Simms v R

• Jurisdiction: Jamaica
• Judge: HARRISON, J.A.
• Judgment Date: 24 April 2009
• Neutral Citation: JM 2009 CA 31
• Judgment citation (vLex): [2009] 4 JJC 2402
• Court: Court of Appeal (Jamaica)
• Date: 24 April 2009

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR. JUSTICE PANTON, P THE HON. MR. JUSTICE HARRISON, J.A THE HON. MR. JUSTICE DUKHARAN, J.A

BAYNE SIMMS

v

REGINA

Miss Althea McBean for the Applicant.

Miss Kathy-Ann Pyke and Leighton Morris for the Crown.

CRIMINAL LAW - Murder - Unreasonable verdict - Self-defence - Provocation - Previous inconsistent statements

HARRISON, J.A.

1 The applicant Bayne Simms was on the 5 ^th of July, 2006 convicted of the murder of Ricardo Richards in the St. Elizabeth Circuit Court held at Black River, after a trial before Campbell J., and a jury. He was sentenced to imprisonment for life, with the recommendation that he should serve 15 years before becoming eligible for parole. He was refused leave to appeal by the single Judge and has now renewed his application to the Court.

The Case for the Prosecution

2 On the evening of May 4 2005, a group of men including the deceased were playing dominoes in front of Mr. Bruce's shop along Logwood Avenue in Black River. The applicant who is called "Ben" was also present. The area was well lit. There was a street light 9–10 ft. away from the domino table and there was also light coming from the shop.

3 Richard Logan, a witness called by the prosecution testified that the applicant was engaged in an argument with other persons during a domino game. At some point he borrowed Logan's bicycle and returned it within minutes. On his return the applicant continued the argument which according to Logan got "heat up" between the deceased man and himself. He said that their voices got "higher and higher". The applicant then went across the road and stood beside the street light. A little boy who was standing near to the applicant had a machete in his hand and the applicant took it away from him. Logan on seeing this got up from around the domino table, and went to the applicant. He held on to him, took away the machete from him and threw it away. Logan then pushed him along a Lane and told him to go home and that he was not to put himself in any trouble. The applicant took out a knife from his pants pocket as he was led away and a struggle started between both of them. Logan said he held on to the blade of the knife but had to release his hold on the knife. The applicant then rushed the deceased man across the road but ran back to the middle of the road and spoke words to this effect, "yuh bus mi head". He held his head as he spoke. The applicant then rushed back to where the deceased was standing but Logan said he was unable to see anything else because people began running "up and down". Shortly thereafter, Logan said he saw the deceased man and he was "acting strange". He fell to the ground and Logan asked him what happened. The deceased told him that he "get cut". He lifted the deceased's man hand and saw blood on his shirt in the area of his chest. Logan got assistance from other persons and placed the deceased on a wrecker which took him to the Black River Hospital.

4 Under cross-examination Logan said that Ben and the deceased were calling each other names. He had also heard someone mentioned the words "country boy" and "fool". He knew that a stone was flung but he could not recall who had flung it. He said he did not think that the stone had hit anyone. He did not recall that if after the stone was flung the deceased had rushed Ben with a chair. He did not see the deceased hit Ben in his head with a chair and he could not say if Ben had slipped and fell to the ground. He could not say if while Ben was on the ground the deceased used a chair and hit him in his head. He recalled testifying however, before the Resident Magistrate but he could not recall saying there that he had seen both Ben and the deceased wrestling. He was shown his deposition and when pressed if he had said this to the Magistrate, he said he could have said that they were wrestling. He was asked if people had dispersed when the wrestling began and he said that everyone started to run up and down when the fight started. He recalled telling the police in his statement to them, that Ben had taken away the chair from the deceased man. He also agreed when he was further cross-examined that Ben had taken away a chair from the deceased man. He was asked if the deceased had chased Ben with the chair in his hand and he said he knew that they "ran after each other". He was unable to say whether Ben had pushed out his hand when the deceased ran after him with the chair. It was suggested to him that Ben was attacked by the deceased man but he said he did not know. He did not see when the deceased man lifted a chair. After his deposition was shown to him he agreed that he had said that the deceased had lifted up the chair and hit Ben. He agreed with Counsel that what he had said at the preliminary enquiry was true. He said that he knew Tyrone Marshall but he did not give an answer when he was asked if Marshall was present during the incident. He said the closest that Ben got to the deceased that night was about an arm's length.

5 Tyrone Marshall, another eye-witness, was also called by the prosecution. He testified that both the deceased and applicant were quarrelling. He said that the applicant was standing on one side of the road and he saw when they moved towards each other. The deceased then picked up a metal chair, swung it at the applicant and it caught him on the left side of his head. The applicant had a stone which he threw at the deceased but it did not hit him. The deceased picked up the said stone and flung it back at the applicant.

6 Marshall also testified that after the applicant got the hit in his head he had a brown handle knife in his hand and started to chase the deceased man who was running away from him. They ran around until they returned to the domino table. The deceased then picked up a stool which he used to strike the applicant. He said that as the deceased hit the applicant with the stool, the applicant swung his hand with the knife and stabbed him under his left breast. The deceased walked off as if he was staggering and he saw blood running down his white T-shirt.

7 Marshall said that the entire incident lasted for about 15 minutes and that nothing had blocked his view of both men.

8 Under cross-examination, Marshall said that both men were separated he saw the applicant touch his head and he noticed that the applicant's head was bleeding. Marshall was asked whether it was after the second time that the deceased hit Bayne he used the knife and stabbed Ricky. He said: "They hit each other at the same time. When Ricky hit Bayne, Bayne stabbed Ricky at the same time".

9 Cpl. Simpson, testified that on May 4, 2005, at about 10:45 pm she received a report and she went to the Black River Hospital. Whilst there she observed a male person who was lying on his back on a stretcher and he appeared to be dead. She returned to the Black River Police Station where she saw the applicant sitting in the guardroom. He had a wound to his head so she took him to the Black River Hospital where he was treated by Dr. Lewis. She returned with him to the station and commenced investigations into a case of murder.

10 Dr. Ledford, the Medical Officer for the parish of St. Elizabeth performed a postmortem examination on the body of the deceased on the 12 ^th May. On external examination, he observed a half inch stab wound to the left chest of the deceased. Internally he saw a large volume of blood in the left chest cavity. The left lung had collapsed and there was also a large amount of blood in that lung. Death, he said, was due to asphyxia, as a result of the stab wound to the left chest, which had punctured the lung. He said that death would have resulted in a fairly short time. He also said that the stab wound which he observed could have been caused by a knife and that a moderate to severe force would have been required to cause the injury. It was suggested to him in cross-examination that the wound could have been caused by no more than slight force but he disagreed.

11 Det. Sgt. McCurdy-Caine, who was the investigating officer, had taken over the investigations from Woman Cpl. Simpson and had obtained a warrant for the arrest of the applicant. He was pointed out to her at the cell block of Black River Police Station. She arrested and charged him for the death of Ricardo Richards and when cautioned he said, "Yes."

The Defence

12 The applicant made an un-sworn statement from the dock. He said that on the night of the incident a domino game was in progress. He got a "six love" so he had to get up from the game. He borrowed a bicycle from someone called "Skungie" and went to a friend's home at the top of Logwood Avenue in order to pick up a DVD. When he returned, he saw Richard, Ricardo, 'Skungie', and Marvin playing dominoes. He parked the bicycle and went over to the other side of the road. He spoke to Richard and said: "Richard, you and...