Leslie Moodie v R

• Jurisdiction: Jamaica
• Judge: Morrison JA
• Judgment Date: 31 July 2015
• Neutral Citation: [2015] JMCA Crim 16
• Court: Court of Appeal (Jamaica)
• Docket Number: SUPREME COURT CRIMINAL APPEAL NO 90/2010
• Date: 31 July 2015

Leslie Moodie

and

R

[2015] JMCA Crim 16

Before

The Hon Mr Justice Morrison JA The Hon Mrs Justice Mcintosh JA The Hon Mrs Justice Lawrence-Beswick JA (AG)

SUPREME COURT CRIMINAL APPEAL NO 90/2010

JAMAICA

IN THE COURT OF APPEAL

CRIMINAL LAW - Murder - Leave to appeal conviction and sentence of death - Whether appellant denied a fair hearing - Whether the refusal to grant the appellant an adjournment to allow time to adequately obtain legal representation of his choosing was a breach of the Constitution, s. 16(6)(c) - Whether sentence excessive

Mrs Jacqueline Samuels-Brown QC for the appellant

Mrs Lisa Palmer-Hamilton and Mrs Paula-Rosanne Archer-Hall for the Crown

Morrison JA

Introduction

1 In October 2008, the appellant was a serving member of the Jamaica Defence Force (‘the JDF’) and a licensed firearm holder. In the early morning hours of 20 October 2008, he was one of many patrons in attendance at the Double Diamond Club and Gaming Lounge (‘the club’), situated in the Boulevard Shopping Centre (‘the shopping centre’), Duhaney Park in the parish of St Andrew. A birthday party was in progress inside the club at that time. Popular music was being played over a sound system and people were dancing, drinking and enjoying themselves. At a point in these proceedings, the appellant, using his licensed firearm, discharged several bullets inside the club, as a result of which four men lost their lives.

2 After an extensive investigation, the appellant was arrested and charged on an indictment containing four counts of murder. The deceased were William Winston Wilberforce, Lynchmore Forbes, Ejon Peart and Davion Carr. The appellant's case at the trial was that, in apprehension of an attack from at least two of these men, and others, he had used such force as was reasonably necessary in the circumstances to defend himself. On 28 June 2010, after 26 days of trial before Marsh J and a jury in the Home Circuit Court, the appellant was convicted of four counts of murder. On 26 August 2010, after a sentencing hearing, it was ordered that the appellant should suffer death in the manner authorised by law.

3 In wide-ranging complaints on appeal, the appellant contends that he was denied the substance of a fair trial by various failures and/or omissions on the part of the prosecution and the learned trial judge. In addition, the appellant contends that, in the circumstances, the sentence of death imposed by the learned trial judge was manifestly excessive. However, counsel for the prosecution, Mrs Lisa Palmer-Hamilton, indicated from the outset that the prosecution would not seek to uphold the sentence of death.

The case for the prosecution

4 The matter was first listed for trial on 21 April 2010. But the trial did not commence on that date, despite the apparent anxiety of the defence (represented on that occasion by Mr Michael Deans) that it should. 1 In the result, the matter was adjourned to 12 May 2010 for trial. On that date, Mr Pierre Rogers was also present and appearing with Mr Deans for the defence. Upon the prosecution's indication that it was ready to proceed, the following exchange took place between Mr Deans and the court:

‘MR. DEANS:	Might it please you, m'Lord, we were served with the indictment in this matter yesterday. On the back of the indictment, the crown has indicated that they intend to call fifteen witnesses - - out of - - we have received statements in excess of thirty-nine witnesses, and in any event, the accused man has indicated his desire…
MR. DEANS:	Yes, m'Lord, he has indicated a desire - - a family member had contacted senior counsel to represent him in this matter. It has not been finalized or settled, as yet, m'Lord, and in the circumstances, the defence would be asking for an adjournment in this matter.
HIS LORDSHIP:	An adjournment until when, counsel?
MR. DEANS:	We were hoping for some time early in June.
HIS LORDSHIP:	No, counsel.
MR. DEANS:	Yes, m'Lord, in this matter. This matter had been set for trial for today from when? It is a short date. It was last before the court the 21 st of April, m'Lord.
HIS LORDSHIP:	Prior to that, when was the matter before the court?
MR. DEANS:	The first date, m'Lord.
HIS LORDSHIP:	I am going to adjourn, and I am going to ask both you and the prosecution to attend my chambers.
MR. DEANS:	Yes, m'Lord.
HIS LORDSHIP:	Just rise for me.’

5 After a 27 minute adjournment, the court resumed its sitting. When the matter was again called on, Mr Rogers sought leave to provide an ‘additional basis’ for Mr Deans' application. Mr Rogers advised the court that (i) there were several persons whom the defence had only recently been notified would not be called as witnesses by the prosecution and to whom the defence wished an opportunity to speak; and (ii) there was a ‘medical document’, which had only recently come to the attention of the defence, which it considered to be ‘of paramount importance’. In these circumstances, Mr Rogers' request was for ‘a short adjournment…[o]f no more than two weeks’, to enable counsel to do ‘that which we believe we ought to do’.

6 The application was opposed by the prosecution. Mrs Palmer-Hamilton, who also appeared at the trial, pointed out that, although ‘admittedly, the preparation time for both sides has been a short one’, the defence had been served with all the statements since 14 April 2010 and, upon a request from the defence in writing on 11 May 2010 (the day before the trial), they had also been served with a copy of the indictment. Further, that Mr Deans had been ‘very involved’ in the preliminary enquiry, which had commenced in November 2009 and ended in January 2010, at which 15 of the 16 witnesses whom the prosecution intended to call at the trial had been deposed. Accordingly, since all the witnesses were present at court on that day, Mrs Palmer—Hamilton proposed, as ‘a fair compromise’, that the jury be empanelled and that the case could start the following day.

7 Accepting Mrs Palmer-Hamilton's suggestion, the learned trial judge ruled that —

‘…the matter will begin today, and the only consideration this court is prepared to make is to have the empanelling take place, and we adjourn to begin hearing evidence tomorrow.’

8 A total of 28 witnesses for the prosecution, four of whom purported to give eyewitness testimony, were called at the trial. Apart from the pathologist and those persons called for the purpose of identifying the bodies of the deceased to the pathologist, the other witnesses were all police officers involved at various stages of the investigation.

9 In order to understand the evidence, it may be helpful to establish the general layout of the club, which was at the material time situated on the first floor of the shopping centre. Access to the club was by way of a staircase leading from an entrance at ground level, up one flight to a landing; then, after a turn to the right, up another to a glass door and into the club. Upon entering the club, there was a bar to the left (the front bar) and chairs and tables to the right. In the vicinity of the front bar, there were a pool table and a number of gaming machines. Also to the left, was the entrance to a bathroom area. Beyond the area in which the front bar was located, there was a second bar (the back bar), also on the left. To the right of the back bar was a room which was variously described in the evidence as the ‘music booth’ or the ‘DJ booth’. This was the room in which the persons who were responsible for providing the music (‘the selectors’) were located and from which they controlled the sound system. For the purposes of this judgment, we will refer to it as the music booth.

10 As we have already indicated, four of the witnesses were patrons of the club on the morning of 20 October 2008. But, because each of them gave evidence from a different perspective and location inside the club, it is impossible to gain a full appreciation of what happened that morning without considering the evidence of each.

11 The first was Mr Kemar Carr and his evidence was to the following effect. He arrived at the club at about 12:15 am, accompanied by his brother, Davion Carr. Upon their arrival there, they went straight to the music booth, in which there were two persons, described by Mr Carr as ‘Face’ and ‘Ejon’. These were the selectors. The appellant, who was previously known to him as ‘Souljie’, and a frequent patron of the club, was seated at the back bar. At some point, Mr Carr said, he heard a Vybz Kartel song (‘Me bus me gun whenever me like’) being played over the sound system. While this song was being played, he saw the appellant ‘go over to the wall and lick it like an angry person’, after which, according to Mr Carr, ‘I see blood on the wall’. The appellant then returned to his seat at the back bar. While he and two other men (one of whom Mr Carr knew as Ray Rochester) were there talking, a young lady wearing a purple dress walked over to the back bar close to where the appellant was sitting. The appellant then appeared to put his hand on the girl, whereupon she ‘like flash him off’ and walked back in the direction from which she had come. She appeared to be complaining to the two men and they looked in the appellant's direction. The appellant then got up, took out a cellular telephone, appeared to dial a number and walked off in the direction of the exit to the club. The two men to whom the young lady had spoken, who appeared taller than the appellant, followed behind him and all three men went out of sight for a while.

12 After about two minutes, the appellant came back towards the back bar. The same two men were about two feet behind him. However, before getting to the back bar, the appellant spun around and pulled out a black, short...