Clive Mullings v R

• Jurisdiction: Jamaica
• Judge: Phillips JA
• Judgment Date: 22 November 2013
• Neutral Citation: JM 2013 CA 119
• Docket Number: SUPREME COURT CRIMINAL APPEAL NO 78/2009
• Court: Court of Appeal (Jamaica)
• Date: 22 November 2013

[2013] JMCA Crim 53

JAMAICA

IN THE COURT OF APPEAL

Before:

The Hon Mr Justice Morrison JA

The Hon Miss Justice Phillips JA

The Hon Mr Justice Brooks JA

SUPREME COURT CRIMINAL APPEAL NO 78/2009

Clive Mullings

and

R

Linton Gordon for the appellant

Mrs Sahai Whittingham-Maxwell for the Crown

CRIMINAL LAW - Wounding with intent - Whether jury was misdirected - Whether trial unfair

Phillips JA

1 The appellant was charged on an indictment for the offence of wounding with intent, the particulars of which were that on 10 August 2006, in the parish of Saint Andrew, he had wounded Derrick Smith with intent to do him grievous bodily harm. He was tried on 8 and 9 June 2009 before F Williams J and a jury, in the Home Circuit Court in the parish of Kingston, and convicted and sentenced on 10 June 2009 to six years imprisonment at hard labour. His application for leave to appeal against conviction was granted by a single judge of appeal. We heard this appeal on 12 November 2012 and allowed it, set aside the conviction and sentence, entered a judgment and verdict of acquittal, and promised to put our reasons for doing so in writing. These are the promised reasons.

2 This is one of those unfortunate cases concerning bad relations between persons residing on the same premises, where the situation got out of control and one of the parties was seriously injured. The prosecution called three witnesses: the virtual complainant, Mr Derrick Smith, who claimed to have received his injuries from the appellant who attacked him with a knife; the woman with whom Mr Smith lived with, who was present when the incident occurred, Miss Patricia Grant, and the investigating officer, Constable Cornell Whittaker. The appellant gave sworn evidence.

The case for the prosecution

3 Mr Smith, a construction worker, gave evidence that in August 2006 he was living at 36 Delacree Lane in the parish of Kingston, in a one bedroom house, which he shared with his ‘baby mother’ Miss Grant, (with whom he had two children) and her relative, the appellant. At the time of the incident which occurred on 10 August 2006, he said that he had been living there for about three years, and there had been ongoing arguments between the appellant and Miss Grant, and the appellant and himself during that period. On the day in question, he stated that he had come home from work, had gone into the yard, had taken up his two month old baby, and was standing at the front door watching the appellant walk back and forth. Miss Grant and her son, he said, were at the gate of the premises. He said that he saw the appellant with a ratchet knife wrapped up in a red towel. The knife was open.

4 He further testified that he turned his back, went inside the house to put his baby on a bed, went back to the door which was open, and was watching the appellant. He said that he heard the baby say, ‘Da’ and he looked around, and it was at that time that the appellant stabbed him with the said knife that he had seen him with earlier, and said the words, ‘P —— goh dead.’ He said that he was stabbed in the chest and he saw blood rushing ‘out of [his] stomach’. He said that at the time when he had been stabbed by the appellant he never had any weapon and he had not been attacking the appellant. When asked if Miss Grant had been attacking the appellant at the time when he had been stabbed, he said that it was ‘when he stabbed me Patricia rushed him’. His evidence was that Miss Grant had not been doing anything to the appellant before he stabbed him. He said that after he had been stabbed he lost consciousness and woke up in the Kingston Public Hospital, where he remained for approximately two weeks. He was later re-admitted for a further week and then had to continue attending the hospital for treatment of the wound.

5 In cross-examination Mr Smith testified that the parties occupied a small concrete house with one room which had been ‘cut in two’. He stated that when he went to live at the house with Miss Grant, she had occupied one side of the house and the appellant occupied the other. On the appellant's side there was no door so a window had been ‘knocked out’ and used as a door. He admitted that since the appellant's departure he and Miss Grant occupied both rooms. He said that Miss Grant had nine children living at the house, two of whom, as indicated, had been fathered by him. Initially he attempted to deny that he and the appellant had any quarrels at all, but when confronted with his earlier statement given to the police he admitted that there had been ongoing disputes with the appellant. He, however, denied that those disputes related to Miss Grant wanting the appellant to leave the house. He asserted that the disputes were as a result of the appellant ‘running down the kids them with the cutlass trying to chop up the kids and I could not tolerate that’. He admitted that he, Miss Grant and the appellant had been having incessant quarrels since he (Mr Smith) came to live at the house. He denied that: on 10 August 2006, at approximately 5:00pm he had been sweeping the yard; Miss Grant was standing at the gate where there was a table with a knife on it; and she had been jeering the appellant, telling him that her first ‘baby father’ had chopped him in his face and he could not do anything about it.

6 He specifically denied running from the gate for a machete that he had at the door, or rushing the appellant with it and using it to chop at him. He further denied that the appellant, while trying to defend himself, put up his hand to protect himself and was chopped on the hand, and that it was then that the appellant pulled a knife and pushed it towards him. He also denied that Miss Grant took the knife from the table and rushed towards the appellant.

7 Miss Grant gave evidence. She said that she was present on the day of the incident. She confirmed that there had been ongoing disputes and ‘fuss-fuss and quarreling’ between the appellant, Mr Smith and herself. She said that on the day of the incident she had been in the yard at the gate with her son, making a fire. She said that Mr Smith was in the house at the front. She saw the appellant come from his room, saw him walking through the gate, then he turned back, passed her and went to the step where Mr Smith was standing in front of the door to the house. She said that Mr Smith had nothing in his hand, he had been holding on to the door, but as the baby inside started crying, Mr Smith turned towards the baby and it was at that time that the appellant pulled a ratchet knife and stabbed Mr Smith in the chest, on the left side of his body. Miss Grant said that on withdrawing the knife the appellant said, ‘Goh and dead now.’ Miss Grant said that she and her son took up stones to throw at the appellant but he pulled his ratchet knife on them. She said the appellant went through the gate and subsequently other persons threw stones at him, but he escaped by jumping over a wall and running through the bushes. Miss Grant said that Mr Smith collapsed after having been stabbed, lost consciousness, was bleeding profusely and was assisted by neighbours to the hospital. She maintained that Mr Smith had not attacked the appellant during the incident, and she had not seen him go for any machete. She also said that there had not been any quarreling on that evening.

8 In cross-examination Miss Grant also attempted, in spite of the evidence given in examination-in-chief, to say that there had not been any ongoing disputes between herself, Mr Smith and the appellant but was forced to accept that to be the case. She maintained that the disputes did not have to do with her wanting the place for herself although she accepted that at the time of the trial she had the whole place for herself, Mr Smith and her children, the appellant having left the house. She initially said that only three children were living with her, then she adjusted that number to seven. She also denied that there had ever been any close relationship between the appellant and herself before he came to live at that premises. She denied most of the suggestions put to her by counsel for the defence with regard to Mr Smith having a machete and rushing at the appellant with it, or the appellant taking out a ratchet knife to defend himself. However, although she denied that she had been jeering the appellant about a ‘baby father’ of hers having previously chopped him and that he was not able to do anything about it, she admitted that she did have a ‘baby father’ named Basil Minott who had chopped the appellant.

9 Constable Cornel Whittaker, the investigating officer, gave evidence of visiting Mr Smith while he was in hospital and he said that he observed his condition. He commenced investigations into a case of felonious wounding. He said that he took a statement from Mr Smith, and sometime thereafter he visited the Hunts Bay Police Lock Up where he asked for, and met, the appellant. He said that he took the appellant to the CIB office where Mr Smith was. He said that he asked Mr Smith if that was the man who had injured him and he replied in the affirmative. He said that he informed the appellant of the allegations against him and cautioned him. He said that having been cautioned, the appellant responded, ‘I have nothing to say.’

The case for the defence

10 The appellant gave sworn evidence that he and Miss Grant were cousins, that he had known her from she was a little girl going to basic school and that he had assisted her as she was a member of his family and her mother had died. He said that initially he had lived at the house at Delacree Lane alone and that subsequently Miss Grant had come to live there. He said that the relationship had deteriorated between them as he had not been able to provide for her as he had done in the past. He felt that she had ‘vindictive feelings’ towards...