Ricketo Graham v R

JurisdictionJamaica
JudgeBrown Beckford JA
Judgment Date15 October 2021
Neutral CitationJM 2021 CA 108
Docket NumberSUPREME COURT CRIMINAL APPEAL NO 64/2017
CourtCourt of Appeal (Jamaica)

[2021] JMCA Crim 36

IN THE COURT OF APPEAL

BEFORE:

The Hon Mrs Justice McDonald-Bishop JA

The Hon Mrs Justice Foster-Pusey JA

The Hon Mrs Justice Brown Beckford JA (AG)

SUPREME COURT CRIMINAL APPEAL NO 64/2017

Ricketo Graham
and
R

Mrs Carolyn Reid-Cameron QC and Kimani Brydson for the appellant

Miss Sophia Thomas for the Crown

Brown Beckford JA (AG)

Introduction
1

Mr Ricketo Graham was convicted on 7 June 2017 of the offence of murder after a trial by a judge sitting with a jury in the Circuit Court for the parish of Saint Ann. He was sentenced on 14 July 2017 to life imprisonment with the stipulation that he serves 35 years before being eligible for parole. He applied for leave to appeal his conviction and sentence on the ground that the learned trial judge erred and misdirected the jury. His application was considered by a single judge of this court who refused leave to appeal his conviction but granted leave to appeal his sentence. Before us he renewed his application for leave to appeal his conviction as is his right to do. Given that he has been granted leave to appeal his sentence, he will be referred to as the appellant for the purposes of the proceedings.

2

On 9 June 2021, the court having heard and considered the submissions of counsel on the renewed application for leave to appeal conviction and the appeal against sentence, and bearing in mind the evidence at the trial and the applicable law, made the following orders:

We promised to put our reasons in writing. This judgment is a fulfilment of that promise.

  • i. “The application for leave to appeal conviction is granted.

  • ii. The hearing of the application for leave to appeal conviction is treated as the hearing of the appeal against conviction.

  • iii. The appeal against conviction and sentence is allowed.

  • iv. The conviction is quashed and the sentence set aside.

  • v. A new trial is ordered and the case is remitted to the Circuit Court for the parish of Saint Ann for retrial at the earliest possible time. The case is fixed for mention on 27 September 2021 in the Circuit Court for the parish of St. Ann

  • vi. The appellant is at liberty to apply for bail in the Supreme Court or in the Circuit Court for the parish of Saint Ann as soon as is reasonably practicable.”

3

At the commencement of the hearing before us, permission was granted to the appellant to abandon the original grounds of appeal dated 18 July 2017 and to argue four supplemental grounds of appeal filed on 31 May 2021 and 7 June 2021 in the order as follows.

Grounds
  • i. “The learned trial judge erred in law in failing to leave for the jury's consideration the statutory defence available to the appellant by virtue of Section 13 of the Constabulary Force Act thus denying the appellant a fair trial.

  • ii. The learned trial judge erred in law and fact in failing to recognise the main witness for the prosecution, Reneque Pearson, as an accomplice or, at the very least, a witness with an interest to serve, and this deprived the appellant of a fair trial when the learned judge failed to:

    • a. give the jury the required corroboration warning;

    • b. give the jury guidance/directions on the effect of the witness' status on his credibility and how to treat with it; and

    • c. disallow any references to the alleged text messages between the appellant and the main prosecution witness who clearly had an interest to serve.

  • iii. The learned trial judge erred in law when he failed to exclude the evidence of Dr Jerome Taylor regarding comments made to him by the patient he was treating as hearsay, thus depriving the appellant of a fair trial.

  • iv. The sentence is manifestly excessive.”

Factual background
4

The appellant was a police constable stationed at the Brown's Town Police Station. On 12 July 2013, he was on Criminal Investigation Branch (CIB) duties. He left the police station together with Constable Reneque Pearson on foot patrol. At about 2.00 am on the 13 th, Mr Christopher Hill was seen at a nightclub and apprehended by the appellant on the basis that he resembled a person wanted by the police. Together with Constable Pearson, the appellant walked with Mr Hill to the Brown's Town Police Station but did not enter the building. Instead they boarded a police service vehicle intending to drive to Mr Hill's home. However, the appellant dropped off Mr Hill and Constable Pearson along the roadway, in the vicinity of a church, and drove back to the police station. He returned to where they were on foot. All three then walked to the police station where Mr Hill was questioned. The information given by Mr Hill was recorded in a notebook. A knapsack which he had with him was searched by the appellant and found to contain clothing.

5

All three men then left the police station with Constable Pearson holding on to Mr Hill. Mr Hill's knapsack was left on a table at the station The appellant took them to an area which had a wall with a house in the vicinity. Constable Pearson was holding Mr Hill against the wall when he heard an explosion and saw Mr Hill begin to fall. The appellant then invited Constable Pearson to “give him one”. Constable Pearson declined to so participate, saying he was afraid. He then saw the appellant shoot Mr Hill. Constable Pearson returned to the police station by himself and made contact with his supervisor, Sergeant Davis. Sergeant Davis eventually came to the scene and he, Constable Pearson and the appellant took Mr Hill to the Saint Ann's Bay Hospital and left him there.

6

Dr Jerome Taylor was the attending physician of a patient at the Saint Ann's Bay Hospital who identified himself as Christopher Hill. Dr Taylor gave evidence that Mr Hill jumped up from a stretcher, which was wheeled into the accident and emergency area, and shouted that he was not dead. On enquiring, Mr Hill told him that one police officer held him while the other shot him twice. Mr Hill subsequently died while undergoing treatment.

7

Both the appellant and Constable Pearson related to The Independent Commission of Investigations (INDECOM) and senior police personnel that the deceased attacked them with a ratchet knife and the appellant defended himself and Constable Pearson. Constable Pearson later changed this account to state that he and the appellant were never attacked by the deceased and that he gave this account out of fear of the appellant.

8

At trial, the appellant gave an unsworn statement from the dock. He asserted that he was a member of the Jamaica Constabulary Force. While performing his lawful duty as a police officer, the deceased attacked him and Constable Pearson with a ratchet knife. He defended them both by shooting the deceased. The appellant said that he sustained injuries in the attack by Mr Hill in the region of his abdomen. He further stated that the initial account given by Constable Pearson was a correct one, and that Constable Pearson was forced to change his account and give a false report after threats from a senior officer.

Analysis
Ground 1-The statutory defence available to the appellant by virtue of Section 13 of the Constabulary Force Act
9

Counsel for the appellant relied on the cases of Glenroy McDermott v R (unreported), Court of Appeal, Jamaica, Supreme Court Criminal Appeal No 38/2006, judgment delivered 14 March 2008, Vince Edwards v R [2017] JMCA 24 (‘ Vince Edwards’) and Leonard Lindsay and Another v R [2020] JMCA Crim 51 (‘ Leonard Lindsay’) for the proposition that once the appellant was operating within the context of executing his lawful duties as a police officer. Section 13 of the Constabulary Force Act affords him a defence. This section provides that:

“13. The duties of the Police under this Act shall be to keep watch by day and by night, to preserve the peace, to detect crime, apprehend or summon before a Justice, persons found committing any offence or whom they may reasonably suspect of having committed any offence, or who may be charged with having committed any offence, to serve and to execute all summonses, warrants, subpoenas, notices, and criminal processes issued from any Court of Criminal Justice or by any Justice in a criminal matter and to do and perform all the duties appertaining to the office of a Constable, but it shall not be lawful to employ any member of the Force in the service of any civil process, or in the levying of rents, rates or taxes for or on behalf of any private person or incorporated company.”

10

Counsel further submitted that the learned trial judge has a duty to advise the jury of this statutory defence once it arises even where it is not being relied on by the defence. In determining criminal liability against police officers, where both self-defence and the defence of an officer acting in the course of his duties arise, the learned trial judge must give full directions in respect of both defences.

11

There was no issue that the appellant was acting in the course of his duties as he was on CIB duties when he apprehended the deceased on suspicion that he was wanted by the police. He was still purportedly so acting at the time when he shot Mr Hill.

12

The appellant contended that, as stated categorically in Leonard Lindsay, once the statutory defence arises, even if not relied on, the trial judge's failure to so advise the jury was fatal to the conviction.

13

The prosecution rightly conceded that the learned trial judge failed to direct the jury on the statutory defence available to the applicant, pointing out that the reasoning in Vince Edwards was followed and adopted in Wayne Hamil v R [2021] JMCA Crim 12 (‘ Wayne Hamil’).

14

Vince Edwards, a then corporal in the Island Special Constabulary Force was convicted for murder. The evidence produced by the prosecution was of an altercation which developed into a tussle between the deceased and another man. The deceased was pulled away by two friends in his company. All three entered a...

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