By FARRAH JOHNSON
THE Court of Appeal has overturned the convictions of two men who were found guilty of kidnapping and murdering a senior immigration officer and his girlfriend in 2013.
The appellate court ruled that the trial judge’s failure to thoroughly investigate an altercation that occurred between the forewoman and an alternate juror of the accused men’s trial created a “material irregularity” over the course of the proceedings.
On December 21, 2013, the decomposed remains of senior immigration officer Shane Gardiner and his girlfriend Tishka Braynen were found on the grounds of Newbold Farms in Fresh Creek, Andros. Both victims had been killed execution style and had each received a gunshot wound to the head.
On March 29, 2016, Zintworn Duncombe and Cordero Saunders, along with their co-accused, were convicted of murder, kidnapping, conspiracy to commit armed robbery and attempted armed robbery and were sentenced to imprisonment. The appellants appealed their convictions after arguing the judge failed to “properly investigate” a verbal altercation between the forewoman and an alternate juror during their trial. They also argued the jury was not informed that the prosecution’s witness “had an interest to serve”.
Yesterday, Justices Jon Isaacs, Maureen Crane-Scott and Milton Evans quashed Duncombe and Saunders’ convictions after concluding that both of the men’s verdicts could be deemed as “unsafe”.
According to a judgement posted on the court’s website, on November 24, 2013, Braynen was at Gardiner’s home in Love Hill, Andros when they were both kidnapped and taken to Newbold Farm where they were shot to death. While Gardiner was buried in a shallow grave, Braynen’s body was dumped into a six-feet deep hole. Their remains were discovered about a month later by Anthony McKenzie and Eddie Green, two men who were out in the bush hunting hogs. The judgment noted the bodies of both victims were so decomposed that they had to be identified by DNA testing of samples taken from the remains and samples of blood provided by their relatives.
“Suspicion fell on Duncombe and his co-accused: Daniel Coakley, James Johnson and Cordero Saunders because ••••• reported to the police she had seen the immigration Jeep usually driven by Shane, pass her early in the morning and with ••••• sitting in the back seat on the very day Tishka and Shane went missing,” the court documents read. “She also told of Saunders and Daniel driving in Tishka’s sister’s vehicle right behind the Jeep. Saunders and Duncombe along with others were arrested by the police. They and their co-accused were charged with multiple offences and taken before a magistrate; and in due course, a voluntary bill of indictment was filed fast tracking the case to the Supreme Court.”
According to the judgement, the Crown called two key witnesses during the trial. One of them was •••••, a “co-conspirator,” who gave evidence for the Crown. He testified that Duncombe, James Johnson and Shawn Hinsey had planned to rob Gardiner and Braynen. He said on the morning in question, the men, who were armed with handguns, picked him up. He also said Gardiner and Braynen were in the Jeep at the time. ••••• claimed that when they arrived at Newbold Farm, they all got out of the vehicle and Duncombe began asking Gardiner for money. When Gardiner said he had none, Duncombe shot him. He said Duncombe then led Braynen a short distance away and shot her as well.
“••••• was the second key witness for the prosecution. She stated that on November 23, 2013, while preparing breakfast at her home she overheard a conversation between Saunders and James that Paul Marshall said that Shane had won some money,” the court documents read. “She stated that shortly thereafter Saunders came into the house and told Daniel that he was going to call Duncombe and they left together. She recalled that half an hour later Saunders and Daniel returned with Duncombe...••••• recounted that around 4am on November 24, 2013 whilst standing near the Fresh Creek Graveyard awaiting a ride to work, she recognised the Jeep of the Bahamas Immigration Department which was regularly driven by Shane driving past her with ••••• in the rear passenger seat. As the vehicle passed her, she could hear the screams of a male and female.”
The judgment noted a no case to answer submission, which was made on the appellants’ behalf, was rejected by the judge at the close of the Crown’s case. According to the court documents, Duncombe’s initial counsel had asked the judge to issue summonses for two witnesses. He also advised the judge that the “prospective witnesses’ employers would not release them without a court summons.” Still, the judge declined to issue the summonses, because she believed Duncombe was “engaging in a time-wasting exercise”. As a result, Duncombe was made to proceed with his case without calling the two witnesses.
“Duncombe’s case at trial was essentially that he knew nothing of the murders and both of the Crown’s witnesses (and) ••••• and ••••• were unreliable witnesses because they each had an interest to serve. In the case of •••••, he was involved in the offences charged but was being used as a prosecution witness against his fellow offenders. The suggestion was, it appears, that he was ‘singing for his supper’. In the case of •••••, she had been arrested by the police on suspicion of being involved with the offenders and only gave a statement implicating them after she had been released. Again, the suggestion being that this was a quid pro quo and she had an interest to serve.
“After the close of addresses by counsel and before the judge was to sum up the case to the jury, the jury requested that they be allowed to visit the locus in quo. The judge acceded to the request and the arrangements were made. While members of the jury were on a bus which was apparently transporting them to various locations in Andros, an altercation occurred between the forewoman and an alternate juror. The altercation was variously described as a verbal altercation and as a fight. The latter description was given by the forewoman when she was questioned by the judge in her chambers during a meeting the judge held with the forewoman and the alternate juror in the absence of counsel and the appellants. The judge later advised counsel that she would excuse the forewoman; but did not do so; and the trial continued without protest from the appellants’ counsel.”
In his judgement, Justice Isaacs said he believed the altercation between the forewoman and the alternate juror was a “matter internal to the jury”. As a result, he concluded it was important for the jury to be “questioned in open court through their foreman to ascertain whether it anticipated to bring in a true verdict according to the evidence”.
“It is obvious that the judge’s refusal to issue summonses for appellant Duncombe’s witnesses was because she was conscious of the time the case had already taken to finish, and was anxious not to further displace cases she had already fixed for hearing,” he continued. “However, expedience cannot overpower an accused person’s undoubted constitutional right to a fair hearing. It must be impressed upon tribunals conducting criminal trials that they must not be overly concerned with delays that may be caused by the necessity to have a defence or prosecution witness come to court to testify, unless it is clear in the circumstances that the request is made for the purpose of delay... In the premises, the convictions of Duncombe and Saunders are quashed and their sentences are set aside. We will hear the parties on the issue of a retrial.”
• Names removed to protect the identities of those involved.