R v Christopher Gordon

• Jurisdiction: Jamaica
• Judge: Hamilton, J.
• Judgment Date: 10 April 2025
• Court: Supreme Court (Jamaica)
• Year: 2025
• Docket Number: CACT2022CR00107

Rex

and

Christopher Gordon

Hamilton, J.

CACT2022CR00107

Supreme Court

Appearances:

Mrs Sarahope Cochrane-Spencer and Ms Dominique Martin instructed by the Office of the Director of Public Prosecutions appeared for the Respondent.

Mr John-Mark Reid appeared for the Applicant.

Hamilton, J.

BACKGROUND

1 On the 12th day of March, 2024 Mr Gordon (hereinafter referred to as ‘the Accused’) pleaded guilty to the offence of Causing Death by Dangerous Driving. On that day, he was represented by Learned Counsel Ms Sophia Bryan. The particulars of the offence are that on the 6th day of May, 2021 in the parish of St. Andrew, the accused drove a motor vehicle to wit: A 2013 grey Toyota Probox registered PG9515 along Hope Road in the parish of St. Andrew and caused the death of Verona Nelson, by driving in a manner which was dangerous having regard to all the circumstances of the case.

2 The facts of the case were outlined by Crown Counsel as follows:

The date of the offence is Thursday, May 6, 2021, at about 7:45 a.m. There are no eyewitnesses to this incident. The Crown's case rests primarily on the reconstruction report done by Corporal Donald Brown and a Question and Answer given by the Accused. The incident occurred about 8:00 a.m. in the vicinity of the Andrews Memorial Hospital in the parish of St. Andrew.

Treating with the Question and Answer, the Accused indicated that he is the owner of a grey 2013 Toyota Probox motor car, with registration plates PG7515, indicated that he left August Town travelling towards Half Way Tree in the said car. On approaching Andrews Memorial Hospital, he was travelling in the extreme left lane, he was travelling about 40–50 kilometres per hour, and he was aware of a traffic light in the short proximity in the vicinity of Andrews Memorial Hospital. He indicated that on approaching the entrance gate to Andrews Memorial Hospital, he did not see any pedestrian; he then saw a pedestrian when he was about seven to eight feet away. He says to avoid hitting the pedestrian, he turned his steering wheel to the left, the vehicle then hit the pedestrian. He further stated that the vehicle ended up mounting the sidewalk as he was trying to avoid hitting the lady. He denied losing control of the vehicle, he says he did not apply the brake out of shock, and he was shaken up as a result of the accident. The pedestrian suffered injuries and he came out of the car and tilted her head to feel her pulse and he waited until the stretcher came. He also went on to state that he saw the injured pedestrian on the sidewalk on the ground. He exited the vehicle immediately, and he isn't aware of anything he could have done to avoid the collision. He denied that he wasn't paying attention or that speeding was the cause of the accident.

Treating with the accident reconstruction report now, m'Lady, after making the relevant observations at the scene, the expert made the following observations and conclusion:

• 1] damage to the front of the Toyota Probox was one of extensive nature, the damage observed would have occurred whilst the vehicle was proceeding in excess of the speed limit for the area, and it is stated in my opinion between 50 kilometres per hour to 80 kilometres per hour;

• 2] the Toyota Probox made contact with the pedestrian whilst proceeding along the sidewalk;

• 3] the Toyota Probox made contract with the pedestrian, causing the deceased to make contact with the concrete wall;

• 4] the expert is unable to say what could have caused the motor vehicle to leave the roadway and come to a stop along the sidewalk.

With respect to vehicle defects, m'Lady, the vehicle of the accused was examined by Mr Sheldon Grant, a Certifying Officer of the Island Traffic Authority, and it was noted that the two rear tyres of the motor vehicle were defective.

Post Mortem Examination Report, m'Lady, indicates that the cause of death was due to haemorrhage and shock and multiple blunt trauma to the head and neck.

At the Coroner's Inquest on April 5, 2022, an inquest touching the death of the deceased was held before Her Honour Mr Charles Pennycook. During the inquest, the Accused gave evidence of the accident and in summary, the Accused says he saw the lady at the entrance of St. Andrew Hospital, she was walking steady like someone going somewhere, he was coming down from Jamaica House in the left lane. He became aware of the lady from the corner of the hospital entrance, which was the entrance closest to the stop sign. He says he doesn't know if he overreacted, but he swung the steering left, intending to go behind her. At this time, he says she was in the left lane that he was in, he doesn't know if he overreacted or panicked, but he swung the car to the left and went onto the sidewalk. The sidewalk was about 6 to 7 inches high. When the car mounted the sidewalk, he was fighting for control, he was not fully on the sidewalk. He said he guessed on hearing the vehicle, the lady turned in his direction and saw his vehicle and ran back to the sidewalk. This was the moment he fully tried to put the vehicle on the sidewalk to avoid hitting her. He saw the shock on her face, he didn't know how the car stopped. He ran out to assist. He saw two security guards and he told them to get a stretcher. He was feeling for her pulse and making sure she was alive. He was talking to her, felt her pulse, then he broke down. The police came and saw him.

The Accused then told the Judge he wished to say something which a lawyer would advise against. The Judge then asked him why he wanted to. The Accused then said he is responsible for the lady. It was his car, he was the captain of the car and that was his responsibility. He says he did not cause the accident, but his car ended up causing her death. He later admitted that his vehicle was defective, but he was not speeding.

M'Lady, a point of note here in the statement of the Court, that the Accused man was asked to remove his car so the deceased could be picked up. I note in the Reconstruction Report that it was opined based on observations made that the Accused man's vehicle ran over her.

3 A Social Enquiry Report and an Antecedent Report were ordered, and a date was set for sentencing. Subsequent to the 12th day of March, 2024, the Accused man was no longer represented by Learned Counsel Ms Sophia Bryan. Learned Counsel Mr John-Mark Reid now appears on his behalf.

THE APPLICATION

4 On the 25th of September, 2024, Learned Counsel for the Accused made an oral application for the withdrawal of the guilty plea, which was later reduced in writing. A Notice of Application for Court Order for Change of Plea was filed by Learned Counsel Mr Reid. The said Application sought the following Orders:

• (1) That the Court exercises its discretion and allows the Applicant to withdraw his plea of guilt entered and permit the Applicant to change his plea of guilty to a plea of not guilty to the offences alleged against him.

• (2) The matter be set for trial.

• (3) Any other order that might be deemed necessary and just.

5 The grounds on which the Applicant is seeking the abovementioned Orders are as follows:

• (1) The plea of guilt entered was equivocal and involuntary, as the Applicant did not appreciate the elements of the offence to which he pleaded guilty. He was subject to such pressure that there was no genuinely free choice between guilty and not guilty.

• (2) The Applicant was not properly advised on the implications of such a plea, which could affect his livelihood.

• (3) That is, if the guilty plea is accepted, the Applicant would be deprived of what is, in all likelihood, a good and reasonable defence with a high likelihood of success, which would breach the Applicant's constitutional right to a fair trial.

• (4) This Application will not prejudice the Crown or the family of the deceased.

LAW & ANALYSIS

6 The starting point in dealing with a change of plea ought to be the case of R v Dodd(1981) 74 Cr. App. R 50. The Jamaican Court of Appeal summed up the general principles applicable to the area of law surrounding a change of plea from Dodd in Shadrach Momah v. R [2011] J.M.C.A. Crim. 54. Those principles are:

• (i) that the court has a discretion to allow a defendant to change a plea of guilty to one of not guilty any time before sentence;

• (ii) the discretion exists even where the plea of not guilty is unequivocal; and

• (iii) the discretion must be exercised judicially and, we would add, very sparingly and only in clear cases.

7 The case of Rahming v. R [2013] 2 L.R.C. also provided some guidance regarding change of plea. The Court stated that the discretion to allow an accused who had previously pleaded guilty to change his plea to not guilty was to be rarely and sparingly exercised, in order to ensure that such applications were genuinely made, for good reasons and were not frivolous. The Court further went on to say that in exercising the discretion the judge had to have regard to all relevant considerations and disregard irrelevant matters.

8 The first ground on which the Accused is relying on is that the plea of guilt was equivocal and involuntary as he did not appreciate the elements of the offence to which he pleaded guilty; and he was subject to such pressure that there was no genuinely free choice between guilty and not guilty. The first ground is two-fold and will be dealt with as such in this judgment.

9 Firstly, in dealing with whether the Accused did not appreciate the elements of the offence making the guilty plea equivocal and involuntary, I am guided by the case of Peter Coleman v. Regina (unreported) Resident Magistrate's Criminal Appeal No. 22/94 delivered on July 12, 1994. In that case, the Court of Appeal had before them an appellant who was charged for possession of ganja and dealing in ganja to which he pleaded guilty. Counsel for the appellant argued that the Learned Resident Magistrate fell...