Grant (Steven( v R
| Jurisdiction | Jamaica |
| Judge | HARRIS JA |
| Judgment Date | 20 December 2010 |
| Judgment citation (vLex) | [2010] 12 JJC 2007 |
| Date | 20 December 2010 |
| Court | Court of Appeal (Jamaica) |
CRIMINAL LAW - Murder - Life imprisonment - Unfair trial - Abuse of process - Unreasonable verdict - No case submision - Excessive sentence - Delay - Inability to cross examine witnesses - Unavailability of contemporaneous notes
The applicant was, on 1 June 2007, convicted in the Home Circuit Court for the murder of Kymani Bailey. He was sentenced to life imprisonment. It was ordered that he would not become eligible for parole until he had served 17 years. On 30 July 2010, we refused an application by him for leave to appeal, ordered sentence to commence on 7 September 2007 and promised to put our reasons in writing. We now fulfill our obligation.
In the early hours of 18 April 1999, Bailey was shot and killed in New Kingston. On three occasions, the applicant was put on trial for his murder. A conviction which was recorded at the first trial was quashed by the Privy Council and a new trial ordered. The second trial was aborted. The third trial resulted in a conviction.
The prosecution placed reliance on several witnesses but the evidence from three witnesses, namely, Detective Sergeant Warren, Michael Kinglock and Constable Mark Williams was not adduced by way of oral testimony. Mr Kinglock's and Constable Williams' evidence was admitted by way of written statements pursuant to the provisions of section 31D of the Evidence Act. Sergeant Warren's evidence was in the form of depositions taken at the preliminary inquiry.
On 7 May 1999, Michael Kinglock, a truck driver, who was employed on weekends as a night watchman at the Jamaica Football Federation Building, gave a statement to the police. He stated that on the morning of the incident, he was in the building which overlooks a car park and that at about 4:15 he proceeded to the balcony on the third floor from which he was afforded a bird's eye view. Activity in the car park was negligible. There, he saw a man walking towards the Jamaica Football Federation Building. The man stopped at the side of the building and urinated. Thereafter, he observed another man approaching that man who was urinating, pointing to him and said "Pussy hole don't move." The man who was urinating appeared to be pulling up his zipper but instead drew a gun and fired several shots in the direction of the man who had approached him. The man, in whose direction the shots were fired, ran. The man who fired the shots also ran in the same direction. He did not see either of them after they left his view.
He went on to say that he noticed that something fell but was unable to say from whom it had fallen. He then said he saw several persons running into the car park. After the man who fired the shots ran, he saw a van which was parked in front of the federation building reverse and then it sped away.
Corporal Llewellyn Wynter testified that sometime between 3:30 and 4:30 on the morning of 18 April 1999, he was walking from the Asylum nightclub towards the City Bank Building on Knutsford Boulevard when he heard explosions which sounded like gunshots, and which appeared to have been coming from the vicinity of the City Bank Building. He hastened towards the direction from which the explosions came. He ran to the end of the City Bank Building to an area between a fast-food establishment and the City Bank Building.
This area leads to a car park which the Jamaica Football Federation Building overlooks. He disclosed that he observed what he believed to be a white pick-up truck driving out from the area to the right of the Jamaica Football Federation Building. It went across to St. Lucia Avenue. He was unable to see who was in the vehicle. However, he saw a man in a crouching position near to the side of the Jamaica Football Federation building. He got into the police service vehicle and pursued the vehicle but without success. He gave up the chase and returned to the area where he saw a man lying on the piazza breathing heavily, covered with what appeared to be blood. The man was soon after taken away by other policemen.
Corporal Marvis Haughton testified that he came to the scene at about 4:30 a.m. and saw the deceased lying in the car park, covered in blood with his arms extended outwards from his body. He said there was nothing in the deceased's hands, nor did he see a firearm close to his body or anywhere. With the assistance of the policemen, the man was taken to hospital. He said a crowd had gathered but the scene was not secured.
Xavier Newton Bryant stated that on the morning of the incident he was on an assignment to the Jamaica Football Federation Building as a security guard. He related that, between 4:00 and 4:30 on the morning, he was seated at a desk in the reception area when he heard about four to five gun shots. He walked to a window, and looked to the front of the building where he saw a young man stagger and fall on the sidewalk about six feet away from where he was standing. He went on to assert that he was able to see him with the aid of lights from an overhang covering the sidewalk.
He then saw another man coming from the direction from which the first man came, walking closely to that first man. The first man was unarmed. The second man was armed with a firearm which he used to fire seven or eight shots in the back of the man on the ground, who was trying to creep away. He described the man with the gun as tall, fair-skinned and of Indian extraction. He said that about 20 minutes to a half an hour after the shooting ended, he went outside where he saw a small crowd of 20 - 25 persons and the young man still on the ground groaning. When the police arrived, some bystanders and himself picked up spent shells which they handed over to the police.
In cross-examination he stated that he joined the police force in 1979 and left in 1985 as a constable. He admitted however that his service was terminated in 1980 and not 1985 due to the fact that it was discovered that he had a criminal record which he had not disclosed upon enlisting in the constabulary force. He admitted being convicted in 1979 for stealing a tin of sardines. He admitted that he lied in his curriculum vitae in respect of his qualifications in order to secure a job as a security officer. He admitted that his reconstruction as to what transpired that morning was partly what he had seen and partly what he had heard.
Dr Ere Sheshaiah conducted a post-mortem examination on the body of the deceased. His examination revealed the presence of 13 gunshot wounds on the body. There were two gunshot entry wounds to the trunk, without any gunpowder markings, one of which was to the back. A corresponding exit wound was found on the right side of the chest.
A gunshot wound was found at the root of the scrotum, without gunpowder residue present. Two gunshot wounds were found on the upper parts of the gluteal area. Eight gunshot wounds were present on the thigh, one on the front of the left thigh and seven on the back of the left thigh, without gun-powder markings.
It was his opinion that death was caused by multiple gunshot wounds. He also opined that the shooter would have been standing behind the deceased when the shots to the back were discharged. However, in cross-examination, he said that he was unable to determine the exact position of the shooter in relation to the deceased when the shots were fired.
Daniel Wray, retired Assistant Commissioner of Police and government ballistic expert, testified that on 19 April 1999 he received from Sergeant Warren two sealed envelopes, one containing a 9mm Sauer model #p226 semi automatic pistol bearing serial number U533370 and the other containing three 9mm luger unexpended firearm cartridges. On 6 May 1999 he also received from Sergeant Warren an envelope containing four 9 mm bullets and fragments of bullets.
The firearm carries a magazine which is capable of holding 18 cartridges. When fired, each succeeding shot, after the first shot, is carried out by a single action. In order for 13 shots to be expended from the firearm, he said, the shooter would have to pull the trigger 13 times. He stated that a person may accidentally pull the trigger of a firearm by reason of fright or panic and the degree of reaction by that person would vary depending on the extent to which the person had been frightened or had panicked.
Constable Mark Williams' evidence was that the applicant, on the morning of the incident, attended the Half Way Tree Police Station, made a report to him and handed over a 9mm pistol with a magazine containing three live rounds of ammunition. Following this, he recorded a statement from the applicant. In this statement, the applicant asserted that at about 4:15 am on Sunday 18 April 1999, he was in the parking lot adjoining the Halftime Sports Bar on Knutsford Boulevard, which he had just left, and was proceeding to his vehicle in the parking lot. He stopped to urinate against a wall and while zipping up his trousers, he heard someone from behind, say, "Pussy hole, don't move." On turning around he observed a man pointing a gun at him. He immediately drew his firearm which was loaded with a magazine containing approximately 13 rounds of 9mm cartridges and one round in the chamber. He pointed the firearm in the man's direction and began squeezing the trigger.
He further stated that the man ran out of his sight to the other side of the wall. He walked towards the direction in which the man ran and saw the man, with gun in hand, facing him. He again pointed the gun in the man's direction and squeezed the...
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