Raymond Bailey v R

• Jurisdiction: Jamaica
• Court: Court of Appeal (Jamaica)
• Judge: Brown JA (AG)
• Judgment Date: 08 October 2021
• Neutral Citation: JM 2021 CA 114
• Docket Number: SUPREME COURT CRIMINAL APPEAL NO 51/2014
• Originating Jurisdiction: http://justis.com/jurisdiction/252

Raymond Bailey

and

R

[2021] JMCA Crim 34

BEFORE:

THE HON Mrs Justice McDonald-Bishop JA

THE HON Mrs Justice V Harris JA

THE HON Mr Justice Brown JA (AG)

SUPREME COURT CRIMINAL APPEAL NO 51/2014

IN THE COURT OF APPEAL

Ms Zara Lewis for the applicant

Adley Duncan and Miss Cindi-Kay Graham for the Crown

Brown JA (AG)

Introduction

1 Raymond Bailey (‘the applicant’) was convicted in the Circuit Court for the parish of Clarendon on 6 May 2014 for the offence of murder before a judge (‘the learned judge’), sitting with a jury. On 15 May 2014, he was sentenced to 20 years’ imprisonment with the stipulation that he serves 15 years before becoming eligible for parole.

2 The applicant's application for leave to appeal was refused by a single judge of this court on 7 August 2020. As is his right, he has renewed his application before the court. We heard his application on 1 and 4 June 2021. At the end of the hearing, we announced our decision and made the following orders:

• “1. The application for leave to appeal conviction and sentence is granted.

• 2. The hearing of the application for leave to appeal conviction and sentence is treated as the hearing of the appeal.

• 3. The appeal is allowed.

• 4. The conviction for murder is quashed and a verdict and judgment of acquittal is entered for that offence and a verdict of guilty of manslaughter is substituted.

• 5. The sentence of 20 years' imprisonment at hard labour with the stipulation that the applicant serve 15 years before eligibility for parole imposed for murder is set aside and a sentence of 11 years imprisonment at hard labour for manslaughter is substituted.

• 6. The sentence is to be reckoned as having commenced on 15 May 2014.”

3 At the time we made the orders above, we promised that our reasons in writing would follow. This is a fulfilment of that promise. However, before setting out the reasons for our decision, it is appropriate to provide the facts which give those reasons context.

The case at trial

(a) Facts not in dispute

4 Our recount of the facts is somewhat hampered by the absence of sizeable portions of the transcript. This appears to have been a re-trial. Both the prosecution and the defence agreed that the events giving rise to the charge in the indictment, occurred in Mumby District in the parish of Clarendon, on 22 September 2008, at the premises where Fitz Hamilton (‘the deceased’) resided. The applicant and Miss Emily Shand also occupied separate houses at the same premises.

5 Quite apart from the convergence of the defence and prosecution on the location, all agreed that the deceased met his death at the hands of the applicant. The deceased died from injuries he sustained when the applicant struck him in the head with a length of iron pipe. Dr Brennon, who performed the post-mortem examination, testified that, in his opinion, the cause of death was due to laceration to the brain, secondary to multiple skull fractures due to blunt force trauma.

6 In addition to agreement regarding the injuries the deceased sustained, and at whose hands, it was also agreed that up to the date of the events, the deceased and Horaldo Allen, the mother of the applicant, had been engaged in a visiting relationship. Miss Allen resided at nearby premises. Their relationship, it appears, was somewhat tumultuous. Sometime in the morning on 22 September 2008, there was a dispute between the deceased and Miss Allen during which the applicant was not present. It appears there was a lull in their dispute, which transitioned into a dispute that night.

7 It was during the later incident that the deceased came to meet his death. Each side gave a different account about how the deceased died. Since the case for each diverged on the manner of the death of the deceased, we endeavour to summarize the case presented by each. We commence with the case for the prosecution.

(b) Case for the prosecution

8 The case for the prosecution depended primarily on the evidence of the eyewitness, Emily Shand. In her examination-in-chief, she testified that while she was inside her dwelling, she overheard a quarrel taking place between Jason Whyte, Richard Bailey, aka Buba, brothers of the applicant, and the deceased. From the exchange between Bench and Bar, it appears at one point during the quarrel, Miss Shand also heard the voice of the applicant. However, when the examination-in-chief continued, it was disclosed that the applicant's voice was not among the voices she had heard whilst inside.

9 After hearing the voices, she went and stood at her doorway. She was directed to relate what she saw after the quarrel. Miss Shand said she saw the applicant leave from his doorway with a piece of iron. She said he got the piece of iron from behind his door, which the applicant used to ‘cotch’ his door. After so arming himself, the applicant headed to the back of the house of the deceased. To get to the back of the deceased man's house, the applicant walked then ran.

10 Shortly after that, Miss Shand then heard a sound, ‘boof’, as she described it. The deceased was then heard to say, “Raymond nuh kill mi”. The applicant then delivered another blow to the deceased. At this point, Miss Shand said to the applicant, “Raymond weh you a kill Fitz fah?”

11 According to Miss Shand, after the applicant delivered the last blow, he went and sat on the concrete. She spoke to the applicant, but he made no response. Instead, he only stared into space, according to her.

12 Miss Shand's version of the incident was challenged under cross-examination. Her evidence that she saw the applicant picked up the piece of iron and went to the back of the deceased house was an omission from her written statement to the police. Other material aspects of her evidence were shown to have been omitted from her police statement, deposition or the transcript of the previous trial. It was suggested to her that she was not a witness to what transpired and that she arrived at the premises when the deceased was being placed in a vehicle.

13 Detective Corporal Dave Dewar visited the premises the following morning, 23 September 2008, in the company of Detective Sergeant Hutchinson. In his evidence, he stated that whilst at the premises, Detective Sergeant Hutchinson took the applicant to him and, in the presence of the applicant, said, “Dewar, him seh ah him kill de man”. The court interjected, then Detective Corporal Dewar continued, “Dewar, Mr Bailey seh a him lick de man with piece a iron”. The applicant did not comment when this was said. The applicant then handed a piece of iron to Detective Corporal Dewar, who took him into custody. The length of iron was also taken to the police station, where it was tagged and labelled in the presence of the applicant.

14 On 24 September 2008, Detective Corporal Dewar charged the applicant for the murder of the deceased. He cautioned the applicant. The applicant replied, “ah wah dis mi get myself into sah”. After that, the applicant kept looking down and said, “ah mi kill him”. Asked under cross-examination whether he understood the latter comment to have been a confession, Detective Corporal Dewar said he understood the applicant to be lamenting. By ‘lamenting’ Detective Corporal Dewar meant, “like he was shocked about what happened”. He said the applicant was not arguing, he was looking dazed.

(c) Case for the defence

15 The applicant gave an unsworn statement from the dock. He said in 2008, the deceased and his mother had a dispute. He went there to talk to the deceased. As soon as he got there, the deceased “back out a cutlis” on him, and he used a piece of iron to defend himself. Neither Miss Shand, Buba, nor Jason White was there. He denied giving to the police the piece of iron that was brought to court. He said that was not the iron. He ended by saying he was sorry the deceased died but that it could have been him.

The appeal

16 At the start of the hearing, leave was granted to the applicant to abandon the original grounds of appeal and to argue two supplementary grounds of appeal. Those supplementary grounds of appeal are set out below:

“1. The failure of the defence counsel to lead evidence of the deceased's abuse of the Applicants [sic] mother's [sic] on the day of the incident and other acts of abuse prior to [the] incident during the trial before the jury deprived the Applicant of the opportunity to present his full defence, in particular, as it relates to whether there was available to the Appellant [sic] the partial defence of provocation in addition to the Defence of Self Defence [sic].

2. The conviction is manifestly unreasonable and cannot be supported having regard to the mismanagement of the case by Defence Counsel in this matter.”

Supplementary ground one

17 Both parties made submissions on ground one. Based on those submissions, it became clear to the court that the issue arising was whether the learned judge erred in excluding relevant evidence and failing to direct the jury in relation to provocation.

18 At the end of these submissions and the exchanges between the Bench and the Bar, the hearing was adjourned to facilitate the applicant's counsel filing and serving further supplementary grounds, along with written submissions. Time was also allowed for the Crown to respond. The appeal proceeded and was decided based on these further supplementary grounds.

The further supplementary grounds

19 The following three further supplementary grounds of appeal were filed and leave granted for them to be argued:

“1. The learned trial judge erred in law in failing to raise and/or leave the issue of provocation to the jury.

2. The conviction is manifestly unreasonable and cannot be supported having regard to Trial [sic] judge's failure to raise and/or properly direct the jury on the issue of provocation in the matter.

3. In light of the foregoing the sentence imposed of [t]wenty (20) years at hard labour not eligible...