R v Steven Grant

• Jurisdiction: Jamaica
• Judge: BINGHAM, J.A: , WALKER J.A: , HARRISON J.A. (Ag.) , BINGHAM, J.A.
• Judgment Date: 12 July 2004
• Neutral Citation: JM 2004 CA 21
• Judgment citation (vLex): [2004] 7 JJC 1204
• Court: Court of Appeal (Jamaica)
• Date: 12 July 2004

IN THE COURT OF APPEAL

BEFORE:

THE HON MR JUSTICE BINGHAM, J.A THE HON MR JUSTICE WALKER, J.A THE HON MR JUSTICE HARRISON, J.A. (Ag.)

REGINA

V

STEVEN GRANT

F.M.G. Phipps, Q.C., Walter Scott and Christopher Townsend instructed by Mrs Sharon Usim of Chancellor & Co. for the applicant.

David Fraser, Deputy Director of Public Prosecutions, for the Crown.

Mrs Susan Reid-Jones and Miss Kathryn Denbow of the Attorney General's Chambers instructed by the Director of State Proceedings as Intervenors.

CRIMINAL LAW - Murder - Unreasonable verdict - Admission of inadmissible evidence - Self-defence - Excessive sentencing - Fair hearing

ORDER

BINGHAM, J.A.

The application for leave to appeal is granted. The hearing of the application is treated as the hearing of the appeal which is dismissed.

The conviction and sentence is affirmed. The sentence shall commence as from June 4, 2003.

BINGHAM, J.A:

1 The applicant Steven Grant, following a hearing in the Home Circuit Court before Mrs Justice Marva McIntosh sitting with a jury and occupying some ten days was tried and convicted on an indictment charging him with the murder of Kymani Bailey on April 18, 1999. He was sentenced to life imprisonment and ordered not to be eligible for parole until after he had served a period of twenty (20) years.

2 The applicant gave Notice of Appeal against his conviction and sentence. This application was considered and refused by the single judge. It is now renewed before us. Over a period of ten days this Court heard arguments from counsel for the applicant and the Crown. We were also assisted by the arguments of counsel from the Chambers of the Attorney General touching on the constitutional questions raised in grounds 3 and 6 of the appeal. At the end of the arguments we reserved our judgment. This judgment now follows.

3 The facts

4 The deceased Kymani Bailey, a seventeen year old school boy, was shot dead while in a car park which is situated to the rear of the Kentucky Fried Chicken Restaurant on Knutsford Boulevard in St Andrew. There is no dispute that he was shot several times by bullets from a firearm which was at all material times in the hand of the applicant. The medical evidence disclosed that of the thirteen bullet entry wounds seen on the body of the deceased at the post mortem examination, eleven of these entry wounds were to the back of the body.

5 The applicant made a report to the police shortly after the shooting. In his testimony at the trial, while he admitted discharging the weapon, he said that he did so in self-defence following an attack on him by the deceased who was armed with a gun. He was then in the process of walking in the car park to his pick-up which was parked there. He recalled discharging the firearm at the deceased while he was facing him after which the deceased turned and was retreating. He continued to discharge several shots at the deceased who was moving away with his back turned to hirn. He was unable to say how many shots he discharged from the firearm. There is no evidence that at anytime during the incident as related by the applicant, did the deceased attempt to discharge the gun which he was armed with, nor was any gun found at or near the scene of the shooting or in the vicinity where the deceased fell.

6 Given the manner of the retaliation resorted to by the applicant, it is arguable as to whether such conduct on his part was necessary given the nature of the attack made on him by the deceased. The applicant discharged some thirteen bullets from the 9 m.m. semi-automatic pistol which holds fourteen rounds of ammunition when fully loaded. These bullets when discharged all found their mark on the deceased, eleven entering the back of the deceased's body.

7 The Crown in presenting its case called some eight witnesses. Four of these persons were called to provide the basis for the admission into evidence of the depositions and statements of relevant and material witnesses. Of these four persons, one had died following the post mortem examination and one could not be found after giving a statement to the police. Of the other two persons, one was abroad and unavailable after deponing at the preliminary examination and the other who took a statement from the applicant had since left the Constabulary Force and the jurisdiction, and was residing in the United States of America working, having overstayed his time on a visitor's visa. Of these witnesses, the evidence contained in the medical report and depositions of Dr Ere Sheshaiah, who performed the post mortem examination on the body of the deceased and the statement of Xavier Newton Bryant were of crucial importance to the Crown's case.

8 It, was given this factual background that learned Queen's Counsel for the applicant sought to mount his challenge to the conviction by relying on the following grounds of complaint viz:

• 1. The verdict was unreasonable having regard to the evidence.

• 2. The learned trial judge erred in admitting inadmissible evidence in support of the Crown's case.

• 3. The learned trial judge erred in law in failing to consider and to give effect to the Constitution of Jamaica.

• 4. The learned trial judge misdirected the jury on self-defence. This misdirection was carried over into her direction on provocation and in relation to her direction on inferences.

• 5. The sentence passed on the applicant was in the circumstances manifestly excessive. The applicant sought and obtained the leave of the Court to add the following ground viz:

• 6. The applicant was denied a fair hearing both at common law and within the meaning of section 20 of the Constitution of Jamaica by the failure of the prosecution to apply for the admission in evidence of the statement of Michael Kinlocke, or alternatively by the failure of the learned trial judge in all the circumstances to admit the said statement of Michael Kinlocke so that all relevant material would be before the jury.

9 Learned Queen's Counsel in outlining the approach to be adopted in presenting the submissions on behalf of the applicant stated that he would argue grounds 2 and 3 together followed by ground 1 and then ground 6. Mr Scott would then present the arguments in respect of ground 4.

10 Learned counsel for the applicant Mr Phipps, Q.C., submitted that the documents containing a statement made by Xavier Newton Bryant and the post mortem report of Dr Ere Sheshaiah were hearsay and wrongly admitted in evidence without the maker of the statement attending to give evidence. Section 31 D(d) of the Evidence Act ("the Act") allows for the learned trial judge to exercise her discretion to admit into evidence a statement made in a document provided;

"it is proved to the satisfaction of the court that such a person cannot be found after all reasonable steps have been taken to find him."

11 Counsel submitted that the admission info evidence of the statement of Xavier Newton Bryant and the reading by Dr Clifford of Dr Sheshaiah's report were in breach of section 20(6) of the Constitution of Jamaica. Counsel contended that these documents were admitted in evidence( under the provisions of section 31 D of the Evidence (Amendment) Act 1995 which section was inconsistent with section 20(6)(d) of the Constitution of Jamaica. It was therefore caught by section 2 of the Constitution and is therefore illegal, void and of no effect.

12 Moreover as the statement of Xavier Bryant and the post mortem report were read to the jury without the applicant having the opportunity to examine in person or by his legal representatives the maker of the statement, or the report as provided in section 20(6)(d) of the Constitution, this resulted in the denial of a fair hearing and a serious miscarriage of justice.

13 Queen's Counsel contends that the right of an accused person to confront one's accusers and to be afforded the opportunity to cross-examine witnesses called to testify on behalf of the prosecution by virtue of section 20(6)(d) of the Constitution is an absolute right. In so far as section 31 D of the Evidence (Amendment) Act 1995, when examined, can be seen as a derogation of such a right, it is consistent with this provision and subject thereby to the effect of section 2 of the Constitution.

14 Learned counsel for the Crown in responding submitted that the evidence contained in the statement of Xavier Newton Bryant was rightly admitted by the learned trial judge. In doing so she acted by virtue of the provisions of section 31 D of the Evidence Act. This subsection creates a statutory exception to the hearsay rule by providing for the admissibility of first hand hearsay statements in criminal proceedings, once the learned trial judge is satisfied by cogent evidence presented that any one of the five conditions listed in (a) to (e) of section 31 D is satisfied. Section 31 D states:

"Subject to section 31 G, 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 a person-

• (a) is dead;

• (b) is unfit by reason of bodily or mental condition to attend as a witness;

• (c) is outside of Jamaica and it is not reasonably practicable to secure his attendance;

• (d) cannot be found after all reasonable steps have been taken to find him or;

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

15 Given the above-mentioned conditions, it is necessary to examine the evidence adduced by the prosecution which formed the basis for satisfying the court that there were sufficient grounds shown for admitting the statement of Bryant in respect of section 31 D(d) of the Act.

16 The learned trial judge heard the...