Nicholas Levy v R
| Jurisdiction | Jamaica |
| Judge | Morrison JA |
| Judgment Date | 28 March 2014 |
| Neutral Citation | JM 2014 CA 38 |
| Court | Court of Appeal (Jamaica) |
| Docket Number | SUPREME COURT CRIMINAL APPEAL NO 117/2010 |
| Date | 28 March 2014 |
[2014] JMCA Crim 15
JAMAICA
IN THE COURT OF APPEAL
The Hon Mrs Justice Harris JA
The Hon Mr Justice Morrison JA
The Hon Ms Justice Lawrence-Beswick JA (Ag)
SUPREME COURT CRIMINAL APPEAL NO 117/2010
Robert Fletcher and Mrs Nadine Atkinson-Flowers for the applicant
Miss Paula Llewellyn QC and Miss Melissa Simms for the Crown
CRIMINAL LAW - Murder - Whether trial judge's admission of deposition was prejudicial - Whether sentence excessive
This application for leave to appeal against conviction and sentence was heard on 4 and 5 November 2013. On 20 December 2013, the court announced that the application would be refused and directed that the applicant's sentence should be reckoned from 8 November 2010. These are the reasons for this decision.
The applicant was jointly charged with another (“the co-defendant”) for the murder of Mr Neville Harris (“the deceased”) on 26 November 2005. Their trial commenced before Beckford J and a jury in the Circuit Court Division of the Gun Court for the parish of Kingston on 21 October 2010. At the close of the case for the prosecution, the co-defendant was discharged by the jury on a formal verdict of not guilty, a no case submission made on his behalf having been upheld by the judge. However, on 8 November 2010, the applicant was convicted of murder and sentenced to imprisonment for life, with a stipulation that he should serve 21 years before being eligible for parole. His application for leave to appeal was considered and refused by a single judge of appeal on 22 December 2010 and the applicant accordingly renewed the application before the court itself.
The case for the prosecution was that, at about 7:20 pm on 26 November 2005, the applicant shot and killed the deceased. The primary evidence identifying him as one of the deceased's assailants was given by the wife of the deceased, Mrs Winsome Jacobs-Harris. The applicant having by his unsworn statement denied any knowledge of the deceased's murder, the principal issue at the trial was whether he had been correctly identified by Mrs Jacobs-Harris.
Mrs Jacobs-Harris” evidence was that she had known the applicant for some 30 years, since he was born; that they had lived in the same community during all that time; that she knew his parents and siblings; that they would all visit each other's homes; that she and others would call him by the nickname “Fattalous”; and that she had last seen him the day before her husband was killed. She testified that, on the night of the killing, from a distance of about 14 feet, she saw when, having ‘draped’ the deceased in the back of his merino, the applicant pulled a gun from his waist and shot him. The area was well lit at the time and she was able to observe the applicant's face for about five minutes. Shortly after the deceased was shot and while he lay bleeding and motionless on the ground, Mrs Jacobs-Harris spoke to the applicant, who told her, apparently referring to the deceased, ‘Him tink him can diss a man “bout here’. Her response was, ‘…Is all right Nicholas, you kill Ears, you kill Ears’ (“Ears” being the name by which the deceased was known). At this point, Mrs Jacobs-Harris testified, she and the applicant were within touching distance of each other and she was able to see him ‘[f]rom him face go right down’. The deceased was then taken to the hospital by Mrs Jacobs-Harris” sister, Miss Dinna Hamilton, and another person. Mrs Jacobs-Harris had not seen Miss Hamilton on the scene during the incident in which the deceased was shot, but only noticed her ‘after everything finish’.
In addition to Mrs Jacobs-Harris' evidence, the prosecution relied on nine signed pages of a deposition taken at the preliminary enquiry from Miss Hamilton. As at the date of the preliminary enquiry, the applicant had not yet been charged and the co-defendant was at that time the only defendant before the court.
The circumstances in which the deposition was taken were as follows. After Miss Hamilton had been examined-in-chief before the learned Resident Magistrate on 30 January 2006, and after cross-examination by the then defendant's counsel had commenced, the preliminary enquiry was adjourned for continuaton on 10 February 2006. Before the adjournment was taken, the Resident Magistrate's note of the evidence which Miss Hamilton had already given, comprising nine pages, was read over to her and she was invited to make such alterations or corrections as she might wish. Thereafter, without making any corrections, Miss Hamilton duly signed the Resident Magistrate's note of the evidence. When the preliminary enquiry resumed before the Resident Magistrate on 10 February 2006, cross-examination of Miss Hamilton continued, but was interrupted when an objection was taken by prosecuting counsel to a question put to her by counsel for the defence. As a result, Miss Hamilton was asked to wait outside the courtroom while the objection was ventilated. After the Resident Magistrate had ruled on the objection, Miss Hamilton was called, but did not answer. In fact, she appears to have disappeared completely and her evidence at the preliminary enquiry was never completed. So in the end, the Resident Magistrate's note of the evidence which Miss Hamilton had given under further cross-examination on 10 February 2006 was never signed by her.
Pursuant to section 31D of the Evidence Act, the nine signed pages of the Resident Magistrate's note of Miss Hamilton's evidence (“the partial deposition”) were admitted at the trial, over vigorous objection by the applicant's counsel. The partial deposition represented the evidence which she had given in examination-in-chief on 30 January 2006 and such of her cross-examination as had been completed that day. In that evidence, Miss Hamilton stated that, on the evening of 26 November 2005, she was in the company of her sister and her niece when she saw the co-defendant and the applicant, whom she had known for over 10 years previously and to whom she referred by name, coming in her direction. She saw the applicant, point a ‘shine gun’ at the deceased, she heard ‘blow, blow’ and then she saw the deceased run off holding his chest. She later assisted in taking the deceased to the hospital, where he was pronounced dead by a doctor.
In his defence, the applicant made a brief unsworn statement, in which he acknowledged knowing the deceased, who, he said, was not only a friend of his father, but also a friend of his. However, as we have already indicated, he denied any knowledge of the deceased's murder (‘I don't know nothing about this murder or know nothing about they say me have a gun’).
After full and careful directions from the judge on the issue of identification, the applicant was convicted and sentenced in the manner already indicated.
When the renewed application for leave to appeal came on for hearing, the applicant's counsel sought and was granted leave to argue two supplemental grounds of appeal, in substitution for the grounds originally filed by the applicant himself. The first ground was based on the events described at paras [5]-[7] above, while the second complained about the sentence imposed by the learned trial judge:
‘1. The...
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