Vasper Whylie v R

• Jurisdiction: Jamaica
• Court: Court of Appeal (Jamaica)
• Judge: Edwards JA
• Judgment Date: 31 March 2017
• Neutral Citation: [2017] JMCA Crim 12
• Docket Number: SUPREME COURT CRIMINAL APPEAL NO 39/2014
• Date: 31 March 2017

[2017] JMCA Crim 12

JAMAICA

IN THE COURT OF APPEAL

Before:

The Hon Mr Justice Morrison P

The Hon Mrs Justice Sinclair-Haynes JA

The Hon Miss Justice Edwards JA (AG)

SUPREME COURT CRIMINAL APPEAL NO 39/2014

Vasper Whylie

and

R

Michael Lorne for the appellant

Ms Kathy-Ann Pyke for the Crown

Edwards JA (AG)

Introduction

1 On 22 April 2014, the appellant was convicted for murder in the Home Circuit Court and sentenced to life imprisonment at hard labour with the stipulation that he not be eligible for parole until he had served 22 years. On 6 June 2016, leave to appeal against conviction and sentence was granted by a single judge of this court and on 12 and 13 December 2016, we heard the appeal. At the conclusion of the hearing we allowed the appeal, quashed the conviction and, in the interests of justice, we ordered a retrial. At that time we promised to give our reasons at a later date. This is the fulfilment of that promise.

2 As a retrial has been ordered, we will not state the facts in too much detail. It is sufficient to say briefly that the appellant was charged based on an incident which occurred at the home of the mother of Melody Lobban on 1 May 2009. Melody Lobban is the mother of the appellant's two sons. The deceased Ricardo Lobban was her brother. The prosecution's case is that on 1 May 2009 the appellant went to the home where an altercation developed between Melody Lobban and himself and he assaulted her. Her relatives intervened including her sister Denille Lobban and her brother Ricardo Lobban, at which time the appellant is said to have stabbed Ricardo Lobban to death. On the prosecution's case, Ricardo Lobban was unarmed and no one attacked the appellant at the time of the stabbing.

3 The appellant gave sworn evidence at the trial. He gave evidence of having come under attack by the family and having to fight and wrestle his way out of the house to escape their attack. He claimed that it was the sister of the deceased who had a knife and attacked him. He also claimed that whilst they were wrestling, he at some point grabbed the knife and drew it from her. He fought and wrestled with the family of the deceased and fought his way out of the house. He insisted he had no knife and did not stab the deceased.

4 Based on that evidence, the learned trial judge withdrew self-defence from the jury.

Grounds of appeal

5 The appellant had originally filed four grounds of appeal in person as follows:

• “1) Misidentity by the Witness:- That the prosecution [sic] witnesses wrongfully identified me as the person or among [sic] any persons who committed the alleged crime.

• 2) Lack of Evidence:- That the prosecution witnesses failed to present to the court any “concrete” piece of evidence [sic] material, forensic or scientific evidence to link me to the alleged crime.

• 3) Unfair Trial:- That the Learned trial Judge fail [sic] to give adequate direction to the jury [regarding] the inconsistent and contradictory testimonies as presented by the prosecution witnesses.

• 4) Miscarriage of Justice:- That the court wrongfully convict [sic] me for a crime I knew nothing about and could not have committed.”

6 The appellant's attorney-at-law, Mr Miguel Lorne, sought and was granted leave to: (a) argue five supplemental grounds of appeal, (b) incorporate ground one of the original grounds into ground four of the supplemental grounds (c) abandon ground two of the original grounds, (d) incorporate ground three of the original grounds into ground five of the supplemental grounds and (e) argue and incorporate the original ground four into ground five of the supplemental grounds. The supplemental grounds filed for which leave was granted were as follows:

• “1. That the learned trial Judge failed to leave the legal defence of self-defence to the jury in consideration of the nature and circumstances of the case. In failing to instruct the jury accordingly, the Applicant was denied the legal defence which he was entitled to by law. Therefore the Applicant was subjected to an unfair trial.

• 2. That the learned trial Judge glossed over the material discrepancies and inconsistencies in the Prosecution's case, and in some instances did not address them and therefore they were not highlighted to the jury, in a manner where they could be seriously considered, for them to arrive at a true verdict.

• 3. That the learned trial Judge failed to warn the jury or to adequately deal with the discrepancies or the material inconsistencies and the dangers of convicting if such inconsistencies and discrepancies are not resolved.

• 4. That in light of the discrepancies pertaining to whether or not there was electricity at the premises, the issue of identification, though veiled ought to have been left to the jury for possible consideration as to who may have landed the fatal blow on Ricardo.

• 5. That the verdict against the Appellant is unreasonable and cannot be supported by the evidence of the case and circumstances of the case.”

Appellant's submissions — ground 1

7 Counsel for the appellant argued that although both prosecuting counsel and defence counsel had seemingly agreed on the record that self-defence did not arise in this case, the learned trial judge made a crucial error in coming to that position and in failing to leave self-defence to the jury for their consideration. This, he argued, resulted in the jury returning the incorrect verdict.

8 Counsel submitted that self-defence arose in the case, both on the prosecution's case and on the case for the defence. He drew the court's attention to the several sections of the transcript where he argued that the evidence demonstrated that self-defence was a live issue.

9 Counsel submitted that the learned judge misdirected the jury when he emphatically stated that self-defence did not arise in the case. Counsel argued that the circumstances of the case showed that the appellant was under attack, of which fact he gave sworn evidence at the trial. Counsel then drew the court's attention to several sections in the transcript which he contended demonstrated this. In particular he directed the court's attention to page 165 of the transcript where the appellant in his examination-in-chief said that he saw Deneil Lobban with a weapon whilst they were in the kitchen and the “whole of dem come down on me”. Counsel also pointed to the appellant's evidence in cross-examination where he said, at page 179 of the transcript, that “mi and dem did a wrassle togedda”. Also at page 180 where the appellant in explaining the amount of “licks” he received during the attack told the court that “if I get lick, can't really sidung pan grung, and yuh a roll”.

10 Counsel submitted that these passages show that the circumstances of the case and the evidence indicated that self-defence was a live issue. Counsel argued that based on the authorities, if in all the circumstances of the case, self-defence arises, it should be left to the jury.

11 Although counsel conceded that the learned judge's summary of the case could not be faulted, counsel went on to point out that it was clear that the learned judge was grappling with whether or not to leave self-defence to the jury. Counsel submitted however, that the attack on the appellant was an important issue which was not explained to the jury and based on the circumstances of the case it called for an explanation. He relied on the Privy Council's decision in Director of Public Prosecutions v Bailey (1993) 44 WIR 327, where it was held that, where the issue of self-defence arose on the facts, it should be left to the jury, even if a defendant does not formally raise that issue. Counsel also noted that in Director of Public Prosecutions v Bailey, self-defence actually arose on the appellant's unsworn statement. Counsel argued that in the instant case, the appellant gave sworn evidence and raised a stronger case of self-defence which should have been left to the jury.

12 Counsel sought to address the issue of the defence put forward at the trial by the appellant where he maintained that he did not have a knife and did not stab the deceased Ricardo Lobban. Counsel conceded that there was a danger in putting self-defence to the jury when it could not be harmoniously considered together with the appellant's account and the possible adverse effect this may have on the defence. However, counsel asserted that there was no such risk in this case. Counsel submitted that in light of the evidence, the learned trial judge erred when he failed to leave self-defence to the jury.

Appellant's submissions-grounds 2 and 3

13 Counsel for the appellant argued that the trial judge had failed to warn the jury of the inconsistencies and discrepancies in the evidence and failed to warn them of the danger in relying on that evidence if the inconsistencies and discrepancies were not resolved. Counsel submitted that this ought to be placed in the context of what the appellant had said about the fight. Counsel argued that the context included the appellant's claim that he was attacked and the prosecution witnesses' attempt at trial to diminish the attack in order to make it appear as if the appellant had simply “gone beserk” without having himself been attacked.

Crown's Submission-Ground 1

14 Counsel for the Crown was invited to submit on ground one only. Both in her written and oral submissions, counsel argued that self-defence did not arise in the case at all and therefore the learned trial judge did not err in not leaving it for the jury's consideration. Counsel pointed out that although the appellant said there was a fight and wrestling, he never admitted to being in possession of a knife, or that he attempted, or did any violence to the deceased or anyone else. Counsel submitted that the trial judge was only obliged to direct the jury on matters which arose in the case.

15 Counsel...