry to her home without admitting him; but said she could hear the
appellant on the outside for some time before he eventually left.
9. Miss Storr testified that in her conversation with the appellant he said that someone was
going to die. About two or three weeks later the deceased was found dead in a security
booth on the Club Med property.
10. The Crown appears to have tendered Miss Storr for the purpose of providing a motive for
the killing of the deceased, that is, jealousy. She told of the relationship the appellant and
the deceased shared which produced a child. She also told of the deceased breaking up
with the appellant so that at the time of the deceased's death the relationship had ceased.
11. There is no necessity for the Crown to prove a motive for the commission of an offence;
but if one is available, they are permitted to lead evidence of such motive. This must be
accomplished, however, within the rules governing the production of evidence, to wit, the
evidence is not hearsay and it is relevant.
12. There is no merit in this ground.
Grounds 2 and 3
13. These grounds were abandoned.
Ground 4 (re-numbered ground 2)
14. Mr. Ducille contended that the judge erred when she allowed the jury to ask questions as
they went beyond what was necessary for the purposes of clarification. Hence, the judge
fell afoul of the injunction laid down by this Court (differently constituted) in Terrell
Mingo Stubbs v R SCCrApp. No. 31 of 1997 where Carey, JA said at page 6:
“We desire to issue a reminder that in the adversarial system
which operates in common law jurisdictions, it is the advocates
who must in the discharge of their functions adduce all
relevant evidence to enable the tribunal of fact to adjudicate.
Where evidence is unclear or equivocal then, in the interests of
clarity, it is entirely proper for questions to be put in that
behalf by the Judge or by the Jurors. It is thus to that limited
extent that the Jury have the power to ask questions. Even
where a Jury might wish to ask questions to enable them to
form a reliable opinion, that is not allowable if the evidence is
inadmissible.”
7
15. Moreover, in Bethel v R SCCrApp. No. 19 of 2013, John, JA repeated the caution
against the jury taking too active a role in the questioning of witnesses; and at paragraph
36 said:
“While the Jurors can ask questions through the Foreman for
clarification and such questions are directed to the Trial Judge
such questions must be restricted to clearing up issues.”
16. Ms. Pintard for the Crown submitted that the judge did not err, and acted in accordance
with both the law and practice as she filtered admissible questions that were to be asked
of the witness or the accused. She argued that where evidence is unclear or equivocal,
and in the interest of clarity, it is proper for questions to be put by the judge or by the
jurors. In support of this proposition she relied on R v Newry SCCrApp. No. 15 of 2002.
17. In Newry, Ibrahim, JA said at paragraphs 29 and 30:
“29. But looking at the questions as a whole, some of the
questions were in favour of the appellant, some of the questions
elicited clarification, but none of the questions put by the jury
in the case indicated that the jury had assumed the guilt of the
appellant and sought to prove it by cross-examination of the
appellant himself. We note that after the appellant was
questioned by the foreman, counsel for the appellant was
permitted to re-examine him and he dealt fully with the
matters raised by the questions he asked.
30. Counsel for the respondent had agreed that the number
and kinds of questions asked ought not to have been permitted
by the learned judge, but even though the trial judge ought not
to have allowed all those questions to be asked, they did not
cross the boundary, if we may use that expression, to show that
the questioning was improper or repetitive and that the jury
had assumed guilt and sought to prove it by questioning the
accused and his witness as was stated in the Stubbs case.”
18. Despite his disapproval of questions being asked by the jury, Carey, JA in the case of
Terrell Mingo Stubbs resignedly accepted that:
“lt is now perhaps too late for this court to lay down a rule
forbidding this practice of inviting questions by the jury, but
we do think that if it is necessary to invite, questions, that those
questions should always be put through the trial judge.”
19. I do not understand Carey, JA to say that there is a total prohibition against jurors putting
questions to a witness; nor do I consider that such questions must be asked by the judge.
In my view, as the triers of the facts jurors must be clear in their minds what those facts
are. Hence, they must be allowed to clear up any matters upon which they will be called
8
upon to deliberate. The only qualification is that the questions must be relevant and
admissible. The further condition for such questioning is that the proposed questions
must be screened by the trial judge to ensure compliance with the qualification I just
mentioned.
20. The procedure which may be adopted is for the written questions to be scrutinized by the
judge who then allows them to be viewed by Counsel for both sides and invites either
side to make such objections to any of the questions they deem objectionable. The judge
then reads the questions he has determined to be proper for the witness to answer.
21. Although the judge did not follow the procedure laid out above felicitously, she did so
sufficiently in my view. Further, she did not allow the jurors to stray beyond the
permissible bounds in their questioning of witnesses. In any event, Lord Bingham of
Cornhill, speaking for the Board in Randall v R [20021 5 L.R.C. 678 at para 28,
remarked that “it is not every departure from good practice which renders a trial
unfair”. He maintained that public confidence in the administration of criminal justice
would be undermined “if a standard of perfection were imposed that was incapable of
attainment in practice.” If we were to accede to this ground in the circumstances of this
case it would be to elevate form over substance. Thus, we find no merit in this ground;
and it fails.
Ground 5 (Re-numbered ground 3)
22. It appears to me that Mr. Ducille spent a great deal of time on this ground for two
reasons: first, he submitted that the judge was wrong to admit the record of interview in
evidence; and secondly, he submitted that she was wrong to allow Officer Sterling
Knowles to refresh his memory from it. A part of the basis for these submissions is that
the record of interview was not signed by the appellant. Moreover, the appellant had been
brutalised by the Police.
23. A statement made out of court by a defendant that contains admissions of his
involvement in the offence charged may be admitted into evidence and used against him
by the prosecution. However, the admission of such a statement is subject to certain
conditions. Section 20(2) of the Evidence Act provides as follows:
“(2) If, in any proceedings where the prosecution proposes to
give in evidence a confession made by an accused person, it is
represented to the court that the confession —
(a) was or may have been obtained by oppression of the
person who made it; or
(b) is rendered unreliable by reason of anything said or
done or omitted to be said or done in the
circumstances existing at the time, the court shall not
9
allow the confession to be given in evidence against
him except in so far as the prosecution proves to the
court beyond reasonable doubt that the confession
(notwithstanding that it may be true) was not
obtained as aforesaid.”
24. The prosecution must prove to the court beyond a reasonable doubt that the confession
was not obtained by oppression of the person who made it, nor rendered unreliable by
anything said or done or omitted to be said or done in the circumstances existing at the
time: See Ronald George Simons and Robert G. Green v The Queen [2006] UKPC 19
at para 14.
25. Section 20(5) of the Evidence Act defines oppression as including "torture, inhuman or
degrading treatment, and the use of threat of violence (whether or not amounting to
torture)." At common law, a confession obtained by oppression was regarded as
involuntary and therefore inadmissible: see Callis v Gunn [1964] 1 QB 64.
26. In R v Priestly (1965) 51 Cr. App. R. 1 at p.1, Sachs, J. described it as "something
which tends to sap, and has sapped, that free will which must exist before a
confession is voluntary...". See also Steven Mott and Stephenson McKenzie v The
Attorney General SCCrApp. Nos. 45 & 47 of 1995.
27. Also, section 178 of the Evidence Act states:
“178. (1) In any criminal proceedings the court may refuse to
allow evidence on which the prosecution proposes to rely to be
given if it appears to the court that, having regard to all the
circumstances, including the circumstances in which the
evidence was obtained, the admission of the evidence would
have such an adverse effect on the fairness of the proceedings
that the court ought not to admit it.
(2) Nothing in this section shall prejudice any rule of law
requiring a court to exclude evidence.”
28. Inasmuch as the appellant alleged the purported record of interview was produced due to
coercion by the police, the judge entered into a voir dire to ascertain whether or not it was
obtained voluntarily. This was done, notwithstanding the appellant’s position that he
never gave the police the record of interview.
29. During the voir dire it was revealed that the appellant presented with injuries while in
police custody that he may not have had when he was reduced into custody.
30. In Mott (above), Kenneth George, J.A. stated at page 7 of the judgment:
10
"The police say they inflicted no injury on the appellant. And
as the trial judge did not believe his (appellant) evidence, there
is no explanation of how he received the injuries that the
doctor found. And needless to say, the burden is on the
prosecution to prove beyond reasonable doubt that an
accused's statement was free and voluntary. Any disbelief of
the defence can lend support in the discharge of that burden,
this is not always the case. The unanswered, and therefore the
unsatisfactory part of the case for the prosecution, is the lack
of explanation of the injuries that the doctor found that the
appellant was suffering, from when he left the custody of the
police." [Emphasis added]
31. This general principle was re-stated in Raymond Moss, Liston Gaitor and Sheldon
Alleyne v R, Criminal Appeal Nos. 19, 20 and 21 of 1999. At paragraphs 25 and 26,
Carey J.A. said, inter alia:
"It appears to me reasonable as a general principle to state
that whenever an accused person who has been in custody for
some time is found to be suffering from injuries which are
consistent with the application of force by the police, that there
should be some explanation from the police as to how these
injuries came to have been suffered. There are a number of
ways in which such injuries could have been sustained- there
could have been resistance on arrest, there could have been
some altercation with a fellow accused -- but once a prisoner in
custody does suffer from injuries for which no credible
explanation is given then I cannot be certain that these injuries
were not inflicted by the police and in those circumstances it is
quite impossible to be satisfied that any statement made by the
accused is voluntary.
This dictum of Georges CJ is but an application of the
fundamental principle that a prisoner's confession outside the
court is only admissible if it is voluntary. Parker LCJ in R v
Smith 43 Cr. App. R. 123 at p.626 observed;
"...In deciding whether an admission is voluntary, the `
court has been at pains to hold that even the most
gentle, if I may put it that way, threats or slight
inducements will taint a confession."” [Emphasis
added]
32. At the close of the voir dire, the judge ruled that the record of interview was voluntarily
given and hence, admissible. However, upon a further objection to its admissibility due to
it being unsigned, she ruled that it could not be exhibited in the trial. Nevertheless, the
11
contents of the record of interview were put before the jury when Officer Knowles gave
his evidence of the interview conducted with the appellant and the responses made by the
appellant to questions posed by the officers.
33. The judge heard the evidence of the prosecution witnesses and the Defence witnesses.
Although there was evidence of injuries to the appellant, when he was seen by the nurse,
Denise McRae, he told her he had fallen. This was also the evidence of Dr. Thutwe who
had examined the appellant on the 19th
August, 2011, the day the appellant was taken into
custody. At page 199 of the record the doctor said he noted, inter alia:
“No, I said it was my history. I said a 26 year old male
complained of pain to back and hip after falling down a day
ago.” [Emphasis added]
34. He went into some detail as to the injuries he saw and noted some of the appellant’s
injuries as follows:
“The nature of injury it was multiple abrasions to the left —
side of the face. Both hands, elbows and forearms and lower
extremities, left ankle joint. Some swelling was noted to the left
elbow and he also had some tenderness musculoskeletal
tenderness to the left lumbosacral area and also the left
intergluteal tract.”
35. Moreover, Inspector Strachan told that he observed a number of injuries to the forearms
of the appellant and then he asked him to disrobe. When the appellant disrobed he saw
that he had other injuries. He asked him how he got those injuries and the appellant said
that he was trying to hang himself on two occasions but the bough broke and he fell
down.
36. Despite the extensive examination, cross-examination, re-examination and more cross-
examinations and re-examinations with the leave of the judge, the court was left with Dr.
Thutwe’s evidence that the appellant had said he fell the day before the 19th
and that
caused his physical complaints.
37. It was for the judge having seen and heard the witnesses to determine who to believe and
what to believe. It was entirely open for the judge to accept the Nurse McRae’s and Dr.
Thutwe’s evidence to find that the injuries to the appellant had come about as a result of a
fall and not at the hands of the police. Hence, an explanation for the injuries had been
given in this case unlike in the case of Mott.
38. It was also open to the judge to conclude that there were no circumstances during the
taking of the record of interview which had an adverse effect on the fairness of the trial.
12
39. The second complaint by the appellant was that the judge erred when she allowed Officer
Knowles to refresh his memory from the record of interview although it was not signed
and had been ruled inadmissible as an exhibit. Section 159 of the Evidence Act states:
“159. A witness may, while under examination, refresh his
memory by referring to any writing made by himself at the
time of the transaction concerning which he is questioned, or
so soon afterwards that the court considers it is likely that the
transaction was at that time fresh in his memory.”
40. Officer Knowles testified that he wrote the questions and answers in the record of
interview at the time he interviewed the appellant. Hence, the two preconditions of
section 159 were met, to wit, the writing was made by him contemporaneously.
41. The fact that the record was not signed by the appellant is of no moment to the use made
of it by Officer Knowles to refresh his memory. In an appeal emanating from Barbados,
the Caribbean Court of Justice (the CCJ) had to consider a similar issue: R v Sealy,
[2016] CCJ 1 (AJ); [2017] 1 LRC 1. In Sealy two police officers were allowed by the
trial judge to refresh their memories from their note books of oral statements attributable
to the defendant. Those notes had not been signed by the defendant; and there was no
evidence adduced that he had acknowledged, by initialing the notes, what had been
written; nor that what had been written had been read over to him. Further, the defendant
alleged that the notes were concocted.
42. The CCJ found no favour with the appellant’s contention that the trial judge was wrong
to allow the officers to refresh their memories from their note books although the court
recognized that where the notes pertained to an alleged confession there was more than
the issue of refreshing involved; there was also the question of admissibility due to
voluntariness and fairness.
43. Having perused the record, I am satisfied that the judge did not err in ruling that the
record of interview was admissible in the trial; nor am I satisfied that she erred in
allowing the record of interview to be used as an aid memoir.
44. This ground fails.
Ground 6 (Re-numbered ground 4)
45. Mr. Ducille criticized the judge for allowing the witness, Ruthmae Brown to give
evidence about items Sergeant James Colebrooke dealt with during the investigation
although those items were inadmissible. He also faulted the judge for allowing Inspector
Dean to read Officer Colebrooke’s written statement into evidence.
13
46. The judge allowed Officer Colebrooke’s statement to be read into evidence under an
application made by the prosecution pursuant to section 66(2)(a)(i) of the Evidence Act.
Section 66(1) and (2)(a)(i) provides:
“66. (1) 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.
(2) The conditions mentioned in paragraph (b) of subsection
(1) are —
(a) that the person who supplied the information —
(i) is dead or by reason of his bodily or mental
condition unfit to attend as a witness,”
47. The record discloses that Officer Colebrooke made a written statement in relation to his
involvement in the investigation of the case. The prosecution provided an explanation for
the officer’s absence through the testimony of Inspector Alfred Dean. Inspector Dean
said that Officer Colebroooke worked under him at the Criminal Records Office (CRO)
but he was on sick leave following surgery on his back and throat. He stated also that he
received Officer Colebrooke’s photo albums which were sealed; and were in reference to
the matter before court. Inspector Dean had provided an affidavit but gave viva voce
evidence. He produced a sick certificate to the court.
48. The prosecution relied on section 66 (7) of the Evidence Act which allowed a court to act
on a doctor’s certificate to decide if a person is unfit to attend court. It lay within the
discretion of the judge whether the statement could be read or not. In her ruling dated the
21st November, 2013 she determined the statement could be read. Can it be said she fell
into error in so doing?
49. Mr. Ducille referred to the case of Donnason Knights v The Crown [1998] 53 WIR 125
and R v Iqubal 1991 WLR 766.
14
50. Officer Colebrooke appears to have been a crime scene photographer who took
photographs of the crime scene at the security booth at Club Med; and he processed and
took photographs of a white van in reference to the matter. His statement was read into
evidence by Inspector Dean; and at page 345 of the record it is recorded that on 15
August 2011, he went to Club Med, San Salvador where a number of things were pointed
out to him and he saw, inter alia, the body of a female on the ground and:
“A black handled stainless steel blade knife with suspected
bloodstains on the floor and under the left foot of the
deceased.”
51. Police Officer Vivian Cooper testified that after he gained access to the security booth he
saw a silver blade knife lying under the left foot of Oneika, who was lying on the floor.
52. Sgt. 2221 Gregory Cartwright said he saw a black handle knife on the ground near the
body of a female in the security booth at Club Med with apparent blood stains.
53. D/C 2764 Darren Pierre said he was with CRO, New Providence and he saw a black
handle stainless steel knife on the ground in the security booth at Club Med. He collected
the knife, packaged it as DP3. He later handed it over at police forensic lab to D/C 3299
Dorsette.
54. Colebrooke’s statement continues at pages 345-6:
“As a result of this I photographed the area leading to the
booth, the exterior of the booth and the items which were
pointed out to me.”
55. Also at page 346 the following appears:
“‘On the same day sometime around 6:20 p.m. as a result of
additional information I was shown a White Hijet Cargo Van
plate #650 which was parked facing west at the northern end of
the resort in the area of rooms #639 and #640. I photographed
the vehicle where it was found and examined it.”
56. He goes on to list the suspected bloodstains that he found in the van and to state that he
photographed these; and collected swabs from the steering wheel and a plastic cup. He
told also of examining the van for fingerprints and of finding three on the exterior of the
driver’s door. He photographed the marks where they were found and lifted them using
finger print lifting tape.
57. Janice Storr, Oneika’s sister, testified that she saw the appellant in the laundry van
coming from north as she was going to the village centre. She was going up and he was
coming down. This was shortly after she left Oneika at the security booth around 8:45am
15
or so. She spent five to ten minutes with Oneika. When asked to describe the laundry van,
she said:
“It’s Japanese kind of van. It has like a door no seats inside,
just in the front area for the driver and passenger. But in the
back of it, you can close the door, you can put your towels no
(sic) chairs or anything in there.”
58. Merlene Nairn testified that she reported for work about 8:00am on the 14th
August, 2011
and she went to hail the laundry staff before going to get her stuff for work. She was
asked if she knew “Sheddy” and she replied, yes. She was asked his function in the
laundry department and she said: “His function to take the linens out to the maids.”
When asked how that was done she replied: “In a white van.” She said she saw the
appellant on the 14th
: “He was packing the van to take to linens at the laundry.”
59. Ms. Nairn testified that she saw the appellant about 9:00am. He delivered towels; but she
was not supplied with all the linens she needed that morning. She did not see him again
that day.
60. Officer Colebrooke’s statement disclosed that he found a sleeveless white T-shirt on a
wooden bench on the southern side of a Green trimmed White wooden house located in
the settlement of Bone Fish Bay through an un-paved road off Queens Highway. On the
18th
August, 2011, he visited the Police Forensic Lab where he handed over to O/C
Dorsette the items he had collected for analysis.
61. Section 66 of the Evidence Act is similar to section 1 of the English Criminal Evidence
Act 1967 which speaks to a “statement contained in a document”. Sub-section 4 of
section 1 provides, inter alia:
“(4) In this section 'statement' includes any representation of
fact, whether made in words or otherwise, 'document' includes
any device by means of which information is recorded or
stored …”
62. I have not found any authority directly on point dealing with section 1, but it appears that
by use of the term “words or otherwise” the section is sufficiently wide to encompass
photographs. Hence, once the photographs purportedly taken by Officer Colebrooke have
been sufficiently identified as his; and evidence has been led to satisfy the conditions laid
down for the admission of the photographs in his absence, they are admissible in
evidence pursuant to section 66 of the Evidence Act.
63. The breadth of the word “statement” would not to my mind, extend to the exhibits
collected by the officer. Moreover, the word “document” could not admit of an
interpretation which would include items discovered and/or collected by the officer.
16
64. Notwithstanding, my view restricting the definitions of “statement” and “document” I
hold the view that the photographs taken by Officer Colebrooke and mentioned by him in
his statement, were properly admitted into evidence through Inspector Dean; and as such,
were brought within the cognizance of the jury for their consideration.
65. Although the items collected by Officer Colebrooke by the security booth, in the van and
through the track road ought not to have been placed before the court as exhibits, I am
satisfied that there has been no miscarriage of justice as a result. The circumstantial
evidence against the appellant was cogent. I refer briefly below to some of the evidence
that emerged from the prosecution’s witnesses.
66. Kaynell Johnson, another of Oneika’s sisters, testified that about 9:00am she got
information from one Boyo which caused her to go with him to Club Med security where
she saw Oneika lying on the ground.
67. Justin Benson, who claimed to have been in a relationship with Oneika, said he spoke
with her at the security gate at about 8:52am on the 14th
August, 2011, for around seven
minutes.
68. Everette Jackson testified that he spoke with Oneika shortly after 9:00am; and about 9:14
or 9:15am he received certain information which caused him to go to the security gate
where he saw Oneika laying on the floor of the guard shack.
69. Peter Butler testified that on the day in question he worked with the appellant in the
laundry department. The appellant drove the van.
70. Additionally, there was the evidence of Janice Storr that on the morning in question she
had just left Oneika at the security booth and was “going up” when she saw the appellant
in the laundry van “coming down”. I understand the terms used to mean that he was
traveling in the opposite direction to her, to wit, toward the area of the security booth.
71. Clyde Butler said he saw the appellant walking on a beach heading over home as he
drove home and the appellant gestured as if to ask for a ride. Mr. Butler did not stop. He
said this was around 9:30am.
72. Madenna Maycock testified that the appellant who supposed to be on duty between 7:00
am, and 2:30 p.m. could not be found by him for the whole shift. Madenna Maycock did
not leave his position until 11 p.m. that night.
73. Mrs. Marissa Fahner-Roe, a forensic manager at Fairfax identity laboratory, deemed an
expert in Forensic Science, testified that blood - allegedly found on the tyre of the white
Hijet cargo van processed by Officer Colebrooke and on the black handle knife - had
been tested and Oneika could not be excluded as a contributor to the profile obtained.
74. Officer Knowles stated that during the recording of the record of interview with the
appellant which was conducted by himself in the presence of Inspector Strachan the
17
appellant admitted killing Oneika and after he realized he had stabbed her, he hugged her
before her body fell to the ground; and he drove off in the Club Med laundry van that he
was driving that morning and he left the van at the farthest end of Club Med’s property.
75. The evidence led through the witnesses mentioned above at paragraphs to 66 to 74
disclose a short compass of time within which Oneika came to meet her demise and that
the appellant was in the vicinity of the security booth at the material time.
76. The cumulative effect of the prosecution’s circumstantial evidence provided an
irresistible inference that the appellant had inflicted the mortal wounds to Oneika; and the
jury was entitled to so find.
77. In the premises, I find no merit in this ground; and it fails.
Ground 7 (Re-numbered ground 5)
78. There may have been a connection disclosed between the van shown in the photograph
and the case before the jury when regard is had to Officer Colebrooke’s statement read in
court that he processed and photographed a white van in which he found suspected blood
and the descriptions of the laundry van provided by Janice Storr and Merlene Nairn at
paragraphs 57 to 58 above. A reasonable inference could be drawn by the jury that the
van in the photograph was the laundry van said to be driven by the appellant. Even, if
there was no such connection, we find that no prejudice to the appellant arose as a result
of its exhibition at the trial. Its appearance did no more than provide the jurors with a
tangible picture of what they no doubt pictured in their minds as a result of the
description of the laundry van provided by the witnesses. In the result, there is no merit in
this ground.
Grounds 8 and 9
79. These grounds were abandoned.
Ground 10 (Re-numbered ground 6)
80. Mr. Ducille submitted that the judge erred when she failed to declare a mistrial and
discharge the jury after it was reported in the news media that there was “no acquittal
for murder accused” following the unsuccessful no case to answer submission by the
appellant. He submitted that after such publication it was impossible for the appellant to
receive a fair trial particularly since the judge was quoted as saying that the prosecution’s
evidence was compelling.
18
81. Jurors are not to be privy to what occurs during a no case to answer submission. We echo
the statement of the judge that it was unfortunate the report appeared both in the print and
electronic media. It should be noted however, that the reports were carried by only one
news organisation.
82. The importance of jurors being oblivious to the judge’s rulings on no case submissions
was illustrated by the decision of the Privy Council in Crossdale (Rupert) v R (1995) 46
WIR 278. Crossdale was an appeal emanating from Jamaica where it had been the
practice of trial judges to hear no case submissions in the presence of the jury. The
Jamaican Court of Appeal expressed doubts about this practice and posited four questions
for the Board to answer. As only question three is relevant to the present appeal, I
reproduce it below:
“(iii) whether, where the defence applies to make a ‘no case’
submission in the absence of the jury, it is right for a judge to
inform the jury of his finding that there is a case to answer.”
83. Their Lordships gave their response as follows at page 286:
“There is no reason why the jury should be privy to the judge’s
reasons for his decision. In order to avoid any risk of prejudice
to the defendant the jury should not be present during the
course of the judgment or be told what the judge’s reasons
were. If the judge rejects a submission of no case, the jury need
know nothing about his decision. No explanation is required.”
[Emphasis added]
84. Their Lordships concluded that the trial judge had committed an irregularity when he
allowed the jury to be present for the no case submissions; and went on to consider the
fourth question posed, i.e., whether there was any significant risk of prejudice resulting
from the irregularity in the circumstances of that case. They found that the no case
submission was hopeless and that no real risk of prejudice inured to the appellant due to
the jury being present during the testing of the argument on the application to discharge
Crossdale relating to the inconsistencies between the eyewitnesses’ evidence and the
medical evidence.
85. An important consideration for their Lordships in Crossdale was the risk of prejudice to
the appellant. This was reinforced in Mitchell (David) v R (1998) 52 WIR 25 another
decision from the Privy Council, but out of The Bahamas. The issue arising in Mitchell is
similar to the present appeal inasmuch as a local newspaper published the proceedings on
the voir dire. A more notable feature in Mitchell is that the trial judge questioned the
reporter about the report in the presence of the jury. Their Lordships observed at page 30:
“These exchanges would have been a reminder to the jury of
the fact that the judge had been engaged in determining an
issue as to whether the statement had been induced by
19
beatings, electric shock and other forms of oppression as the
appellant alleged and the police disputed.”
86. They observed further in relation to an explanation provided to the jury by the trial judge:
“From that explanation the jury must have understood that
the judge had found that the appellant had not been beaten
and shocked with electric equipment. And in the particular
context it must have conveyed to the jury that, for the purposes
of his task, the judge had accepted the evidence of the police
officers and that he had disbelieved the appellant.”
87. At pages 33 to 34 the Board stated:
“The reason why it is wrong for a judge to reveal his decision
to a jury is not because it would amount to a withdrawal of an
issue from the jury, and it does not amount to a misdirection.
The vice is that the knowledge by the jury that the judge has
believed the police and disbelieved the accused creates the
potentiality of prejudice. A jury of laymen, or some of them,
might be forgiven for saying: ‘Well, the judge did not believe
the accused, why should we believe him?’ At the very least, it
creates the risk that the jury, or some of them, may be diverted
from grappling properly and independently with an accused’s
allegation of oppression so far as it is relevant to their decision.
And such an avoidable risk of prejudice cannot be tolerated in
regard to a procedure designed to protect an accused.”
88. Having identified that there was an irregularity committed by the trial judge in revealing
to the jury his ruling on a voir dire as to the voluntariness of the appellant’s statement the
Board went on to consider the effect of the irregularity. At page 36 of the judgment their
Lordships said, inter alia:
“The test to be applied in such a case has repeatedly been
stated by the Privy Council to be whether, if the irregularity
had not taken place, or if there had been no misdirection, the
jury would inevitably have come to the same conclusion; see
Anderson v R [1972] AC 100 at page 107. It is common ground
that this is the test which their Lordships must apply.”
89. Their Lordships found that the evidence against Mitchell was cogent and that the
irregularity caused no injustice. They held that the jury would inevitably have convicted
the appellant.
90. We do not consider that any great prejudice occurred in the present case under appeal
because the report appeared in one newspaper only and on one broadcast channel; and the
20
publicity was not sustained nor pervasive. Further, in her summing up to the jury the
judge told them at pages 1292-3 of the transcript:
“Now Mr. Foreman and members of the jury, we live in a very
small country where people know each other, and people
sometimes talk about cases without knowing the real facts.
Then cases of this nature, murders, may even attract some
talk and attention in the press and elsewhere. But in a court of
law you have to disregard anything that you might have heard
on the streets, or on the radio, or in the newspaper, or any
source of information, internet, et cetera, and you only
concentrate on the evidence that was led in this court and by
extension the evidence taken by live video link. As jurors you
have a sacred duty to perform. You are the buffer, the shield
between the Prosecution or the State that has brought this
defendant here, and this young man himself who has been tried
by his own peers, people just like him, from the Bahamian
community. You took an oath to give a true verdict
according to the evidence led in this court, and nothing else I
believe that each of you will be true to that oath and render
your verdict only upon the law as explain it to you, and the
facts as you find them.”
91. She had earlier – at pages 1188-94 of the transcript - quizzed the jurors on whether they
read or heard the offending reports and all had said they had not. Even if they had, we are
satisfied that the occasion would not have necessarily called for the discharge of the jury
and the declaration of a mistrial.
92. In the premises, we find no favour with this ground; and insofar as the appeal depends
upon it, it fails.
Ground 11 (Re-numbered ground 7)
93. The appellant complained that the judge did not adequately put his defence. Mr. Ducille
referred us to the decision of Kennard, C in Shazam Ibrahim and Surendranauth
Chattergoon (1999) 58 WIR 258, at pages 263 to 264, which affirmed the ruling from
the case of Samaroo and Ezaz v R [1953] LRBG 149, where Bell, CJ stated:
“Now it is clearly settled law that it is of paramount
importance that the summing-up must fairly put the case for
defence, whatever it may be. No matter how trivial or stupid or
unlikely the defence may be, it is of paramount importance
that the judge in his summing-up must fairly put the defence to
the jury.”
21
94. Shazam Ibrahim restated the principle derived from R v Spencer [1987] 1 AC 128 at
page 142: “the overriding rule is that he must put the defence fairly and adequately”
95. The gist of the complaint is that the judge failed to impress upon the jury that the
appellant contested the allegation by the prosecution that he had made a confession and
the significance of him having not signed the document referred to by Officer Knowles.
96. The judge summed up to the jury on the issue of the alleged confession and said at page
1358 of the transcript:
“Learned Counsel Mr. Ducille said when you look at all of the
evidence it is totally worthless. He said no fingerprints,
absolutely no evidence connecting the Defendant to the crime,
and their oral confession extracted was done so by oppressive
means and in circumstances that is were unfair to the
Defendant.”
97. She said also at page 1347:
“He is saying, look, prior to Corporal Knowles wanted to take
any statement from me, I told them I need my lawyer to be
present. They denied me that access to my lawyer.”
98. At page 1340, the udge told the jury:
“Learned Counsel Mr. Ducille says do not believe Corporal
Knowles, his evidence is worthless, he has come here and told
a series of lies. That this Defendant was oppressed and never
made any statement to them. Anything about an alleged
confession is fabricated”
99. There is no substance, therefore, to the contention that the judge did not alert the jury to
the appellant’s defence. It must be remembered that the appellant did not take the
witness stand during the trial. Hence, all that the judge could tell the jury was what
could be inferred from the cross-examination of the prosecution witnesses. The judge
placed before the jury the position of the appellant. In the premises, we find no merit in
this ground.
Ground 12 (Re-numbered ground 8)
100. The admonition against jurors asking questions applies equally in relation to judges:
Terrel Mingo Stubbs (supra) and Bethel v R (supra). I have perused the record,
particularly those portions drawn to our attention by Mr. Ducille, and I am satisfied that
the interventions of the judge were within the bounds of propriety. They did not sap the
22
force of the appellant's defence nor were they suggestive of his guilt. Further, they did
not breach the injunction that judges are not to stray into the arena.
101. In the premises we find no merit in this ground; and it fails.
Ground 13 (Re-numbered ground 9)
102. The appellant took issue with the judge admitting inadmissible evidence during the
course of the trial and to the following direction to the jury by the judge which appears
at page 1326 of the transcript:
“In re-examination he said that he did not say all truth, but
what he said in court today is the truth. And you saw this
witness, crucial witness for the Prosecution because the
Prosecution case is that this Defendant after killing Oneika left
Club Med, was seen on the beach by Clyde Forbes. So his
evidence becomes very important whether or not he did see
this Defendant on the beach on the day in question at 9:30.”
103. The judge's description of Clyde Forbes' evidence as "crucial" is of no moment in the
case simply because the judge directed the jury at page 1290 of the transcript:
“This bring (sic) me to your roll (sic). You are the sole judges
of the facts. Your roll (sic) is to examine all of the evidence that
was led in this court and to decide what the facts are as you
find them, and apply them to the law as I give it to you. How
do you go about finding the facts? You find the facts from all
of the evidence adduced from the witnesses who testify before
you. You must decide what you believe, and whom you believe.
You can take the view that everything that a particular witness
told you is credible. You can accept that, or you can take the
view that everything that a particular witness told you is
suspect, and therefore to be rejected. You can accept some
parts of what a witness said and reject other parts. You alone
are the judges of the facts, it is for you to determine where the
truth lies.”
104. The jury was also told by the judge - at page 1292 of the transcript:
“You heard particularly in the closing speeches both of the
learned Prosecutor, the learned defence counsel; they
expressed their opinion. They tell you their side of the story. I
myself may express an opinion or two during the course of the
summation. But you are at liberty to discard our opinions if
they do not appeal to your reason. It what any one of us says
23
appeal to your reason and you want to use it you may do so.
But when you do so those opinions become your own. You see
Mr. Foreman and members of the jury, you and you alone are
the sole judges of the facts, so it must be your opinion when
you arrive at your verdict.”
Hence, it must be taken as a given that the jury would have followed the judge's
direction and determined for themselves whether Forbes' evidence was crucial or not.
105. We find no merit in this ground.
Ground 14 (Re-amended ground 10)
106. We find no merit in this ground because of our views expressed above. We harbour no
lurking doubt as to the fairness or the safeness of the trial and the correctness of the
verdict; and in the premises, dismiss this ground.
Ground 15 (Re-amended ground 11)
107. This ground was not argued seriously by the appellant but we thought it important to
make some comment on it.
108. The appellant faced a possible life sentence. Instead, he was sentenced to forty-one years
imprisonment. This Court, differently constituted, in Larry Raymond Jones, et al v R,
SCCrApp. Nos. 12, 18 and 19 of 2007 said, inter alia at paragraph 11:
"The sentencing judges in The Bahamas are therefore required
to arrive at sentence without any of the tools provided by other
common law jurisdictions by specific statutory provisions."
109. Judges in The Bahamas are free, therefore, to determine an appropriate sentence based
on the circumstances of the commission of the offence and the circumstances of the
offender.
110. The Court in Jones (above) did provide a range of sentences which may be imposed for
murder where the death penalty is not deemed appropriate but the circumstances
surrounding the murder are particularly heinous. At paragraph 17 the Court said:
"In our judgment, where, for one reason or another, a
sentencing judge is called upon to sentence a person convicted
of a depraved/heinous crime of murder and the death sentence
is considered inappropriate or not open to the sentencing judge
and where none of the partial excuses or other relevant factors
are not considered weighty enough to call for any great degree
24
of mercy, then the range of sentences of imprisonment should
be from thirty years to sixty years, bearing in mind whether
the convicted person is considered to be a danger to the public
or not, the likelihood of the convict being reformed as well as
his mental condition. Such a range of sentences would
maintain the proportionality of the sentences for murder when
compared with sentences for manslaughter."
111. At paragraph 18, the Court also reminded itself of the words of Lord Hewart, LCJ and
repeated that learned judge's statement in R v Gumbs (1927) 19 Cr. App Rep 74, at
page 75 that:
"Two principles from time to time have been mentioned in this
Court, and in some cases they may have been considered
together. One is that this Court never interferes with the
discretion of the court below merely on the ground that this
Court may have passed a somewhat different sentence; for this
Court to revise a sentence there must be some error in
principle. Secondly, when a man has committed serious
offences and has served long terms for them, it is not required
that he should suffer further severe punishment for a later
offence which does not intrinsically call for it …"
112. The appellant alleged that his sentence is "manifestly harsh and excessive" but for this
Court to so find we must determine that the judge imposed a wholly inappropriate
sentence in the circumstances of the case.
113. In an appeal out of Mauritius, the Court of Criminal Appeal (Y K J Yeung Sik Yeun CJ,
Domah and Matadeen JJ) in Dookee v DPP [2010] SCJ 71 dealt with an unduly lenient
sentence; but the principle enunciated therein is applicable where the converse occurs.
The court said at page 177, inter alia:
"… sentencing is not a science of mathematical application of
any set formula. It is a normative science rather than a
physical science which takes into account the circumstances of
the offender as well as the offence and the impact of the offence
on the community… An appellate court would scarce intervene
unless the sentence is wrong in principle or manifestly harsh
and excessive or unduly lenient. "
114. In Karchav v The Commisioner of Police MCCrApp & CAIS No. 56 of 2015, an
appeal closer to home but coming from a magistrate's court, Conteh, JA said:
"25. As an Appellate Court, however, we do not, and should
not, readily interfere with a sentence passed by a lower court
which was seized with all the facts and circumstances of the
25
case, unless the sentence was manifestly harsh, excessive or
wrong in principle." [Emphasis added]
115. We are entirely in agreement with underlined principle as stated by Conteh, JA.
116. The appellant was convicted of murder, contrary to section 291(1)(b) of the Penal Code.
Up to 2007, on such a conviction he was liable to suffer death as his punishment.
However, following the decision of the Privy Council in Bowe and Davis v R [2006]
UKPC 10 courts were invested with the discretion to impose alternative punishments.
This resulted in a slew of re-sentencings which included Jones (above).
117. By No. 34 of 2011, Parliament enacted a new section 291 of the Penal Code which
tended to concretize the Court's decision in Jones. It provided, inter alia, at section
291(1)(b):
"291. (1) Notwithstanding any other law to the contrary--
…
(b) every person convicted of murder to whom
paragraph (a) does not apply
(i) shall be sentenced to imprisonment for life; or
(ii) shall be sentenced to such other term given
the circumstances of the offence or the offender
as the court considers appropriate being within
the range of thirty to sixty years imprisonment"
118. In so doing Parliament has taken a step in the direction of providing guidelines in
relation to sentencing for murder whose absence was bemoaned by the Court in Jones
(above).
119. In sentencing the appellant the judge said, inter alia that she was to have regard to the
four principles of sentencing, to wit, retribution, deterrence, prevention and
rehabilitation. She referred to the balancing exercise she must conduct between the
aggravating factors and the mitigating factors that featured in the case. As mitigating
features she took into account the appellant’s age and that he had not breached the
prison rules while on remand. She found the deliberate killing of Oneika and the
planning involved in the murder to be aggravating factors, in addition to the appellant’s
lack of remorse.
120. The judge, having found that specific deterrence was not material in the appellant’s case
went on to say at page 1400:
"General deterrence is necessary in order to deter others from
following suit."
26
The Judge indicated that she thought the appellant would benefit from counselling while
in prison as a route to his rehabilitation; and at page 1402 stated:
“In addition, you will receive counseling particularly in anger
management. Such counseling is to be determined by qualified
counsellor.”
121. The judge noted the prevalence of violence against women in the society before
sentencing the appellant to forty-five years imprisonment. She discounted four years to
reflect the forty-one months the appellant had spent on remand; and so he was given
forty-one years.
122. We do not find any error of principle disclosed on the record in the judge's sentencing
remarks nor do we find that the sentence imposed by her on the appellant is unduly
harsh and excessive. Thus, we dismiss this ground of appeal.
Conclusion
123. We are satisfied that this appeal should be dismissed as none of the grounds have any
merit. Thus, we affirm the conviction by the jury and the sentence imposed by the judge.
________________________________________________
The Honourable Mr. Justice Isaacs, JA
124. I agree.
________________________________________________
The Honourable Ms. Justice Crane-Scott, JA
125. I also agree.
________________________________________________
The Honourable Mr. Justice Jones, JA
