R v Taylor (Syreena)
| Jurisdiction | Jamaica |
| Judge | HARRIS, J. A. (Ag.) |
| Judgment Date | 29 July 2005 |
| Neutral Citation | JM 2005 CA 53 |
| Judgment citation (vLex) | [2005] 7 JJC 2905 |
| Court | Court of Appeal (Jamaica) |
| Date | 29 July 2005 |
CRIMINAL LAW - Wounding
On April 7, 2005 we refused an application by the applicant for leave to appeal against conviction and sentence and we now put our reasons in writing.
The applicant was convicted in the Saint Catherine Circuit Court on April 21, 2004, on the second of two counts of an indictment. The first count charged her with causing grievous bodily harm with intent and the second count charged her with inflicting grievous bodily harm. She was sentenced to a term of two years imprisonment at hard labour.
The facts are that at about 8 p.m. on November 3, 1997, the complainant, a Mr. Oliver Habib, with whom the applicant had been involved in an intimate relationship, was at her home in Portmore, St. Catherine. The applicant was conversing with someone on the telephone. The complainant was watching the television set. He told her that he would be leaving if she did not come off the telephone. She continued the conversation. The complainant took up his bag and went to the verandah but found it locked. The applicant then said to him "if you are going to leave take everything."
The complainant proceeded to pack and while he did so, the applicant appeared with a container in hand which she placed on the floor. The complainant advanced towards the grill door which the applicant opened, as he was going down the steps, she said to him "I am going to see who you are going to sleep with tonight." When he got to the walkway, he looked around. The applicant threw liquid from the container on him and ran. His shirt melted. He ran leaving his bag and shirt on the walkway. He was hospitalized for two days. On his release from hospital on November 5, 1997, he attended the Police Station and made a report. On that date the police recovered the shirt and bag from the walk way.
The applicant, in her defence, in an unsworn statement, stated that she had refused to obey the complainant's order to end the telephone conversation. He unplugged the telephone, grabbed her, chased her into the bathroom and in the act of hitting her, she picked up a bottle which she threw at him and he ran. This the jury rejected.
Mrs. Samuels- Brown, counsel for the applicant, placed reliance on seven grounds of appeal.
Ground 1 was couched in the following terms:
"The learned trial judge's directions as to the standard of proof was confusing and /or fell short of what was required as while he directed the jury that they need not be absolutely certain he went on to tell the jury that once they accepted, on the evidence, the prosecutor's version and felt sure then the prosecutor had discharged its burden to the requisite standard."
Mrs. Samuels-Brown urged that the directions of the learned trial judge on the standard of proof was confusing. However, the gravamen of her complaint was that he failed to explain to the jury what, as a matter of law, is meant by "certain".
The learned trial judge expressly told the jury in clear terms that the prosecution's duty to prove the case carried with it a particular standard and this standard is that they must be satisfied by the prosecution to the extent that they felt sure of the guilt of the applicant. The use of the word "certain" had not been introduced by him. He alluded to the word "certain" with reference to Counsel's address to the jury when she used the words "sure" and "certain" interchangeably. The learned trial judge impressed upon them that they must feel sure of the guilt of the accused, as, they could only be absolutely certain if they had been present, observing what had transpired.
The learned trial judge in that respect gave adequate, clear and proper directions to the jury touching the standard of proof. This ground is devoid of merit and therefore fails.
Ground 2 is stated thus:
"The learned trial judge's directions in relation to the second count on the indictment were inadequate; in particular the directions relative to intention were misleading. Further the subjective test which is relevant to self defence was omitted from the learned trial judge's directions when he dealt with the evidence in the case and the Appellant's unsworn statement."
Mrs. Samuels-Brown contended that the learned trial judge directed the jury that if they found that the applicant had acted in self-defence then she would not be guilty of any of the counts on the indictment and although initially he had correctly made reference to honest belief in defining self-defence, in treating with the evidence he, in effect, abandoned the element of honest belief and dealt only with the actuality of an attack.
In support of her contention she placed reliance on the case of R v. Webley 27 JLR 439. In that case the learned trial judge had erroneously left the jury with the impression that the onus of proof of self defence rested on the accused.
The case of R v Webly (supra) is distinguishable from the present case. In the case under review, the learned trial judge in dealing with the issue of self defence, outlined the law relevant thereto and related it to the evidence taking into account the defence raised by the applicant. He did not fail to mention that the prosecution must prove that the applicant was not acting in self- defence.
The evidence clearly disclosed that there was an attack by the applicant upon the complainant. Where the evidence demonstrates that there was an attack on a complainant, the element of honest belief does not arise and it would not be obligatory on the part of a trial judge to instruct a jury on the question of honest belief, Beckford v R. [1987] 3 All E.R. 425 ).
The learned trial judge specifically told the jury that in relation to both counts of the indictment if they found that the applicant was acting in self-defence, she should be acquitted. He also told them if they were unsure whether she was acting in self defence she should be acquitted on both counts and that she could only be found guilty on either of the two counts, if they found that she was not acting in self defence.
The learned trial judge had adequately and satisfactorily dealt with the issue of self-defence. No misdirection can be ascribed to him. Ground 2 also fails.
Ground 3 was stated as follows:
"The learned trial judge erred in that, in effect, he directed the jury that the virtual complainant refreshing his memory was irrelevant whereas it is a relevant matter in assessing the reliability of the witness."
Mrs Samuels-Brown argued that while it is permissible for a witness to refresh his memory from his statement prior to giving his evidence, the fact that the complainant did so, is relevant to the weight to be placed on his evidence and that the learned trial judge in effect directed the jury that his refreshing of his memory was irrelevant.
She prayed in aid, the case of R v Westwell (1976) 2 All E R 812. In that case it was held that there was no general rule that prospective witnesses may not be allowed to see their statements before giving evidence. They, however, may be denied this opportunity if it was in the interest of justice so to...
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Horace Kirby v R
...miscarriage of justice’. 8 In support of his submissions, Mr Harrison relied on the cases of Kevaughn Irving v R [2010] JMCA Crim 55, Syreena Taylor v R SCCA No 95/2004 (delivered 29 July 2005), Edmund Gilbert v R PCA No 25/2005 (delivered 27 March 2006), R v Desmond McKenzie SCCA No 47/199......