Jordan Thompson v R
|19 December 2013
|SUPREME COURT CRIMINAL APPEAL NO 21/2008
|Court of Appeal (Jamaica)
|19 December 2013
 JMCA Crim 62
IN THE COURT OF APPEAL
The Hon Mr Justice Panton P
The Hon Miss Justice Phillips JA
The Hon Mrs Justice Lawrence — Beswick JA (AG)
SUPREME COURT CRIMINAL APPEAL NO 21/2008
Leroy Equiano instructed by the Kingston Legal Aid Clinic for the appellant
Miss Paula Llewellyn , QC, Director of Public Prosecutions and Miss Michelle Salmon for the Crown
CRIMINAL LAW - Unlawfully and maliciously causing a destructive thing to be taken - Offences Against the Person Act, s. 25 - Hearsay evidence - Whether trial judge's summation was vague and inadequate
The appellant was tried in the Home Circuit Court before Pusey J, and a jury between 10 and 12 October 2007, and on 15 February 2008, he was found not guilty of the offence of manslaughter (count 1) but was convicted of the offence of unlawfully and maliciously causing a destructive thing to be taken contrary to section 25 of the Offences Against the Person Act (count 2). He was sentenced to a correctional order with recommendation for psychiatric and vocational training up to the age of 18 years at the Rio Cobre Correctional Centre.
On 24 October 2011, the appellant's application for leave to appeal against conviction was granted by a single judge of this court on the basis that the evidence as related in the judge's summation was quite weak and that the summation itself may well have lacked clarity. The appeal was heard in May of this year, when we reserved our decision which we deliver now, and our reasons for arriving at the same.
This case arises from the unfortunate circumstances surrounding the death of a five year old boy, Nathan Reynolds who was born on 9 January 2001. The Crown called three witnesses to prove its case, namely; the mother of the victim Miss Lacy-Ann Mitchell, a registered medical practitioner and consultant pathologist, Dr Gail Codrington and the investigating officer Constable Laurie O'Gilvie. The appellant made an unsworn statement and called no witnesses on his behalf.
Miss Lacey-Ann Mitchell testified that she was at home on 26 January 2006 with her two sons Nathan and his younger brother, Jason born on 26 August 2004. She said that Nathan went outside the house to play with his truck, while the younger son was inside sleeping. She left him outside and went inside to prepare his lunch. Later she called him and as she did not hear from him she went in search of him and saw him come to the doorway and in her own words said that he, ‘look a way.. Look away like him out fi drop an then..’ She asked him she said, because of how he looked and because she had smelled rum on him, what was wrong with him and who had given him rum to drink. Nathan, she said, told her that it was the appellant who had given him something to drink. She gave him some water, instructed him to lie down and went to find the appellant. She found him at the fence and told him that Sudoo (other name for Nathan) had said that he had given him something to drink and, she asked him what had he given Sudoo. The appellant responded that it was a lie as he had not given Sudoo anything and that he had not seen him that morning. She said that when she spoke to the appellant he looked frightened and scared.
On re-entering the house she saw Nathan on the ground ‘flattering’, which she explained meant that, ‘him a kick up a way’ and also she noticed that ‘him belly a move up so fast’ and that he vomited. She took him to the Police Station and then she was assisted to the doctor and eventually to the Bustamante Hospital for Children where he stayed for about two weeks and then died.
In cross-examination Miss Mitchell was questioned at length about an accident which had occurred with her younger son, Jason where a cork (bottle cover) full of kerosene oil had spilled and some of it had gotten on his hand which he had placed in his mouth resulting in him being taken to the hospital with a fever. It was suggested that he had developed the fever and had to be taken to the hospital because of something he had drunk. Miss Mitchell denied this, insisting that Jason had been admitted to the hospital due to the high fever and not as a result of drinking poison.
Corporal Laurie O'Gilvie gave evidence that on 26 January 2006 Miss Mitchell came with Nathan to the Lawrence Tavern Police Station. He said that she seemed very frightened, was crying and Nathan appeared unconscious, and was frothing from his mouth and nostrils. He took Nathan and his mother to a doctor at a nearby clinic, and he said later that day Nathan was taken to the Bustamante Hospital for Children. On the following day, he went to the hospital to check on Nathan's condition and to speak with the doctor attending to him. He then, based on information received and on Nathan's condition and injury, went to find the appellant but did not locate him or his mother. The appellant's mother Miss Sherene Williams eventually came to the station a few days later but without the appellant. Constable O'Gilvie testified further that the appellant came to the station the following week and, he and Constable Lawes proceeded to the appellant's home with his mother where the appellant told all of them, that he had been to the shop by the main road, and while he was on his way there he had seen a pepsi bottle with liquid in it nearby the shop at an old abandoned house and, he had taken it up to his home. He stated that he had been playing with Nathan and they had poured out the liquid and he, the appellant had given Nathan some of it to drink. Constable O'Gilvie said that he went in search of the pepsi bottle as the appellant had indicated the exact area where he, (the appellant) had found the bottle. However, upon searching the entire area he had not found the bottle.
He said that he had returned to the house later the same day and the appellant then told him that he had obtained the substance (which he later described as a green liquid) out of the toilet. The appellant said that the liquid was in a pit latrine beside the house and his mother had hung up the substance inside the toilet. The appellant stated he said, that he had mixed the liquid that he had found in the toilet with some rum that his mother had on the kitchen table, and it was that mixture that he had given Nathan to drink. Constable O'Gilvie testified that he had searched the house and the surrounding area for the mixture described by the appellant but had found nothing. He indicated that he had found a bottle of liquid which appeared to be rum on the kitchen table which he took to the Lawrence Tavern Police Station. He said that he eventually charged the appellant with being a juvenile in need of protection. He also stated that at no point had the appellant looked ill nor had he complained about being ill. He accepted in cross-examination that he had made no mention in the statement prepared by him of the Pepsi bottle that the appellant had mentioned to him.
Dr Gail Codrington, a pathologist for approximately 24 years, gave evidence on the cause of death in respect of Nathan. She had conducted a post mortem examination on him on 15 February 2006 and noted injury to several organs including the bowel, liver, brain, kidney, and lung. She concluded that death had been due to respiratory or lung failure as well as liver failure likely complicating the ingestion of a poison. She could not say definitively that the cause of death was poison.
The appellant gave a brief unsworn statement. This is what he said:
‘My name is Jordan Thompson. I am 14 years old. I live at 8 Duncan Avenue, Kingston 5. On the 26 th of January, 2006, I did not give Sudoo anything to drink. I did not see Sudoo on that day.’
Counsel for the appellant was granted permission to argue four grounds of appeal. They are as follows:
‘2.1 The learned trial judge erred when he allowed a witness to give evidence of what was said by another person in the absence of the accused.
2.2 The learned trial judge erred in law when he allowed the evidence of confessions alleged to have been made by the Appellant to be admitted as evidence.
2.3 The learned trial judge erred in law when he allowed the case to be decided by the jury.
2.4 Having allowed the case to go to the jury, the learned trial judge [sic] summation was vague and inadequate. It did not assist the jury sufficiently with how to treat with the factual and legal issues.’
Counsel for the appellant referred to and relied on certain excerpts from a leading text, Criminal Pleading Evidence and Practice-Archbold 2002 edition, chapter 11, for the law with regard to the hearsay rule. He submitted inter alia that:
‘Hearsay evidence (whether oral or written) common law and statutory exceptions apart, is inadmissible in criminal proceedings. The mere fact that the statement was made on oath does not render the statement admissible as evidence of the truth of its contents: (Paragraph 11.2) [t]he mere fact that the maker is dead.. or that the statement is to be adduced or elicited by the defence in criminal proceedings.. does not render the statement admissible as evidence of the truth of its contents. Nor has a judge any discretion to admit such evidence…’
It was counsel's contention that if the witness could not be cross-examined the evidence ought not to be received. He argued that if Nathan's statement were to be admitted in evidence through Miss Mitchell, it would have to fall within one of the exceptions to the hearsay rule. The Crown was relying on the statement being a part of the res gestae , but counsel argued that the statement did not satisfy the necessary conditions to qualify under that doctrine. He set out in detail the...
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...in the vehicle, and the next thing he remembers he was at the hospital.” 26 The appellant relied on the case of Jordan Thompson v R  JMCA Crim 62 (‘ Jordan Thompson’) and R v Andrews  1 All ER 513 (‘ Andrews’) as setting out the applicable law relating to res gestae as an excep......