OP v R

• Jurisdiction: Jamaica
• Judge: Brooks P
• Judgment Date: 08 April 2022
• Neutral Citation: JM 2022 CA 046
• Docket Number: SUPREME COURT CRIMINAL APPEAL NO 19/2017
• Court: Court of Appeal (Jamaica)

OP

and

R

[2022] JMCA Crim 19

BEFORE:

THE HON Mr Justice Brooks P

THE HON Mrs Justice Foster-Pusey JA

THE HON Mrs Justice G Fraser JA (AG)

SUPREME COURT CRIMINAL APPEAL NO 19/2017

IN THE COURT OF APPEAL

Linton Gordon for the applicant

Orrett Brown and Miss Renelle Morgan for the Crown

Brooks P

1 On 6 December 2009, the applicant OP, who was then 13 years old, and another young person, OM, were engaged in an altercation over a bicycle. Because of the age of the parties involved, their names will not be used in this judgment. The applicant will be referred to as “OP”. During the altercation, OP stabbed OM, who later died. OP alleges that he acted in self-defence, or alternatively, that he was provoked to act as he did.

2 OP was convicted for the offence of murder on 18 January 2017 in the Home Circuit Court in the parish of Kingston before a judge sitting with a jury. On 23 February 2017, the learned judge sentenced him to life imprisonment at hard labour, with the stipulation that he should serve 15 years' imprisonment before becoming eligible for parole.

3 OP applied for leave to appeal against his conviction and sentence, but a single judge of this court refused his application. As is his right, OP has renewed his application before the court.

The prosecution's case

4 The prosecution called numerous witnesses, but its case largely rested on the evidence of one eyewitness. The prosecution's case is that on 6 December 2009, OP, without permission, rode away on a bicycle that OM was using to make deliveries, but had left for a short while near 31 Rushworth Avenue, in the parish of Saint Andrew. When OP later returned with the bicycle a quarrel ensued between them. OM told OP to get off the bicycle, but OP refused. OM then pushed OP and he eventually dismounted. OM took the bicycle then rode off to make another delivery.

5 Shortly after, OM returned to 31 Rushworth Avenue. There, OP confronted OM, and they started arguing. The argument then spiralled into a physical altercation. OP then pulled a knife from his waist. OM managed to escape from OP and armed himself with an ice pick. The eyewitness intervened and implored them to stop and took the ice pick from OM and threw it away. OM then took up a knife and the eyewitness told him to stop. OM dropped the knife and walked off with the eyewitness. As they walked away, OP followed behind them, reached around OM, stabbed him in the chest, and fled the scene. A man in the community later caught OP and held him until the police arrived.

The applicant's case

6 OP gave an unsworn statement. In his unsworn statement, OP admitted that he was present at 31 Rushworth Avenue, but stated that he was there playing dominoes. While there, OM approached and hit him on the head and pointed at his, OP's, face. OP moved OM's hand from his face and walked away. OM followed him and kicked his feet, causing him to fall to the ground. OP got up, took up a stone and used it to hit OM on his side. OM then ran into a nearby yard for an ice pick and a knife. At that moment, someone approached and spoke with OP. That person gave OP tissue and hand towels to sell and gave him the bicycle, which he rode to sell the items. Upon OP's return, OM pushed him off the bicycle. He got up and pushed OM, who hit him on his mouth and “draped” him. OP walked away from OM but OM followed him, took a knife from his waist and “draped him up”. OM dropped the knife, took out an ice pick, threatened to use it, and then tried to stab OP, who ran away. OP, however, stopped in his tracks, deciding not to run away, after all. He took his own knife from his waist and stabbed OM but did not intend to kill him. OM ran off and then fell to the ground. OP was afraid and ran off, with the knife in his hand. OP's case is that the sole eyewitness for the prosecution lied to the court. OP asserts that the eyewitness was not present at the time of the incident.

Grounds of appeal

7 OP abandoned his original grounds of appeal and argued the following supplemental grounds of appeal:

“ GROUND OF APPEAL 1

The Learned Trial Judge failed to address the Jury on the principle that the Prosecution has a duty to prove the case against [OP] beyond a reasonable doubt and indeed at no time during her summation to the jury did the Learned Trial Judge explain to the jurors what is meant by ‘proof beyond a reasonable doubt’. This failure resulted in the Trial being conducted in an unfair way to [OP].

GROUND OF APPEAL 2

The Learned Trial Judge in sentencing [OP] did not take into consideration and did not credit [him] with the time spent in custody prior to his conviction thereby imposing an excessive sentence on [OP].” (Bold as in original)

8 OP also filed the following further supplemental grounds of appeal:

“i. The Learned Trial failed to appreciate that given the circumstances of the case, [OP] should have benefitted from the issuance of a Judge's Certificate pursuant to section 42K of the Criminal Justice Administration (Amendment) Act of 2015.

ii. That in the circumstances of the case the imposition of the minimum mandatory sentence of 15 years is manifestly excessive.”

9 The issues arising from the grounds are:

• a. Whether the learned judge failed to properly direct the jury on the standard of proof (supplemental ground 1);

• b. Whether the learned judge should have given the applicant credit for time spent in pre-trial custody (supplemental ground 2);

• c. Should the learned judge have issued a certificate pursuant to section 42K of the Criminal Justice Administration (Amendment) Act (further supplemental ground 1);

• d. Whether the sentence is manifestly excessive (further supplemental ground 2).

Whether the learned judge failed to properly direct the jury on the standard of proof (supplemental ground 1)

Standard of proof

10 Mr Linton Gordon, on behalf of OP, submitted that the learned judge did not give the jury adequate directions on the appropriate standard of proof. Learned counsel argued that the learned judge should have directed the jury that the evidence that the prosecution adduced must satisfy them beyond a reasonable doubt and that duty continues throughout the trial. Learned counsel advanced that the learned judge should have explained to the jury what “reasonable doubt” means. Counsel contended that the learned judge, instead, directed the jury that they should be “sure”. Learned counsel reasoned that the learned judge's failure to direct the jury that they could only find OP guilty of murder if they believed the prosecution's case, beyond a reasonable doubt, rendered OP's trial unfair. He relied on Woolmington v Director of Public Prosecutions [1935] AC 462 (‘ Woolmington v DPP’) and Everton Clarke v R [2017] JMCA Crim 31. Counsel invited this court to consider that the absence of the proper directions was more egregious since there was only one eyewitness, who, OP always asserted, was not present at the material time and lied about what transpired. Counsel argued that the jury must have been sure beyond a reasonable doubt of the eyewitness’ credibility before finding OP guilty.

11 Mr Brown, on behalf of the Crown, submitted that the learned judge used the modern approach in directing the jury on the standard of proof, that is, that they must be sure of OP's guilt. That direction, he submitted, was appropriate.

12 There is no merit to the complaint about the direction on the standard of proof. Trial judges have, for decades, been using the formulation that the learned judge used in this case.

13 It is settled that the prosecution has a duty to prove its case against an accused, beyond a reasonable doubt. The House of Lords distilled this principle in Woolmington v DPP. Viscount Sankey LC, who wrote the judgment, with which the other Law Lords agreed, stated on page 481 that:

“Juries are always told that, if conviction there is to be, the prosecution must prove the case beyond reasonable doubt.”

14 It is also settled, that the law is not static. A trial judge is not bound by a particular formula or set of words to direct the jury on the standard of proof. The authorities demonstrate that it is satisfactory for trial judges to use the term “sure” when describing the standard of proof. What is important is that trial judges must convey to the jury that the prosecution must prove its case against the accused and that they can only find the accused guilty if satisfied beyond a reasonable doubt or if they are sure of the accused's guilt (see paragraphs [16] and [17] of Everton Clarke v R, which cites Regina v Hepworth and Fearnley [1955] 2 QB 600). In Regina v Hepworth and Fearnley, the appellants were charged with unlawfully receiving stolen property. The judge told the jury they must be “satisfied”. The appellants complained that the judge's summation did not adequately give the jury direction in relation to the burden of proof, their regard for the evidence and the level of certainty they were to feel. Lord Goddard CJ, on page 603 relied on his dictum from Rex v Kritz [1950] 1 KB 82 that:

“But I desire to repeat what I said in Rex v Kritz: ‘It is not the particular formula that matters: it is the effect of the summing-up. If the jury are made to understand that they have to be satisfied and must not return a verdict against a defendant unless they feel sure, and that the onus is all the time on the prosecution and not on the defence…’” (Italics as in original; emphasis supplied)

15 Lord Goddard CJ stated, in Regina v Hepworth and Fearnley, that “that is enough”. He stated, on page 604 that:

“I should be very sorry if it were thought that these cases should depend on the use of a particular formula or particular word or words. The point is that the jury should be directed first, that the onus is always on the prosecution; secondly, that before they convict they must feel sure of the accused's guilt. If that is done,...