Lloyd Forrester v R
| Jurisdiction | Jamaica |
| Judge | Straw JA |
| Judgment Date | 26 May 2023 |
| Neutral Citation | JM 2023 CA 61 |
| Docket Number | SUPREME COURT CRIMINAL APPEAL NO COA2019CR00109 |
| Court | Court of Appeal (Jamaica) |
[2023] JMCA Crim 20
THE HON Mr Justice F Williams JA
THE HON Miss Justice Straw JA
THE HON Mrs Justice Foster-Pusey JA
SUPREME COURT CRIMINAL APPEAL NO COA2019CR00109
IN THE COURT OF APPEAL
Murder — wounding with intent — home invasion — sentencing errors — section 3 Offences Against the Person Act — whether sentences imposed were manifestly excessive — section 16(1) Constitution of Jamaica — breach of constitutional right to a fair hearing within a reasonable time — pre-trial delay — remedies for pre-trial delay
Ms Melrose Reid instructed by Melrose G Reid & Associates for the appellant
Mrs Christine Johnson Spence for the Crown
On 26 June 2019, following a trial in the Home Circuit Court, Lloyd Forrester, the appellant, was convicted for the offences of murder contrary to common law and wounding with intent On 10 December 2019, he was sentenced to life imprisonment without eligibility for parole before serving 25 years for the offence of murder and 25 years' imprisonment for wounding with intent. The sentences were ordered to run concurrently.
The circumstances that gave rise to these convictions occurred on 10 March 2005, when the appellant and another man invaded the home of Valentine Stephens, the deceased, where he resided with his common-law wife and young children. The evidence led was that the appellant was armed with a gun and, on the instructions of the other man, shot the deceased multiple times. A daughter of the deceased was also injured by one of the bullets, hence the charge for wounding with intent.
The appellant was apprehended by the police as he attempted to flee the scene in a motor vehicle. A firearm was found by the police on the seat from which the appellant alighted. Scientific evidence confirmed that the firearm recovered was the one used to carry out the shootings.
The appellant sought this court's permission to appeal both his convictions and sentences. Upon consideration by a single judge on 10 January 2022, leave to appeal conviction was refused. However, the appellant was granted leave to appeal against his sentence. In pursuing this appeal, an application was made to abandon the original grounds of appeal that were filed and to argue supplemental grounds. This application was granted, and the following grounds of appeal were argued:
“ GROUND 1 — The Learned Trial Judge (LTJ) failed to consider the delay of ten (10) years before the case was heard and determined on the following grounds:–
(a) That the LTJ should have on his own volition, dismiss [sic] the case on the principle of delay.
(b) That the LSJ [sic] should have given credit for the breach of the Appellant's constitutional right to a fair hearing within a reasonable time, which credit is distinct from the credit given for the pre-trial day of 10 years before the Appellant's case was heard and determined.
GROUND 2 — The LSJ [sic] erred when he stipulated a period of 25 years before parole for murder, as the Appellant was indicted under common law.
GROUND 3 — The LSJ [sic] failed to appreciate the proportionality in sentencing for different offences and sentenced the Appellant to 25 years for murder and the 25 years for wounding with intent.
GROUND 4 — The LSJ failed to apply the principles of sentencing.
GROUND 5 — The LSJ failed to appreciate the Appellant's good character and good Social Enquiry Report (SER) and apply them to sentencing the Appellant.”
While there has been no application to renew the appeal against conviction, counsel for the appellant argued that the learned trial judge ought to have dismissed the case against the appellant due to the delay before the trial was heard and determined (ground 1(a)). In relation to this, we had the affidavit of the appellant filed on 11 November 2022, as well as the chronology of events provided by the Crown, for our consideration.
In his affidavit, the appellant sought to set out, from his recollection, the circumstances that caused his case to be determined some 14 years after he was charged. He stated that, on 10 March 2005, he was charged for murder, illegal possession of firearm and illegal possession of ammunition. He remained in custody until 2007, during which period the firearm charges were tried. The appellant did not detail the outcome of those charges.
In 2007, the murder trial commenced but ended in a hung jury, thereby necessitating a re-trial. In or around 2008 to 2009, another trial started in the Saint James Circuit Court, but was aborted. The appellant stated that it was reported that he was seen signalling to the jury. The appellant denies this and asserts that he did not know anyone in Montego Bay. The case was consequently transferred to the Home Circuit Court in Kingston. He remained in custody from that time until June 2019, when the matter was finally determined.
The appellant indicates that he could not recall all the reasons that prevented his trial from proceeding, as the period spanned some 13 to 14 years. It was his position, however, that the failure to complete the trial within a reasonable time was not due to any fault on his part. Some of the reasons proffered by him were that witnesses or police officers were not in attendance, the pathologist's report was incomplete, one police officer got a stroke and another died and, on other occasions, the court had other matters set for trial or did not have enough jurors.
It was the appellant's contention, in all the circumstances, that his right to a fair trial within a reasonable time was breached. He also indicated that arising from the delay, he was saddened and stressed. He also described the terrible prison conditions that he endured over those 13 to 14 years.
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a) That the LTJ should have on his own volition, dismiss [sic] the case on the principle of delay.
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b) That the LSJ [sic] should have given credit for the breach of the Appellant's constitutional right to a fair hearing within a reasonable time, which credit is distinct from the credit given for the pre-trial day of 10 years before the Appellant's case was heard and determined.
With respect to ground of appeal 1(a), Ms Reid submitted that the learned trial judge should have dismissed the case, even without any submissions from defence counsel, based on the delay of 10 years. She indicated that the appellant stated in his affidavit that it was 10 years and eight months, but that in reality, it would have been 13 years. She stated that an accused person cannot be held at ransom, due to the inadequacies of the justice system and that it is the court's duty to secure fair treatment for those who are brought before it. Further, that the right to a fair hearing within a reasonable time, aims to prevent oppression, limit the chance of impairment of an accused person's defence and minimize anxiety to an accused. A delay of 10 years is therefore unreasonable, and the appellant need not show that he was prejudiced arising therefrom.
Ms Reid asserted that the appellant could not be responsible for the hung jury and neither was he responsible for the case being moved to another location. She contended that the murder trial should have been conducted within the same time period as the trial for the firearm offences or, at least, by the second circuit in keeping with section 5 of the Criminal Justice (Administration) Act (‘CJAA’).
Ms Reid also posited that it was irrelevant that the learned trial judge may have credited the appellant for the time spent in custody when passing sentence, as that is different from the issue of delay. In any event, Ms Reid contended that the appellant ought properly to have been credited for 13 years for pre-trial detention and not 10 years. In all the circumstances, Ms Reid has asked this court to quash the appellant's convictions on account of the breach of his rights under section 16(1) of the Constitution.
As an alternative remedy, and with respect to ground 1(b), Ms Reid initially argued that the appellant's sentence should be reduced to 15 years, being the mandatory minimum sentence for the offence of murder. Reliance was placed on several authorities including Techla Simpson v R [2019] JMCA Crim 37 (‘ Techla Simpson’), sections 5 and 6 of the CJAA, Connelly v DPP [1964] AC 1254, Barker v Wingo 407 US 514 (1972), Bell v DPP and another [1985] AC 937, Darmalingum v The State [2000] 1 WLR 2303, Flowers v The Queen (2000) 57 WIR 310, Attorney General's Reference (No 2 of 2001) [2003] UKHL 68, Lescene Edwards v R [2022] UKPC 11 and Melanie Tapper v DPP [2012] UKPC 26.
Further submissions, filed on 11 November 2022, sought to amplify and clarify the original written submissions, particularly in light of the appellant's affidavit. In these submissions, Ms Reid requested that in the alternative, the appellant be granted a four-year reduction in his sentence arising from the length of the delay. Also, that taking account of the full credit of 13 years owed to the appellant, the sentence for murder should be reduced to 18 years simpliciter. She highlighted the case of Mervin Cameron v The Director of Public Prosecutions [2019] JMCA App 11, in which she pointed to examples of how a defendant may contribute to the delay in his trial.
In direct opposition to the appellant's first ground of appeal, Mrs Johnson-Spence highlighted the duties of an appellant alleging breach of his constitutional rights, to raise the issue in the court below and to establish that the delay was the fault of the State. She cited the cases of Julian Brown v R [2020] JMCA Crim 42 and ...
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