Carlington Tate v R
 JMCA Crim 16
IN THE COURT OF APPEAL
The Hon Mrs Justice Harris P (Ag)
The Hon Mr Justice Brooks Ja
The Hon Mr Justice Hibbert Ja (Ag)
SUPREME COURT CRIMINAL APPEAL NO 153/2008
Mrs Valerie Neita-Robertson for the appellant
Miss Meridian Kohler , Miss Lavern Walters and Mr Garcia Kelly for the Crown
CRIMINAL LAW - Murder - Life imprisonment - Whether the judge erred in law in applying the principles regarding the Crown's application under Evidence Act, s. 31D in respect of the admission into evidence of statements made in a document - Whether the hearsay evidence accepted into court was inadmissible
The appellant Carlington Tate was on 25 November 2008, convicted in the Home Circuit Court of the offence of murder, arising from the death of Roderick Beckford on 5 March 2003. For this, he was, on 27 November 2008, sentenced to be imprisoned for life with the stipulation that he should not be eligible for parole until he had served 30 years.
At the trial, the prosecution relied on the evidence of Patrick Myers as the sole eyewitness who identified the appellant as the person who killed Roderick Beckford. His evidence was contained in depositions which were taken at the preliminary enquiry by a Resident Magistrate for the Corporate Area, and which was adduced at the trial by virtue of the provisions of section 31D of the Evidence Act.
In the deposition, Patrick Myers stated that, at about 11:30 am on 5 March 2003, he was at a domino table in Little Lane, Central Village, in the parish of Saint Catherine. While he was there with other persons he saw the deceased, Roderick Beckford, whom he knew as ‘Hulk Man’ approach. They spoke and they, together with another person called ‘Parrot’, left towards a dirt bed. He and ‘Hulk Man’ rode on bicycles while ‘Parrot’ walked. To get to the dirt bed they had to cross a river, and on reaching the river, he saw a tractor coming towards them. On this tractor, he saw the appellant Carlington Tate whom he knew as ‘Georgie’. ‘Hulk Man’ spoke to ‘Georgie’ reprimanding him for mining sand in the river bed. Shortly after, ‘Georgie’ came around the tractor with a gun in his hand which he pointed at ‘Hulk Man’. Mr Myers said that he heard an explosion and he ran off. He turned and saw ‘Hulk Man’ running towards him and ‘Georgie’ still pointing the gun at ‘Hulk Man’. He heard two other explosions and saw ‘Hulk Man’ fall face down onto the ground. He continued running and went through bushes and eventually reached Little Lane with ‘Parrot’ whom he met on the way.
Later, the body of Roderick Beckford was found at the side of the track near the river. A post-mortem examination revealed that he died as a result of gunshot wounds to the neck and chest.
After the appellant was detained by the police, he was on 13 June 2003 identified on an identification parade by Patrick Myers. Consequently, the appellant was charged for the offence of murder.
In his defence, the appellant raised an alibi. He stated that on 5 March 2003 he arrived at Riverton Meadows at about 7:15 am and worked in that area, transporting garbage to the Riverton City dump and remained in the area until about 6:00 pm. He denied being by the river or being responsible for the death of Roderick Beckford. The appellant's alibi was supported by Mr Leroy Morant. He stated that he had contracted the appellant whom he knew as ‘Georgie’ to transport garbage from Riverton Meadows to the dump at Riverton City. He stated that the appellant arrived at about 7:00 am and continued working until about 4:00 pm. Later, after food and drinks, he took the appellant to Central Village.
On 2 September 2010, the appellant was granted leave to appeal by a single judge of this court. Consequently, counsel for the appellant on 1 September 2011, filed the following grounds of appeal, which were relied on, before us.
‘1. The Learned Trial Judge erred in law in applying the principles regarding the Crown's Application under section 31D (c) of the Evidence (Amendment) [sic] and thereby erroneously admitted into evidence the four (4) statements of Mr. V.C. Smith, consequently in the circumstances of the case caused a substantial miscarriage of justice.
2. The Learned Trial Judge erred in law in admitted [sic] into evidence the deposition of the [sic] Mr. Patrick Myers under section 31D (d) of the Evidence (Amendment ) [sic] and thereby, in the circumstances of the case, caused a substantial miscarriage of justice.
3. The Learned Trial Judge erred in law by inviting the Jury to consider the evidence of Ms. Sandra Francis, the mother of the [sic] Mr. Patrick Myers, that she knew that the Appellant and Mr. Myers got into the same school as being supportive of Mr. Myers' evidence regarding the identification of the Appellant. This misdirection in law deprived the Appellant of a fair trial and thereby caused a substantial miscarriage of justice.
4. The Learned Trial Judge erred in law in allowing into evidence inadmissible hearsay evidence contained in the deposition of [sic] the Mr. Patrick Myers, which was not probative [sic] and highly prejudicial to the Appellant, in the circumstances thereby depriving the Appellant of a fair trial and causing a substantial miscarriage of justice.
5. The Learned Trial Judge erred in law by insufficiently directing the jury as to how they should assess the evidence contained in the deposition of Mr. Patrick Myers, thereby deprived the Appellant of his right to a fair trial and consequently caused a substantial miscarriage of justice.’
As grounds one and two concern the application of the provisions of section 31D of the Evidence Act, it is convenient to now state those provisions.
‘31D. 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;
(b) is unfit, by reason of his bodily or mental condition, to attend as a witness;
(c) is outside of Jamaica and it is not reasonably practicable to secure his attendance;
(d) cannot be found after all reasonable steps have been taken to find him; or
(e) is kept away from the proceedings by threats of bodily harm and no reasonable steps can be taken to protect the person.’
The prosecution also adduced into evidence, the statements of Sergeant Smith, in order to lay the foundation for the admission into evidence of the deposition of Patrick Myers. He was initially in charge of the investigation into the death of Roderick Beckford. He was, however, shot and seriously injured and as a result remained off the job for more than a year. Consequent on the illness of Sergeant Smith, the responsibility was taken over by then Detective Sergeant Leighton Blackstock. Sergeant Smith subsequently opted for early retirement and is said to be residing in England since 2007.
In order to meet the requirements of section 31D (c) of the Evidence Act, the prosecution relied on the evidence of Detective Sergeant Blackstock. He stated that Sergeant Smith, whom he supervised, never fully recovered from his injuries and had to seek regular medical attention. After Sergeant Smith left Jamaica, Detective Sergeant Blackstock said he spoke to him on occasions, by way of telephone, and noted that the calls emanated from outside of Jamaica. Sergeant Smith confirmed that he was residing in England. Detective Sergeant Blackstock next saw Sergeant Smith in October 2008 when he came to attend the funeral of his mother. Sergeant Blackstock said he spoke to Sergeant Smith about attending court to give evidence at the trial. He further said that Sergeant Smith informed him that due to the state of his health, he would not be returning to Jamaica to give evidence at the trial. As far as Sergeant Blackstock was aware, the visit to Jamaica in October 2008 was the only one made by Sergeant Smith since he migrated from Jamaica.
The ruling of the judge that the statements of Sergeant Smith were admissible in evidence was challenged by Mrs Neita-Robertson on two grounds. Firstly, she submitted that there was no evidence before the court to show that Sergeant Smith was outside of Jamaica as there was no evidence that he left the island after his mother's funeral.
Although there was no direct evidence that Sergeant Smith left Jamaica after his mother's funeral, in his discussion with Sergeant Blackstock, he clearly indicated that he would be returning to England before the commencement of the trial. In all the circumstances of the case, the judge having accepted the evidence of Sergeant Blackstock could, in our opinion, have reasonably inferred that, at the time when the application to admit his statements were made, Sergeant Smith was outside of Jamaica.
The second ground on which Mrs Neita-Robertson based her challenge was that the evidence adduced did not show that it was not reasonably practicable to secure the attendance of Sergeant Smith.
What is considered to be reasonably practicable arose in Luis Angel Castillo section 23 of the Criminal Justice Act 1988 [UK]. It stated: That case involved the application of
‘(1) … 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 -
(i) the requirements of one of the paragraphs of subsection (2) below are satisfied …
(2) … (b) that (i) the person who made the statement is outside the United Kingdom and
(ii) it is not reasonably practicable to secure his attendance;…’
Stuart-Smith LJ, in delivering the judgment of the Court of Appeal, referred to the following passage in the...
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