Brown (Lloyd) v R
| Jurisdiction | Jamaica |
| Judge | HARRISON, P. |
| Judgment Date | 12 June 2008 |
| Neutral Citation | JM 2008 CA 41 |
| Judgment citation (vLex) | [2008] 6 JJC 1204 |
| Date | 12 June 2008 |
| Court | Court of Appeal (Jamaica) |
MANSLAUGHTER - Leave to appeal - No case submission - Degree of negligence required
This is an appeal from convictions by a judge and jury on four counts of an indictment for the offences of manslaughter at the Manchester Circuit Court on 4 th June 2004. The appellant was sentenced to serve a term of six years imprisonment at hard labour on each count. The sentences are to run concurrently.
The relevant facts are that on the 24 th of June 1998 at about 9:40 p.m. prosecution witness Errol Lemonious was driving a left hand drive Ford Ranger pickup, blue in colour, along the main road - Winston Jones highway in the parish of Manchester. He was driving on his left hand side of the road going towards Kingston at about 50 kilometers per hour. The road surface was asphalted and dry. A tractor trailer was travelling behind him. The witness Lemonious saw the lights of a motor vehicle coming from the opposite direction. At a distance of 12 feet from his Ford Ranger Pickup the oncoming motor vehicle "... drifted to the left side of the road where he (Lemonious) was." Lemonious swerved to his left, further to the embankment, as far as he could. The motor truck continuing, came towards him and struck his vehicle on its right side, causing his pickup to roll over, ending up with its wheels on the road surface. Lemonious came out of his pickup, and saw the tractor that had been travelling behind him "pinned" to the left embankment by the truck - a Mack truck, that had struck him. He saw in the tractor trailer, a female "pinned" motionless and the driver bleeding. Lemonious denied that he had, in overtaking the tractor trailer, gone across the road and collided with the Mack truck.
Delroy Spencer, the driver of the tractor trailer, an 18-wheeler, was travelling downhill on his left at a speed of 30 mph with passengers, on the Winston Jones Highway in the parish of Manchester going towards Kingston. He saw a line of traffic coming from the opposite direction. He then saw the Mack truck "leaving its line and coming towards me over to my side", when it was 2 to 3 chains from the tractor trailer. Spencer applied the brakes of the tractor trailer and moved further left up to the embankment. The Mack truck hit into the right side of the tractor trailer. There was "a big explosion." The body of the trailer was up in the air, with the Mack truck underneath "pinning" the trailer.
Prosecution witness Sergeant of Police Lancelot Lambert went to the scene at 10:00 p.m. along the Winston Jones highway. He saw the red Mack truck on its right side of the road, underneath a tractor trailer. The front of each vehicle was resting on the left bank facing Kingston. He saw the Ford Ranger pickup, about four yards down from where the trucks were. He had the Mack truck removed from the body of the tractor trailer which was resting on the truck. He took measurements. He said that the point of impact, where he saw debris, blue duco and broken glass, was 13 feet from the left embankment on the left as one goes to Kingston. That is, he said, 6 inches from the white centre line within the left side of the road as one goes to Kingston, where the pick up was. The width of the road at the point of impact was 21 feet, with a soft shoulder 3 feet wide on the side going to Kingston. There were no drag marks. He saw in the tractor trailer 2 males and 2 females all, lifeless. He sent them off to the hospital.
The appellant, in his defence, said that, he was driving a Mack truck loaded with wet river sand on the left, downhill, going towards Mandeville. He saw a sudden flash in front of him from the opposite direction and heard an explosion. His truck dipped "swagged" and started drifting to the opposite side of the road. He had seen lights coming up from the opposite direction and a set burst up from behind a truck going in the Kingston direction. He denied that he swerved to his right and collided with another motor vehicle. He admitted, in cross-examination that in his statement to the police he made no mention of a van nor of a tyre that burst. The defence witness Anthony Dawkins stated on oath that he was a passenger in a pickup travelling behind the Mack truck and he saw the Ranger come across the road and hit the front wheel of the Mack truck, then go across the road in front of the trailer and hit the trailer. He said that the front wheel of the Mack truck blew out.
The jury accepted the prosecution's case and convicted the appellant on each count of the indictment.
Leave to appeal was granted on 16 th March 2005.
The appellant filed eighteen original and five supplemental grounds of appeal. He was granted leave to argue the supplemental grounds.
The original grounds of appeal read:
"(1) The Learned Trial Judge erred in law in rejecting the submission for the Appellant that the prosecution had failed to establish a prima facie case against him.
(2) The verdict of the jury was unreasonable and cannot be supported having regard to the evidence.
(3) The Learned Trial Judge erred in law in that she failed to direct the jury on, and/or failed to assist the jury adequately or at all to resolve, the discrepancies and inconsistencies within and between the evidence of Errol Lemonious and Sergeant Lancelot Lambert.
(4) The Learned Trial Judge erred in law in that she failed to direct the jury on, and/or failed to assist the jury adequately or at all to resolve, the discrepancies and inconsistencies within and between the evidence of Errol Lemonious and Delroy Spence.
(5) The Learned Trial Judge erred in law in that she failed to identify to the jury, and/or failed to assist the jury adequately or at all to resolve, the discrepancies and inconsistencies within and throughout the evidence of Errol Lemonious, Delroy Spence and Sergeant Lancelot Lambert.
(6) The Learned Trial Judge erred in law in that she failed generally to direct the jury on the drawing of inferences, and in particular she failed to direct them that they should only draw inferences that are inescapable.
(7) The Learned Trial Judge erred in law in inviting the jury, to make a distinction between a 'drifting' as against a 'swerving' of the truck driven by the Appellant, and to make the distinction in such a way as to draw an inference that the Appellant was tired or worse fell asleep thereby occasioning the former manoeuvre as against the latter, when in fact no evidence was led to describe the manoeuvre that was called a 'drifting' and to distinguish it from a 'swerving.'
(8) The Learned Trial Judge erred in law by misstating the evidence when she told the jury that the Appellant was saying that the lights he saw coming the opposite direction caused him to swerve, when in fact what the Appellant said in evidence was that after he saw the lights he heard an explosion. The Appellant was prejudiced by this misstatement when the Learned Trial Judge went further and invited the jury to consider why the Appellant did not swerve to the left instead of to the right.
(9) The Learned Trial Judge in her summing up commented that the credibility and truthfulness of the Appellant was at the very heart of the matter, and juxtaposed that comment with a reminder to the jury that the Appellant gave to the police in his statement one version of the time he left May Pen for Saint Elizabeth, and gave another version in his evidence, and she thereby invited the jury to say that the Appellant was not credible and was untruthful on the point, which invitation was unwarranted, as it did not take into account that the difference could have arisen from genuine mistake and was also unbalanced, as there was no similar comment regarding differences in versions given by prosecution witnesses on other points.
(10) The learned Trial Judge erred in law when she commended to them the view of counsel for the crown that the Appellant must have accelerated uphill to the point of impact because he was travelling in 2 nd gear and 2 nd gear is usually used to accelerate without commending to them also the evidence of the Appellant that he was, before arriving at the impact, travelling downhill, loaded with sand weighing about 24 tons, and was so travelling in the 2 nd of 7 gears, which is a low gear.
(11) The Learned Trial Judge erred in law in that she failed adequately to direct the jury on the degree of negligence that was required to establish the offence of manslaughter, and on the differences in the degrees of negligence required for the offence of Manslaughter vis a vis the offence of Causing Death by Dangerous Driving.
(12) The Learned Trial Judge failed to analyze adequately for the benefit of the jury, the legal ingredients of the alternate offences especially of the lesser offence, and analyzed same so succinctly and ineffectively that the jury could not reasonably have been assisted thereby.
(13) The Learned Trial Judge failed to analyze the alternate offence of Manslaughter and Causing Death by Dangerous Driving against the evidence led, and did not adequately assist the jury to identify the particulars of and the issues arising from the evidence, that were relevant to arriving at a verdict as to the lesser offence as against or instead of the other, and the summing up was therefore not conditioned by the nature of the case and the issues raised therein.
(14) The Learned Trial Judge erred in law when she unnecessarily adjourned the trial of the Appellant on several occasions to facilitate...
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