R v Williams

• Jurisdiction: Jamaica
• Judge: HARRISON. J.A.
• Judgment Date: 29 September 1998
• Neutral Citation: JM 1999 CA 22
• Judgment citation (vLex): [1999] 3 JJC 2605
• Court: Court of Appeal (Jamaica)
• Date: 29 September 1998

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR. JUSTICE GORDON, J.A THE HON. MR. JUSTICE PATTERSON, J.A THE HON. MR JUSTICE HARRISON, J.A

REGINA

vs.

RICARDO WILLIAMS

Terrence Williams for the appellant

Miss Lorna Shelley for Crown

CRIMINAL LAW - Murder - Confession

HARRISON. J.A.

1 The appellant was convicted by a jury in the Home Circuit Court presided over by Ellis, J. on the 13th February, 1997 of the murder of Leslie Grant committed on 26th May 1994, and sentenced to be detained at the Governor-General's pleasure.

2 The Crown's case was based on a confession statement given by the appellant to the police and witnessed by a Justice of the Peace.

3 The facts as disclosed in the said statement are that the appellant along with one Booker T. and Richie went to the area where one Driver lived. Booker T. punctured Driver's car tyre and all three left and went to the home of one Diago, Booker T's cousin, who gave Booker T a gun. Booker T said in the appellant's presence that he was going to kill Driver, and asked Richie if he Richie was going to help him to murder him. Richie answered that he did not know. The appellant, Booker T and Richie returned to Driver's home. Driver was then underneath his car. Booker T went up to the car and shot Driver in his head Booker T gave the gun to the appellant who "shot...him in a him head." The appellant gave the gun to Richie and they all left.

4 Detective Corporal McRae said he received a report on the morning of 24th May 1994 and went to Seaview Gardens in the parish of St. Andrew and saw the dead body of a man lying "under a van" with a wound to his head; the body was removed to the morgue. On 11th July, 1994 Detective McRae saw the appellant along with Detective Sergeant Ashman and a Justice of the Peace at the Hunts Bay police station, along with the said and later received the said statement from Detective Sergeant Ashman duly signed, by the appellant and witnessed. Detective McRae arrested the appellant for the murder of Leslie Grant, cautioned him and the appellant replied:

"A Booker T give me the gun fi shoot Driver and if mi never do it him would a shoot me sah."

5 Detective McRae knew of Diago and of Booker T in the Seaview Gardens area.

6 The cautioned statement was admitted in evidence without objection. There was no challenge as to its voluntariness. No voir dire was held.

7 Dr. Memory Stennett gave evidence that she performed a postmortem examination on a body identified by Henry Harrison as Leslie Grant, on 6th June 1994. The cause of death was due to a single gunshot wound to the left side of the head, with damage to the brain.

8 The appellant gave sworn evidence that "...that day with Booker T and Driver.." he was at Seaview Gardens, on his way to the shop when Booker T called him and he "...dip him hand in him belly and draw out de gun and call me and den me go to him." Booker T walked to Driver's car and fired a shot underneath the car. He then saw blood come from underneath the car and saw "him foot." Booker T then said to the appellant "Tek it or I kill you", and as a consequence the appellant"... tek it and fire one shot."

9 The appellant in cross-examination admitted that he signed the pages of the cautioned statement after having seen Detective Ashman write on it, denied that he told the police what is contained in it or witnessed it or that a Justice of the Peace was present and witnessed it when he signed. The appellant said he fired the shot because he did not want Booker T to kill him.

10 The appellant was therefore at this latter stage denying authorship of the confession statement which had already been read to the jury having been admitted as an exhibit. The authorship of the said statement was therefore first raised in the cross examination of the appellant. Counsel for the appellant had not raised previously any challenge to its voluntariness or authorship.

11 Mr. Williams argued as ground four, having chosen not to proceed with the original three grounds of appeal, that:

• "4. The learned trial judge failed to order a voire dire into the circumstances under which the applicant gave the caution statement."

12 The confession statement of an accused must be voluntarily given in order to be admissible in evidence. The said statement of the appellant was admitted on the basis of the evidence of Detective Sargeant Ashman, that:

"He made the statement of his own free-will. He was not promised anything, put under any duress or threatened."

13 There was no initial denial that the statement was given voluntarily and therefore it was unnecessary when first tendered in the prosecution's case to hold a voir dire. However when the appellant said in cross-examination that he did not tell the police what was contained in the statement, he was thereby denying its authorship, and therefore the question of its admissibility arose. The relevant portion of the evidence of the cross-examination of the appellant reads:

"Q. You gave a statement to the police?

A. No, sir, only sign mi name.

Q. Only signed your name?

A. Yes, sir.

Q. Did you give them a statement? A. No, sir.

Q. You told the police how it 'goh'

A. No."

14 At this stage of the proceedings the question of voluntariness, arising for the first time, the question arose as to whether or not it was incumbent on the learned trial judge to re-consider and make a ruling on the admissibility of the said cautioned statement: ( R.v. Watson [1980] 2 All E.R. 293 — although there, a voir dire had been conducted). This is so although its contents were already evidence heard by the jury and moreso because it formed the entire basis of the prosecution's case. In the circumstances of this case the learned trial judge had an obligation to reconsider his ruling. He not having done so, the appellant was denied the benefit of a ruling. If the learned trial judge had subsequently reversed his ruling and ruled that the said statement was not voluntary or that he doubted its voluntariness, he would have been obliged to direct the jury to disregard it and to acquit the appellant. If he ruled that it was voluntary he would have been obliged to direct the jury to consider its voluntariness and the circumstances under which it was taken, not as to its admissibility but as to its weight and value: ( R. v Delroy Townsend unreported S.C.C.A. No 23/92 delivered 31st. May. 1993).

15 In Ajodha vs. The State [1982] AC. 204 the Board of the Judicial Committee of the Privy Council, in considering the issue of voluntariness of the confession statement of the appellant, said at page 223 (per Lord Bridge):

• "(2) Though the case for the defence raises an issue as to the voluntariness of a statement in accordance with the principles indicated earlier in this judgment, defending counsel may for tactical reasons prefer that the evidence bearing on that issue be heard before the jury, with a single...