R v Thompson

JurisdictionJamaica
JudgeLewis, J.
Judgment Date01 January 1963
Neutral CitationJM 1963 CA 23
Docket NumberCriminal Appeal No.180 of 1963
CourtCourt of Appeal (Jamaica)
Date01 January 1963

Court of Appeal

Duffus, P.; Lewis, J.; Henriques, J.

Criminal Appeal No.180 of 1963

R.
and
Thompson

Practice and Procedure - Appeals — Dismissal

Lewis, J.
1

On the 7 th February, 1964, the court dismissed this motion on relist an appeal by the appellant against his conviction for unlawful wounding, and stated that it would put its reasons in writing.

2

The applicant had been released on bail and had been duly notified of the date fixed for the hearing of his appeal. He failed to appear by himself or his counsel at the hearing as required by Sec.297 of the Judicatures (R.M.) Law Cap.179 and the court dismissed his appeal.

3

The motion was supported by an affidavit sworn by Mr. Richard Albert Mahfood, Barrister-at-Law, who also appeared as counsel at the hearing.

4

In his affidavit, as simplified by his statement to this court, Mr. Mahfood said that on the 17 th October, 1963, he was briefed to appear on behalf of the appellant in the appeal listed for 21 st October, 1963. The appeal was not heard on that day and was subsequently relisted for the 10 th December.Unfortunately, his brief was mislaid and as he was under the impression that the appeal was a civil one, he did not search the criminal lists for it. It was only on the 30 th January, 1964 that he was informed by his instructing solicitors and became aware that the appeal had been called on December 10 th and dismissed for non-appearance. The affidavit further alleged that there was merit in the appeal, and the court's attention was drawn to the grounds of appeal relating to the proof of identity and to an affidavit by Dr.O'gilvie, a dental surgeon filed therewith. In this affidavit, Dr.O'gilvie stated that he had examined the appellant on a date subsequent to his conviction and expressed the opinion that the space left in the upper jaw of the appellant's mouth by a missing front tooth had never been filled in with a false tooth. The court was asked to relist the appeal and allow this fresh evidence to be given on the ground that it was highly relevant to the question of identity and must, if laid before the Resident Magistrate, have affected his decision.

5

This court undoubtedly has a wide power to receive fresh evidence on appeal under Sec.26 of the Judicature (Appellate Jurisdiction) Law, 1962, the provisions of which are similar to those of sec.9 of the Criminal Appeal Act,(1907)(U.K.).The principles upon which this power is exercised by the court of Criminal Appeal have been laid down in a number of cases, and were summarised as follows by lord Parker, C.J.in R. v. Parks, 46 Cr.App.R.29 at p.32: -

“First, the evidence that it is sought to call must be evidence which was not available at the trial.Secondly, and this goes without saying, it must be evidence relevant to the issues.Thirdly, it must be evidence, which is credible evidence in the sense that it is well capable of belief; it is not for this court to decide whether it is to be believed or not but evidence, which is capable of belief.Fourthly, the court will, after considering that evidence, go on to consider whether there might have been a reasonable doubt in the minds of the jury as to the guilt of the appellant if that evidence had been given together with the other evidence at the trial.”

6

Although this court, unlike the English court, has power to order a new trial, and may therefore be disposed to adopt a somewhat less rigid attitude towards the reception of fresh evidence, it is only in the most exceptional circumstances that it will allow such evidence to be given of matters which have occurred since the conviction and which therefore would not have been laid before the Resident Magistrate. In the instant case the identification of the appellant, positively sworn to by the prosecution witnesses, was clinched by the evidence of a witness called on his behalf who stated that he had known the appellant for three years, seeing him almost daily, and that he knew him to wear a gold tip in his upper denture, but that on the day of the trial this tip was missing form his mouth. In our view the evidence now sought to be adduced is of slight weight and could not have affected the Magistrate's decision.

7

No other ground of merit in the...

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