Horace Kirby v R

• Jurisdiction: Jamaica
• Judge: Brooks JA
• Judgment Date: 16 March 2012
• Docket Number: SUPREME COURT CRIMINAL APPEAL NO 40/2010
• Court: Court of Appeal (Jamaica)
• Date: 16 March 2012

Horace Kirby

and

R

[2012] JMCA Crim 10

Before:

The Hon Mrs Justice Harris P (Ag)

The Hon Miss Justice Mcintosh JA

The Hon Mr Justice Brooks JA

SUPREME COURT CRIMINAL APPEAL NO 40/2010

JAMAICA

IN THE COURT OF APPEAL

CRIMINAL LAW - Murder - Self-defence - Whether appellant acted in self defence -Conviction set aside - New trial ordered - Interest of justice

Akin Adaramaja for the applicant

Dirk Harrison and Miss Melony Domville for the Crown

Brooks JA

1 On 3 February 2012, we heard Mr Horace Kirby's application for leave to appeal. At that time we made the following orders:

Our reasons are set out below.

• a. application for leave to appeal is treated as the hearing of the appeal;

• b. the appeal is allowed;

• c. conviction and sentence are set aside and in the interest of justice a new trial is ordered.

2 On 7 October 2006, the applicant stabbed Ms Maureen Duncan once, with a knife, in the region of her clavicle. She succumbed to that injury. The prosecution's case was that he had attacked her because they had had a disagreement the previous evening, during which, she had hit him with a bottle. His defence, at the trial, was that he had acted in self defence. In an unsworn statement, he relied on the contents of a cautioned statement that he had given to the police, on the day of his arrest. In that cautioned statement he said that, on the day of the stabbing, Ms Duncan had attacked him with a bench and in defending himself he pushed the bench out of her hand and stabbed her.

3 He was convicted of murder and was sentenced to serve 18 years imprisonment at hard labour. The learned trial judge also ordered that he should not be eligible for parole until after he has served 12 years. His application for leave to appeal against his conviction and sentence was refused by a single judge of this court but he has renewed that application before us.

4 It is a particular aspect of the applicant's unsworn statement that is the basis for the sole ground of appeal, which has been argued on his behalf. The applicant said, therein, ‘I have no previous conviction’. Mr Adaramaja, on his behalf, and with the permission of this court, argued that the ‘[l]earned Judge [was obliged to, yet] failed to give the Jury any direction on the accused's good character and this led to a miscarriage of Justice’.

5 On learned counsel's submission, the applicant, by stating in his unsworn statement that he had no previous conviction, had placed his good character in issue. This, Mr Adaramaja submitted, placed a duty on the learned trial judge to give directions on the issue, to the jury. In failing to do so, learned counsel submitted, the learned trial judge deprived the applicant of the right to have that issue considered by the jury and, as a result, deprived him of a fair trial. Learned counsel argued that the recent authorities stress that, once the issue of good character has been raised by the accused, a trial judge has no discretion as to whether or not a good character direction should be given. He relied, in support of his submissions, on the authority of Michael Reid v R SCCA No 113/2007 (delivered 3 April 2009).

6 In response, Mr Harrison submitted on behalf of the Crown, that a trial judge does have a discretion, depending on the circumstances of the case, as to whether or not to give directions to the jury concerning the good character of an accused. He submitted that that discretion was triggered when there was no evidence profferred by the accused as to his good character. Learned counsel argued that the applicant, not having given sworn testimony, did not give evidence as to his good character and therefore the learned trial judge was not obliged to give the jury any directions on that issue.

7 Mr Harrison also submitted that the circumstances of the instant case did not require the learned trial judge to give a good character direction, even with respect to the matter of the lack of propensity of the applicant to have committed the offence. This is despite the applicant having raised the issue of his good character. Learned counsel argued that ‘the absence of the direction as to the [lack of] propensity of the applicant [to have committed the offence] did not make the trial unfair; there was no miscarriage of justice’.

8 In support of his submissions, Mr Harrison relied on the cases of Kevaughn Irving v R [2010] JMCA Crim 55, Syreena Taylor v R SCCA No 95/2004 (delivered 29 July 2005), Edmund Gilbert v R PCA No 25/2005 (delivered 27 March 2006), R v Desmond McKenzie SCCA No 47/1996 (delivered 13 October 1997) and Michael Reid.

Analysis

9 The law concerning whether or not a trial judge should direct the jury as to the good character of an accused, as well as the nature of those directions, have been modified over the years. In recent times, however, and especially in this jurisdiction, comprehensive guidelines concerning the issue have been settled. These have been set out in Michael Reid and were referred to, with approval, in Kevaughn Irving.

10 For the present purposes, it is not necessary to repeat all of those guidelines. It will be sufficient to note three of the principles. Firstly, that a direction concerning the good character of an accused has two limbs, that of credibility and that of propensity. In R v Aziz [1995] 3 WLR 53; [1995] 3 All ER 149 their Lordships, in the House of Lords, recognized that fact. Lord Steyn said at page 62:

‘It has long been recognized that the good character of a defendant is logically relevant to his credibility and to the likelihood that he would commit the offence in question. That seems obvious.’

That principle was adopted by this court in Orville Murray v R SCCA No 176/2000 (delivered 8 April 2002). Their Lordships Board, in Teeluck and John v The State of Trinidad and Tobago [2005] 66 WIR 319, at paragraph [33], gave guidance to trial judges as to the appropriate direction:

‘(iii) The standard direction should contain two limbs, the credibility direction, that a person of good character is more likely to be truthful than one of bad character, and the propensity direction, that he is less likely to commit a crime, especially one of the nature with which he is charged.’

11 The second principle to be recognized is that where an accused does not give sworn testimony or make any pre-trial statements or answers which raise the issue of his good character, but raises the issue in an unsworn statement, there is no duty placed on the trial judge to give the jury directions in respect of the credibility limb of the good character direction. The accused is still entitled, however, to the benefit of a direction as to the relevance of his good character as it affects the issue of propensity. That was set out by Morrison JA in Michael Reid as principle (iii) on pages 26—27 of the judgment of this court. He said:

‘(iii) Although the value of the credibility limb of the standard good character direction may be qualified by the fact that the defendant opted to make an unsworn statement from the dock rather than to give sworn evidence, such a defendant who is of good character is nevertheless fully entitled to the benefit of the standard direction as to the relevance of his good character to his propensity to commit the offence with which he is charged ( Muirhead v R, paragraphs 26 and 35).’

12 The third principle is that where there has been a failure to fulfill a duty to direct the jury in respect of an accused's good character, this court may nonetheless decide that it will not interfere with the verdict of guilty. That decision will be taken if it is of the view that a good character direction would have made no difference to the verdict. In other words, using Mr Harrison's formulation ‘the jury would have arrived at the same verdict’. Morrison JA addressed this as his principle (v) in Michael Reid. He said at pages 27-28 of the judgment:

‘(v) The omission, whether through counsel's failure or that of the trial judge, of a good character direction in a case in which the defendant was entitled to one, will not automatically result in an appeal being allowed. The focus by this court in every case must be on the impact which the errors of counsel and/or the judge have had on the trial and the verdict. Regard must be had to the issues and the other evidence in the case and the test ultimately must always be whether the jury, properly directed, would inevitably or without doubt have convicted ( Whilby v R [SCCA No 72/1999 (delivered 20 December 2000)] per Cooke JA (Ag) at page 12, Jagdeo Singh v The State (2005) 68 WIR 424, per Lord Bingham at pages 435-436.’

13 Morrison JA applied this third principle in Patricia Henry v R [2011] JMCA Crim 16 (delivered 1 April 2011). In that case, after repeating the principles established by the authorities, concerning the failure to give a deserved good character direction, Morrison JA, giving the judgment of the court, ruled that other circumstances outweighed the potential benefit of the good character direction. He said at paragraph [51]:

‘In all the circumstances of the instant case, taking into account in particular the appellant's confession and the other items of circumstantial evidence referred to by the learned Resident Magistrate in her reasons for judgment…it appears to us that this is a case in which the potential benefit of a good character direction to the appellant was wholly outweighed by the nature and coherence of the evidence which she accepted.’

14 Those principles, it seems to us, settle the majority of the issues raised by the arguments before us. After stating those principles, it only remains to address one other point of difference between the submissions of counsel who appeared before us. This is the question of whether there is a discretion given to trial judges as to whether or not to...