Steven Grant v R
| Jurisdiction | Jamaica |
| Judge | Edwards JA |
| Judgment Date | 15 June 2018 |
| Neutral Citation | JM 2018 CA 75 |
| Docket Number | SUPREME COURT CRIMINAL APPEAL NO 76/2007 |
| Court | Court of Appeal (Jamaica) |
[2018] JMCA App 13
IN THE COURT OF APPEAL
THE HON Miss Justice Phillips JA
THE HON Mr Justice F Williams JA
THE HON Miss Justice Edwards JA (AG)
SUPREME COURT CRIMINAL APPEAL NO 76/2007
APPLICATION NOS 3 AND 53/2017
Lijayasu Kandekore for the applicant
Mrs Christine Johnson Spence for the Crown
Edwards JA (AG)
In the usual course of events a person convicted of a criminal offence has the option to file an appeal at all the levels that are available to him. Once the appeal process has been exhausted, it is expected that there will be an end to litigation, whatever the outcome of the appeal. It is rare indeed, for a convict to apply to the Court of Appeal to reopen his appeal which has already been determined. However, this is what has occurred in this case.
Steven Grant (the applicant) filed three applications before this court. These are:
-
i. an application to vary or discharge the order of a single judge filed on 5 January 2017;
-
ii. an application for an extension of time to appeal against sentence filed on 14 March 2017 and;
-
iii. an application for permission to appeal against sentence, filed on 14 March 2017.
These applications have come six years after the determination of the applicant's last appeal filed against his conviction and sentence in this court. All three applications raise interesting, if not entirely novel, questions of law.
The applicant is no stranger to the courts in this jurisdiction, and in fact, has been before the courts for upwards of 14 years. He was first convicted on 26 February 2003 for the offence of murder. The circumstances leading to his conviction are that on 18 April 1999, he shot and killed Kymani Bailey, who was 17 years old at the time. Master Bailey was shot a total of 11 times in his back. The applicant's defence was that he acted in self-defence, as he believed he was being robbed by Master Bailey. The jury rejected this defence and found him guilty. He was sentenced to life imprisonment with the stipulation that he serves 20 years before being eligible for parole. He was taken into custody upon his conviction. He appealed his conviction and sentence to this court which upheld the conviction and sentence. He thereafter appealed to the Privy Council. On 16 January 2006, the Privy Council allowed his appeal and the matter was remitted to this court for the determination of whether there ought to be a retrial.
On 7 March 2006, this court ordered that he be retried. The retrial was aborted on 7 November 2006, due to a mistrial. A third trial was convened on 16 May 2007. Following this third trial, the applicant was convicted on 31 May 2007. After a valiant plea in mitigation by his counsel, the judge imposed a sentence of life imprisonment on the applicant, with a stipulation that he spends a minimum of 17 years before being deemed eligible for parole.
On 11 June 2007, by way of criminal appeal no 76/2007, the applicant filed a notice of application for permission to appeal against conviction and sentence. The applicant filed a total of five original grounds of appeal. Leave was thereafter granted to his attorney to argue 22 supplemental grounds. However, upon the hearing of the application for permission to appeal, the court found no reasonable justification for quashing the conviction on the grounds that were commended to it. As such, on 20 December 2010, the applicant's application for leave to appeal against his conviction and sentence was dismissed and it was ordered that his sentence should begin on 7 September 2007 (see [2010] JMCA Crim 77). The applicant is currently serving that sentence.
On 28 June 2016, the applicant filed application no 124/2016 for an order “to Amend and Correct Errors in Sentencing”. This application was purportedly made pursuant to section 61 of the Criminal Justice (Administration) Act (CJAA) and was heard by a single judge of this court (Morrison P) (see [2016] JMCA App 32). Having heard the application, Morrison P dismissed it in a written judgment delivered on 10 November 2016. This decision of Morrison P is the subject of the application to vary or discharge the order of a single judge.
When the applications came before us for hearing, permission was granted to the applicant to amend the application to vary or discharge the order of a single judge, in order to apply for an extension of time to apply for a rehearing of the application before this court, pursuant to rule 3.13 of the Court of Appeal Rules 2002 (CAR), as amended. That rule states that:
“3.13(2) An appellant who is dissatisfied with the decision of the single judge may apply in form B6 for a re-hearing of the application by three judges of the court (who may include the single judge who refused the application).
(3) If the appellant does not apply under paragraph (3) within ten days of the service of the notice under paragraph (1) the decision of the single judge is final.”
It also meant, of course, that an extension of time to file that application also had to be granted and having heard the application for extension of time, we granted it pursuant to rule 1.7(2)(b) of the CAR.
In all the subject applications collectively (application nos 3 and 53/2017) the applicant's principal contention is that counsel who represented him at his sentencing hearing, as well as at the hearing of his appeal, failed to raise the necessary challenges to the sentence that was imposed by the sentencing judge. Counsel submitted that since the application before Morrison P, to amend the sentence as an error or defect, had been refused, the only remedy available to him was for this court to either vary or to discharge the orders of the single judge or rehear an appeal against sentence. For these reasons, the applicant has launched a challenge to the single judge's decision, as well as what amounts to an application to reopen his appeal.
Given the facts as we know them, there are three main issues which arise from the applications, for consideration by this court. These are:
The first two issues are based on the question of jurisdiction and the third will involve a consideration of the factual circumstances in this case.
-
(1) whether the single judge was correct when he ruled that he had no authority to make the order sought;
-
(2) whether the Court of Appeal has the jurisdiction to reopen an appeal which has already been determined and if so what are the circumstances under which the court may do so; and
-
(3) whether, if the jurisdiction does exist, the circumstances of the applicant's case are such as to require the court's intervention to reopen his appeal against sentence.
The grounds on which the application to vary or discharge the order of a single judge was based are as follows:
“a. The learned President has ruled that he has no authority to make the order requested and only the Court can make such an order;
b. The Appellant has no other remedy and his incarceration continues despite his attempts to have his appeal against sentencing heard;
c. The sentencing court erred when it thought that it had no choice but to sentence the Defendant to a mandatory life sentence;
d. The sentencing Court erred when it failed to consider the appropriate principles to be applied when determining the period of time that must elapse before the Defendant becomes eligible for parole;
e. The sentencing Court erred when it failed to give the Defendant credit for the time he had been incarcerated before the imposition of the current sentence.”
On 25 October 2016 Morrison P heard the applicant's application. The errors alleged by the applicant which he asked Morrison P to consider were:
-
(1) The judge's imposition of a mandatory life sentence on the applicant.
-
(2) The stipulation that the applicant should serve a period of 17 years before being eligible for parole.
-
(3) The judge's failure to credit the applicant with time served in custody before sentence.
The grounds on which the applicant sought to correct those alleged errors as set out in his application before the single judge were that:
“a. The sentencing court erred when it thought that it had no choice but to sentence the [applicant] to a mandatory life sentence;
b. The sentencing Court erred when it failed to consider the appropriate principle to be applied when determining the period of time that must elapse before the [applicant] becomes eligible for parole;
c. The sentencing court erred when it failed to give the [applicant] credit for the time he had been incarcerated before the imposition of the current sentence.”
As stated earlier, this application was made pursuant to section 61 of the CJAA which states as follows:
“The Court of Appeal may, if it shall think fit, amend all defects and errors in any indictment or proceeding brought before it under this Act, whether such amendment could or could not have been made at the trial, and all such amendments as may be necessary for the purpose of determining the real question in controversy shall be so made.”
Morrison P, in considering whether the application could properly be made pursuant to section 61 of the CJAA, looked at the history of the matter, the transcript of the sentencing hearing before the trial judge and the submissions made by counsel for the applicant. Morrison P then made his decision on two bases; that of jurisdiction and the factual circumstances of the case.
On the question of jurisdiction Morrison P held that, even assuming that the application could have properly been brought under...
To continue reading
Request your trial