Alex Wolffe v The Queen
| Jurisdiction | Bermuda |
| Judge | Smellie JA,Clarke P,Bell JA |
| Judgment Date | 09 January 2020 |
| Neutral Citation | [2020] CA Bda 1 Crim |
| Court | Court of Appeal (Bermuda) |
| Docket Number | CRIMINAL APPEAL No. 3 of 2019 |
| Date | 09 January 2020 |
[2020] CA (Bda) 1 Crim
The Court of Appeal for Bermuda
Clarke, President
Bell, JA
Smellie, JA
CRIMINAL APPEAL No. 3 of 2019
Susan Mulligan, Christopher's Barristers & Attorneys Ltd., for the Appellant;
Alan Richards, Office of the Director for Public Prosecutions, for the Respondent
Appeal against convictions for wounding with intent, attempted robbery and intimidation by threats — prosecution's case based on circumstantial evidence and confession to fellow prisoner — allegations by defence of abuse of process as basis for stay of the prosecution- whether such allegations are better resolved as part of the trial — defence of alibi — late disclosure of alibi — suggestion that alibi a recent fabrication — subpoenas to prison officers to elicit evidence to rebut recent fabrication — prosecution's claim for public interest immunity (“PII”) in respect of prison records upheld — whether proper procedure applied and claim for PII properly upheld- — further evidence adduced on defence case ex improviso — whether prosecution entitled to adduce evidence in rebuttal.
In the early hours of the morning of 23 October 2018, two assailants on a motorcycle embarked upon the attempted ambush and robbery of other motorcyclists who happened along Harbour Road, Paget Parish.
The Appellant was tried and convicted by judge and jury on an indictment with four counts which alleged his involvement as one of the two assailants. He was found to have been involved in separate attacks upon two motorcyclists, Mr Jahvon Mallory and Mr Borislov Angelov. He now appeals against his conviction.
As the indictment stated, the offence against Mr Mallory involved intimidation and threats of injury by the spoken word with the intent to stop and rob him, which threats, as will be explained below, fortunately did not succeed. The offences against Mr Angelov proved far more serious. When similar attempts to stop and rob him did not succeed, he was chased by the two assailants to his home where he was set upon by both. One of the assailants, armed with a knife, inflicted several stab wounds to his body, while the other brandished what appeared to Mr Angelov to be a firearm. Mercifully, although critically injured, Mr Angelov survived.
The Appellant was convicted as being one of the two assailants, by dint of circumstantial evidence and a confession made to a fellow prisoner while in custody.
The Appellant's grounds of appeal question whether his conviction, in all the circumstances of the case on the evidence presented, was safe. These grounds of appeal will be examined in turn below.
The circumstances are best described from the narrative of the evidence of the witnesses, first from Mr Mallory, and then from Mr Angelov. The narrative of other important witnesses will also be summarized.
Mr Mallory testified that on 23 rd October 2018, at approximately 2:40 a.m. to 2:45 a.m., he was riding his Nuovo 135 cc motorcycle in a westerly direction on Harbour Road, and as he passed the junction of Keith Hall Road he saw another dark coloured Taurus-like motorcycle travelling in an easterly direction. This motorcycle slowed down, turned off the lights, turned around and then slowly came up behind him. He could see in his rearview mirror that two people were on the motorcycle. After a series of corners, the motorcycle came right beside him and he asked them what was their problem. At that moment his and their speed was about 40–50 kph. He could not hear a response so he asked again, “what happened?”, again without hearing a response. As he approached the intersection at Longford Hill he thought to make a turn in order to get away, but as he slowed down, so did the other motorcycle. His and the other bike overtook each other and as they exchanged places he again asked “what's your problem”? On this occasion one of the two replied in a Bermudian accent “get off your bike”. He could not say whether the speaker was the rider or the pillion passenger. He then sped off reaching a speed of 80 kph. They tried to catch up with him but after a while he lost sight of them and made good his escape.
He described the rider of the bike as not having a helmet on but that he had on a reddish-coloured wool-like hoodie which was over his head with the drawstrings tightly pulled. During cross-examination by Ms Mulligan, the witness demonstrated this to the jury by reference to generic photographs presented to him and which showed that the head and mouth/nose areas of the wearer would have been covered but the area of the eyes would have been visible [defence exhibit 1]. He described the pillion passenger as wearing dark clothing, a dark-coloured helmet with a full-face dark visor.
While he could not say what the height of either man was, it appeared to him that the rider was the taller of the two.
The attire and relative height of the two men became of significance in the light of Mr Angelov's evidence about the description of his assailants.
Mr Angelov testified that he lived at #90 Harbour Road in Paget Parish and that on 23 rd October 2018 he left his work place in Dockyard at around 1:30 a.m. He and his co-workers rode together in an easterly direction until they reached Harbour Road. Just before he reached Belmont Ferry terminal, two motorcycles travelling in the opposite direction caught his attention. The first bike had only the rider on it but the second had a rider and pillion passenger. On this second bike the pillion passenger had on a red scarf on his head but no helmet. After a minute or so had passed, this bike (which must have turned around), rode up next to him and he felt the person in the red scarf trying to “snatch him around the neck” and the rider, who had a helmet on with a dark visor, tried to push him down with his leg. One of the men said to him, “give me what you have.”
He did not fall but zigzagged. The men he said were screaming at him to stop but he sped up and tried to get home as fast as he could. In doing so he took dangerous curve corners and went on the other side of the road as the men were trying to overtake him. He said it was as if they were in a rally, at times reaching 80 kph. He said that he “put the pedal to the metal”. But just before reaching his house, he slowed down because of a dangerous turn and the bike with the two men went in front of him. They applied their brakes which caused their bike to slide out in front of him. His bike then hit their bike near its licence plate and muffler and he then saw the licence plate number to be CE875.
This evidence of the licence plate number and of contact between the two bikes, became of significance in the trial, for reasons which will become clear.
Mr Angelov managed to drive his bike into his yard but there his two assailants followed him, got off their bike and attacked him. Any doubts before that his two assailants were both male were then removed.
The man wearing the helmet (observed to have been the rider) tried to get control of his bike with the engine still running but Mr Angelov pushed him off. The man wearing the red scarf started hitting Mr Angelov to his back and so Mr Angelov engaged him. He could see his eyes but later, in cross-examination by Ms Mulligan, said that he could not say whether he was wearing glasses. This was raised as being relevant to the Appellant's defence because, while the Appellant was convicted as being this assailant, there was uncontested medical evidence to the effect that he wore prescription glasses for near-sightedness.
Mr Angelov was at pains to emphasize that his ability to observe and recall what was then going on was hampered. He was fighting for his life and that of his wife, who was in the house recovering from a bad leg injury. Everything happened very quickly.
He and the man in the red scarf ended up in the patio area outside his house just near to the hedge (shown to the jury in photographs). He then saw the man with the helmet come into the patio area with a green-handled knife in his handsome 10—23 centimeters long. He said that that was when he “started to feel hot all over my body” and blood was coming out of everywhere of his body. He noticed that blood was then also oozing from his shoes, collected there as it flowed from his body. He got a patio chair and tried to keep the guy with the knife off of him and started screaming for his wife who was in the bedroom, to call 911.
He became fearful as the heat from his body was incredible. It was hard for him to explain the feeling, he said. His wife switched the inside lights on and that was when the guy with the helmet looked at her and the guy with the red scarf moved away towards a car parked in the drive way. He said that the guy in the scarf then pointed at him in a “gun gesture”, with something he described as a gun.
The two assailants then left, riding on their bike in a westerly direction. Mr Angelov said that when they left he managed to get to the patio door to his house, still bleeding profusely.
As his wife opened the door to come to his aid, he screamed out the licence plate number of the assailants' bike “CE875”, ten times over, as he said “to make sure she got it.”
The police and ambulance then arrived and he was taken to the hospital. He awoke in the hospital when he discovered that he had suffered 13 stab wounds. He spent 11 days in the hospital, 6 or 7 of which were in intensive care.
Mr Angelov, although not able to identify them, gave further descriptions of his assailants. He said that the man with the helmet was “just about my height, which I think is 5' 7” to 5' 8”” tall and the same build as himself, his weight being 215 to 220 pounds. Later in cross-examination, being Bulgarian, he gave his own...
To continue reading
Request your trial