By KHRISNA RUSSELL
Tribune Chief Reporter
krussell@tribunemedia.net
THE Court of Appeal has quashed a combined 28-year sentence a man received for burglary and attempted murder when he was a teenager, adding that it would not be in the interest of justice to order a retrial.
Between July 8 and 9, 2012, the home of Admiral Forbes was broken into.
The accused, who at the time was 16 years old, was charged with attempted murder and burglary. The only evidence against him was a confession statement.
However, during the trial he denied his involvement in the offences and indicated that the statement was pre-written by the police, adding that he signed it as a result of oppression brought about by police brutality.
On December 18, 2016, the accused was convicted of burglary and attempted murder and several months later on April 6, 2017 he was sentenced to 10 years and 18 years imprisonment, respectively.
On September 3, 2020, he signed a written notice of appeal as well as a notice of application for extension of time within which to appeal. The length of the delay is approximately three years and five months.
According to a written judgement by Justice Milton Evans, there were several grounds for the appeal. The first ground for appeal was double fold in that there was a failure on the judge’s part to give a Mushtaq direction - the direction that was given confused the jury rendering the trial unfair and the judge erred when he admitted the record of interview into evidence not taking into account an infection that appellant got while in police custody as well as the need for pain medication, independent of his infection.
It was also noted that the officers’ evidence showed that they did not properly instruct the appellant’s sister of her role while sitting in on the taking of the statement that was allegedly given by the accused. Further it was the officers’ evidence that questions were asked of the accused, but none of those questions were recorded nor was he cautioned before answering. And there was contradictory evidence from the officers in reference to the accused sister’s inquiry as to whether he was beaten by police.
On ground two, there was a view that the judge failed to appreciate the unfairness of the trial and the serious prejudice suffered by the appellant given the withdrawal of the appellant’s counsel and the inability of the appellant to properly defend himself against such a serious charge.
The appellant said there was a delay in his appeal filing because he did not know he could do so, as he did not have an attorney during his trial.
According to the judgement, the confession statement was the only evidence connecting the intended appellant to the crimes.
“There is no record of what transpired when the decision was made to proceed with the intended appellant being unrepresented... The intended appellant’s statement indicates that while in the home of Mr Forbes, he fired a shot to scare Mr Forbes,” the Court of Appeal noted.
“The judge did not explain to the jury that if they accepted that the intended appellant fired the gun only to scare Mr Forbes, he lacked the requisite intent to constitute the offence of attempted murder. Counsel would have drawn this issue to the attention of the judge so that the jury could have been specifically addressed on it.”
Justice Evans ruled that: “At no point in his summation did the learned judge explain to the jury that if they accepted that the intended appellant fired the gun to scare the complainant that would not constitute attempted murder. It is significant that the statement specifically said the intent was to frighten and it is this statement which the Crown was asking the jury to accept as true. This point needed to be made clear to the jury.
“To my mind, a trained and competent attorney would have drawn this issue to the judge’s attention and ask that he specifically address the jury on the significance of what the Crown alleged and what the evidence actually showed. There is no evidence that the unrepresented intended appellant was advised that he could ask the judge to address any issue which was omitted; nor did the judge ask whether he had omitted any matters that the parties wanted him to address.
“However, even more significant is that it is unlikely that the intended appellant would have recognised the significance of this shortcoming in the summation. In these circumstances there is merit in this ground as, in my view, the intended appellant’s lack of representation had a negative impact on the conduct of the trial, thereby the outcome. Ground three, the verdict is unsafe and unsatisfactory having regard to the circumstances of the case.
“Having regard to my findings on the previous grounds I am satisfied that this ground should succeed for the reasons stated in the earlier grounds.”
He continued: “It is for the foregoing reasons that I would allow the intended appellant’s application for an extension of the time allotted for filing his appeal. As we have heard full submissions, I would also allow the appeal and quash the convictions and sentences imposed. This is not, in my view, a case in which we can apply the proviso, and having regard to my concerns relative to the confession statement I do not think that it would be in the interests of justice to order a retrial.”
Justice Jon Isaacs and S Maureen Crane-Scott agreed.
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