Joseph Mitchell v R

JurisdictionJamaica
JudgeBrooks JA
Judgment Date22 February 2019
Neutral CitationJM 2019 CA 10
CourtCourt of Appeal (Jamaica)
Docket NumberSUPREME COURT CRIMINAL APPEAL NO 62/2015
Date22 February 2019
Joseph Mitchell
and
R
BEFORE:

THE HON Mr Justice Brooks JA

THE HON Miss Justice P Williams JA

THE HON Mr Justice Pusey JA (AG)

SUPREME COURT CRIMINAL APPEAL NO 62/2015

IN THE COURT OF APPEAL

SITTING IN LUCEA, HANOVER

Roy Fairclough and Mrs Tamika Spencer-Anderson for the appellant

Miss Paula Llewellyn QC, Director of Public Prosecutions and Ms Judi-Ann Edwards for the Crown

Brooks JA
1

We heard this appeal on 4 December 2018 and, three days later, on 7 December, gave the following decision:

At that time, we promised to put our reasons in writing. This is the fulfilment of that promise.

  • “1. Appeal dismissed.

  • 2. Convictions and sentences affirmed.

  • 3. Sentences deemed to have commenced on 30 July 2015.”

2

On 9 May 2015, sometime after 9:00 pm, Mr Dane Lewis was on his way from Westgate to his home in Anchovy. Both places are in the parish of Saint James. He noticed a car following the taxi that he was in, and, as a result, he did not alight at his usual spot but went further along the route. He came off by the Anchovy High School.

3

He walked toward home by way of a train line, which was near to the main road. As he got to the train line he saw the appellant Mr Joseph Mitchell, whom he knew before, stand up from behind some bushes, where he was apparently stooping, lying in wait for Mr Lewis.

4

On Mr Lewis’ account, Mr Mitchell pointed a gun at him and said, “‘Hot Box’, me hold yuh now. Dead yuh fi dead” (page 8 of the transcript). Mr Lewis said that he is also known as “Hot Box”.

5

In the face of that threat, Mr Lewis turned and ran.

6

As he ran off, he heard four gunshots. He ran and hid in a nearby common. He telephoned the police from his hiding place, and they came and rescued him. As he waited for them, he saw a car, resembling one usually driven by Mr Mitchell, patrolling the area of the nearby main road.

7

Two days later, Mr Mitchell went to the police station. There, he was arrested and charged for the offences of illegal possession of firearm and shooting with intent.

8

At the trial before Martin Gayle J, sitting without a jury, in the Western Regional Gun Court, Mr Mitchell said, in an unsworn statement, that on that evening, he was at home with his family. He called, as a witness, his child's mother, Ms Tasheka Vernon, who confirmed that alibi.

9

On 17 July 2015, the learned trial judge, found Mr Mitchell guilty of the offences of illegal possession of firearm and shooting with intent. In his summation, he analysed the evidence, gave himself directions in law, on the various issues that arose during the trial, and concluded that he believed Mr Lewis' account, and did not believe Mr Mitchell's alibi.

10

He sentenced Mr Mitchell to 15 years imprisonment in respect of the former offence and 20 years imprisonment in respect of the latter. The sentences were imposed on 30 July 2015 and ordered to run concurrently.

11

Mr Mitchell has filed, with permission, an appeal against his conviction. Mr Fairclough, on behalf of Mr Mitchell, argued four grounds of appeal:

Grounds 1 and 4 were argued together and will be analysed before the others.

  • (1) “The Learned Trial Judge erred in dealing with the issue of character when he held that the Appellant by giving an [unsworn] statement was thereby deprived of the right to have his good character considered on the issue of credibility.”

  • (2) “The learned trial judge failed to explore the feud between the accused and the complainant, resulting in a substantial miscarriage of justice.”

  • (3) “The learned trial judge failed to treat the issue of the credibility of the witness in the context of the case and mechanically applied the guidelines set out in Turnbull which was designed to guard against mistaken identity and gives no assistance where the complainant had volunteered in his evidence in chief that there is an ongoing feud between himself and the defendant.”

  • (4) “The learned trial judge grossly misstated the law on evidence of good character.”

Grounds 1 and 4 —The treatment of the good character evidence
12

Mr Fairclough submitted that the issue of credibility was critical to the resolution of this case. Learned counsel argued that, in that context, Mr Mitchell was entitled to a full character direction. He had not been given the benefit of such a direction, learned counsel submitted, and was, therefore, at an unfair disadvantage when the issue of credibility was considered.

13

Learned counsel confidently submitted that despite Mr Mitchell having made an unsworn statement, he was still entitled to a good character direction, which addressed both the propensity limb and the credibility limb of that direction. This, learned counsel submitted, was because Ms Vernon had testified as to Mr Mitchell's good character.

14

Mr Fairclough submitted that the learned trial judge erred when he ruled that Mr Mitchell was not entitled to a favourable direction on the credibility limb of a good character direction. Learned counsel also criticised certain aspects of the summation, which seemed to suggest that the learned trial judge had withdrawn a consideration of both limbs of the good character direction. “By so doing”, learned counsel submitted, the learned trial judge “excluded from consideration a vital element of the defense [sic] and thereby caused a substantial miscarriage of justice”.

15

Learned counsel relied, in support of these submissions, on Patrick Forrester v R [2010] JMCA Crim 17 and Chris Brooks v R [2012] JMCA Crim 5.

16

The learned Director of Public Prosecutions, Miss Llewellyn QC, was diffident in her submissions on the requirement of a credibility limb direction. She was somewhat constrained by written submissions, which had been previously submitted by the Crown, but had not been settled by her. Those written submissions conceded that, in this context, the learned trial judge had erred in four respects, namely:

  • “[1] That the then accused was entitled to only the propensity limb of the direction (p.75:19–22);

  • [2] That he could not examine his propensity because he gave an unsworn statement and that statement was not tested by cross examination (p.76.2–5).

  • [3] That where credibility is in issue that a good character direction is always relevant [ Teeluck (Mark) and John (Jason) v The State] The LTJ identified that credibility was one of the main issues in the trial (p.72:11–12 and 76:1–6). Especially in light of the fact that the witness Dane Lewis stated that the appellant had a vendetta and a feud with him (p.6:13–18).

  • [4] Tasheka Vernon having given sworn evidence of the then accused's good character he was entitled to both limbs of the direction —the credibility and the propensity direction. [ Teeluck (Mark) and John (Jason) v The State]” (Square brackets as in original)

17

In oral submissions, learned Queen's Counsel departed to some degree from the written submissions. She submitted that the context of the summation did not support the assertion that the learned trial judge had denied Mr Mitchell the benefit of a direction on the propensity limb. She eventually submitted, however, with some hesitation, that since Mr Mitchell had not given sworn testimony, he would not have been entitled to the benefit of the credibility limb of a good character direction. She referred to both cases that were cited by Mr Fairclough and also relied on Teeluck (Mark) and John (Jason) v The State (2005) 66 WIR 319.

18

Miss Llewellyn submitted, however, that any errors made in this area by the learned trial judge would not be fatal to the convictions. She argued that, given the fact that this was an overwhelmingly strong recognition case, there was no miscarriage of justice in the matter. The learned Director submitted that the proviso to section 14(1) of the Judicature (Appellate Jurisdiction) Act, should therefore, be applied.

19

In analysing these submissions, it is first necessary to assess the directions that the learned trial judge gave to himself. These are recorded at pages 75–76 of the transcript. There, he said, in part:

“The accused man is running what is known as an alibi. It is for the prosecution to disprove the alibi. He raises his good character by saying he has a child, he lives with a lady and he takes care of his child. So he is saying he is a good person. He gave what is known as a [sic] unsworn statement. A statement from the dock. The court can give it what weight it thinks, if any. When he raised his good character, since it is an unsworn statement the court can only look at one limb, that is the limb of propensity. Does he have a propensity? He is saying that he is not of that propensity to commit such an offence.

Because he gave an unsworn statement I cannot look at the credibility issue of his good character. I cannot look at propensity. His evidence was not tested by crossexamination. So a great deal of this case rests upon credibility and the identification.” (Emphasis supplied)

20

Although the learned trial judge, as shown in the second highlighted portion of that quotation, stated, “I cannot look at propensity”, it seems clear, from the context, and from the first highlighted statement, that he misspoke, and meant to say, “I cannot look at credibility”. This can be deduced from his earlier statement, “the court can only look at one limb, that is the limb of propensity”. He later said, “[b]ecause he gave an unsworn statement I cannot look at the credibility issue of his good character”.

21

Despite Mr Fairclough's submissions on this aspect, it seems readily apparent that the learned trial judge did give Mr Mitchell the benefit of the propensity limb of the good character direction. Miss Llewellyn's oral submissions, in this regard, are correct.

22

The next issue is whether, despite not giving evidence himself, the fact that a witness gave sworn testimony in the case, concerning Mr Mitchell's good character, entitled him to a...

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4 cases
  • Alton Baker v R
    • Jamaica
    • Court of Appeal (Jamaica)
    • 8 April 2022
    ...applied in several decisions of this court, including Leslie Moodie v R, Tino Jackson v R [2016] JMCA Crim 13 and Joseph Mitchell v R [2019] JMCA Crim 2. 124 The sole basis for the complaint under this ground is found in the appellant's brief unsworn statement, in which he denied any involv......
  • Joseph Stanley v R
    • Jamaica
    • Court of Appeal (Jamaica)
    • 30 July 2021
    ... ... [127] of Leslie Moodie ). This issue was also addressed in Joseph Mitchell v R [2019] JMCA Crim 2 (‘ Joseph Mitchell ’) by Brooks JA (as he then was), who at para. [34] stated: “[34] … in order to benefit from a direction on the credibility limb of a good character direction, an accused must either have made pre-trial statements or answers or have ... ...
  • Valdano Smith v R
    • Jamaica
    • Court of Appeal (Jamaica)
    • 29 September 2020
    ...was entitled to benefit from the propensity limb of the direction: see Craig Mitchell v R [2019] JMCA Crim 8; Joseph Mitchell v R [2019] JMCA Crim 2; Tino Jackson v R [2016] JMCA Crim 13; and Leslie Moodie v R [2015] JMCA Crim 16. It was therefore incumbent on the LJPC to demonstrate that s......
  • Clive Vidal v R
    • Jamaica
    • Court of Appeal (Jamaica)
    • 12 July 2019
    ... ... Court Criminal Appeal No 113/2007, judgment delivered 3 April 2009, Horace Kirby v R ; Sherwood Simpson v R [2017] JMCA Crim 37 and Joseph Mitchell v R [2019] JMCA Crim 2) ... In Horace Kirby v R , Brooks JA notes three principles relative to good character directions in paragraphs ... ...

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