Jerome Dixon v R
| Jurisdiction | Jamaica |
| Judge | Straw JA |
| Judgment Date | 29 July 2022 |
| Neutral Citation | JM 2022 CA 6 |
| Docket Number | SUPREME COURT CRIMINAL APPEAL NO 17/2011 |
| Court | Court of Appeal (Jamaica) |
[2022] JMCA Crim 2
IN THE COURT OF APPEAL
THE HON Mr Justice Brooks P
THE HON Miss Justice Straw JA
THE HON Miss Justice Edwards JA
SUPREME COURT CRIMINAL APPEAL NO 17/2011
APPLICATION NO COA2021APP00081
Terrence Williams instructed by John Clarke for the applicant
Mrs Tracy-Ann Robinson and Dwayne Green for the Crown
Written submissions filed by the Director of State Proceedings
| LAYOUT OF THE JUDGMENT | |
| Paragraph Reference | |
| Introduction | [1] – [3] |
| The Crown's case | [4] – [8] |
| The Defence's case | [9] |
| The grounds of appeal | [10] |
| The application pursuant to section 28 of the Judicature (Appellate Jurisdiction) Act (‘JAJA’) | [11] – [14] |
| The Crown's response to the application | [15] – [20] |
| The applicant's response | [21] |
| Ruling on the application | [22] – [28] |
| The submissions on appeal | [29] |
| Abuse of process | [30] – [57] |
| Non-disclosure of transcripts and deposition | [58] – [71] |
| Inadequate representation | [79] – [96] |
| The calling of the complainant's husband | [97] – [117] |
| Inappropriate treatment of prejudicial evidence | [118] – [149] |
| Taking of the verdict and handling of the jury | [150] – [184] |
| Sentence | [185] – [188] |
| Delay and constitutional issues | [189] – [291] |
| Conclusion | [292] |
| Orders |
On 21 February 2011, following a trial in the Home Circuit Court before King J (‘the learned judge’) sitting with a jury, Mr Jerome Dixon (‘the applicant’) was convicted of the offence of wounding with intent. He was also sentenced, on the same day, to 15 years' imprisonment at hard labour.
The applicant was refused leave to appeal against his conviction and sentence by a single judge of this court. This is a renewal of his application. The applicant was granted bail by a single judge pending the determination of his renewed application for leave to appeal, and his bail was extended until the date of delivery of this judgment.
By way of background, it is important to state that the hearing of the application took place sequentially with the application for leave to appeal in the matter of SCCA No 55/2015 Omar Anderson v R and the appeal in the matter of Evon Jack v R [2021] JMCA Crim 31. This was done to accommodate counsel for the applicants and appellant, who indicated that they would be making submissions of a similar nature in respect of each of the three matters.
On 3 September 2005, at about 8:00 pm, Mrs Donna Allen (‘the complainant’) returned home from the supermarket with her husband and son. She described her house as a three-room board structure. On their return, her husband opened the door and turned on the outside light and the light in the front room. The complainant went inside and put down the groceries, and her husband went back outside. While she was standing in the front room, she heard an explosion like a gunshot and realised that she had been shot when she saw blood coming through her jeans and felt her right leg starting to burn. She did not see who fired the shot. She called her stepmother.
She started feeling weak in the leg, so she sat on the floor, and while there, she saw the applicant in the doorway. She had known him for about 17 years, and there was nothing to obstruct her view of him. The applicant had an open ratchet knife in his hand. The applicant stepped inside the house while the complainant was still seated on the floor; he held her blouse and started to stab her all over her body. In particular, the complainant stated that he stabbed her in her right breast, left forearm, left hand (her thumb was cut), left shoulder near her lungs. He also stabbed her twice in each leg and her right side, in the region of her waist. He also cut her throat. The complainant stated that she was trying to get up and when she managed to stand, that was when the applicant went behind her, held her head and cut her throat.
After the applicant cut the complainant's throat, he ran outside and then came back and pushed the knife under her left breast. This caused her to fall. The applicant then ran. The complainant estimated that this ordeal lasted roughly ten minutes and that she was able to see the applicant's face right throughout.
The complainant was taken to the hospital, where she was treated for serious injuries. She was admitted on 3 September 2005 and discharged five days later.
On 31 October 2007, the complainant saw the applicant at a bus stop. She went to the police station and told the police that she had seen the applicant. Thereafter, she accompanied the police to the bus stop, where she pointed out the applicant. Upon being placed into the police service vehicle, there was an exchange between the complainant and the applicant. He said, “[m]ummy, you know is who dweet, yuh know is who dweet” and she responded, “[y]es, I know it was who, because it was you I saw when you came and cut my throat”.
The applicant made an unsworn statement denying all knowledge of the incident. He stated that he and the complainant were never in “noh fuss nor quarrelling” and that he did not hurt her. He called an alibi witness in the person of his mother, Ms Yvonne Montique (‘Ms Montique’). She said that the applicant was at home on 3 September 2005. That day was memorable to her because she suffered a burn to her hand while cooking. Her evidence was that the applicant left to play football at about 5:00 pm, and he returned home at around 7:30, when “[c]ashpot was playing” just in time to assist her when her hand was burnt. She indicated that he never left the house again that night.
Counsel for the applicant, Mr Terrence Williams, obtained permission to argue 12 supplemental grounds of appeal but subsequently indicated that he would not pursue four of those grounds. Those were withdrawn. The following (as originally numbered) were argued:
“1.[withdrawn]
2. The Prosecution exercised its discretion improperly in failing to call Mr. Allen the sole witness as to the eyewitness's first description.
3. [withdrawn]
4. The majority direction was improperly given as the directions failed to make it clear that the jurors were entitled to disagree.
5. The learned trial judge failed to adequately demonstrate how the sentence was arrived at.
6. The delays in the hearing of the appeal amount to an abuse of the court's process attributable to the Crown.
7. [withdrawn]
8. The Crown failed in its obligation to disclose to the applicant the transcript of the previous trial that had been on substantially the same facts and the deposition[s] [taken at] the preliminary inquiry.
9. The jury was pressurised in arriving at its verdict.
10. The trial was an abuse of process as it was a subsequent trial on substantially the same facts as a previous trial and no special circumstances were proffered to permit a trial in those circumstances.
11. The learned trial judge failed to properly, or at all, exercise his discretion to call the witness Mr. Allen.
12. The learned trial judge erred in conducting part of the trial, namely the arguments and decisions surrounding the calling of the witness Mr. Allen, in the absence of the applicant.
13. Defence counsel's representation was inadequate particularly as he failed to take appropriate instructions from the Applicant.
14. [withdrawn]
15. The jury heard prejudicial evidence as to:
a. the murder that occurred at the time of the incident;
b. the applicant being of poor repute;
c. the applicant being a friend of someone who previously attacked the eyewitness; and
d. that it was the first occasion that the alibi witness gave her account.
16. The learned trial judge failed to give the jury the appropriate directions as regards the prejudicial evidence referenced in the foregoing ground.”
By way of notice of application for court orders (filed 30 April 2021), the applicant sought leave to adduce fresh evidence. This evidence was contained in three affidavits –
-
i the affidavit of the applicant sworn to on 31 March 2021;
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ii the affidavit of Leroy Equiano sworn to on12 May 2021; and
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iii the affidavit of Gladstone Wilson sworn to on 29 April 2021.
The affidavits sworn to by Messers Equiano and Wilson, of counsel, speak to the delay in the hearing of the applicant's appeal, his treatment awaiting appeal, a previous murder trial and acquittal on substantially the same facts, and the non-disclosure of the depositions and transcript of the previous murder trial.
In the speaking notes, reference was made to the authorities on fresh evidence cited by the Crown, namely R v Parks [1961] 2 All ER 633, Seian Forbes and Tamoy Meggie v R [2014] JMCA App 12, and Carl Pinnock v R [2019] JMCA Crim 7. It was acknowledged that the criteria for the reception of fresh evidence from R v Parks (which the other cases followed) were that the evidence (i) must not have been available at trial, (ii) must be relevant to the issues, (iii) credible, that is well capable of belief. Also, the court must consider whether it would have caused a jury to have had reasonable doubt. It was submitted that these factors may be considered; however they did not establish the criteria for admissibility. The true test was whether the reception of the evidence was “necessary or expedient in the interest of justice”. The court was referred to the case of Benedetto v R and Labrador v R [2003] UKPC 27.
Mr Williams clarified orally that, in any event, the application was not for fresh evidence to be adduced but one pursuant to section 28 of the Judicature (Appellate Jurisdiction) Act (‘JAJA’), to allow the applicant to rely...
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