R v Gordon

• Jurisdiction: Jamaica
• Judge: Hercules, J.A.
• Judgment Date: 01 February 1974
• Neutral Citation: JM 1974 CA 4
• Docket Number: Supreme Court Criminal Appeal No. 157 of 1972
• Date: 01 February 1974
• Court: Court of Appeal (Jamaica)

Court of Appeal

Hercules, J.A.; Swaby, J.A.

Supreme Court Criminal Appeal No. 157 of 1972

R.

and

Gordon

Keith St. Bernard for the Applicant.

Norman Wright for the Crown.

Practice and procedure - Trial by jury — Directions to jury on admissibility of dying declaration.

Evidence - Dying declaration — Whether admissible as evidence against appellant.

Hercules, J.A.

1 After hearing submissions from both sides in this matter we ordered a new trial inter alia and promised to put our reasons for so doing in writing. This we now do.

2 The Applicant was charged with the murder of one Derrick Myrie in the parish of St. James on 4th June, 1972. The jury found him guilty as charged and the learned trial judges Henry J., ordered that he be detained during Her Majesty's pleasure.

3 Since there is to be a retrial, we do not propose to set out the evidence in detail. Suffice it to say there were four different versions of the incident leading up to the death of Myrie.

4 First was from Barrington Findley who said that he saw the deceased throw a stone at the Applicant and then retreated. He saw the Applicant rush towards the deceased, heard the deceased say ‘Lawd God’ and subsequently saw blood coming from the deceased's chest. He also heard the deceased say “Lawd God me dead now.”

5 The second version came from Grace Murray who saw the deceased hit Applicant with a stone and after some verbal exchanges between the two men, deceased held two more stones as if he was going to hit Applicant again when Applicant drew a knife from his waist and stabbed the deceased in the chest. The deceased exclaimed “mama, mama, mi naw live.”

6 The third version came from Daphne Grant, mother of the deceased. When she went out on the road to her son, he declared “Mummy I didn't trouble them and Barry called me, Roy hold me and his brother stab me.” This version suggested that the deceased was saying that he did not attack the Applicant but that the applicant's brother held him and Applicant stabbed him. From this it was a plain case of murder.

7 The fourth version came out of the unsworn statement of the Applicant. It was to the effect that the deceased and Barry attacked him with stones and a ratchet knife. The knife dropped and he picked it up and ‘jucked’ at the deceased who was nearest to him, then saw his two assailants falling backwards.

8 Mr. St. Bernard made heavy weather of the admission by the learned trial judge of Daphne Grant's evidence in the third version referred to above that the deceased declared: “Mummy, I didn't trouble them and Barry called me, Roy hold me and his brother stab me.” Learned Attorney for the Applicant contended that the words uttered by the deceased as given in the evidence of Findley and Murray ( supra) did not indicate that the declarant had abandoned all hope of life with a “settled hopeless expectation of death.” (See R. v. Elizabeth Perry (1909) 2 Cr. App. R. 267).

9 Mr. St. Bernard rightly sensed that we were not with him that the declaration was inadmissible. So he moved on at once to what appeared to be the main thrust of his argument. It was this, that having admitted the declaration, it became incumbent upon the learned trial judge to point out to the jury that the declaration was not subject to cross-examination.

10 As far back as Ashton'scase, (1837) 2 Lewin C.C. 147, Alderson B. stated:

“When a party comes to the conviction that he is about to dies he is in the same practical state as if called on in a court of justice under the sanction of an oath, and his declarations as to the cause of his death are considered equal to an oaths but they are nevertheless open to observation. For though the sanction is...