R v Mitchell
| Jurisdiction | Jamaica |
| Judge | Forte, J.A. |
| Judgment Date | 12 January 1998 |
| Neutral Citation | JM 1998 CA 1 |
| Court | Court of Appeal (Jamaica) |
| Docket Number | Criminal Appeal No. 74 of 1996 |
| Date | 12 January 1998 |
Court of Appeal
Forte, J.A., Patterson, J.A., Harrison, J.A.
Criminal Appeal No. 74 of 1996
Dennis Morrison Q.C. for the appellant
Marlene P. Malahoo for the crown
Criminal Law - Appeal against conviction for murder — Court held that the action of trial judge to allow counsel to withdraw and to continue with the trial in the absence of any legal representation of the appellant, arose out of his own desires and that there was no obligation on trial judge to grant an adjournment — Appellant had dismissed two attorneys assigned to him under the Poor Prisoner's defence Act — Appeal dismissed.
On the 1st December, 1997, we heard arguments in this application for leave to appeal, at which time we granted leave to appeal, treated the application as the hearing of the appeal, and thereafter dismissed the appeal and confirmed the conviction and sentence. The appeal arose out of the conviction on the 30th May, 1996 in the Home Circuit Court of the appellant for the offence of capital murder of George Taylor on the 14th September, 1992. The appellant was jointly charged and tried with Devon Carty o/c Oliver Johnson who was convicted of manslaughter and who has not appealed.
Before us, Mr. Dennis Morrison, Q.C for the appellant conceded that having carefully examined the transcript of the evidence and of the learned trial judge's summing up, he could find no arguable complaint in respect of the conviction and consequently could present no argument in this regard. He, however, strongly complained in respect of the representation, or lack thereof, of the appellant at the trial. He filed and argued the following grounds of appeal:
“That the learned trial judge erred as a matter of law when upon the applicant's counsel seeking leave to withdraw he failed:–
(a) To do or say anything to persuade them to remain;
(b) To satisfy himself that the applicant would not suffer significant prejudice by his counsel's withdrawal;
(c) To give any or any sufficient consideration to the question whether the trial should have been adjourned to enable the applicant to try and obtain alternative representation;
(d) To inform the applicant of his right to seek alternative legal representation.
2. That as a result of the learned trial judge's errors of omission aforesaid, the conduct of the applicant's trial proceeded in breach of his rights under section 20(6)(c) of the constitution of Jamaica and Article 14(3)(d) of the International Covenant on Civil and Political Rights.
3. That the applicant was prejudiced in the conduct of his being unrepresented.”
The circumstances out of which these complaints are made, appear in the transcript of the evidence, the relevant section of which are referred to hereunder. Before making reference to those passages, however, it is necessary to give a brief sketch of the evidence.
The appellant, together with Carty and another were alleged to have held up a sales van, and during the course of the robbery, the deceased, who was the driver of the van, got away and ran into the bushes The appellant leaving his partners with two other victims who had been travelling in the van pursued the deceased. At the trial it was contended by the crown that the appellant caught up with the deceased, Mr. Taylor, shot and killed him and robbed him of the money he had in his possession. The appellant was seen by two prosecution witnesses, as he came out of the bushes. He was subsequently identified by these two witnesses and one of his victims.
At the commencement of the trial the appellant was represented by two attorneys, Mrs. Harrison-Henry and Ms. Rose Green both of whom had been assigned to him by virtue of the Poor Prisoners' Defence Act.
It appears that on the first day of trial, the only persons giving evidence for the Crown, were one of the victims, who testified that he was not able to identify any of his assailants, and the sister of the deceased who had identified his body at the post mortem examination. As a result, not many questions were asked of these witnesses by the defence attorney. On the second day of the trial, when another witness was to be called, counsel, Mrs. Harrison-Henry, informed the court that the appellant had indicated to her that he wished to cross-examine the witness himself. Having been asked by the learned trial judge if she had advised the appellant, counsel stated as follows:
“No, m'Lord, I haven't advised him, but Mr. Mitchell, as I understand it, m'Lord, is entitled to counsel of his choice, number one, if he does not wish counsel he is also entitled not to have counsel. That is how I understand the ruling. So I believe, m'Lord; that this is a matter entirely for him as to whether or not he wants to cross-examine the witnesses himself, but I don't see a situation where I am going to cross-examine the witnesses and then he cross-examines the witnesses after or before. I don't know of that being possible, and if it is that he does not wish me to cross-examine the witnesses, then I will ask your Lordship to allow me to terminate my assignment in the matter.
His Lordship: At this stage?
Mrs. Harrison - Henry: Yes, m'Lord. He has indicated to me quite vociferously that he would like to do it himself.
The dialogue continued as follows:
His Lordship: Stand up, Mr. Mitchell. Do you understand the nature of the charge against you?
Accused: Yes, m'Lord.
His Lordship: It is a very serious charge.
Accused: Yes, m'Lord.
His Lordship: You are not trained in law?
Accused: No.
His Lordship: Very well. You have an Attorney who represents you. Your attorney, as you have seen, cross-examines the witness as she thinks fit.
Accused: Not to my suit, m'Lord.
His Lordship: Why do you say this?
Accused: The question that she should ask the witness to what he says.
His Lordship: Nobody has said anything against you up to now.
His Lordship: I do not know what you want counsel to ask because nobody has said anything against you up to now, and you are clearly to understand this. If you are going to reject counsel at this stage I am not going to provide you with another counsel.
Accused: I can do it on my own, m'Lord.
His Lordship: This is what you want?
Accused: Yes, m'Lord.
His Lordship: You want to do it on your own?
Accused: Yes, m'Lord.
His Lordship: Well, so be it. You don't require the services
Accused: Precisely.
His Lordship: And you will do your own cross-examination ?
Accused: Yes, m'Lord.
His Lordship: You think you are capable of doing that, Mr. Mitchell?
Accused: Yes, m'Lord.
Thereafter there was a short adjournment, apparently at the invitation of counsel for the Crown, and when the court resumed, the jury was asked to retire to the jury room. Then the learned trial judge tried again in the absence of the jury. The dialogue follows:
His Lordship: Mr. Mitchell, please stand up. Earlier you had indicated to me that you do not wish the services of counsel any longer. Have you had time to think about that?
Accused: Yes, m'Lord.
His Lordship: As I told you earlier the charge is a very serious charge. It's a charge that involves a lot of law. Now, your counsel is trained in law. You are not so trained, and I think it would be a wise thing to do if you reconsider your position. Nobody is forcing you to do anything, but I think you should abide by the advice of your counsel.
His Lordship: You see, counsel in her judgment knows what questions to ask and when to ask these questions. Now, without counsel you would be on your own and I can only assist in certain areas. You understand that? Now, do you want to reconsider what you have said earlier?
Accused: Yes, m'Lord, I am going to take it into consideration.
Then after further dialogue in which the appellant accused his attorney of trying “to push me to say things” i.e. advise him to admit that he had signed a statement purportedly given to the police when he had not done so, His Lordship again asked of the appellant:
“Just a minute. Have you reached the stage where you think it's best to go it alone, or do you wish to continue with the services of your counsel?.”
Accused: I think it is best for me to defend myself.
His Lordship: Very well, if that is your wish. I have explained to you all the difficulties it might encounter, so I will allow you to conduct the trial yourself. I can only help you in certain areas. I can't act as counsel on your behalf. You are clearly to understand that.
Accused: I understand you, m'Lord. I have a little understanding. If I get a pen and some paper I can write down what the witness is saying. I can examine them myself.”
The learned trial judge still reluctant to have Mrs. Harrison-Henry...
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