The Tribune

By LEANDRA ROLLE

Tribune Chief Reporter

lrolle@tribunemedia.net

A MAN who was sentenced to 40 years behind bars for allegedly killing an American sailor in 2013 had his murder conviction quashed yesterday after the Privy Council ruled that evidence in the case was “so tenuous as to be incapable of supporting a safe conviction for murder”.

The Privy Council also ruled against a murder retrial, though it recommended that the case be remitted to the Court of Appeal for consideration of retrial for a manslaughter charge. 

Anton Bastian, the appellant, was convicted in November 2015 of murder and two counts of armed robbery in connection with the 2013 killing of Kyle Bruner.

Police allege that he and two others robbed two women at gunpoint, taking their cash and personal belongings.

During the armed robbery, one of the assailants got involved in a fight with  Bruner, a bystander at the time, and shot him, fatally wounding him. 

Bastian was sentenced to 40 years on the murder charge and 12 years on the armed robbery offences, with the sentences ordered to run concurrently.

According to court documents, during the trial, the prosecution produced two police officers as witnesses who testified that Bastian, in separate incidents, admitted to being at the scene of the incident, but not killing Bruner. 

One of the officers claimed Bastian told him he robbed the women.

However, the court documents noted the appellant did not write or sign anything confirming the claims and that he denied making the statements. 

Bastian alleged that police officers beat and tortured him in custody and that one of the oral statements he gave police was “unreliable” and “an untrue product of oppression and police brutality.” 

“He also adduced evidence of a medical examination of the appellant by the late Dr Curry, prison doctor, who on 20 May 2013 had diagnosed myalgia secondary to trauma and some redness to the throat,”  the Privy Council ruling read.

Ultimately, Bastian made a “no case to answer” submission, contending that the alleged confession did not prove that there was an agreement to rob or that he had knowledge of a gun’s presence.

However, the judge rejected the submission on the ground that “a properly directed jury might on one view of the facts come to a conclusion that all of the defendants were part of a joint plan to rob and in the course of the robbery the deceased was killed”.

When Bastian appealed his conviction and sentence to the Court of Appeal, it was dismissed, prompting him to go to the Privy Council. 

In appealing the Court of Appeal’s ruling, Bastian said appellate judges erred “in holding that the trial judge gave adequate directions to the jury as to the specific intention required for murder and armed robbery in the course of a joint enterprise”.

Justice Indra Charles was the judge who presided over the case.

Bastian argued that she erred by failing to present an issue of fact to the jury and failed to leave to the jury lesser alternative counts of robbery and/or manslaughter.

Bastian also argued that the trial judge failed to adequately differentiate between the separate cases and evidence, including alleged out-of-court confessions.

In quashing Bastian’s conviction, the Privy Council said the judge should have accepted a no-case submission because there was little evidence to show that Bastian knew that his co-defendant had a gun that night. 

“The only admissible evidence against the appellant that was relevant to this issue was the thoroughly ambiguous statement said to have been made to Assistant Superintendent Clarke,” the ruling said.

“While that statement may be capable of being understood as indicating that the appellant had prior knowledge that Johnson had a gun, this alone, in the Board’s view, is so tenuous as to be incapable of supporting a safe conviction for murder. It is not evidence on which any reasonable jury, properly directed, could be sure that the appellant had prior knowledge of the gun.”

The Privy Council added that similar considerations apply to Bastian’s armed robbery conviction and recommended substituting the charge with robbery and sending the matter back to the Court of Appeal for re-sentencing.

The Privy Council said the trial raised complicated issues of law and fact, “including complex issues of joint enterprise, alternative verdicts, cross-admissibility of evidence and inculpatory and exculpatory statements in interview.”

“In the Board’s view, the jury would have been assisted, and clarity would have been promoted had the judge reduced the necessary directions of law to writing and, after hearing (and where appropriate responding to) any submissions about them from counsel, provided copies to the jury during the summing up,” the ruling said.

“This procedure has now become the norm in most criminal trials in Crown courts in England and Wales. This course has the advantage of allowing counsel to make submissions in advance of delivery of the summing up on what may be disputed points of law.”

“It encourages clear and concise explanation of complex issues. It is likely to reduce the risk of repetition or contradiction in directions. It assists the jury in understanding and retaining the legal directions and can provide a sound basis for discussion when they retire to consider their verdict. The Court of Appeal may wish to consider whether such a procedure should be followed in The Bahamas.”