The Tribune

THE Court of Appeal has dismissed a man’s attempt to have his convictions for attempted murder, armed robbery and burglary overturned.

Omar Miller had appealed his convictions which stemmed from a trial before Justice Estelle Gray-Evans in Freeport, Grand Bahama on July 17, 2018 for which he was jailed for a total of 25 years.

According to the ruling, on March 23, 2016, Anthwan Simms was accosted and forced into his home at gunpoint by three armed men. He and his girlfriend were then robbed of various items and cash and the men shot Mr Simms and left in his black Chevy Colorado truck.

The police were notified of the incident and when the vehicle was spotted by police it was pursued. The vehicle stopped and a man got out of the vehicle carrying a brown bag and a firearm which he pointed at the police. The police fired shots at the man who then ran into nearby bushes. The man emerged from the bushes a short time later suffering from a gunshot wound to his hand. He was arrested and taken to hospital by ambulance.

According to police, that man was Miller.

He was later tried and convicted of attempted murder, armed robbery and burglary.

Miller’s appeal was based on four grounds, one of which was that the judge erred in law when she admitted the statements of Mr Simms into evidence. Mr Simms died in January 2018, according to evidence brought to court by the prosecution during trial.

“The evidence related to Mr Simms’ death was produced in the trial albeit belatedly; and although it can be said that the judge ‘jumped the gun’ when she allowed the statements to be admitted into evidence, we hold the view that no prejudice inured to the appellant by this error since had the correct procedure been followed by the judge, the statements would no doubt inevitably been admitted due to the unavailability of the witness and the balancing exercise carried out by the judge,” the Court of Appeal noted.

“Ultimately, we hold the view that the judge did err when she allowed Mr Simms’ statements to be made a part of the trial at the time she did so; but we are satisfied the admission of the statement did not create any injustice against the appellant and would not have affected the outcome of the trial due to the significant weight of the other evidence adduced by the prosecution against the appellant. In this regard, we would have been prepared to exercise our discretion under the proviso to section 13(1) of the Court of Appeal Act notwithstanding that this ground has been made out.

“There is another reason why this ground should not prevail; and that is because the defence did not object to the statements’ admission into evidence except to the extent of requesting a portion of one to be redacted. It is a significant development in our law that counsel for the prosecution and the defence are able to stipulate to materials being admitted into evidence during a trial. In our view, the lack of objection by defence counsel to the statements being admitted into evidence is akin to stipulating to their admissibility. Having offered no objection to them in the trial, the appellant ought not to be allowed to complain now.”

The justices continued: “The prosecution presented a strong circumstantial case against the appellant. There was sufficient evidence adduced by the prosecution through its witnesses to support the judge’s rejection of the no case to answer submission. Indeed, the strength or weakness of the prosecution’s case depended on the reliability and credibility of the prosecution’s witnesses, matters which are in the province of a jury, and we are satisfied that on one possible view of the evidence, the jury could properly have concluded that the appellant was involved in the commission of the offences.”

The appeal was heard by Justices Jon Isaacs, Stella Crane Scott and Milton Evans.

They ruled that they harbour “no lurking doubt about the correctness of the jury’s verdicts or that any injustice has been done.”