Calvin Walker & Lorringston Walker v R
| Jurisdiction | Jamaica |
| Judge | Straw JA |
| Judgment Date | 31 July 2019 |
| Neutral Citation | JM 2019 CA 70 |
| Date | 31 July 2019 |
| Court | Court of Appeal (Jamaica) |
[2019] JMCA Crim 27
SUPREME COURT CRIMINAL APPEAL NOS 34 & 25/2015
The Hon Mr Justice Morrison P
The Hon Miss Justice Straw JA
The Hon Miss Justice Edwards JA
Miss Nancy Anderson for applicant Calvin Walker
Miss Gillian Burgess for applicant Lorringston Walker
Miss Paula Llewellyn QC, Director of Public Prosecutions and Hodine Williams for the Crown
Criminal Law - Burglary — Larceny — Wounding with intent — Appeal against conviction — Defence — Evidence of good character — Whether defence counsel at trial failed to discharge her duty to raise the issue of good character — Whether failure to raise good character defence resulted in a miscarriage of justice — Evidence — Identification — Whether trial judge ailed to properly direct the jury on identification evidence.
On 15 June 2019, the applicants were convicted of the offences of burglary and larceny (count 1) and wounding with intent (count 2) after a trial before Graham-Allen J (the learned judge) and a jury in the Circuit Court for the parish of Saint Catherine. The applicants were each sentenced on 19 June 2015 to serve 15 and 20 years' imprisonment for the aforementioned offences. They both sought leave to appeal against their convictions and sentences. Their applications were considered on paper and refused by a single judge of this court on 1 June 2017. This is a renewal of the application for leave to appeal against conviction and sentence.
The applicants, Calvin Walker and Lorringston Walker are brothers. For convenience they will be referred to individually where necessary by their first names, no disrespect is intended.
The applicants worked on a farm in Dover Castle, Saint Catherine with Mr Peter Thomas (the complainant). As at 23 January 2012, the complainant had been working on the farm for approximately 11 months and he knew Calvin as “Tutu Walker” and Lorringston as “Larry Walker”. He knew Calvin for 10 months and Lorringston for 11 months. The complainant and Lorringston both resided in separate living quarters in a dwelling house on the farm. Calvin resided elsewhere.
On 23 January 2012 at approximately 7:30 pm, the complainant was in his living quarters when he saw his door “shub off”. Lorringston entered first and Calvin followed. Both had handkerchiefs tied around their mouths beneath their noses. They had nothing on their heads. They were each armed with a machete.
As the complainant was laying on a bed, the applicants tried to tie him with an electrical cord. As he wrestled with them, the complainant fell from the bed to the floor. While in the process of wrestling, Lorringston used the machete to injure the complainant in the area of his groin. He also received an injury to his hand when Lorringston tried to stab him and he tried to box the machete away. Calvin took up the complainant's cellular phone, which was on his bed, as Lorringston held him down on the floor trying to tie his hands.
Approximately eight minutes after they entered, the complainant managed to run out of his room to the dining hall and then to the back room where he slid and fell outside to the back of the house. When the complainant fell, Calvin held him to his belly and held down his hands. Lorringston then used a machete to chop the complainant twice to his neck. Both then ran back into the house.
The complainant eventually drew himself into bushes nearby as he thought they would have returned to look for him. He remained there for approximately 25 to 30 minutes. At around 10:00 pm the complainant went and laid down on a roadway. Sometime after, a van drove towards him and stopped. He was assisted into the van. The applicants were also in the van and they went for a sheet to help the complainant who was bleeding.
The complainant was then transported to the hospital with the applicants in the van and they made enquires of the complainant to the effect, “a who do dis?”. It is the complainant's evidence that he was unable to talk at the time. The complainant first attended the Linstead Hospital (in Saint Catherine) and was subsequently transferred to the Kingston Public Hospital (in Kingston) where he was admitted and received medical treatment.
On 17 February 2012, the investigating officer, Constable Gregory McLeod, recorded the complainant's statement at the Linstead Police Station. Two days later, Constable McLeod along with other officers apprehended the applicants at their family house in the Dover Castle area. They were both informed by Constable McLeod of his intention to have them participate in an identification parade. However, it was not held as their attorney-at-law declined to have either of them participate.
On 2 April 2012, both applicants were formally charged for the offence of attempted murder.
At the trial, both applicants gave evidence on oath denying that they attacked the complainant. They both had alibis. Calvin called one witness, his sister Miss Stacy- Ann Walker, who stated that he was with her at the time of the attack. She gave evidence that around 10:30 to 11:00 pm, Calvin was at her home along with a number of other family members when Lorringston came to their house informing them that “Dem jus cut ‘Chung’ choat dung di road.” In response they went to assist the complainant. They travelled in the van belonging to Mr Wayne Grant.
Lorringston called two witnesses to account for his whereabouts. These witnesses were the said Mr Wayne Grant and Mr Andre Plunket. Mr Grant gave evidence that he heard some news from his baby-mother that there was someone bleeding on the road, and that the person looked like Lorringston's co-worker. He then went to ask Lorringston where the complainant was and to inform him of what he heard. Mr Grant stated that Lorringston asked him to take him to the spot. Mr Grant did not state what time this took place but the inference is that it would have been sometime between 10:30 pm to 11:00 pm as that would have been the time he received information that someone was bleeding on the road.
Mr Plunket gave evidence that between 10:30 pm and 11:00 pm, Lorringston was with him by the district where there is a shop. He recalled waiting on the domino table for a game, drinking and being in the company of Lorringston and a number of other persons. He also indicated he had been in Lorringston's company for “a very long hours”, but also said that the 10:00 pm news was on at the time. Mr Plunket's evidence is that Mr Grant came on the scene and asked Lorringston if “the man on his farm was okay”. Lorringston said yes, that he “leave him okay”. Mr Grant informed him that he was not as he passed him by the roadside at a light post with his throat cut. It was in response to this that they went to house where Calvin (Tutu) was and then a group of them went towards the farm to assist the complainant.
The original grounds contained in the notices of appeal which were both filed on 12 April 2016 on behalf of the applicants were abandoned. Leave was sought to rely on the separate supplemental grounds which were filed on 17 January 2018 on behalf of each applicant. At the hearing before this court, both counsel elected to advance the same grounds as set out below and to divide the arguments between themselves. Counsel for both applicants subsequently filed the amended grounds of appeal jointly on 19 June 2019. They are as follows:
“GROUND ONE
The failure of defence counsel to lead evidence of the applicants' good character during the trial before the jury deprived them of the opportunity to present their full defence, in particular, as it relates to propensity to commit the offence and credibility, which resulted in an unfair trial
GROUND TWO
The Learned Trial Judge failed to properly direct the jury on identification in that (1) she failed to give any direction concerning the recognition when the mouth and nose of the Applicant was hidden, (2) she failed to properly warn the jury about an honest witness being mistaken and (3) she erred in explaining the lack of an identification parade.
GROUND THREE
The Learned Trial Judge failed to direct the jury on how the lack of medical evidence concerning the injuries sustained by the complainant should be treated in view of the length of time between the incident and trial;
GROUND FOUR
The sentence of each applicant was manifestly excessive. The Learned Trial Judge (a) erred in stating that there was a minimum of 15 years for wounding in the circumstances of the case; (b) mis-stated [sic] the general principles of sentencing; and (c) failed to consider several mitigating factors, including age, assistance to the victim, family commitments and time in custody.
GROUND FIVE
The delay in the hearing of the trial and this appeal is a breach of the applicants' constitutional right to a fair trial within a reasonable time - section 16(1) of the Charter of Fundamental Rights and Freedoms, Chapter III of the Constitution.”
In respect of this ground, counsel Miss Burgess made submissions on behalf of both applicants. She stated that they were represented at trial by the same attorney, Miss Janetta Campbell and asserted that a single attorney representing two accused is a bad practice.
Miss Burgess referred the court to a handwritten affidavit filed 14 June 2019, wherein Lorringston stated that Miss Campbell did not advise him that he could call persons from the community to say that he was a good...
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