Tom Poole KC Instructed by Charles Russell Speechlys LLP (London) for the Respondent.
This is an appeal from the Court of Appeal of the Commonwealth of the Bahamas. On 10 June 2009, in the Supreme Court at Nassau, Bahamas, the appellant and his co-defendant Anthony Williams were both convicted by a jury of a number of offences, including the attempted murder of a police officer. The victim was shot in the head as the two men, each of whom was armed, attempted to make their getaway from a robbery at the Scotia Bank in Nassau. The appeal before the Board raises the question of how a jury should be directed to assess the intention of a person charged with attempted murder and brings into focus the application of the provisions to be found in section 12 of the Penal Code (Cap 84) of The Bahamas (“the Penal Code”). The appeal provides the Board with an opportunity to assess the extent to which these provisions are of value in assisting a jury to understand how to determine the question of a person’s intention.
The central facts
Two masked men entered the Scotia Bank premises on 2 July 2008 around 12.30pm whilst it was open for business. Both were wearing gloves. One was armed with a handgun, the other with a pump action 12 bore shotgun. Two customers within the bank were robbed of possessions and money and three tellers were forced to hand over money totalling $21,344. The incident was recorded on the bank’s security system. One robber was shorter than the other and was wearing a grey mask. The taller of the two was armed with the shotgun and was wearing a dark blue mask, a distinctive red and blue belt and a pullover with “919 Urbanwear” written on it. The subsequent evidence made it abundantly clear that this was the appellant and that the other robber was Williams.
Police Corporal Natasha Black and Sergeant Raquel Hanna were on duty in a marked police car when they were instructed to attend at the Scotia Bank. Corporal Black was driving the vehicle but she was unable to enter the parking area of the bank due to blocked traffic. Whilst her vehicle was stationary she saw a masked male smash open the lower portion of the glass entry door to the bank and emerge through it carrying a shotgun. At a distance from the officer of around fifty to sixty feet he stood erect, looked towards the police car, aimed the gun in their direction and fired it. Corporal Black was struck by eleven shotgun pellets in the area of the left side of her head. Despite her injuries she managed to manoeuvre her police car around the vehicle which was parked in front of her and then looked back in the direction of the shooter to see that he had again pointed his gun in the direction of the police car. He fired a second shot as Corporal Black managed to drive the vehicle away from the immediate vicinity before Sergeant Hanna took over as driver and transported her to hospital.
The appellant and Williams attempted to make their escape in a black Honda Accord car before switching to a white Wyndham car which had been parked nearby. A third defendant, Janquo Mackey, was in the rear seat of this vehicle. Other police officers arrived at the scene and gave chase to the Wyndham car as it was being driven by the appellant. In the course of being pursued the car crashed into a telegraph pole and both the appellant and Williams left the vehicle. The appellant was seen to be holding the shotgun, which he discharged in the direction of the pursuing police officers’ vehicle. An exchange of fire took place and the appellant ran off followed by other officers. During the course of this chase he was seen to have a further firearm and shots were fired in his direction by one of the pursuing officers. When he was apprehended he was found to be in possession of a silver and black .45 calibre pistol loaded with five live rounds of ammunition. He had sustained gunshot wounds to his right calf and left ankle.
On being apprehended the appellant was found to be wearing a bulletproof vest, the red and blue belt, the pullover with “919 Urbanwear” written on it and blue gloves. A dark blue mask and a grey mask were found in and by the Wyndham car and a bag containing money from the bank was located a short distance from where the pair were apprehended. The shotgun was also recovered nearby. Subsequent examination identified the presence of DNA inside the dark blue mask, which, to a high degree of probability, matched the appellant’s DNA profile. DNA matching Williams’ DNA profile was found within the grey mask.
The trial of the appellant and his co-defendants took place over a period of nearly five weeks between 11 May and 10 June 2009. In addition to the charge of attempting to murder Corporal Black the appellant faced five charges of armed robbery, being the individual offences concerning the two customers and the three tellers; one charge of grievous harm in respect of a customer who had been in the bank; one charge of possession of a firearm with intent to endanger the life of Sergeant Hanna and four charges of possession of a firearm with intent to prevent lawful arrest, all of which were related to the officers who pursued him from the area of the robbery.
The appellant elected to represent himself, having dispensed with the services of his assigned counsel. The defendant Mackey made a statement from the dock denying any responsibility but did not give evidence. Both the appellant and Williams gave evidence of alibi and denied being involved in any of the offences. They claimed they were simply stopped by police officers whilst driving together in the Wyndham car. The appellant explained that he ran away in an effort to get home because of previous involvement with the police. He acknowledged that he had been wearing a bulletproof vest, although claimed it was not the one that was said to have been removed from him. He claimed that the police had brought the pullover with the writing on it with them and forced him to put it on along with a pair of gloves. He denied having been in possession of any guns. The appellant was convicted on all of the charges which he faced, as was the co-defendant Williams. Mackey was acquitted.
On the charge of attempted murder the appellant was sentenced to imprisonment for life. He was sentenced to imprisonment for twenty-five years on each charge of armed robbery; imprisonment for five years on the charge of causing grievous harm; imprisonment for ten years on the charge of possession of a firearm with intent to endanger the life of Sergeant Hanna; imprisonment for ten years on each of two of the charges of possession of a firearm with intent to prevent lawful arrest and imprisonment for 14 years on each of the remaining two charges of possession of a firearm with intent to prevent lawful arrest. All of the sentences were ordered to be served concurrently.