Shirley Ruddock v R

• Jurisdiction: Jamaica
• Judge: Brooks JA
• Judgment Date: 03 February 2017
• Court: Court of Appeal (Jamaica)
• Docket Number: CRIMINAL APPEAL NO 33/2010
• Date: 03 February 2017

Shirley Ruddock

and

R

[2017] JMCA Crim 6

Before:

The Hon Mr Justice Brooks JA

The Hon Mrs Justice Sinclair-Haynes JA

The Hon Miss Justice Edwards JA (AG)

CRIMINAL APPEAL NO 33/2010

ON REFERRAL FROM HER MAJESTY IN COUNCIL

JAMAICA

IN THE COURT OF APPEAL

SUPREME COURT

Miss Nancy Anderson for the appellant

Miss Kathy-Ann Pyke for the Crown

Brooks JA

1 Mr Shirley Ruddock appealed to Her Majesty in Council from a decision of this court dismissing his appeal from a conviction for murder. Based on the recommendation of the Privy Council, Mr Ruddock's conviction was quashed and the case was remitted to this court, for it to consider whether to order a retrial, or to substitute a conviction for manslaughter. The relevant part of the referral to this court reads as follows:

• “1…

• 2. there appearing to be a prima facie case of murder, alternatively of manslaughter, the question whether a re-trial on the count of murder or manslaughter should be ordered or (if not) whether a conviction for manslaughter ought to be substituted, should be remitted to the Court of Appeal of Jamaica for determination in accordance with local law and practice…”

2 The evidence adduced before the jury, by the prosecution, that led to Mr Ruddock's conviction was straightforward. The dead body of Mr Pete Robinson, a taxi driver, was found on a beach in Saint James on 1 July 2007. His throat had been cut, with his oesophagus, trachea and the major blood vessels in his neck, severed. Three days later, on 4 July 2007, the police accosted Mr Ruddock and two other persons, Mr O'Neil Hudson and Mr Hudson's girlfriend, in Mr Robinson's car. On the police telling them, shortly thereafter, that the owner of the car had been killed, Mr Ruddock is said to have turned to Mr Hudson and said “[y]ou think a mi tell you fi cut di man throat” (page 39 of the transcript). This statement was made although the police had not informed them of the manner of Mr Robinson's death.

3 At a later date, Mr Ruddock is said to have told the investigating officer, after being cautioned, that “he tied up the foot and the hand of the deceased and Hudson used a rachet [sic] knife to cut his throat” (page 60 of the transcript). He told the police officer that he and Mr Hudson then left the scene in Mr Robinson's car. A woman left with them. He said he was then threatened, presumably by Mr Hudson.

4 Mr Hudson pleaded guilty at the beginning of the trial. Mr Ruddock pleaded not guilty. His defence was that he knew nothing about the incident in which Mr Robinson had been killed. He made an unsworn statement in which he said that he had started working with Mr Hudson on a Monday and by the Wednesday of that same week the police took him into custody in relation to the car that Mr Hudson had.

5 Mr Ruddock said that he was, at various stages, while being in custody, beaten, cajoled and offered a bribe in an effort to have him give evidence against Mr Hudson. He said that, despite those efforts, he had insisted in telling the police that he had not seen Mr Hudson commit any murder and that he knew nothing about the killing.

6 He was found guilty by the jury and was sentenced, on 27 January 2010, to imprisonment for life. He was not to be eligible for parole before 25 years had expired. That conviction and sentence was upheld by this court.

7 When his case was considered by the Privy Council, their Lordships, in their judgment ( R v Jogee; Ruddock v The Queen [2016] UKSC 8; [2016] UKPC 7), ruled that the learned trial judge's summation on the issue of common design, although along the lines of the guidance set out in Chan Wing-Siu v R [1985] AC 168, was defective. In their Lordships' ruling, the summation, in assessing the prosecution's case, had equated foresight that Mr Robinson might be injured by Mr Hudson in an attempt to rob him of his car, with intent that Mr Robinson would suffer grievous injury or be killed in the course of the transaction. That guidance, their Lordships, decided, was incorrect.

8 Their Lordships identified two other defects in the summation. The first, was that the learned trial judge failed to tell the jury that if they accepted that Mr Ruddock was a party to carrying out the robbery, it did not automatically mean that he was a party to the killing. The second defect, they said, was that the learned trial judge failed to warn the jury to ignore evidence about what the woman, who had been depicted in a photograph on Mr Ruddock's cellular telephone, had allegedly said to the police. This is because she had not been called to give evidence in the case. It was on those three bases that their Lordships quashed the conviction.

9 Two issues arise from their Lordships referral of the case to this court. The first, is whether a retrial should be ordered, or instead, a conviction for manslaughter substituted. The second is, in the event of an order for a conviction for manslaughter, what would be the appropriate sentence in the circumstances.

Retrial or conviction for manslaughter

10 Both Miss Anderson, for Mr Ruddock, and Miss Pyke, for the Crown, contended that a retrial would not be appropriate in the circumstances. Between both learned counsel, they identified the items they said militated against an order for a retrial. These items were:

Miss Anderson cited the cases of Dennis Reid v R (1978) 16 JLR 246; (1978) 27 WIR 254 and Beres Douglas v R [2015] JMCA Crim 20, in support of her submissions on this point.

• a. the time that had elapsed since the offence had been committed;

• b. the length of time that it would take for the matter to come on for retrial, if that were ordered;

• c. the fact that Mr Ruddock has been in custody since 4 July 2007;

• d. the declining likelihood that Mr Ruddock would be able to produce evidence of the injuries he said that he suffered at the hands of the police; and

• e. the absence of the notebooks, in which the police officers had testified that they wrote Mr Ruddock's various statements to them.

11 Miss Anderson and Miss Pyke seemed to veer apart in respect of the consequence of a refusal to order a retrial. It seemed that Miss Anderson leaned toward substituting a verdict of acquittal, in that she insisted that the prosecution's case was weak and that it should not be given an opportunity to strengthen that case on a retrial. Miss Pyke submitted that the case warranted a conviction for manslaughter. She submitted that the evidence that Mr Ruddock continued to associate with Mr Hudson, even after he had killed Mr Robinson, was further evidence of Mr Ruddock's approval and encouragement of the killing.

12 Miss Pyke pointed to the decision of R v Dennie Chaplin, Howard Malcolm and Peter Grant SCCA Nos 3 and 5/1989 (delivered 16 July 1990), in which Mr Malcolm's conviction for murder was upheld on appeal although the evidence against him was that he had watched while the killing took place. His continued presence in the company of the principal actors, after the killing was, however, held, at page 11 of the judgment, to indicate that:

“…far from being accidentally present, [he] was in fact voluntarily and purposely present at the scene, and his conduct during and after the commission of the murder, is sufficient evidence upon which the jury could correctly find that he was present aiding and abetting the others in the act and therefore a participant in the common design to the murder.”

13 Miss Anderson, “[o]ut of an abundance of caution” (paragraph 19 of her written submissions), made submissions on the issue of substituting a conviction of manslaughter. On this issue, both she and Miss Pyke submitted that the facts of this case, as adduced by the prosecution, were consistent with the law concerning a conviction for manslaughter. Learned counsel submitted that the principle to be gleaned from the authorities is that if persons venture out together to commit robbery with violence, and during the robbery the victim is killed, there is a basis for a conviction for manslaughter for the person who did not actually commit the act that caused death.

14 Miss Pyke, in particular, stressed that, on the prosecution's case, in binding Mr Robinson's legs and hands, Mr Ruddock had participated in a robbery enterprise in which the victim would have been hurt. The fact that the victim was in fact killed, the submission continued, meant that there was evidence for Mr Ruddock to have been convicted for manslaughter. It was accepted that the learned trial judge did not give any directions to the jury in this regard.

15 Miss Pyke submitted that a conviction for manslaughter should be recorded in this case. She noted that their Lordships' recommendation, in their referral, indicated that there appeared to be “a prima facie case of murder, alternatively of manslaughter”. She submitted that this court had the authority to substitute a conviction for manslaughter. Learned counsel pointed out that that is what had been done in R v Rudolph Dodd, Karl Wauchorpe and Billy West SCCA Nos 184, 185 and 186/1999 (delivered 8 October 2001).

16 In analysing these submissions, it is accepted that the submissions against the ordering of a retrial are well founded. In cases such as this, where a conviction is quashed, this court is empowered, by section 14(2) of the Judicature (Appellate Jurisdiction) Act, to order a new trial. The subsection states as follows:

“Subject to the provisions of this Act the Court shall, if they allow an appeal against conviction, quash the conviction, and direct a judgment and verdict of acquittal to be entered, or, if the interests of justice so require, order a new trial at such time and place as the Court may think fit.”

17 The decision whether or not to order a retrial is dependent on the facts of the particular case. There is, however, some general guidance that was provided by their Lordships in Dennis Reid v R. In...