Daryeon Blake Vaughn Blake v R

• Jurisdiction: Jamaica
• Judge: Sinclair-Haynes JA,Morrison P
• Judgment Date: 21 July 2017
• Court: Court of Appeal (Jamaica)
• Docket Number: SUPREME COURT CRIMINAL APPEAL NOS 19 & 20/2013
• Date: 21 July 2017

Daryeon Blake Vaughn Blake

and

R

[2017] JMCA Crim 15

Before:

The Hon Mr Justice Morrison P

The Hon Mrs Justice Sinclair-Haynes JA

The Hon Miss Justice Edwards JA (Ag)

SUPREME COURT CRIMINAL APPEAL NOS 19 & 20/2013

JAMAICA

IN THE COURT OF APPEAL

K D Knight QC, Miss Stacey Knight, Miss Bianca SamuelsandAble-Don Footeinstructed by Knight Junor Samuels for the applicants

Miss Sophia Thomas instructed by the Director of Public Prosecutions for the Crown

Morrison P

Introduction

1 Each of the applicants seeks leave to appeal against his conviction and sentence for murder, after a trial before Straw J (the judge) and a jury in the Circuit Court for the parish of Saint Elizabeth. On 8 March 2013, the judge sentenced the applicants to life imprisonment, with the stipulation that they should serve 20 years before becoming eligible for parole. Their applications for leave to appeal having been considered on paper and refused by a single judge of this court on 19 September 2014, the applicants in due course renewed them before the court itself.

2 The renewed applications for leave to appeal were heard on 3 and 6 June 2016 and, on 28 April 2017, the court announced the following result:

“The applications for leave to appeal are granted. The hearing of the applications is treated as the hearing of the appeals. The appeals are allowed in part and the court makes the following orders:

The first applicant

• 1. The conviction is quashed and the sentence of life imprisonment is set aside. In lieu of the conviction for murder, a conviction for manslaughter is substituted.

• 2. A social enquiry report is to be obtained within 60 days of this order and copies are to be provided to counsel for the first applicant and counsel for the prosecution by the Registrar of the Court of Appeal within 14 days of her receipt of the original report.

• 3. Within 21 days of receipt of copies of the report as aforesaid, counsel for the first applicant and counsel for the prosecution will be at liberty to make such written submissions as to sentence as they see fit.

• 4. Upon receipt of counsel's submissions, the court will within a further period of 30 days issue a supplemental judgment on sentence, without the need for any further sitting unless specifically requested by the counsel.

The second applicant

• 1. The conviction for murder is quashed and the sentence of life imprisonment is set aside.

  BY MAJORITY (Sinclair-Haynes JA dissenting)

• 2. In the interests of justice, a new trial is ordered, to take place at the earliest convenient date in the Circuit Court for the parish of Saint Elizabeth, or such other place as the Registrar of the Supreme Court shall determine.”

3 These are the reasons which were promised at the time when this result was announced.

The case for the prosecution

4 The applicants were charged with murdering Orville Alexander (the deceased), also known as ‘Gungo’, at a bar at Warminster in the parish of Saint Elizabeth on 9 October 2010.

5 But the case for the prosecution really began with an incident (the September incident) which took place sometime in September 2010 at a dance in the vicinity of Hopeton District, also in Saint Elizabeth. Among the persons present at the dance were the deceased's brother, Mr Kimarley Levy, and Mr Vaughn Blake (the second applicant), who was well known to Mr Levy. Mr Levy testified that he attempted to intervene when the second applicant persisted in dancing with a young lady against her will. When the second applicant held on to the young lady, Mr Levy told him to “do betta dan dat”, to which the second applicant replied, “Yuh waan a man slap yuh inna yuh face, because yuh a violate”. After a further exchange of words, Mr Levy testified, the second applicant punched him in his face just below his right eye, drawing blood and causing it to become swollen and painful. Both the second applicant and Mr Levy then went out onto the road. Mr Levy's sister, Miss Tracey-Ann Dixon, who was standing outside, sought to intervene, but the second applicant also punched her, catching her on the back of the neck. Miss Dixon took Mr Levy into a shop that was close to the road and locked him inside, while the second applicant and his friends remained outside, “licking on the shop”. Mr Levy knew that the second applicant was outside because he heard his voice, which he knew and was able to recognise. After about two hours, Mr Levy was able to leave the shop and go home. He made a report to the Nain Police Station the following morning and also went to see a doctor about the injury to his face.

6 About two weeks after the September incident, on the evening of 9 October 2010, Mr Levy attended a party at a bar known as Valerie's Place in Northampton Mountain, Warminster District. As he stood on the verandah of the bar, he saw the second applicant arrive and go inside the bar. He could see the second applicant and Mr Daryeon Blake (the first applicant), who was also well known to him, having a drink inside. There were about 20 other persons inside the bar and, after about half an hour, the deceased, who was also at the party, went into the bar. Mr Levy then overheard the deceased speaking loudly to the second applicant about the September incident. Referring to the demeanour of the deceased, Mr Levy said, “I did not see him into a dreadful way” and he appeared, to him, to be “[n]ormal”, as he spoke to the second applicant. The deceased and the second applicant were, at that time, about 7 ¹/₂ feet apart from each other and the deceased had nothing in his hands.

7 According to Mr Levy, the first applicant then approached the deceased and held him by the neck from behind. As they wrestled with each other, the first applicant pulled a knife from his pocket and stabbed the deceased twice in the left side. The second applicant, also armed with a knife, then ran up to the deceased and stabbed him in the chest more than once. The deceased then ran out of the bar, leaving the applicants inside, and fell on his face by a marl heap which was some 25 feet in front of the shop. There was blood on the deceased's clothes and Mr Levy held on to him, “bawling for help”. Shortly afterwards, the deceased was put into a car and taken by Mr Levy and others to the Mandeville Hospital, where he subsequently died. The post mortem report would later reveal that the deceased had received a total of four stab wounds in the region of his left chest, with the cause of death being attributed to multiple stab wounds.

8 In response to counsel for the prosecution's question, whether the deceased was attacking the second applicant, when he was held (by the neck) from behind by the first applicant, Mr Levy said, “I don't know when he was going to him, if he was going to be attack [sic] and I don't know if [the first applicant] misunderstand [sic] and try to hold him and do what he do”.

9 Mr Levy disagreed with the suggestion put to him by the applicants' counsel in cross-examination that, no arrest having been made by the police in respect of the September incident, after one or two weeks, he and the deceased had “decided to deal with the thing [themselves]”. He also denied the suggestion that when he and the deceased saw the applicants in the bar, they saw this as an opportunity to take revenge for the second applicant having punched him in the face during the September incident. In this regard, it was suggested that the deceased “attacked [the second applicant] with a pick-axe stick that night” and Mr Levy denied the suggestion. Mr Levy also denied that the deceased had attacked the first applicant, after the second applicant had pushed him from the shop and that it was during that attack that the deceased was stabbed.

10 The prosecution's next witness was Miss Tracey-Ann Green, a cousin of both the deceased and Mr Levy. She told the court that, on the evening of 9 October 2010, she was sitting on a stool on the verandah of Valerie's Place. She saw the deceased enter the bar and order a cigarette. Addressing the applicants, who were standing together inside the bar, the deceased said, “[a ]fta what really guh on up dere, yuh really have the heart to come down here”. When this was said, neither the deceased nor the first applicant had anything in his hands.

11 At that point, Miss Green testified, the deceased and the first applicant “start to fight”. When asked by counsel for the prosecution to state “exactly how this fight started, who did what and then who did what?”, Miss Green's answer was that she did not “exactly see who start it”, but that she knew that “they were fighting”. Members of the crowd started to “run up and down” and Miss Green next saw the first applicant take out a ratchet knife, either from his waist or his pocket, grab the deceased around his neck and stab him somewhere in the chest area. The first applicant then “ease off” the deceased on to the second applicant, who was leaning on a fridge inside the shop, but she did not see the second applicant do anything to the deceased. She next saw the deceased limp out of the bar, then “run and stagger and drop at the marl heap”.

12 In cross-examination, after being shown the statement which she had made to the police on 10 October 2010, the morning after the incident, Miss Green admitted that she had said at that time that it was the second applicant and the deceased who were fighting. But when asked which of the statements was correct, her answer was that “[b]oth of them were fighting”, although she maintained that it was the first applicant whom she had seen stab the deceased from behind and that she did not see the second applicant inflict any wound on the deceased. Miss Green denied having seen the deceased enter the bar with a pick-axe stick and attack the second applicant; nor did she see the deceased and the second applicant fighting initially. She disagreed with the...