Oshane Thompson v R

• Jurisdiction: Jamaica
• Court: Court of Appeal (Jamaica)
• Judge: ‘Foster-Pusey, J.A.’
• Judgment Date: 31 July 2025
• Neutral Citation: JM 2025 CA 63
• Year: 2025
• Docket Number: COA2021CR00082

Oshane Thompson

and

R

Straw, J.A.; Foster-Pusey, J.A.; Fraser, J.A.

COA2021CR00082

Court of Appeal

Appearances:

Mrs. Jacqueline Samuels Brown KC and Robert Fletcher for the appellant.

Miss Ruth Anne Robinson for the Crown.

The appellant appeared by way of videoconference from the correctional facility.

‘Foster-Pusey, J.A.’

1 Mr. Oshane Thompson (the appellant) was charged on an indictment with the murder of Kriston Pearson on 7 May 2017. After a trial before Tie-Powell, J. (the learned trial judge), sitting without a jury, he was convicted of the offence on 24 September 2021. On 26 November 2021, the learned trial judge imposed a sentence of life imprisonment with the stipulation that he should serve 20 years and eight months before being eligible for parole.

2 The appellant sought leave to appeal his conviction and sentence. A single judge of this court granted his application to facilitate “the exploration of the issue as to whether defence counsel properly put the case of the [appellant] to the witnesses of the Crown”. The single judge noted that the learned trial judge “repeatedly remarked on the fact that it was never suggested to the Crown witnesses that the deceased attacked the [appellant] by hitting him to the face, or that the deceased had a broken bottle”. The single judge observed that this omission could be seen as eroding the credibility of the appellant's case.

3 We heard the appeal over the period 25 to 28 March 2025. In light of the manner in which the arguments progressed, we requested that the Crown file and serve written submissions and an affidavit concerning the availability of witnesses and exhibits on or before 2 April 2025. The appellant was permitted to file and serve submissions and affidavits (where relevant) on or before 9 April 2025. We committed to delivering our decision on the matter at the earliest possible date.

4 On 27 June 2025, we made the following orders:

• “1. The appeal is allowed.

• 2. The conviction and sentence are set aside.

• 3. The matter is remitted to the St Mary Circuit Court for retrial.

• 4. The matter is fixed for mention on the opening day of the next sitting of the St Mary Circuit Court, 7 July 2025.”

5 Below are the reasons for our decision.

THE GROUNDS OF APPEAL

ORIGINAL GROUNDS

6 The appellant's original grounds of appeal are:

• “(a) Misidentity by the witness: That the prosecution witness wrongfully identified me as the person or among any persons who committed the alleged crime.

• (b) Lack of evidence: That the prosecution failed to present to the court any ‘concrete’ piece of evidence (material, forensic or scientific) evidence [sic] to link me to the alleged crime.

(2) Lack of evidence: That the court failed to recognised [sic] that I only acted in self-defence after been [sic] attacked by the deceased.

• (c) Conflicting testimonies: That the prosecution witness presented to the court conflicting and contrasting testimonies which amount to perjury, thus call [sic] into question the soundness of the verdict.

• (d) Poor legal representative: That I was misrepresented by my defence Attorney at Law.

• (e) Unfair trial: That the evidence and testimonies upon which the learned trial judge relied on for the purpose to convict me lack facts and credibility thus rending [sic] the verdict unsafe in the circumstances.

(2) Unfair trial: That the court failed to adequately address the matter of self-defence on my part.

Miscarriage of justice: That the prosecution failed to recognised [sic] the fact that I had nothing to do with the alleged crime for which I was wrongfully convicted of.

Note: other grounds will be filed by my Attorney at Law if needed.” (Underlining as in the original)

7 At the hearing before us, counsel for the appellant sought and received leave to argue supplemental grounds of appeal along with the original grounds, with the exception of ground (a).

SUPPLEMENTAL GROUNDS

8 Counsel for the appellant filed these supplemental grounds on 23 September 2024:

• “1. The appellant has been denied his constitutional and common law right to a fair trial.

• 2. The appellant's constitutional right to a fair trial has been breached by the failure of counsel in his representation to, inter alia, put the appellants' [sic] case of self-defence to the witnesses for the prosecution. This failure and other attendant deficiencies impugned the credibility of his defence and denied him a true and fair consideration of his case and a real chance of acquittal.

• 3. The appellant has been deprived of his right to disclosure of relevant material in the possession of the prosecution and to which the prosecution had access, as a consequence of which his right to a fair trial has been impaired.

• 4. The prosecution, in its duty, failed to carry out a thorough investigation of material emerging during said investigation, thereby disenabling itself from full disclosure. This failure denied him a fair trial.

• 5. The learned trial judge erred in not exercising her overarching responsibility to determine whether the appellant should have been called upon to answer, there being evidence on the prosecution's case which raised self-defence and erred in calling upon him to answer.

• 6. The learned trial judge ought to have acquitted the appellant on the basis of self-defence and, in failing to do so, denied him a real chance of acquittal.

• 7. The learned trial judge erred when, in addition to considering the appellants [sic] case of self-defence, he failed to consider manslaughter which arose on the facts.

• 8. The learned trial judge erred in not engaging with counsel for the defence when faced with the substantial and stark contrast between the appellant's unsworn statement, the evidence of the defence witness on the one hand and the evidence of the prosecution's witnesses on the other as it relates to the absence of self-defence on one hand and the evidence of self-defence on the other.

• 9. The learned trial judge erred when considering the appellant's case of self-defence by placing emphasis on the instances when his counsel failed to put his case of self-defence to the witnesses for the prosecution. This approach was imbalanced and has denied the appellant a fair consideration of his case.

• 10. The learned trial judge erred by failing to sufficiently consider discrepancies, weaknesses and inconsistencies in the evidence from the prosecution witnesses.

• 11. The appellants [sic] right to a fair trial has been compromised as testimony from prosecution witnesses was adduced and relied on based on leading questions posed by the prosecution.

• 12. The sentence is manifestly excessive.”

THE CASE FOR THE PROSECUTION

9 The case for the prosecution was that Mr. Kriston Pearson (‘the deceased’), along with some friends, including his intimate partner, Miss Henry, and good friend, Mr. Walters, attended a party at a venue in Port Maria in the parish of St Mary. While they were there, the appellant, a police officer and friend of Miss Henry, greeted her and then touched either her arm or her bottom. An altercation occurred between the appellant and the deceased. During the confrontation, they exchanged profanities and engaged in a tussle. The appellant then shot the deceased. According to the case for the prosecution, the deceased did not have any weapon or harmful object in his hand when the appellant shot him. Miss Henry and Mr. Walters testified at the trial.

10 By agreement, certain statements and documents were admitted into evidence in the prosecution's case. The agreed statements included those of Carolyn Proudlove, Constable Keron Fraser, Corporal Wayne Bartley, and Phillip Anderson. The post-mortem report and ballistic certificate were also included. Further factual details will be provided only to the extent that they are relevant to the key issues for determination.

11 Carolyn Proudlove, the mother of Kriston Pearson, identified his body at the funeral home. Constable Fraser attended the party. He heard explosions, went outside, saw a man lying face down in a pool of blood, and saw the appellant, whom he knew before, with his Glock pistol in his right hand. The appellant's left hand was covering his mouth, and his mouth appeared to be bleeding. Constable Fraser asked the appellant what had happened, and the appellant said that the man on the ground had hit him in his face, and he had discharged three rounds in his direction in defending himself.

12 Corporal Bartley issued a Glock 17 9mm Pistol and cartridges to the appellant on 7 April 2017. Mr. Phillip Anderson, forensic examiner of the Independent Commission of Investigations (‘INDECOM’), went to the incident scene and identified several apparent bloodstains and a live round along Trinity Main Road. In the complex, he found a damaged expended bullet at the entrance, a pool of apparent bloodstain, three cartridge casings, and broken pieces of a Heineken bottle. He collected various items, including two portions of a damaged Heineken bottle. These two portions were dusted for prints in the INDECOM lab, and a picture was taken of the fingerprint backing card.

13 Detective Sergeant Murdock, the investigating officer, visited the Port Maria Hospital, where he saw the deceased's body. He also went to the scene of the incident and attended the post-mortem conducted by Dr Prasad. Dr Prasad concluded that the deceased died as a result of a gunshot wound to the chest.

14 By consent, a medical certificate relating to the appellant was entered into evidence. The medical certificate dated 7 May 2017 revealed that the appellant was treated at the Hospital and was suffering from the following injuries: “Abrasions to the inner surface of the lower lip x 3 – one on the right, two to the left”. The medical doctor noted a small amount of blood on the appellant's anterior gum, lower left sole. The doctor opined that the injuries were not serious, not...