Dublin and Harewood v The Queen
| Jurisdiction | Barbados |
| Judge | Waterman, J.A. |
| Judgment Date | 27 March 2007 |
| Neutral Citation | BB 2007 CA 8 |
| Docket Number | Criminal Appeals Nos. 13 and 14 of 2005 |
| Court | Court of Appeal (Barbados) |
| Date | 27 March 2007 |
Court of Appeal
Waterman, C.J. (Ag.); Connell, J.A.; Moore, J.A.
Criminal Appeals Nos. 13 and 14 of 2005
Mr. C. Lindsay Bolden, Q.C. in association with Mr. Marlon Gordon for appellant Dublin.
Mr. Delroy Saddler for appellant Harewood.
Mr. Allison Seale in association with Mr. Elwood Watts for the respondent.
Criminal practice and procedure - Indictment — Defect — s.8(1) of Criminal Law (Arrestable Offences) Act — whether the arrestable offence had to be stated — Particular offence should have been stated on the indictment — Failure to state only rendered indictment defective or imperfect — Appellants suffered no prejudice — Proviso applied — Appeal dismissed.
Criminal law - Impeding prosecution — Appeal against conviction — Unrepresented accused — Assistance of the court — Challenge to oral statements — Court intervened as necessary to assist accused persons — Appeal dismissed.
The appellants, Sherwin Ackley Dublin and Othneil Harewood, were convicted on 20 April 2005 of an offence under section 8(1) of the Criminal Law (Arrestable Offences) Act, Chapter 125A (the Act) and were both sentenced on the same day to 3 years' imprisonment. Section 8(1) provides as follows:
“Where a person has committed an arrestable offence, any other person who, knowing or believing him to be guilty of the offence or of, some other arrestable offence, does without lawful authority or reasonable excuse an act with intent to impede his apprehension or prosecution shall be guilty of an offence.”
The particulars of the offence alleged that the appellants “on the 3rd day of April 2001, within the territorial waters of Barbados, believing that Walter Prescod had committed an arrestable offence did, without lawful authority or reasonable excuse, an act to impede the prosecution of the said Walter Prescod”.
The prosecution case was that on 3 April 2001 the appellants were seen on board a boat within the territorial waters of Barbados with a number of other men, one of whom was Walter Prescod who was wanted by the police. The Coast Guard stopped the boat in the waters just outside the area of the Bridgetown Fishing Complex and ordered the captain to sail the boat to Fort Willoughby where all the men were questioned about their presence on the boat. Certain information was revealed to the officers of the Coast Guard and as a result the police were informed. The police later went to Fort Willoughby, spoke to the appellants and after investigations were carried out they were charged. The prosecution alleged that Prescod had committed the arrestable offence of drug trafficking and that the appellants, with intent to impede the prosecution of Prescod, arranged for Prescod to be taken out of the jurisdiction by boat to the neighbouring island of St. Vincent.
Evidence implicating the two appellants came from police officers and officers from the Coast Guard. Sergeant Cecil Watson and Police Constable Kirt Ottley testified concerning oral statements given by the appellants which were admitted in evidence.
According to officers Watson and Ottley, when interviewed in connection with the incident and told that he had a right to consult with an attorney-at-law of his choice, Harewood said:
“I ain't want no lawyer.”
And later, when questioned about the ownership of the boat, said:
“I borrow that boat to go fishing.”
And, when asked whether he knew Walter Prescod and whether he knew that the police wanted Walter Prescod, and cautioned, he replied:
“Yes, I know he from in Oistins.”
“I know that he got the charge and running from the Court.”
And, when asked where he was taking the boat with Walter Prescod on board and cautioned, he replied:
“Officer, Sherwin Dublin asked me to carry he and Walter Prescod to St. Vincent on that boat and the Coast Guard stop us.”
And, when asked whether he wanted to give a written statement and cautioned, he said:
“No, I ain't giving no statement to lock me up.”
According to the police officers, when interviewed and told that he had a right to consult with an attorney-at-law of his choice, Dublin said:
“Bolden is my lawyer but I gine talk to you. I ain't want no lawyer.”
And, later he said:
“Officer, I gine tell you the position. Walter is my man and I was helping carry he down to St. Vincent.”
And later, when asked whether he wanted to give a written statement and cautioned, he said:
“I ain't giving no statement. I could tell you what was happening.”
And yet later:
“I was just helping my man Walter get away because he got a little drug charge and he can't tek no prison. You could give short man a break. He was just steering the boat. He don't get in nothing.”
And finally, when arrested and cautioned, Dublin said:
“Officer, you ain't got to charge me for that.”
The Coast Guard officers, Yarde and Mitchell, testified that they saw the boat in question come through the Careenage with a number of men on board, which differed from the number they saw when it left the Bridgetown Fishing Complex. As a result, they waited some three quarters of a nautical mile west of the Bridgetown Harbour to intercept the boat. They both gave evidence that before the night of 3 April 2001 they did not know any of the men who were on the boat.
The appellants both elected to give sworn evidence. They denied making oral statements to the police. They said the only thing they were guilty of was leaving the island illegally. Harewood said in his evidence that if he handled the boat on the morning of the incident that act did not make him the captain of the boat. He only brought the boat back to shore because he is a law abiding person and in so doing he was complying with the order of a coast guard officer. He contended that his role was simply that he went along with his friend at whose house he slept on the night of 2 April and that, in response to a phone call at 3 o'clock the next morning he got up and went down to the Complex to go to St. Vincent where he had never been before. Harewood said that he did not know that Walter Prescod was going to be on the boat and that when he got on the boat he saw three men facing forward. He did not know who they were.
Dublin in his evidence denied that he played any part in assisting Walter Prescod to escape from Barbados. He also denied that he knew that Walter Prescod was going to be on the boat. He testified that one Emmerson Branch, the man whom the police did not charge, was the captain of the boat. His purpose on the boat that morning was to get to St. Vincent cheaply because he was broke. He had no need for money while in St. Vincent because he had friends there who would take care of him.
Mr. Bolden, for the appellant Dublin, filed the following grounds, namely:
1. The trial of the appellant proceeded on a defective indictment which was not amended and there was a material irregularity in the trial and as such the conviction is unsafe.
2. The learned trial judge erred in law when in his summation he told the jury the following:
(i) The burden of their case essentially is that they were in the wrong place at the wrong time, in the wrong company and that there was no intent to assist Walter Prescod.
(ii) The burden of the cross-examination by the accused Dublin: Where were the other men on the boat? How come the rest ain't get charge?
(iii) because Dublin's burden of defence is, six men get hold upon a boat, three is criminals, three ain't criminals, don't you feel the other one should be charged with we too?
(iv) but if they are lying and you consider that they are lying, then you might consider that. As we say in another place, if you are guilty of small things, then you may be guilty of great things.
3. The summation of the learned trial judge never adequately and sufficiently identified for the benefit of the jury the matters which were in issue and raised by the appellant's defence.
4. The learned trial judge failed in his duty to properly assist the appellant (who was unrepresented) in challenging the oral statements attributed to the appellant.
5. The learned trial judge failed to adequately direct the jury in terms of section 137 (1) of the Evidence Act on the issue of oral statements in that:
At no time was it explained to the jury that it was clearly designed to provide safeguards against the inaccurate recording or invention of words and making them attributable to an accused person and that it was designed to promote fairness in the trial of criminal matters especially where the case against the appellant was based solely on the oral statements attributable to him.
6. The verdict is unsafe and unsatisfactory in all the circumstances of the case including but not limited to the comment of the learned trial judge that ‘if you insist on not heeding my caution, then I have to throw away the scales”.
Mr. Saddler filed the following grounds in support of Harewood's appeal, namely:
1) That the indictment is defective in that the particulars of offence did not state that Walter Prescod had indeed committed an arrestable offence namely drug trafficking which would if appellant Othneil Harewood so believed cause his action to impede the offender's prosecution.
2) That the learned trial judge did not properly protect the unrepresented appellant or properly and adequately direct the jury as it relates to material irregularity and prejudicial comments as well as providing the requested assistance incumbent on him where the appellant is concerned.
3) That the learned trial judge failed to direct the jury on the ingredients of assisting offenders where the requirement is that the appellant must have knowledge that the offender has committed an arrestable offence.
4) That the learned trial judge introduced the issue of common...
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