Gaynair Hanson v R

• Jurisdiction: Jamaica
• Judge: Morrison JA
• Judgment Date: 24 January 2014
• Neutral Citation: JM 2014 CA 4
• Court: Court of Appeal (Jamaica)
• Docket Number: SUPREME COURT CRIMINAL APPEAL NO 104/2010
• Date: 24 January 2014

[2014] JMCA Crim 1

JAMAICA

IN THE COURT OF APPEAL

Before:

The Hon Mr Justice Morrison JA

The Hon Mrs Justice Mcintosh JA

The Hon Mr Justice Brooks JA

SUPREME COURT CRIMINAL APPEAL NO 104/2010

Gaynair Hanson

and

R

Mrs Ann-Marie Feurtado-Richards for the appellant

Mrs Suzette Sahai Whittingham-Maxwell for the Crown

CRIMINAL LAW - Plea of guilty - Whether court has power to entertain an appeal from a conviction based on a plea of guilty - Order for a new trial

Morrison JA

1 The principal issue raised by this appeal is whether this court has the power to entertain an appeal from a conviction based on a plea of guilty; and, if it does, in what circumstances. If the court does have such a power, there is a further question whether the court has the power to substitute a conviction for some other offence for the one in respect of which the plea of guilty was originally entered.

2 The matter arises in this way. On 29 September 2010, the appellant was indicted for murdering Sashuana Baker on 27 August 2010. The appellant appeared before Beckford J in the Circuit Court for the parish of Clarendon on 4 October 2010, at which time he was represented by Mr Hopeton Clarke of counsel. Upon the appellant's plea of guilty to the offence of murder, the facts of the case were outlined to the court by counsel for the Crown.

3 At about 6:30 am on 27 August 2010, Miss Baker was found dead at her home in Gimme-mi-bit, Clarendon, by her grandmother. When the police went to the home, the appellant, who was Miss Baker's boyfriend, was brought to the scene. Cautioned by the police then and there, he said, ‘Mi never mean fi kill her wid the piece of 2 × 4.’ The appellant was subsequently taken to the May Pen Police Station, where he gave a statement under caution to the police, in the presence of two justices of the peace. In the statement, he admitted to hitting Miss Baker in the head with a 2′× 4′ plank two to three times, while she was lying in bed watching television. At a question and answer session with the police on 27 September 2010, the appellant again admitted killing Miss Baker and, when he was arrested, charged and cautioned, he said, ‘Mi never mean fi kill her officer.’ The post mortem examination revealed that Miss Baker's death was the result of intracerebral haemorrhage due to head injury.

4 Mr Clarke then told the court that there was ‘[p]roof of cause on the crown's case’, in that, in the record of the questions and answers, the appellant had indicated that he was upset at the fact that Miss Baker ‘had taken off her clothes in front of the children and he said no to it’. Mr Clarke requested that a social enquiry report be done and the matter was adjourned to 7 October 2010.

5 On 7 October 2010, the appellant's antecedent history, from which it appeared that he was born on 31 August 1987 and had no previous convictions, was read to the court. However, as regards the social enquiry report, which had been prepared by Ms Diane Brown, a probation officer for the parish of Clarendon, all concerned, at the suggestion of the judge, were content to take it as read. There is accordingly no indication of what the report contained on the record of the proceedings.

6 In the course of his plea in mitigation on the appellant's behalf, Mr Clarke made this comment:

‘There has to be something more. There has to be something else to hit your spouse in the head in the dead of the night and walk away. There has to be something more, and a doctor, I believe, can discover that thing when he goes where he is going, psychiatric treatment for him and as the probation officer says, he is always laughing and smiling and that is not normal.’

7 The learned judge also speculated at the possibility of a bipolar disorder and, during further exchanges between bench and bar along similar lines, remarked that, ‘[w]hat is causing me some concern, is that like you said I hoped to get some sort of assistance, I don't know what is his problem’. Yet further, the judge observed, ‘I am just wondering what else it was because it don't [sic] seem too right.’ The appellant was then sentenced to imprisonment for life, with the recommendation that he should serve a minimum of 15 years before becoming eligible for parole.

8 By notice of application filed on 1 November 2010, the applicant sought leave to appeal against this sentence on the ground that it was ‘harsh and excessive having regards [sic] to the circumstances which led to [the] conviction’. The learned single judge of this court who considered the application noted that no psychiatric report had been ordered for the purposes of sentencing and observed that this might be a matter of concern for the court. Accordingly, on 19 June 2012, the applicant was granted leave to appeal against sentence and the judge ordered that a psychiatric report should be provided for the court in advance of the hearing.

9 In due course, Dr Clayton Sewell, a consultant forensic psychiatrist attached to the Department of Community Health and Psychiatry of the University of the West Indies and the Department of Correctional Services in the Ministry of National Security, provided a report dated 9 November 2012. Dr Sewell's report was based on his interview and examination of the appellant, which lasted for approximately one hour and 15 minutes, on 6 November 2012, more than two years after the incident in which Miss Baker was killed. During the interview, Dr Sewell found that the appellant was cooperative and displayed no abnormal behaviour. He was oriented in time, place and person and gave no appearance of cognitive impairment.

10 Dr Sewell subjected the appellant to the “Psychopathy Checklist: Screening Version” (“PCL:SV”), which is ‘an observer rating scale designed to assess the lifetime presence and severity of a wide range of symptoms of psychopathy in adults’. Based on the appellant's results, which showed him to be ‘in the low range for the presence of Psychopathy requiring further evaluation’, Dr Sewell's overall opinion on the appellant was as follows:

• ‘1. It is my opinion, with a reasonable degree of medical certainty, that Mr. Hanson does not meet the criteria for an Antisocial Personality Disorder (ASPD). This is based on the interview and his PCL:SV score and indicates a lower risk of future aggressive behavior and recidivism when compared to someone with ASPD.

• 2. He admits to the offence for which he was convicted and expressed some remorse for his actions.

• 3. His cognitive abilities are essentially normal and he is probably of average intelligence.

• 4. Regarding the offence of Murder, examination of Mr. Hanson indicates in my opinion that he was not operating under the influence of an abnormality of the mind at the time the offence occurred. It should be noted that there was no additional source of information which may assist further in forming this opinion. However, based on Mr. Hanson's own admission that he has had no violent or aggressive behavior when consuming similar quantities of alcohol, I am of the view that his actions were unlikely to be the result of substance use.

• 5. He currently has feelings of sadness related to his circumstance.’

11 When the matter came on for hearing before us, Mrs Feurtado-Richards on behalf of the appellant asked us to make an order, pursuant to section 28(a) of the Judicature (Appellate Jurisdiction) Act (“the Act”), for the production of the following documents: (i) the statement under caution taken from the appellant on 28 August 2010; (ii) the appellant's question and answer dated 7 September 2010; and (iii) the social enquiry report prepared by Ms Brown, which was dated 5 October 2010. Mrs Whittingham-Maxwell for the Crown did not oppose this application.

12 By virtue of section 28(a) of the Act, this court enjoys a discretionary power to ‘order the production of any document, exhibit or other thing connected with the proceedings, the production of which appears…to be necessary for the determination of the case’. The origin of this provision may be traced to section 9 of the English Criminal Appeal Act 1907 and the virtually identical provision can now be found in section 23(1)(a) of the Criminal Appeal Act 1968 (for the legislative history, see paras 6–11 of the judgment of Lord Bingham of Cornhill in R v Pendleton [2001] UKHL 66). In R v Lattimore and Others (1975) 62 Cr App R 53, the Court of Appeal expressly approved an earlier statement by Walton J in R v Perry and Harvey (1909) 2 Cr App R 89, 92 that the court should exercise its discretion under the section ‘[i]f it was plainly made out that justice required it’.

13 All three of the documents in respect of which the application under section 28(a) was made in this case were referred to, but not reproduced, in the record of the proceedings before Beckford J. We therefore considered that it would plainly be in the interests of justice and of assistance to the court in the determination of this matter to have access to them in their entirety and the order sought was made accordingly.

14 From the statement under caution, it emerged that the appellant...