Muhammad v R

• Jurisdiction: Bermuda
• Judge: Zacca P,Evans JA,Baker JA
• Judgment Date: 24 March 2014
• Docket Number: Criminal Appeal 2012 No 5
• Court: Court of Appeal (Bermuda)
• Date: 24 March 2014

[2014] Bda LR 27

In The Court of Appeal for Bermuda

Before:

Zacca P; Evans JA; Baker JA

Criminal Appeal 2012 No 5

Between:

Anwar Muhammad

Appellant

and

The Queen

Respondent

Ms S Subair for the Appellant

Mr C Mahoney and Ms N Smith for the Respondent

The following cases were referred to in the judgment:

Brangman v RBDLR [2011] Bda LR 64

Myers v RBDLR [2012] Bda LR 74

Cox v RBDLR [2012] Bda LR 72

Attempted murder and unlawful use of a firearm — Appeal against conviction — Admissibility of gang evidence — Appeal against sentence — Eligibility for parole

JUDGMENT of Evans JA

1. On 18 January 2012 the Appellant, Anwar Muhammad, was convicted of the offences of attempted murder and unlawful use of a firearm, after trial before the Hon Justice Carlisle Greaves and a jury. The verdict was unanimous.

2. The two charges arose out of a single incident. On the afternoon of Monday 23 August 2010, the victim of the shooting, Shantoine Princeton (or Prinston) Burrows (‘the Complainant’) was sitting on his stationary motor cycle beside the road at Woodlawn, White Hill, in the Middle Road junction area, whilst he was texting on his cell phone. Two men rode slowly past on a motorcycle. He noticed that they looked at him, but he paid no particular attention. Then they turned their motorcycle, mounted the sidewalk and headed towards him. This alarmed him, and he tried to ride off but could not start his motorcycle engine. So he ran away pushing his motorcycle towards the Middle Road, but as he did so he heard two or three shots and realised that he had been shot in his leg. He dropped his bike and fled towards the Woodland Road. When the motorcycle caught up with him, he grabbed the pillion passenger, who was the shooter, dragged him off the bike and struggled with him. The rider shouted ‘Let's go’. The passenger freed himself and ran towards the bike, and they made off. Both the rider and the passenger wore helmets and visors, and the Complainant was unable to recognise or identify either of them.

3. There were eight eye-witnesses whose evidence supported this account. Some of whom said that the pillion passenger/shooter was wearing a white T-shirt, also described as a sleeveless vest. When one witness arrived on the scene, he saw a bike and a helmet on the road and a young man limping and stumbling who asked to be taken to a hospital, but he could not do this and he took him to the Maxi-mart store nearby. The Complainant realised that his middle finger had been shattered by a shot, and an ambulance was called. He was hospitalised in Bermuda, and overseas, for about two weeks.

4. The incident took place at about 3:15 – 3:30 pm. A police officer later recovered at the scene a left-foot black Adidas sneaker, size 11, at about 5:25 pm.

5. Meanwhile, police officers in a mobile patrol car went to an area described as a compound at the Southampton Industrial Park Road where they found three items of clothing: a white sleeveless shirt, a black shirt and a right-foot black Adidas sneaker, size 11. All three were blood-stained. That was at about 4:30 pm.

6. The sneakers and items of clothing were examined by a DNA expert. She gave evidence that there were bloodstains on both the right-foot and the left-foot sneakers, which she found in both cases matched blood samples obtained from the Complainant. She also said that DNA testing identified the Appellant as a wearer of both sneakers. With regard to the two items of clothing recovered from the compound, she said that DNA testing of the white sleeveless tank top and the black shirt showed both the Complainant and the Defendant as donors, and that the bloodstains on both garments matched blood samples taken from the Complainant. (The expert evidence is not disputed, and for that reason it has been summarised in general terms.)

7. The Appellant was arrested and charged with the offences, but not until 7 April 2011, more than seven months later, and he was interviewed on the following day. A Blackberry cell phone in his possession was found to contain a number of photographs and what came to be called an ‘audio recording’ which was transcribed and introduced in evidence.

8. The Defendant worked as an hairdresser, apparently for his own account with premises in Somerset. He said that on the day in question he visited his dentist, Dr Lorna Hall, who practises at the Brangman Building on Reid Street in Hamilton. She confirmed in evidence that she saw him at an 11:40 am appointment which lasted about half an hour. He said that he returned to work by 2 pm and that he then had various customers, including one whose hair-do he photographed; the photograph was taken at 4:22 pm.

9. The Appellant said in his police interview that he had never owned black Adidas sneakers, but in his evidence at the trial he accepted that the ones that were found could be an old pair of his. He also accepted that the items of...