R v Jarret (Andre)
| Jurisdiction | Jamaica |
| Judge | SMITH, J.A. |
| Judgment Date | 04 March 2003 |
| Neutral Citation | JM 2003 CA 4 |
| Judgment citation (vLex) | [2003] 3 JJC 0401 |
| Court | Court of Appeal (Jamaica) |
| Date | 04 March 2003 |
CRIMINAL LAW - Murder - Whether there was sufficient evidence to establish the actus reus for robbery to ground the evidence of capital murder - Attempt - Dying declaration - Offences Against the Person Act, s. 2(1)(d)(i)
On Thursday the 8 th of May, 1997, 19 year old Christopher Lee was brutally attacked and mortally wounded. He was in the Emergency Room of the Kingston Public Hospital when he was visited by his mother, Mrs. Daphne Lee, and a cousin, Ms. Maria Smith, alias "Pam". Christopher, said; "Mum, come pray for me." She could not. The sight of his mangled face upset his mother's composure. She ran out of the Emergency Room. His cousin, Maria, took his mother's place at his bedside. He told her, "I know the boy who stabbed me. Him name "Bowla" and he comes from Payne Avenue. His mother name is "Junie." He told her that he did not think he was going to make it. Christopher succumbed to the injuries on the 11 th May, 1997.
Maria Smith made a report to Detective Sergeant Norman Hamilton who went to Brown's Funeral Home. There he saw the dead body of Christopher Lee. He observed lacerations to his face, chest, right armpit, back and neck. Detective Hamilton prepared a warrant for the arrest of the appellant.
On the 20 th January, 1998 Sergeant Hamilton saw the appellant at the Hunts Bay Police Stalion. He told the appellant that he had a warrant for his arrest in respect of a murder committed on the 8 th of May, 1999. He cautioned him and the appellant said, "boss mi never mean fi cut him up, is just a food mi did a look." Sergeant Hamilton said he read the warrant to him and charged him for murder. After the appellant was cautioned he said, "boss mi never mean fi cut him, mi want fi tell you how it go for mi want you fi help me." Subsequently, the appellant gave a caution statement in which he confessed.
On the 14 th June, 2001, he was convicted of capital murder before Pitter J and a jury and sentenced to suffer death. In this Court, leave was sought and obtained to argue five supplemental grounds of appeal. Ground 3 was later abandoned.
The first issue is whether there was sufficient evidence to establish the necessary actus reus for robbery or attempted robbery to ground the offence of capital murder under section 2(1)(d)(i)of the Offences against the Person Act as amended.
This section provides:
"2 -(1) subject to subsection (2), murder committed in the following circumstances is capital murder, that is to say -
(a) ...
(b) ...
(c) ...
(d) any murder committed by a person in the course or furtherance of -
(i) robbery
(ii) ..."
The evidence on which the prosecution relied to establish the fact that the murder was committed in the course or furtherance of robbery came from statements alleged to have been made by the appellant.
In addition to what he said when he was first taxed with the allegation made against him, he is alleged to have voluntarily given a caution statement in which he said (page 151):
"mi a walk pon the street and mi a look a food and mi si him and mi try rob him. Mi cut him and come back dung a mi yard and about two days after mi hear seh him dead fadda."
Mr. Hines, counsel for the appellant, submitted that the confession statement and the admissions taken at ,their highest do not disclose the commission of the offence of robbery. They merely indicate, he argued, an intention to rob. He contended that there was no "actus reus proven to have been done by the appellant directly connected with the offence of robbery." He relied on R v Robinson (1915) 2KB 342 or (1914-15) 11 Cr. App. R 124 and Comer v. Bloomfield (1971) 55 Cr. App. R. 305.
Mr. Fraser. Deputy Director of Public Prosecutions (Acting) on the other hand submitted that the words "mi try rob him," suggest that the appellant went beyond indicating a mere intention to rob, which in itself would be sufficient, but that he attempted to rob the deceased. The learned Deputy Director further submitted that murder was committed in the course of or in furtherance of robbery if at the time of its commission the offender intended to rob or attempted to rob, or was escaping from a robbery. Mr. Fraser relied on R v Masters (1964) 2 All ER 623 and R v Jones (1959) 1 All ER 411. We think the submissions of the Deputy Director of Public Proseculions are correct.
In R v Harry Robinson (supra) it was stated that mere intention to commit an offence does not constitute an attempt. Some actus reus must be proved to have been done by the defendant directly connected with the offence. And, of course, mere intention to commit an offence, except in the case of high treason, is not an offence. But where the intent to commit a crime is manifested by any overt act the party may be indicted for attempt to commit that crime. Comer v. Bloomfield (supra) deals with the question of whether certain acts were sufficiently proximate to the offence so as to constitute an attempt. We do not find that case to be of much help.
The case of R v Masters (supra) is on point. In that case Masters killed one L. who was a man of 75 years of age. Masters had gone to L. in order to borrow money, as he said. Instead of getting the loan he got a lecture as to his behaviour. When he did not get the loan, he had, according to his account, an urge to hit L. L's body was found subsequently with the head battered. The deceased's room was in complete disorder, but money remained in the house, e.g. in a coat and a wallet upstairs. Masters admitted homicide but denied that it was in furtherance of theft. His case was that he never intended to steal the money, but panicked after the killing, and that the disorder found on the premises was due to the fact that he was trying to find bandages etc. to dab L's wounds. Masters was convicted of capital murder. On appeal against such conviction the Court of Criminal Appeal (Lord Parker C.J., Paull and Winn JJ.) held that a murder committed by a man at a time when he intended to steal, and in order to further that theft was capital murder, and the prosecution did not have to establish that a theft had actually been committed.
In R v Jones (supra) at 413 (B-E) Lord Parker C.J. described as perfectly correct the following summing-up of Lord Sorn in H.M. Advocate v. Graham (1958) S.L.T. 1 67 at page 169:
"Now you have just heard it suggested to me by counsel for the defence that murder is only done in the course of theft if the man did it in order to get on with the theft after he had done the murder. I think that was the suggestion. I have only got to tell you that I do not agree with that. It is a question of what is meant by the course of a theft, and I think that the course of a theft is begun when perpetration is begun; that is to say that it covers the period of attempt as well as the period of completion; the attempt of the crime as well as the crime; and I say that if a burglar is interrupted in that course, the course of perpetration, and if he murders even in order to get away, not with the idea of going on, but with the idea of getting away, it still is murder done in course of theft. It would be, I think, somewhat ridiculous to suppose that Parliament has said 'We will make it capital murderif the householder wakes up and goes to interfere with a burglar and gets killed by a burglar who kills him in order to go on with his stealing, but we won't make it capital murder if the burglar murders him in order to run away'. I...
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