The Tribune

By FARRAH JOHNSON

Tribune Staff Reporter

fjohnson@tribunemedia.net

A MAN who was sentenced to 49 years for breaking into a couple’s home and killing their adult son during a 2014 Blair home invasion has been granted an appeal against his conviction.

Submissions will be heard later about a possible retrial.

Tiano D’Haiti was accused of entering the Blair Estates residence of Glenn and Emma Cartwright in the early morning hours of October 28, 2014.

The prosecution alleged the appellant and another person, in the course of committing a robbery, shot and killed the couple’s son Robert Andre Cartwright.

In 2017, a jury unanimously convicted D’Haiti of murder, attempted armed robbery and burglary and in April 2018, he was sentenced to 49 years imprisonment, 25 years imprisonment and 20 years imprisonment respectively. The sentences were ordered to run concurrently.

The two years, 10 months and 17 days he spent on remand were deducted from his sentence.

D’Haiti appealed his sentence after arguing the trial judge failed to direct the jury as to the “implications and significance of the breaches” to the judge’s rules and the Force Standing Orders relating to the evidence given by two police officers.

Yesterday, Chief Justice Sir Brian Moree ruled that “no actual miscarriage of justice occurred in this case”. Still, Sir Michael Barnett and Justice Jon Isaacs concluded that the officers should have recorded the alleged oral admission given by D’Haiti. As a result, the panel granted the appellant’s appeal and said submissions would be made to determine whether a retrial will take place.

According to a judgment posted on the Crown’s website, on the night of the invasion, Robert Cartwright retrieved his licensed shotgun and discharged it at the intruders before he was killed. The court documents also state that the blood and body tissue that was found at the crime scene were collected to be tested.

The prosecution alleged that shortly after the incident, D’Haiti was taken to Princess Margaret Hospital by a woman who he told to tell people she collected him from Carmichael Road if they asked.

“Upon the appellant’s arrival at the hospital, he allegedly told Officer Dawkins, whom he met there, that he had been stabbed,” the court documents read. “While the appellant was in the hospital, his blood was drawn and during this exercise, in the presence of two police officers, Maycock and Braynen, the appellant is alleged to have told those officers of his involvement in the murder.”

During D’Haiti’s trial, the doctor who was present when the oral admission was alleged to have been given said she could not recall whether the appellant made the confession.

“Officers Maycock and Braynen prepared reports of what they say the appellant told them, but at no time did they ask the appellant to acknowledge the admissions made to them,” the justices noted. “Upon the appellant’s arrest, while at the police station, on the advice of his counsel he did not give a statement to the police and he did not give any evidence at trial.”

Throughout the proceedings, D’Haiti maintained that the officers “fabricated the alleged admission”. He also insisted he never told Officer Dawkins he was stabbed and denied telling the woman who took him to PMH to tell people that she collected him from Carmichael Road.

In his judgment, Sir Michael Barnett said he believed D’Haiti’s alleged oral admission should have been recorded in the pocketbook of the officers and signed by both parties. He also said the appellant “ought to have been” invited to acknowledge what was said immediately.

“The judge failed to point out to the jury the failure of the officers to comply with the rules regarding the taking of oral statements,” he said. “There was nothing in the judge’s direction which warned of the dangers of relying on oral admissions. The judge did not draw to the jury’s attention that notwithstanding that samples of blood and body tissue were collected from the scene there was no evidence led by the prosecution that the appellant’s blood or body tissue were found at the scene.”

Likewise, in his ruling, Justice Isaacs said the officers should have used technology to assist with the recording of D’Haiti’s alleged oral admission.

“The judge’s failure to warn the jury of the dangers associated with and the reasons for the need to make a contemporaneous record of an oral admission is an unnecessary cause of great concern,” he said.

“The prosecution’s case rests on the ‘verballing’ of officers Braynen and Maycock; there is no forensic evidence linking the appellant to the scene despite the blood, body tissue, pellet holes, etc, found at the scene. It is trite law that even strong suspicion does not displace the presumption of innocence.”

In his dissenting view, the Chief Justice said even if the appellant believed the prosecution’s evidence had some inconsistencies, the safety of his conviction was not affected by the “inadequacies of the judge’s direction”.

“The Force Standing Orders provide that there must be a contemporaneous record of the interview or if that is not possible an adequate and accurate record must be made as soon as practicable thereafter,” he stated. “However, what transpired between the appellant and officers Maycock and Braynen in the hospital room was not an interview within the purview of the Force Standing Orders. Further, there was no breach of the judges’ rules.

“In the circumstances of this case, while a more robust direction ought to have been given to the jury on the dangers of relying on the unacknowledged, disputed oral confession allegedly made by the appellant, no actual miscarriage of justice occurred in this case. Even if the jury had been properly directed, they would inevitably have come to the same conclusion.”