R v Reynolds (Dalton)
| Jurisdiction | Jamaica |
| Judge | HARRISON, P. |
| Judgment Date | 25 January 2007 |
| Neutral Citation | JM 2007 CA 1 |
| Judgment citation (vLex) | [2007] 1 JJC 2501 |
| Court | Court of Appeal (Jamaica) |
| Date | 25 January 2007 |
CRIMINAL LAW - Murder - Infringement of right to fair trial due to delay
This is an appeal from a conviction of the appellant on 20 th March 1997 at the Home Circuit Court, Kingston before Clarke, J (now deceased) and a jury, of the offence of murder of Carl Simpson committed on 14 th February 1992 in the parish of St. Andrew.
The chronology of the events affecting this appeal is of relevance.
An application for leave to appeal from the conviction of 20 th March 1997, Criminal Form B1, was filed by the appellant in the Court of Appeal Registry on 8 th April 1997. The Registrar, by notice dated 22 nd April 1997 to the Registrar of the Supreme Court, advised the latter of the application and requested copies of the proceedings and the summing-up of the learned trial judge. This request was not complied with. In the interim, the appellant contacted the Independent Jamaican Council for Human Rights, which by letter dated 25 th November 1998, advised the Registrar of the Court of Appeal that the appellant was not represented by counsel, contrary to what he had indicated on his application filed on 8 th April 1994, and requested information as to the status of any appeal existing. The Registrar then noted that the transcript was "awaited."
In 1999, consequent on the urgings of the appellant, the office of the Public Defender, an agency of the State, contacted the Registrar of the Court of Appeal on several occasions and was informed that "the documents were not yet obtained."
In January 2001, the Public Defender sent to the appellant a copy of a portion of the summing-up of Clarke, J. The appellant in his affidavit dated 8 th December 2006, stated that the said copy summing-up "has been lost in the prison."
Up to 2001 the Registrar of the Court of Appeal had not received the notes of evidence nor the summing-up of the learned trial judge from the Supreme Court.
Ongoing enquiries were made in 2004 to the Registrar of the Court of Appeal by the Public Defender who was advised that "more documents were required and ... had not been located." The appellant was so advised by the Public Defender.
In January 2005, counsel in this appeal, Mr. Robert Fletcher, then representing the appellant, on further enquiries, was told by the Registrar of the Court of Appeal that "the court file could not be located." In February 2005 the court file in the Court of Appeal was found, but the full transcript requested had not yet been received from the Supreme Court. However, later in 2005, a copy of the incomplete summing-up of the learned trial judge was received in the Registry of the Court of Appeal.
On 28 th June 2006 not having received the full transcript of the summing-up, the portion received was submitted to the single Judge of Appeal, by the Registrar of the Court of Appeal. Leave to appeal was granted.
By memorandum dated 19 th September 2006 to the Chief Court Reporter in the Supreme Court, from the Registry of the Court of Appeal, a full transcript of the trial proceedings was requested. By letter dated 28 th September 2006, the Chief Court Reporter in the Supreme Court replied, in these terms:
" Re: SCCA No. 41/97 Reoina vs Da/ton Reynolds
Pursuant to our several telephone conversation, Charlton/Myrie, and Crosse/Myrie, regarding the Notes of Evidence in the captioned matter, I must inform you that a comprehensive search was made for correspondence relating to a request by your office, prior to your correspondence, dated 19 th September, 2006, and I am unable to locate such a correspondence.
During the period (1997), due to staff shortage, there was a policy whereby court reporters were only required to produce summation in non-capital murder cases and a full transcript in capital murder. The Court Reporting Department was not fully computerized, and so there are no diskettes which would have stored the information recorded in court.
It is to be noted that two of the four officers involved in recording the evidence are no longer in the Service.
A thorough search was made for the shorthand notes of the four court reporters who were involved in recording the evidence in the matter but the effort proved futile.
I, sincerely, hope that the summation which was submitted some time ago will be of assistance and that an amicable solution will be arrived at.
Sincerely yours,"
The hearing of this appeal was fixed for 18 th December 2006, when, on the application of counsel for the appellant it was taken out of the list. The appeal is now before us.
The facts in support of the conviction of the appellant were as hereunder.
On 14 th February 1993 in the night, the prosecution witnesses Owen Richards and Derrol Dacres and three other men were standing in front of Dacres' gate on Blackwood Terrace off Red Hills Road, St. Andrew. The appellant and four other men came out of a top gate to the said premises. The appellant had a gun in his right hand and a machete in his left. The appellant said "No one move." He said to deceased "You bwoy, you nuh hear when me say you fe leave yah." Appellant chased deceased, who ran. The appellant chopped at the deceased then the appellant and the other men chopped the deceased several times. Both witnesses ran. The appellant came to within 1 ½ yards from the witnesses. Both witnesses Richards and Dacres knew the appellant for 20 years and 4 years, respectively, and saw his face for about 50 seconds. There was an electric light in the lane 20 steps away from the witness Dacres' yard and another light on the shop in front of the lane by means of a 100 watt bulb that the witness Richards had put in the day before.
On 21 st February 1993 Det. Cpl. Lenworth Mellis arrested the appellant on a warrant for the offence of murder, when cautioned, he said:
"Officer, a no me do the chopping, sah."
The deceased sustained 20 wounds. They were to his right skull, expelling the brain tissue, the bridge of his nose, his right shoulder, his chest, left knee and his leg which together caused his death. The wounds were consistent with infliction by a machete.
The appellant gave sworn evidence that he was of good character. He knew both prosecution witnesses for years. On that night he was not there in the lane with a group of men. He did not chop the deceased. He was at his sister's house in Duhaney Park with his girlfriend, from 13 th February 1993 until 17 th February 1993. His sister gave evidence in support of his defence of alibi.
The following four supplemental grounds of appeal were filed by counsel for the appellant:
"1. The applicant's right under section 20(1) of the Jamaica Constitution to a fair hearing within a reasonable time has been infringed in that he has waited over nine years for his appeal to be heard.
2. The applicant's right under section 20(6)(b) of the Constitution to have adequate facilities to prepare his defence has been infringed in that the absence of the notes of evidence and a portion of the summation severely limits his ability to prepare and present his appeal.
3. The learned trial judge's directions on visual identification were inadequate in at least one critical respect in that he failed to warn the jury that the care they were to exercise in assessing evidence of visual identification applied equally to recognition cases.
4. The learned trial judge failed to sufficiently isolate the question of mere presence of the accused and its significance in law."
Ground 1
Mr. Fletcher for the appellant argued that the length of the delay being nine (9) years, during which the appellant waited for his appeal to be heard, was presumptively prejudicial and the State not having to date provided the appellant with a transcript of the proceedings at trial nor a copy of the full summing-up infringed his rights under section 20(1). The State was responsible for the said delay and not the appellant, who through his efforts and that of his attorney and other agencies sought to assert his rights. The appellant suffered from the uncertainty and anxiety of not knowing when his case on appeal would be heard and was thereby prejudiced. He relied on R v Bell, SCCA 16/98 dated 29 th September 2003, Alfred Flowers v R [2000] 1 WLR 2396, Bell v DPP [1985] AC 937 and Darmalingum vs The State [2000] 1 WLR 2303. The appellant he argued, was entitled to an acquittal.
In this Court's view the factors to be considered when a complaint is made that an appellant's right as stated in section 20(1) of the Constitution have been infringed, are those stated in R v Bell , (supra) following Barker v Wingo [1972] 407 US 514. They are (1) the length of the delay (2) the reason for the delay (3) the defendant's assertion of his right and (4) the prejudice to the defendant.
The right to "a fair trial within a reasonable time..." applies equally to the appellate process. The breach of that right which is re-inforced by the fact that the appellant should not be prejudiced by lengthy delays, was not absolute, but must be balanced against the public interest that those who are guilty should be punished. Any lengthy and inordinate delay suffered by the appellant does not automatically attract a quashing of his conviction, but may be taken into account...
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...Alternatively, he submitted that the principles as to assessing delay are clearly distilled in the case of R v Dalton Reynolds SCCA No 41/1997 delivered on 25 January 2007. The manner in which the second trial ended would eliminate any prejudice due to the fact that when the jurors were ask......
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...especially with the use of firearms. This Court in dealing with the question of delay in the case of R v Dalton Reynolds SCCA No. 41/97 delivered on the 25 th January, 2007 at page 15 said: "The fundamental safeguard contained and guaranteed by the Constitution is fairness of the trial or t......