R v Smith (Nyron)

• Jurisdiction: Jamaica
• Judge: PANTON, J.A.
• Judgment Date: 11 April 2003
• Neutral Citation: JM 2003 CA 16
• Judgment citation (vLex): [2003] 4 JJC 1101
• Date: 11 April 2003
• Court: Court of Appeal (Jamaica)

JAMAICA

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR. JUSTICE FORTE, P THE HON. MR. JUSTICE BINGHAM, J.A THE HON. MR. JUSTICE PANTON, J.A

R.

V.

NYRON SMITH

Miss Deborah Martin for the appellant

Miss Kathy Pyke and Miss Tanya Lobban for the Crown

CRIMINAL LAW - Murder - Whether trial judge erred in admitting into evidence the deposition of a witness under the Evidence (Amendment) Act, s. 31D

PANTON, J.A.

1 1. Errol Topping was murdered on February 25, 2000, at a customer appreciation party hosted by a Mr. Smith on Eighth Avenue, which runs between Newport Boulevard and First Street in the parish of Kingston. The appellant was convicted for Mr. Topping's murder in the Home Circuit Court and sentenced on October 26, 2001, to life imprisonment with a specification that he should serve fourteen years before becoming eligible for parole. His application for leave to appeal was refused by a single judge of this Court. He renewed his application before us, relying on a single ground, namely:

"That the learned trial judge erred in admitting into evidence the deposition of the witness Dennis Singh as the requirements of section 31(D) ss(e) of the Evidence (Amendment) Act under which the Crown purported to act, had not been complied with: there was no evidence, properly adduced, that the witness Singh was being kept away from the proceedings and furthermore that no reasonable steps could be taken to protect him. Instead there was the hearsay material from the witness Robin Longmore".

2 At the end of the hearing of the application on February 10, 2003, we granted the application for leave to appeal, treated the application as the hearing of the appeal, dismissed it and affirmed the conviction and sentence, with the order that the sentence is to be computed from January 26, 2002.

3 2. Mr. Dennis Singh was the only eyewitness to the killing who gave evidence at the trial although the deceased was stabbed to death in circumstances which indicate that the incident occurred in the presence of several persons. Indeed, in the group of persons present at this party were at least six members of the constabulary including constable Randolf Hall who watched for a good while as the deceased danced in the street but unfortunately did not see when the deceased was stabbed. His evidence at the trial was that he had taken his eyes off the deceased for a period of three to five minutes; and it was during this period that the deceased was stabbed.

4 3. Mr. Singh gave evidence at the preliminary examination held into this charge of murder against the appellant. The examination was conducted by His Honour Mr. Ralston Williams, Resident Magistrate for the parish of Saint Andrew. At that preliminary examination, Mr. Singh testified that he saw the appellant stab the deceased who had been "dancing all over the place" at the customer appreciation function. He stated that the appellant, having done this foul deed, went and spoke with a lady who was standing beside the bar, then he went to a group of persons underneath the street light and a member of that group took the knife from the appellant.

5 4. Mr. Singh's evidence formed the basis of the committal for trial. He turned up for the trial on April 1, 2001, at the Home Circuit Court before Dukharan, J. The appellant pleaded not guilty, a jury was empanelled and Mr. Singh was called after counsel for the Crown had opened the case. This is what Mr. Singh said to the judge and jury after he was sworn and asked to state his name to commence his testimony:

"My name is Dennis Singh. I just have something to say. The thing is this, I don't want to go further with this. My life is being threatened. I went to the police. I reported it and nothing was done. I got a call from someone saying they are going to kill my wife, my mother and father and my kids and whosoever is close to me. My parents live in Olympic Gardens. I have a trucking business in Newport West where I operate trucking business all over the island". (page 17 lines 8 to 17)

6 The learned judge inquired of him if the threats were in connection with the case. He answered in the affirmative. He went on to say that he was in fear for his life. After a brief discussion between counsel for the Crown and the judge, the latter discharged the jury and fixed a new trial date.

7 5. It is against this background that the matter came before Mrs. Justice McCalla and a jury on the 8 ^th October, 2001, when the trial commenced. In the absence of the jury, the learned judge dealt with an application by the prosecution for the evidence of Mr. Singh taken at the preliminary examination to be read to the jury. The application was under the provisions of section 31D(e) of the Evidence (Amendment) Act which reads:

"Subject to section 31G, a statement made by a person in a document shall be admissible in criminal proceedings as evidence of any fact of which direct oral evidence by him would be admissible if it is proved to the satisfaction of the court that such person -

• a. is dead;

• b. is unfit by reason of his bodily...;

• c. is outside Jamaica and it is not reasonably...;

• d. cannot be found after all reasonable steps...; or

• e. is kept away from the proceedings by threats of bodily harm and no reasonable steps can be taken to protect the person".

8 6. The application was grounded on the evidence of the official court reporter who produced the evidence that Mr. Singh had given at the aborted trial to the effect that he had received threats on his life as well as those of his family. There was also evidence from Mr. Robin Longmore who works with the witness protection unit of the Ministry of National Security. His evidence was that his job was to interview witnesses who are recommended by the police or the Director of Public...