The Tribune

By AVA TURNQUEST

Tribune Chief Reporter

aturnquest@tribunemedia.net

THE Court of Appeal has quashed the 2015 armed robbery conviction of Deangelo Antonio due to "defects" identified by the appellate judges.

In their written ruling, Appellate Justice Jon Isaacs, along with Justices S. Maureen Crane-Scott and Roy Jones stated they were "left with a lurking doubt as to the safety of the appellant's conviction".

It follows a verbal ruling given on April 16, which set aside Antonio's 20-year sentence and ordered a retrial.

Antonio had been convicted of the armed robbery of Shardener McPhee on October 13, 2014.

Ms McPhee had reportedly taken a taxi from her work to her home shortly after 9pm. She was standing outside the vehicle, paying the taxi driver, when a man approached with a hood over his face and grabbed her bag. Ms McPhee said she initially assumed it was one of her brothers and told the man to stop playing; however, during the struggle the hood fell from the man's head and exposed his face.

The man then pulled out a firearm and held it to her face, demanding the bag, according to the ruling.

Ms McPhee reportedly saw the man's face for about 15 seconds before he escaped with her bag.

She described the man as fair skinned, light brown, about 5'8" to 5'9", with braided hair and missing teeth, the ruling continued.

Ms McPhee gave a statement to police and assisted in the drawing of a sketch the following day.

On December 18, Ms McPhee was shown a Rogue's Gallery - a photo album depicting individuals, including Antonio - and she picked him out.

Following that exercise, the ruling read, Ms McPhee participated in an identification parade that included Antonio and seven other men - and she identified him.

It was added the men were requested to speak during the process and Ms McPhee positively identified Antonio by his voice.

The taxi driver did not see the armed robber during the incident because he was distracted, but reportedly heard his demand for Ms McPhee's bag. The appellate judges noted it was surprising police did not conduct a voice identification parade for the taxi driver.

Antonio was convicted on July 21, 2015, and filed his appeal on August 13, 2015.

Antonio appealed his conviction and sentence on seven grounds, but abandoned the fourth ground - that his sentence was too severe - at the hearing of his appeal.

The other six were: "That the Learned trial judge erred in law in that he allowed inadmissible evidence to be wrongly admitted; That the Learned trial judge erred in law in allowing the trial to continue when the Appellant, who was unrepresented asked a witness a question which elicited an answer about the Appellant being picked out in a Rogue Gallery. This was prejudicial to the Appellant because it disclosed the fact that he was previously in police custody. The case should have been stopped and the jury discharged; That the verdict was unreasonable or could not be supported having regard to the evidence; In summing up to the jury, the Learned Judge failed to state the defense case fairly and made the comment that was highly prejudicial, unduly and negatively influencing the jury making the conviction unsafe and unsatisfactory; That under all the circumstances of the case the verdict is unsafe and unsatisfactory; and that the Judge erred in law in not allowing the Appellant to make a no case submission although he asked the Learned Judge to Make a No Case Submission."

The appellate judges noted they only addressed the first two grounds in their judgment due to concerns it may prejudice the retrial.

On the first grounds, they wrote: "…we perceived as a flaw in the exercise carried out by the Police when they showed 'rogues' gallery' to Ms. McPhee just prior to her participation in the identification parade. We did not enter into the issue of whether or not the make-up of the parade was of persons similar in description to the appellant because that was an issue of fact to be determined by the jury having heard the evidence of Ms. McPhee and Inspector Darrell Weir on the one hand, and the evidence of the appellant (Antonio) and his witness, Kim Wright, on the other.

They continued: "Inasmuch as Ms. McPhee claimed to know the appellant but also stated she may be able to identify the robber if seen again the Police were, in our view, right to conduct an identification parade to test Ms. McPhee's ability to correctly identify the person she said she may be able to identify if seen again.

"Unfortunately, she was shown a 'photo array', the 'rogues' gallery', which included a photograph of the appellant just before she was to undergo the test thereby negating the efficacy of the parade exercise. The limited utility of the exercise due to Ms. McPhee seeing the appellant's picture in the photo array before she went on the parade was not brought to the attention of the jury by the Judge."

Further to the second ground, they wrote: "Courts are at pains to prevent prejudicial material from being introduced during the trial of an accused person. It is unfortunate that an otherwise unexceptional proceeding has been upended by a totally avoidable error... that the photo array shown to Ms McPhee was referred to as a 'rogues gallery' …"