Ronald Webley Rohan Meikle v R

• Jurisdiction: Jamaica
• Judge: Brooks JA
• Judgment Date: 26 April 2013
• Neutral Citation: JM 2013 CA 51
• Docket Number: SUPREME COURT CRIMINAL APPEAL NOS 57 and 58/2011
• Court: Court of Appeal (Jamaica)
• Date: 26 April 2013

[2013] JMCA Crim 22

JAMAICA

IN THE COURT OF APPEAL

Before:

The Hon Mrs Justice Harris Ja

The Hon Miss Justice Phillips Ja

The Hon Mr Justice Brooks Ja

SUPREME COURT CRIMINAL APPEAL NOS 57 and 58/2011

Ronald Webley

Rohan Meikle

and

R

Mrs Melrose Reid for both appellants

Miss Maxine Jackson and Miss Kelly-Ann Boyne for the Crown

CRIMINAL LAW - Wounding with intent - Leave to appeal conviction and sentence - Whether the trial judge descended into the arena rendering the trial unfair and the verdict unreasonable - Whether the trial judge failed to direct the jury on the law of self defence rendering the verdict unsafe - Whether the trial judge was biased in his summation - Whether the trial judge erred in allowing prosecution to lead forensic evidence without disclosure to the defence - Whether verdict unreasonable - Whether the sentence excessive

Brooks JA

1 On 17 June 2011, a jury convicted the appellants, Messrs Ronald Webley and Rohan Meikle, of the offence of wounding with intent to cause grevious bodily harm to Mr Dilroy Wilson. This was in the Circuit Court for the parish of Saint Ann. Mr Webley was sentenced to serve 12 years imprisonment at hard labour while Mr Meikle was sentenced to serve nine years imprisonment at hard labour.

2 A single judge of this court granted permission to the appellants to appeal against their respective convictions. Mrs Melrose Reid, with the permission of the court, in her customary comprehensive style, argued nine grounds of appeal on their behalf. The grounds are:

‘Ground 1: The Learned Trial Judge (LTJ) descended into the arena rendering the trial unfair and the verdict unreasonable.

Ground 2: The LTJ failed to direct the jury on the law of Self Defence rendering the verdict unsafe.

Ground 3: The LTJ gave a wrong direction on Common Design

Ground 4: The LTJ prejudiced the good character direction, resulting in an unfair verdict.

Ground 5: The LTJ was biased in his summation causing the jury to come to a verdict adverse to the Appellants.

Ground 6: (A) The LTJ erred when he allowed Crown Counsel to lead forensic evidence without disclosure to the Defence, and (a) without the Crown calling a Forensic Analysis [and] (B) The LTJ erred when he allowed Crown Counsel to lead unsupported medical evidence.

Ground 7: The Verdict is unreasonable having regard to the evidence.

Ground 8: The prejudicial conduct of the Crown Counsel during the trial render[ed] the trial unfair resulting in an unreasonable verdict.

Ground 9: Sentencing: That the Sentence for each was manifestly excessive.’

An outline of the case for each party shall first be given and, thereafter, each of the grounds will be considered in turn.

The factual background

3 The essence of the case against the appellants is that an altercation occurred between Mr Wilson and Mr Webley at Clifford Hall, in the parish of Saint Ann, on 11 March 2009. At some stage during the quarrel, Mr Wilson fled into a house occupied by Miss Jennifer Wright. He was, at the time, being chased by Messrs Webley and Meikle. It is said that Mr Webley, who was armed with a cutlass, chopped the door of the house, entered the house and chopped Mr Wilson, almost completely severing his right hand. This took place while Mr Meikle was at the door of the house, hurling abuse and threats at Mr Wilson and encouraging the chopping.

4 Mr Webley said that he acted in self defence. He said, in an unsworn statement to the court, that Miss Wright and Mr Wilson, who was armed with a cutlass, entered his yard, attacked and chopped him with a cutlass. He said that he, thereafter, ran from them and they chased him, no doubt with intent to do him further harm. During the chase he saw a cutlass, picked it up and ‘swing it’ in defence of his person. He, however, did not know where, on Mr Wilson's body, the cutlass struck. On his account the injury was inflicted in his yard and not in Miss Wright's house.

5 Mr Meikle, also in an unsworn statement, said that he heard the fracas and saw Mr Wilson and Miss Wright chasing Mr Webley. Mr Meikle said that he was not involved in the incident at all. He merely observed what had occurred.

Ground One: The Learned Trial Judge (LTJ) descended into the arena rendering the trial unfair and the verdict unreasonable.

6 Mrs Reid argued that the learned trial judge ‘not only descended into the arena but stayed there’ and in doing so ‘damaged the case’. Learned counsel pointed to what, she argued, were several transgressions by the learned trial judge, of the rule that the judge must remain aloof of the fray. She asserted that the learned trial judge overstepped his bounds when he:

• a. asked questions of and supplied answers to the witnesses for the prosecution that would have given those witnesses as well as the jury, the impression that he sided with the prosecution;

• b. ‘literally took over the role of the [prosecutor]’ by asking so many questions that it ‘seemed as if [the prosecutor] went on holidays and the [learned trial judge] took over…[he] was not only in the middle of the arena but took over the entire stage’; and

• c. interfered with the cross-examination by defence counsel by supplying answers to the witnesses and throwing defence counsel off his line of questioning.

7 Learned counsel cited six examples of these alleged transgressions. The first was that the learned trial judge asked Mr Wilson, ‘When you come down by Miss Jennifer [Wright] did you have your cutlass?’ Mrs Reid submitted that it was a leading question and was prejudicial to the case, because of the nature of the issue joined.

8 This complaint is not wholly justified. It is agreed that the learned trial judge sought to elicit evidence which, if given an opportunity, counsel would have secured. It is to be noted however that Mr Wilson, had, in previous answers, albeit to the learned trial judge, said that on the day when the incident occurred he was coming from his farm. He had, just two answers before the impugned question was asked, said in answer to the learned trial judge, that when he goes to his farm he takes along his cutlass. The exchange transpired thus (as recorded at pages 26-27 of the transcript):

‘HIS LORDSHIP: Tell me something man, you go farm, man?

THE WITNESS: Yes.

HIS LORDSHIP: So what you do, take you two long hand and go down to the farm?

THE WITNESS: No, your Honour.

HIS LORDSHIP: What you go “round there with:

THE WITNESS: Mi cutlass.

HIS LORDSHIP: Anything else?

THE WITNESS: No, sir, not really.

HIS LORDSHIP: When you come down by Miss Jennifer, you did have your cutlass?

THE WITNESS: Yes, I did carry round mi “lass, but I never tackle him, no “lass, mi “lass did in the corner.’

9 The exchange just cited was only part of what occupied almost three pages of the transcript. These pages portrayed uninterrupted questioning by the learned trial judge. In our view, the questioning did not elicit any evidence which was prejudicial to the defence. In fact, it was part of the case for the defence that Mr Wilson was armed with a cutlass. The questioning could, however, have given the impression that the learned trial judge had taken over the examination-in-chief from the prosecutor, if even temporarily. It was not the only occasion on which the learned trial judge conducted extensive questioning. The frequency, with which it occurred, provided fodder for Mrs Reid's submission that he had taken over ‘the entire stage’.

10 Mrs Reid also complained that the learned trial judge interfered at a critical point of the evidence and trampled on ground that was hotly contested between the prosecution and defence, that is, the location of the chopping. It would have been noted from the above outline of the respective cases, that that location was in issue. Mr Wilson, at page 49 of the transcript, was giving evidence of being chased by the appellants while he was in Miss Wright's yard, when the following exchange occurred during the examination-in-chief by the learned prosecutor:

‘Q. Where else you ran to?

A. I go back to Miss Jennifer [Wright's] house.

Q. Where was [sic] the two [appellants] when you ran to that first house?

A. Dem was running after mi. I check seh dem would turn back but dem just show off, dem coming same way.

Q. The two men were coming after me, the door close [sic] and then you went to Miss Jennifer what?

A. House.

Q. Where were the two men when you went to Miss Jennifer's house?

A. Dem coming, talking bout…

HIS LORDSHIP: You ran inside Miss Jennifer's house ?

THE WITNESS: Yes, your Honour. Dem could a just turn back and goh where dem going but dem show off.’ (Emphasis supplied)

11 The last example that we shall cite from Mrs Reid's collection, is set out at page 92 of the transcript where, according to learned counsel, the learned trial judge intervened ‘to assist the Crown and impressed upon the jury the guilt of the Appellants’. The exchange was during the cross-examination of Mr Wilson:

‘Q. Let me ask you the question again, Mr Wilson?

A. I am not telling you no lie.

Q. You were near to the house on the step and two men a rush you, why you don't run in that house?

A. If them a run mi, mi nuh must “sight” dem? Run there soh, go there soh.

HIS LORDSHIP: A stone was thrown .

Q. A stone was thrown, where were they when they throw the stone after you, did they come over after the stone was thrown?

A. After him ease back when him si him can't mash me up with the “lass him ease back.

Q. When the stone was thrown at you, the person who threw the stone, did that person come over the fence? All right, or them never come over that is what I am asking?

A. Them throw the stone and come over the fence.’ (Emphasis supplied)

12 The law regarding interventions by trial judges has been examined by this court in previous decisions. One of the most...