Alvin Dennison v R

• Jurisdiction: Jamaica
• Judge: Morrison JA
• Judgment Date: 17 February 2014
• Neutral Citation: JM 2014 CA 22
• Court: Court of Appeal (Jamaica)
• Docket Number: SUPREME COURT CRIMINAL APPEAL NO 122/2010
• Date: 17 February 2014

Alvin Dennison

and

R

[2014] JMCA Crim 7

Before:

The Hon Mr Justice Morrison JA

The Hon Miss Justice Phillips JA

The Hon Miss Justice Mangatal JA (Ag)

SUPREME COURT CRIMINAL APPEAL NO 122/2010

JAMAICA

IN THE COURT OF APPEAL

CRIMINAL LAW - Murder - Jury misdirection - Treatment accorded to unsworn statement - Excessive sentence

Leroy Equiano for the applicant

Mrs Tracey-Ann Johnson for the Crown

Morrison JA

Introduction

1 On 27 October 2010, after a trial before Beswick J (as she then was) and a jury, the applicant was convicted of murdering Jemar Coleman (“the deceased”). On 11 November the learned judge sentenced the applicant to imprisonment for life, stipulating that he should serve a minimum of 19 years of his sentence before being eligible for parole.

2 The applicant's application for leave to appeal was considered on paper, and refused, by a single judge of this court on 4 April 2013. This is therefore his renewed application for leave to appeal. The two issues which arise on this application are (i) whether the learned trial judge's directions to the jury on the value of the unsworn statement from the dock given by the applicant were appropriate; and (ii) whether the sentence imposed by the judge was manifestly excessive.

3 Before going to the facts of the case, a few words by way of background on the origins of the unsworn statement might be helpful in framing the first issue. Historically, the right of the defendant in a criminal trial to make an unsworn statement from the dock was part and parcel of what Professor Peter Murphy once described (in A Practical Approach to Evidence, 4 ^th edn, para. 1.1.3) as various ‘judicial attempts, during the formative years of the modern law of evidence, to mitigate some of the harshness of criminal law and procedure towards the accused’. It is in this context that, in a system in which serious penalties (including death) were prescribed for many felonies, but in which the defendant was entitled neither to representation by counsel (until 1836), nor to give evidence in his defence (until 1898), the right to make an unsworn statement developed.

4 The incapacity of a defendant to give evidence in his defence was removed in England in 1898 (by section 1 of the Criminal Evidence Act, 1898) and in Jamaica in 1911 (by section 3 of the Criminal Evidence Law, 1911, now section 9 of the Evidence Act). However, in Jamaica, as in England, the right of the defendant to make an unsworn statement from the dock was expressly preserved (Evidence Act, section 9(h)). In 1967, Professor Cross described the right (in Cross on Evidence, 3 ^rd edn, page 160) as ‘a harmless survival from a former age when it was a valuable concession’; and, as Lord Steyn would later say in Mills and Others v R [1995] 1 WLR 511, by ‘the late 1970s and 1980s the right to make an unsworn statement was already regarded in England as an historical anomaly’. It was finally abolished in England in 1982 (by section 72 of the Criminal Justice Act 1982).

5 But, as the principal issue raised by this application attests, the right of the defendant to make an unsworn statement remains an important feature of the system of criminal justice in this country (as to which, see a valuable article by Richard Small, Unsworn Statements from the Dock – The Jamaican Situation, West Indian Law Journal, May 1984, pages 83–98).

The prosecution's case

6 As told to the court by Mr Jermaine Williams, the deceased's cousin, who was the sole witness to the incident which resulted in the deceased's death, the matter arose in this way. On 27 October 2008, the applicant was just two weeks short of his 16 ^th birthday and the deceased was 17 years old. At that time, they were both residents of Seaton Crescent, Savanna-la-Mar, in the parish of Westmoreland. At about 4:30 pm that day, they were both engaged along with others in a game of football at the New Market Oval Football Field, which was a ball ground close by. They were part of a group of about 20 young men, which was divided into two teams of 10 and they were on opposite sides.

7 The game got rough at a point and the applicant and the deceased began to tackle one another for the ball. The applicant kicked the deceased in the back of his heel, whereupon the deceased ‘run guh fi two big stone’. The applicant then removed a ratchet knife from his pocket and he and the deceased came close to each other, as though they were about to fight. They were parted by others on the ball ground, after which, as a result of the threat of violence, ‘the game mash up, everybody start walk off the field’. The deceased walked out the gate of the ball ground, a short distance away.

8 A further altercation then threatened between the applicant and another youth, known as “Balty”, as the applicant rushed at him, knife in hand, offering to cut him in the face. The applicant's father came onto the scene and had a word with Balty, right after which the applicant also left the ball ground, headed in the same direction as the deceased had gone.

9 Mr Williams, who was a distance of about 2 chains away from them, then saw the applicant and the deceased talking to each other outside the ball ground. The deceased was positioned about 4–5 feet in front of the applicant, with his back to him. Mr Williams was not able to hear exactly what they were saying to each other, but he ‘could a see dem mouth moving’. The applicant still had the knife in his hand, while the deceased, for his part, had ‘two big stone in a him hand’. This is Mr Williams' account of what happened next:

‘A. Well, after mi si the accused talking like argument, mi just si him mek one big step and jook Jemar in a him neck and run off.

Q. Now, you say him jook Jemar, right? Tell us what that place name wey him jook him?

A. Right in a him neck.

Q. At the time that Jemar get the jook in a him neck, did Jemar attack the accused?

A. No.

Q. At the time that you saw the accused man jook Jemar, about what distance were you from the accused men?

A. As mi tell yuh I was about a cricket pitch and a half.

Q. Same distance. At the time that the accused jook Jemar, what position was [sic] Jemar's hands in?

A. Him did have one a the stone in him right hand like this a….

Q. Just tell me what you saw.

A. Him did have the big stone like him ready fi lick the accused.’

10 Exhaustively cross-examined by counsel for the applicant, Mr Williams stuck to this account of what took place that afternoon. But he was successfully challenged on several matters of detail in which his evidence differed, either from evidence which he had given previously, or from his statement to the police. Notably, he agreed when pressed that, before being spoken to by the applicant's father, Balty had also armed himself with two stones; and that his statement to the police that he had left the ball ground after Balty had made his exit was not true, as he had in fact left the ball ground before Balty. Finally, it was suggested to Mr Williams that he was a ‘lying witness’ and that he had not witnessed ‘any stabbing’ that day.

11 After the incident outside the ball ground, the deceased somehow managed to run to his home, where he was met by his father, Mr Paul Coleman. Bleeding profusely from the neck, the deceased was taken by his father in a taxicab to the Savanna-la-Mar Hospital, where he died later the same day. Subsequently, on external examination of the deceased's body, the pathologist observed an incised stab wound, 2 centimetres long and 0.5 centimetres wide. The wound, which appeared to have been inflicted by a knife, had caused injury to the left jugular vein and the left external carotid artery, resulting in loss of blood in the neck muscles on the left side of the neck. His opinion was that death was due to haemorrhagic shock consequent upon these injuries.

12 On 28 October 2008, the day following the death of the deceased, the applicant, accompanied by his father, visited the Savanna-la-Mar Police Station. He was seen by Detective Constable Martin Mullings, who had already begun an investigation into the deceased's murder. Detective Constable Mullings informed the applicant of the investigation, advised him that he was a suspect and cautioned him. In response, the applicant said, ‘Mi know officer.’ The applicant was then placed in custody and on 11 November 2008, after Detective Constable Mullings had collected the necessary statements, he was formally arrested and charged with the murder of the deceased. Cautioned again, the applicant said, ‘I have nothing further to say.’

13 That was the case for the prosecution, at the end of which counsel for the applicant made an unsuccessful no case submission on his behalf. The applicant was accordingly called upon to answer.

The defence

14 The applicant opted to make an unsworn statement from the dock. It is difficult to do justice to the applicant's unsworn statement, during the making of which he was assisted by some helpful prodding by the judge, without reproducing it in its entirety:

‘ACCUSED: My name is Alvin Dennison, I'm 17 years old. On the ball field I was playing football and my cousin…

HER LADYSHIP: Start again. You say you are Alvin Dennison, you are 17 years old, what else are you saying?

ACCUSED: I was on the ball field playing ball when a nasty game develop on the field and a guy said to me him a guh lick me in…

HER LADYSHIP: Hear what, you are going to come up a little nearer. Although he has not taken the oath just for ease of hearing, let him come up here. The last thing I have you saying, “a nasty game…”

ACCUSED: Nasty game develop between me and Jemar Coleman.

HER LADYSHIP: Is that how you talk? If there is ever a time in your life that you have to talk is now. All these people have to hear you. Whether you are guilty or not guilty, may well depend on what they...