Gordon v R

• Jurisdiction: Jamaica
• Court: Court of Appeal (Jamaica)
• Judge: Panton, P.
• Judgment Date: 21 July 2011
• Neutral Citation: JM 2011 CA 71
• Docket Number: Criminal Appeal No. 47 of 2008
• Date: 21 July 2011

Court of Appeal

Panton, P.; Morrison, J.A.; Phillips, J.A.

Criminal Appeal No. 47 of 2008

Gordon

and

R.

Appearances:

Mrs. Hannah Harris-Barrington for the appellant.

Mrs. Diahann Gordon-Harrison and Miss Michelle Salmon for the Crown.

Criminal Law - Manslaughter — Appeal against conviction — Failure of trial judge to define and give directions in respect of accidents and inadequate directions given in respect of a dying declaration — Conviction quashed — Verdict of acquittal.

ORAL JUDGMENT

Panton, P.

1 The appellant was tried in the Circuit Court held in May Pen, Clarendon during the period 31 March 2008 to 4 April 2008, when he was convicted of the offence of manslaughter, he, having been indicted for the murder of Kenrick Martin which was alleged to have taken place on 26 February 2004. On 10 April 2008, he was sentenced to a term of imprisonment for 10 years by the learned trial judge Mr. Justice Campbell.

2 The circumstances that gave rise to the charge and which were put before the jury at the trial were to the effect that, on the evening in question, 26 February 2004, there was an altercation between the appellant and the deceased in respect of an allegation that the appellant had stolen a cow owned by the deceased. The incident took place in a district known as Pass Side near to a shop where some men had gathered to play dominoes. The time was in the region of 6:00 p.m.

3 The evidence that was presented to the court came primarily from witnesses Leonard Forrester and Huntley Martin. Mr. Forrester, at the time he gave evidence, was 85 years old. He said that he saw the deceased running from the direction of a tamarind tree towards a van which was parked nearby and the deceased was bleeding. Prior to this incident the appellant had come on the scene in the vicinity of the tamarind tree and had joined the deceased and another man Tohan Kennedy, with whom the deceased had been speaking. There was a discussion between the two men, the appellant and the deceased, in respect of this cow. The appellant was seen with what was described as a shine object but which was not particularized by the witnesses. It was discovered that there was an injury to the appellant as well as an injury to the deceased, and none of the witnesses was able to give any specifics in relation to how the injury to the deceased was inflicted. Suffice it to say that both persons were at some stage on the ground. After the injury had been sustained by the deceased, he lay on the ground for a while. By that time the appellant had reached the May Pen Police Station. The police officer came on the scene approximately 15 to 20 minutes after the report had been made. The deceased was then transported to the May Pen Public Hospital.

4 According to Mr. Huntley Martin, brother of the deceased, who came on the scene after the incident, he had a conversation with the deceased at the scene and also at the hospital and in this conversation, the deceased is supposed to have said to him, “Me bredda, Huntley, is Baygie [the appellant] stab me and me gonna ‘dead’.”

5 There was evidence from Dr Desmond Brennan who said that the deceased had died as a result of hypovolemic shock secondary to lacerations of the left subclavian artery. He described the injury received by the deceased as one with a three by one centimeter transverse laceration to the left periorbit and that injury was traced down to the left side of the neck, passing the left sternocleidomastoid muscle down to the chest cavity. There was much bleeding and according to the doctor within 10 to 15 minutes, the deceased would have been unconscious and unable to speak and death would have followed not long...