Paul Bryson v R
| Jurisdiction | Jamaica |
| Judge | Foster-Pusey JA |
| Judgment Date | 05 May 2023 |
| Neutral Citation | JM 2023 CA 50 |
| Docket Number | SUPREME COURT CRIMINAL APPEAL NOS 39 & 40/2019 |
| Court | Court of Appeal (Jamaica) |
[2023] JMCA Crim 18
THE HON Miss Justice Straw JA
THE HON Mrs Justice Foster-Pusey JA
THE HON Mr Justice Fraser JA
SUPREME COURT CRIMINAL APPEAL NOS 39 & 40/2019
IN THE COURT OF APPEAL
Criminal Law — Murder — Identification — Summation on inconsistent evidence — Whether summation biased — Whether judge entitled to give non-evidence document to the jury
Anthony Williams for the appellant Paul Bryson
Mrs Melrose Reid for the appellant Lennox Bryson
Miss Kelly-Ann Murdock and Miss Cindi-Kay Graham for the Crown
On 29 January 2019, the appellants, Paul Bryson o/c Ken (‘Paul’) and Lennox Bryson o/c Bull (‘Lennox’), were each convicted of murdering Richard Allen in November 2007, after a trial before Sykes CJ (‘the learned trial judge’) sitting with a jury. On 12 April 2019, the learned trial judge sentenced Paul to 22 years' imprisonment at hard labour with the stipulation that he serves 10 years before being eligible for parole. Lennox, on the other hand, was sentenced to 27 years' imprisonment at hard labour with the stipulation that he also serves 10 years before being eligible for parole.
Both appellants applied for and were granted leave to appeal their convictions by a single judge of this court on 30 July 2021. Before us, Paul renewed his application for leave to appeal sentence.
On 28 and 29 March 2023, the court heard the appeals and, after considering the arguments of counsel on both sides, made the following orders:
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(1) The appeals against conviction for Paul Bryson and Lennox Bryson are dismissed.
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(2) The convictions of both appellants, Paul Bryson and Lennox Bryson, are affirmed.
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(3) The application by Paul Bryson for leave to appeal against sentence is refused.
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(4) The sentences of both appellants, Paul Bryson and Lennox Bryson, are to run as of 12 April 2019, the date they were imposed.
We promised to put our reasons in writing and now briefly outline them below.
The sole eye witness for the Crown, PS, was 16 years old and attending high school at the time of the incident in November 2007. Before commencing high school in September 2007, PS attended Cross Primary and Junior High from grades one through to nine. PS testified that she knew Lennox “from about grade 4” when, although he was not a student at the school to the best of her knowledge, she would see him on the school compound “right through the day, every day”, “from morning straight to evening”. He spoke with her once when he told her to “skip school and come and stay with him”. At trial, PS was unable to indicate the last time before November 2007 that she had seen Lennox.
PS stated that she also knew Paul over the same period, and saw him on the school compound at the same time that she saw Lennox, but had never spoken with Paul. The last time that she had seen Paul before November 2007, was before her school went on holiday. She also referred to a man named “Popaul” whom she would usually see along with Lennox and Paul.
On 19 November 2007, at about 7:30 am, a school day, PS had just stepped on the verandah of her home, when two men passed her so quickly that she did not see their faces. She then heard a gunshot coming from within the house. When she went into the house, she saw one man kneeling down with a gun and Lennox, who was at arm's length from her, firing shots at the deceased, Richard Allen. PS saw the side of the face of the man who was kneeling and recognized him as Paul. She also saw Lennox's face. She testified that she stood beside Lennox and Paul, who both had guns, and looked at them for about five minutes. Lennox then turned towards her mother's room and she again saw his face for one to two seconds. Paul also got up, and PS saw his face for about two to three seconds while he was walking out. PS followed the men and went to the back door of the house, where she saw Popaul. He too had a gun. He joined Lennox and Paul and left the premises.
PS identified Lennox at an identification parade held in December 2007. In April 2008, she gave a deposition at the preliminary enquiry in relation to the matter. It was after the preliminary enquiry that Paul was arrested. Later, in May 2008, PS attended a second identification parade at which she identified Paul.
In cross-examination, PS was challenged as being untruthful, as the name Paul did not appear in the statement that the police recorded from her soon after the incident. In addition, while during her testimony at trial she stated that nothing covered Lennox's face, in her statement to the police it is recorded that she said that Lennox was wearing a cap with a peak and a black and white handkerchief tied over his mouth at the time of the incident. PS insisted that she had mentioned Paul's name to the police, and although the police read her statement to her, she was traumatized at the time. PS stated that she could not recall telling the police that at the time of the incident Lennox was wearing a cap with a peak and a black and white handkerchief tied over his mouth.
Four other witnesses testified for the prosecution. Dr Desmond Brennan testified as to the contents of the post-mortem report that he prepared after examining the body of the deceased. Inspector Sandra Webb-Spence conducted the identification parade at which PS identified Lennox in December 2007, while Inspector Marcia Colquhoun conducted the identification parade at which Paul was identified by PS in May 2008. Detective Sergeant Christopher DaCosta was the investigating officer.
At the end of the case for the prosecution, defence counsel for Paul made a nocase submission on the basis that the identification evidence in relation to him was tenuous. The learned trial judge refused to uphold the submission.
Both appellants made unsworn statements. Paul stated that he heard that the police wanted to speak with his brother, Lennox. He took his brother to the station and the police detained him. He (Paul) left the station. After his brother went to court, he heard that PS called his name in court saying that he was involved in the matter. He denied any involvement in the incident and denied knowing PS or hanging out at any school. He stated that he was a businessman who bought and sold goods.
Lennox stated that he was a higgler. His brother came to his house and told him that the police wanted to speak with him. When he went to the police, they held on to him and eventually told him that he was to be placed on an identification parade for the offence of murder. He told the police that he knew nothing about the murder. He denied going to PS's school and denied knowing her or where she lived.
Mr Williams, on behalf of Paul, sought and was granted permission to abandon the original grounds of appeal and instead argue the following grounds:
“Ground 1
The Learned Trial Judge erred in law in failing to uphold the No Case Submission on the basis that the purported evidence of (recognition) identification was no more than uncorroborated fleeting glance by the sole eye witness. It was also identification made in difficult and/or challenging circumstances. This amounted to a material miscarriage of justice. The conviction ought to be quashed.
Ground 2
The Learned Trial Judge erred in misdirecting the Jury by not telling them that the accused was not obliged to go into the Witness Box but had a completely free choice either to do so or to make an unsworn statement or to say nothing at all and by so doing effectively deprived the Applicant of a fair consideration by the Jury of his stated Defence.
Ground 3
The verdict is unreasonable and cannot be supported having regard to the weight of the evidence. By that miscarriage of justice the convictions ought to be quashed and the sentence set aside.”
Mrs Reid, counsel for Lennox, received permission to abandon the original grounds of appeal and to argue the following supplemental grounds:
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“1. The Learned Trial Judge (LTJ) erred from the inception of the case when he prejudiced the minds of the panel of Jury, when he narrowed their foci, preventing them from listening to the full evidence, and directing them to focus on the issue of identification, and the document that he would have given them at the end of the trial.
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2. The identification of the Appellant by the sole eye witness, was fleeting and tenuous, rendering the verdict unsatisfactory, unsafe occasioning a miscarriage of justice; and the LTJ whilst he dealt with the general issues of identification, failed to sufficiently impress upon the Jury the material effect it had in the case at bar.
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3. The LTJ failed to adequately deal with the inconsistency which was material to the identification of the Appellant.
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4. The LTJ was biased in the conduct of the trial and also in the summing-up to the jury and favoured the prosecution's case, amounting to a miscarriage of justice.
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5. The LTJ erred by giving the Jury a document on identification which document did not form part of the evidence, and which was prejudicial to the Appellant, resulting in his wrongful conviction.
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6. That the conviction is unsafe and a miscarriage of justice, as the LTJ held legal arguments on the matter of ‘good character’ warning in the presence of the jury, which comments prejudiced the Appellant's good character, resulting in the Jury wrongly convicting the Appellant.
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7. That the LTJ misdirected the jury on the Appellant's unsworn statement from the dock.
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8. That the conviction cannot stand as the Jury had not given the final consensus of the guilt of the ‘accused’, now Appellant.”
Mr Williams did not pursue ground 2, in which he complained that the learned trial judge did not inform the...
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