Lawrence Oliver v R
| Jurisdiction | Jamaica |
| Judge | Straw JA |
| Judgment Date | 03 November 2023 |
| Neutral Citation | JM 2023 CA 140 |
| Court | Court of Appeal (Jamaica) |
| Year | 2023 |
| Docket Number | SUPREME COURT CRIMINAL APPEAL NOS COA2019CR00037 & 38 |
[2023] JMCA Crim 48
THE HON Mr Justice F Williams JA
THE HON Miss Justice Straw JA
THE HON Mr Justice Brown JA
SUPREME COURT CRIMINAL APPEAL NOS COA2019CR00037 & 38
IN THE COURT OF APPEAL
Criminal Law — self defence — judicial interventions — whether descending into the arena — duty of trial judge when dealing with discrepancies and inconsistences in the evidence — constitutional right to a fair trial within a reasonable time — pre-trial delay — appropriate remedy for pre-trial delay — common design — joint enterprise — whether the lesser offence of manslaughter was appropriately left to the jury — whether sentence of 12 years for the offence of manslaughter manifestly excessive for secondary party — Charter of Fundamental Rights and Freedoms, section 16(1), (6) and (8)
Mrs Melrose Reid for the appellant Lawrence Oliver
Miss Zara Lewis for the applicant Dwayne Oliphan
Miss Paula Llewellyn KC and Miss Sharelle Smith for the Crown
On 26 March 2019, following a trial before a judge and jury in the Saint Mary Circuit Court, the applicant, Dwayne Oliphant, was found guilty of the offence of murder and the appellant, Lawrence Oliver, was found guilty of the lesser offence of manslaughter. On 9 April 2019, Mr Oliphant was sentenced to life imprisonment without eligibility for parole before serving 20 years' imprisonment. On that same date, Mr Oliver was sentenced to 12 years and 10 months' imprisonment.
Both Messrs Oliphant and Oliver sought leave from this court to appeal against their convictions and sentences. On 14 January 2022, a single judge of this court considered their applications and refused Mr Oliphant's application for leave to appeal his conviction and sentence but granted Mr Oliver leave to appeal his conviction. Before this court is a renewed application by Mr Oliphant, seeking leave to appeal both conviction and sentence, as well as Mr Oliver's appeal which related to conviction and a renewed application in relation to sentence.
The main witnesses as to fact on behalf of the Crown were Messrs Jason Clarke and Louie McKenzie. It was Mr Clarke's evidence that on 6 November 2013, at about 6:30 pm, he, along with three other men, including his cousin Billy Dee Lawrence (‘the deceased’) and Mr McKenzie, were standing at the entrance of a lane called Spicy Grove in Oracabessa in the parish of Saint Mary. He heard footsteps behind him and when he looked around, he saw “Sticky Tie” and “Skinny” running toward them. He identified “Sticky Tie” as Mr Oliphant and “Skinny” as Mr Oliver. Mr Clarke testified to knowing the men for five and 10 years, respectively, before the incident. Counsel for Messrs Oliver and Oliphant indicated at the trial that identification was not in issue.
It was Mr Clarke's evidence that neither he, nor any of the three men with whom he stood, had anything in their hands, but Mr Oliphant was armed with a cutlass/machete. Upon seeing Messrs Oliphant and Oliver, he jumped over a fence, whereas the other three men (who were with him) ran into Spicy Grove Lane. He observed Mr Oliver throwing bottles at all of them. He took a shortcut that led him back to Spicy Grove Lane. Mr Oliphant was also on the lane, as he had pursued the other three men. At that time, he saw the deceased bent down and holding his left arm which was bleeding profusely. The deceased eventually fainted and Mr Clarke put him in a taxi for transportation to the hospital. He did not see the deceased again until he saw his body at his funeral.
Mr Clarke related that Mr Oliphant's attack was specifically intended for the deceased, with whom Mr Oliphant had a dispute about a month before. However, he did not see who inflicted the injury to the deceased.
Mr McKenzie's evidence largely corroborated the evidence of Mr Clarke. He testified to knowing Messrs Oliphant and Oliver for at least five years prior to the incident. He identified Mr Oliphant as having a cutlass which he observed to be sharpened on both sides and he saw Mr Oliver with a Heineken bottle which he threw at Mr Clarke. Mr Clarke jumped over a wall while he and the other men including the deceased, ran onto the lane. The deceased was caught by Mr Oliphant who chopped him under his left arm. Mr Oliphant and Mr Oliver ran off whilst Mr McKenzie and the others tried to help the deceased.
Detective Corporal Dowaine Lawrence, who was the investigating officer in the matter, also gave evidence. It was his testimony that further to a report that he received the day following the incident, he visited the Saint Ann's Bay Hospital where he was shown the body of the deceased. Thereafter, he visited the location of the incident. He observed spots of blood on the ground, at the entrance of and leading into Spicy Grove Lane. Arising from his investigations, on 8 November 2013, he arrested Messrs Oliphant and Oliver. He then charged both men on 18 November 2013, for the offence of murder. When cautioned, Mr Oliphant said, “Mi never mean fi duh it, it just happen”. Mr Oliver remained silent. Corporal Lawrence was also in attendance at the port-mortem examination and received the examiner's report.
It was deduced from the summation of the learned trial judge that the post-mortem report was received into evidence as a document agreed between the defence and the prosecution. This report revealed one chop wound to the deceased's left arm and that the cause of death was haemorrhage from the said chop wound.
Both Messrs Oliphant and Oliver gave unsworn statements. It was Mr Oliphant's account that on the date of the incident, he observed six to eight men at the entrance of Spicy Grove Lane. As he was walking past them, he was attacked, stabbed and cut all over his body by Mr Clarke. As he is a farmer, he had a cutlass in his hand, which he used to defend himself and that is how the deceased was chopped. He then ran off. The men chased him but he escaped and was eventually taken to the hospital by his sister, where he was admitted. Essentially, therefore, Mr Oliphant alleged that he was acting in self- defence.
Mr Oliver on the other hand, simply indicated that he had nothing to do with the incident that took place on the night in question.
Permission was sought by counsel for Mr Oliphant, and was granted by the court, to abandon grounds one and two of the original grounds of appeal that were filed and to argue the following supplemental grounds filed on 29 May 2023:
“ 1. Further Supplemental Ground 1
The Learned Trial Judge (LTJ) failed to have left any adequate direction to the jury on the critical issue raised on the defence's case that the Applicant acted or could have acted in lawful self-defence at the time.
2. Further Supplemental Ground 2
The Learned Trial Judge (LTJ) denied the appellant a fair trial by her excessive interference during the cross examination of the prosecution witnesses by Defence Counsel effectively becoming a participant at the bar instead of from the bench.
3. Further Supplemental Ground 3
The learned Trial Judge erred in her treatment of previous inconsistent statements and discrepancies and the effect these should have on the findings of the jury.
4. Further Supplemental Ground 4
That the trial judge erred in law when she failed to direct the jury to facts and credibility of the witness which rendered the verdict unsafe in the circumstances.
5. Further Supplemental Ground 5
The verdict arrived at was unreasonable having regard to the evidence before the Court.”
Additionally, during the course of the hearing, leave was sought and granted to argue the following further ground of appeal, being supplemental ground of appeal six:
“The learned trial judge, in failing to consider the delay of six years for the hearing of the trial, amounts to a breach of the applicant's constitutional right to a fair hearing within a reasonable time under section 16(1) of the Charter of Fundamental Rights and Freedoms, Chapter 3 of the Constitution.”
Each ground of appeal will now be considered.
Further supplemental ground one - The learned trial judge failed to have left any adequate direction to the jury on the critical issue raised on the defence's case that the applicant acted or could have acted in lawful self-defence at the time
Counsel Miss Lewis submitted that the learned trial judge failed to adequately sum up Mr Oliphant's defence, for the jury. She pointed to the commencement of the learned trial judge's summation, where there was an initial reference to self-defence, as well as other references in the transcript. She submitted that the learned trial judge only made three short references to Mr Oliphant's defence, whereas she extensively outlined the prosecution's case. Miss Lewis submitted therefore, that the learned trial judge failed to set out Mr Oliphant's defence, so as to counter-balance the evidence of the prosecution witnesses, and to fairly set out the evidence before the jury. Counsel cited the case of Wilbert Pryce v R [2019] JMCA Crim 40, as it concerned the law of self-defence and the role of a trial judge in assisting a jury to determine whether a person had a genuine belief of being under attack. She indicated that the learned trial judge's summation failed to explain these principles. As such, Mr Oliphant's conviction was unsafe.
In response, the learned Director of Public Prosecutions (‘DPP’) submitted that there is no correct formula for directing a jury, so long as the directions capture the salient points and the evidence. She disagreed with the submission that the learned trial judge failed to counter-balance the evidence from the prosecution with that of the defence and asserted that the learned trial judge gave a fair...
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