Marlon Campbell v R
| Jurisdiction | Jamaica |
| Judge | D Fraser JA |
| Judgment Date | 10 February 2023 |
| Neutral Citation | JM 2023 CA 13 |
| Docket Number | SUPREME COURT CRIMINAL APPEAL NO 18/2016 |
| Court | Court of Appeal (Jamaica) |
| Year | 2023 |
[2023] JMCA Crim 9
THE HON Miss Justice P Williams JA
THE HON Miss Justice Straw JA
THE HON Mr Justice D Fraser JA
SUPREME COURT CRIMINAL APPEAL NO 18/2016
IN THE COURT OF APPEAL
Delano Harrison QC for the appellant
Jeremy Taylor QC and Nicholas Edmond for the Crown
On 12 February 2016, following a trial before Campbell J (‘the learned trial judge’) and a jury, Marlon Campbell (‘the appellant’) was convicted in the Saint Ann Circuit Court, on an indictment for the offence of murder. On 19 February 2016, he was sentenced to a term of life imprisonment, with a stipulation that he should serve 20 years before becoming eligible for parole.
On 29 July 2019, a single judge of this court granted the appellant leave to appeal his conviction. The cases advanced at trial by the prosecution and the defence will now be outlined to provide the context for the grounds of appeal filed and the submissions made by counsel on each side.
On 19 December 2011, at a bar in Exchange in the parish of Saint Ann, there was an altercation between Craig Hoilett (‘the deceased’) and the appellant who was known as “Jelly Blacks”. According to an eyewitness, Courtney Green, at the time of the incident he saw the deceased fall to the ground, then he “get up and go at the appellant” and they wrestled. The witness said the deceased was unarmed. The appellant pushed the deceased off him and the witness pulled the deceased from behind, came in between the disputants and said to the appellant “let go off dat”.
Mr Green also indicated that during this intervening moment, he saw the appellant closing a ratchet knife. The witness said he and other persons present spoke to the deceased who was holding his belly area and pointing at the appellant while relating that he had been stabbed by the appellant. The appellant ran off and Dwayne Hutchinson, an off-duty police officer, gave chase and caught him. However, the officer stated that he released the appellant, because he feared the friends of the appellant, who were armed with bottles and knives. The appellant ran off. However, days later, he surrendered to the police. According to the prosecution, the appellant volunteered no statement and bore no evidence of injury at the time of his surrender.
The appellant gave sworn evidence. He said he was a working man who had never been convicted of any prior offence. He testified that the deceased had approached him about talking to a woman and that he ignored him. The appellant said he used his shoulder to bounce the deceased off him, who in turn swung at the appellant but missed. He said four or five others joined in the attack on him. He was unarmed but tried to fight back and managed to escape without injury or wounds, by running through his assailants. He denied that any hugging up had taken place between the deceased and himself. He stated that he was not responsible for the death of the deceased, but was himself a victim. He also indicated that he never went to the doctor.
Maria Powell, the appellant's witness, testified that it was the deceased who had used his shoulder to bounce the appellant and the appellant had used his shoulder to ease off the deceased. She stated that the deceased was drunk and staggering and he “thump after” the appellant and fell. She indicated that after the deceased fell, she and the appellant went towards a car and when they got near, Kenroy Burke (also called “Bob Marley”) ran over to the appellant and started to fight him. Then, a crowd of about six other persons joined in the fight against the appellant, during which the appellant was gunbutted in his forehead by an Indian policeman, causing swelling and a cut which bled.
Ms Powell further stated that the deceased got up, ran across the road, “come in the midst” saying, “…a de pussy hole diss me so mek me defend me self”. Mr Burke then opened a ratchet knife and stabbed after the appellant. The deceased got into the middle where Mr Burke was stabbing after the appellant and while the deceased was beating the appellant, the second stab from Mr Burke hit the deceased. The upshot of her testimony was, therefore, that it was Mr Burke who had stabbed the deceased by accident and that the stab had been directed at the appellant.
The original four grounds of appeal filed by the appellant were not pursued. Leave was granted by the court for Queen's Counsel for the appellant, Mr Delano Harrison, to advance two supplemental grounds of appeal. Those two supplemental grounds of appeal will now each be addressed in turn.
Queen's Counsel Mr Harrison relied on his written skeleton arguments supplemented by brief oral submissions. He submitted that where an accused man provides evidence of his good character by sworn evidence, he is entitled to a good character direction by the judge summing up to the jury. He cited the case of Michael Reid v R (unreported), Court of Appeal, Jamaica, Supreme Court Criminal Appeal No 113/2007, judgment delivered 3 April 2009.
He added that the appellant, having given sworn evidence in his defence that he had been a working man, employed to the same employer for 11 years prior to his arrest and that he had no previous conviction, was entitled to: a) a credibility direction that a person of good character is more likely to be truthful than one of bad character; and b) a propensity direction that he is less likely to commit a crime, especially one of the nature with which he is charged. He cited in support, the case of Norman Holmes v R [2010] JMCA Crim 19.
Mr Harrison pointed out that approaching the close of his summing-up, the learned trial judge gave directions to the jury which related to the credibility limb of the good character directions. He submitted, however, that the learned trial judge entirely omitted to give the jury the propensity limb of the direction. A misdirection, he argued, that deprived the appellant of his right to a fair trial.
In an overlap with ground two he also submitted that, given the evidence, the “excusatory circumstance” of self-defence had not been excluded. Therefore, he continued, in arriving at a proper verdict in light of all the evidence, the jury might have been significantly assisted by an appropriate good character direction with particular reference to the propensity limb, that the appellant was less likely than otherwise to have committed murder.
He argued that, consequently, the court ought to quash the conviction, set aside the sentence and enter a judgment and verdict of acquittal, as the prosecution case was not of such a nature that, had they been properly directed, the jury would inevitably have convicted the appellant.
Queen's Counsel Mr Jeremy Taylor relied on the written submissions settled by himself and Mr Edmond, on behalf of the Crown, supplemented by oral submissions.
In his oral response, Mr Taylor indicated that it is undeniable that an appellant's good character is of probative value and where credibility is an issue, a good character direction is relevant. He cited in support the case of Steven Grant v R [2010] JMCA Crim 77 at para. [132] per Harris JA. He also acknowledged that it is accepted that the good character direction embraces both “credibility” and “propensity” limbs as outlined in the cases of R v Vye [1993] 1 WLR 471, Bimal Roy Paria v State of Trinidad and Tobago (2003) 62 WIR 471 and R v Aziz [1996] A.C. 41. Queen's Counsel additionally highlighted the case of Patrick Forrester v R [2010] JMCA 71, in which Mr Forrester gave sworn evidence of his good character. It was pointed out that his conviction was quashed, the sentence vacated and a retrial ordered, because the learned trial judge had not given himself the good character direction, as to either credibility or propensity.
It was conceded by the Crown that, in the instant case, the learned trial judge's direction on good character was deficient, especially given that the propensity limb was entirely omitted. However, it was submitted that, the test was whether having regard to the nature of and the issues in the case and taking into account the other available evidence, a reasonable jury, properly directed, would inevitably have arrived at a verdict of guilty: see Chris Brooks v R [2012] JMCA Crim 5. Regarding the application of the relevant principles in different circumstances, the court was invited to consider the cases of Mark Teeluck and Jason Ellis John v The State of Trinidad and Tobago 66 WIR 319; Michael Reid v R; Kevaughn Irving v R [2010] JMCA Crim 55, Jagdeo Singh v The State (2005) 68 WIR 424; Bally Sheng Balson v The State of Dominica (2005) 65 WIR 128; Ronald George Simmons and Robert Greene v Regina (Bahamas) 68 WIR 37; and Campbell v The Queen [2011] 2 AC 79.
Queen's Counsel maintained that, in the circumstances of the instant case, the jury had to contend with competing credibilities of the Crown and defence witnesses and had to draw certain inferences to convict — all in a context where self-defence was being considered and, quite generously in the opinion of Queen's Counsel, the learned trial judge had left provocation for the jury's consideration. The Crown's position was therefore that, on the facts of this case, even if the good character direction had been entirely omitted, that would not have entitled the appellant to have his conviction quashed. Therefore, a fortiori, as the learned trial judge had at least given the credibility limb of the...
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