Brown (Richard) v R

• Jurisdiction: Jamaica
• Judge: McCalla, J.A. (Ag.):
• Judgment Date: 11 March 2005
• Neutral Citation: JM 2005 CA 6
• Judgment citation (vLex): [2005] 3 JJC 1107
• Court: Court of Appeal (Jamaica)
• Date: 11 March 2005

JAMAICA

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR. JUSTICE FORTE, P THE HON. MR. JUSTICE SMITH, J.A THE HON. MRS. JUSTICE McCALLA, J.A. (Ag.)

Richard Brown

v

R

Mr Delano Harrison, Q.C., for the applicant

Miss Paula Llewellyn, Senior Deputy Director of Public Prosecutions for the Crown

CRIMINAL LAW - Evidence

McCalla, J.A. (Ag.):

1 1. The applicant Richard Brown was tried and convicted in the Home Circuit Court for non-capital murder. On January 23, 2003, he was sentenced to lite imprisonment and the Court ordered that he should not be eligible for parole before he has served a period of twenty-five years.

2 2. A single judge of appeal refused his application for leave to appeal. On his application to this court, leave was granted for counsel Delano Harrison Q.C. to argue three supplementary grounds of appeal filed on 20 ^th October 2004, as set out herein.

3 3. The prosecution's case was that on September 22, 1998, the applicant and two other men went to the home of the deceased Errol Lynch, on Swallowfield Road in St Andrew, where they shot and killed him. The sole witness as to fact on whom the prosecution relied was Artheram White. Mr. White gave evidence at the preliminary inquiry but died before the trial. At the trial, during a voir dire, the prosecution led evidence as to the death of Mr. White and the learned trial judge admitted his deposition into evidence under the provisions of section 34 of the Justices of the Peace Jurisdiction Act. A written statement given by Mr. White to the police was also admitted in evidence pursuant to section 31 (D) of the Evidence (Amendment) Act although Defence Counsel had objected to both documents being admitted.

4 4. There is no dispute that the statement and the deposition of the deceased White are substantially the same with regard to the circumstances in which Errol Lynch was shot and killed.

5 Section 34 of the Justices of the Peace Jurisdiction Act reads in part as follows:

"...and if upon the trial of the person so accused as first aforesaid, it shall be proved by the oath or affirmation of any credible witness that any person whose deposition shall have been taken as aforesaid is dead... and if also it be proved that such deposition was taken in the presence of the person so accused, and that he, or his counsel or solicitor had a full opportunity of cross-examining the witness, then, if such a deposition purport to be signed by the justice by or before whom the same purports to have been taken, it shall be lawful to read such deposition as evidence in such prosecution, without further proof thereof, unless it shall be proved that such deposition was not, in fact, signed by the justice purporting to sign the same:

Provided that no deposition of a person absent from the Island or insane shall be read in evidence under the powers of this section, save with the consent of the court before which the trial takes place."

6 Section 31(D) of the Evidence Act provides in part as follows:

"Subject to section 31G, a statement made by a person in a document shall be admissible in criminal proceedings as evidence of any fact of which direct oral evidence by him would be admissible if it is proved to the satisfaction of the court that such person-

(a) is dead ..."

7 5. Grounds 1 and 3

8 These grounds of appeal, which were argued together, were as follows:

"(1) That (a), in light of the fact that the statement and depositions of deceased prosecution witness, Artheram White gave essentially the same, consistent account of the offence with which the Applicant was charged, and, moreover, were not merely complementary the one to the other, the reception into evidence under the Evidence (Amendment) Act of both such statement and depositions constituted a material irregularity.

(b) Alternatively, the learned trial judge erred in his failure to warn the jury, in scrupulously careful language, that neither statement nor depositions were, or could provide, corroboration of, or support for, each other.

(3) That the admission into evidence of both depositions and police statement of prosecution witness, Artheram White, purportedly by virtue of S. 31D of the Evidence (Amendment) Act, was wrong in law as, it is submitted, that provision does not contemplate the admission into evidence at trial of both depositions and statement of the same witness "as evidence of the truth of the matters asserted in them."

9 6. Counsel submitted that in all material respects witness White's statement and deposition are consistent with each other as to the account of the circumstances of Errol Lynch's death. The only conceivable purpose for which these two consistent statements (unsworn and sworn) could have been placed before the jury was to sustain witness Artheram White's credit, to impress the jury as to his unquestionable credibility born of the consistency with which he repeated his account of the material events.

10 7. He argued that the prosecution presented the statement and deposition as a composite whole - that both jointly constituted the prosecution case against the applicant and it was not clear which of the two, telling effectively the same story, was relied on to prove the case. Since the statement and deposition were materially the same in content he questioned why it was that the deposition, given on oath with the witness duly cross-examined, was not selected, as more likely than the statement, to serve the interests of justice.

11 8. Counsel submitted further that had the witness been alive and had he given "direct oral evidence" in the trial proceedings, it would not have been competent in law for the witness to make any reference to any previous statement of his, save and...