Vince Edwards v R

• Jurisdiction: Jamaica
• Judge: Brooks JA
• Judgment Date: 23 June 2017
• Neutral Citation: JM 2017 CA 23
• Docket Number: SUPREME COURT CRIMINAL APPEAL NO 77/2011
• Court: Court of Appeal (Jamaica)
• Date: 23 June 2017

[2017] JMCA Crim 24

JAMAICA

IN THE COURT OF APPEAL

Before:

The Hon Mr Justice Brooks JA

The Hon Mrs Justice Sinclair-Haynes JA

The Hon Miss Justice Edwards JA (AG)

SUPREME COURT CRIMINAL APPEAL NO 77/2011

Vince Edwards

and

R

Mrs Valerie Neita-Robertson QC and Ms Kymberli Whittaker for the applicant

Mrs Lisa Palmer-Hamilton for the Crown

Brooks JA

1 This is an application made by Mr Vince Edwards for leave to appeal against his conviction and sentence. He was convicted on 13 April 2011, in the Home Circuit Court, for murdering Mr Tyrone Powell. Mr Edwards was sentenced to 15 years' imprisonment. At the time of the killing, he was a corporal in the Island Special Constabulary Force.

2 His first application for leave to appeal was refused by a single judge of this court. He has therefore renewed it before the court. A number of grounds of appeal has been advanced on his behalf by counsel. These will be addressed in turn, but it is first necessary to provide an outline of the evidence that was placed before the jury at the trial in the court below.

The prosecution's case

3 The essence of the evidence that was adduced by the prosecution, in its case against Mr Edwards, was that on 10 August 2009, an altercation took place between Mr Powell and another man along the roadway at Bob Marley Boulevard, Cooreville Gardens, in the parish of Saint Andrew. This was at about 11:00 pm. The two became engaged in a tussle, but Mr Powell was called away by his two friends, who were with him at the time. The trio prepared to drive away from the scene when the man, with whom Mr Powell had been wrestling, was seen as if beckoning to someone. Gunshots then rang out. Mr Powell got into the vehicle with his friends, but while he was reversing the vehicle in order to leave, he received gunshot wounds, including wounds to the head. The vehicle crashed. It was Mr Edwards who had fired those shots.

4 The other two men exited the vehicle and ran. They went to a nearby main road, hailed a police vehicle and returned with the police to the scene of the shooting. The police took Mr Powell to the hospital, but he died as a result of his injuries.

5 Mr Edwards was charged with murder arising from that death.

The case for the defence

6 Mr Edwards made an unsworn statement at the trial. He said that he was acting in self-defence at the time of the incident. He said that he lived in Cooreville Gardens and while standing in the area that night, he saw three men involved in a physical altercation. He said one of the three men was being attacked by the other two. One of the attackers had a knife.

7 Mr Edwards said that he also saw a fourth man, standing near to the three men. That fourth man had a gun and appeared to be looking at the three. In the face of a continued attack, the victim of the attack ran in Mr Edwards' direction.

8 Mr Edwards said that he heard gunshots. He felt afraid, but despite his fear, he challenged the men, identifying himself as a police officer. He then saw the man with the gun fire at him. He returned the fire from his police issued firearm. The men went into a vehicle and the vehicle drove off, but shots were fired from it at the same time. He returned the fire. The vehicle crashed, and two of the men ran away. He approached the vehicle and saw the remaining man in the vehicle. The man had a wound to his head and there was a knife in one of his hands. A police vehicle came on the scene thereafter and took the injured man away.

9 The man, who, on Mr Edwards' account, was the victim of the attack, was later identified to be Mr Ajani Willoughby, also a member of the Island Special Constabulary Force. Mr Willoughby gave evidence at the trial in support of Mr Edwards' case. Witnesses were also called by Mr Edwards to give evidence as to his good character.

The proposed grounds of appeal

10 Mrs Neita- Robertson QC, on behalf of Mr Edwards, sought and received permission to abandon the grounds of appeal that were originally filed on Mr Edwards' behalf. She was authorised, by the court, to argue in favour of a number of supplemental grounds of appeal in support of Mr Edwards' application.

11 The proposed grounds were as follows:

• 1. “That the Learned Trial Judge's treatment of the Unsworn Statement of [Mr Edwards] was incorrect in law and was couched in terms designed to wipe from the jury's mind any inclination they may have had to give it what weight they thought fit.”

• 2. “That the Learned Trial Judge erred in failing to leave to the jury the Constitutional Defence available to [Mr Edwards] under Section 14(2)(b) of the Constitution of Jamaica. This non-direction amounts to a misdirection in law.”

• 3. “That the Learned Trial Judge's directions on self-defence were confusing, disjointed and deficient so as to deny the jury the clarity required to assess the issue of Self-defence in the context of this case.”

• 4. “That the Learned Trial Judge's directions on good Character are incomplete in law.”

• 5. “That the Learned Trial Judge failed to deal adequately with the issues of inconsistencies and discrepancies.”

• 6. “The Learned Trial Judge erred in admitting evidence that [Mr Edwards] failed to answer any questions in a Question & Answer (Q&A) session in contrast to that of the witness Willoughby; and in doing so [Mr Edwards] was prejudiced.” (Emphasis as in original) The proposed grounds will be addressed in turn.

Ground one – the summation in respect of the unsworn statement

12 This ground concerns the learned trial judge's directions to the jury concerning Mr Edwards' unsworn statement. It is at page 928 that the transcript records the learned trial judge's directions in this regard. He said:

“The accused man gave his statement from the dock, and I must tell you that the statement from the dock is not evidence, Mr. Foreman and your members, which could have been tested by cross-examination. An accused [sic] absence from the witness box cannotprovide evidence to [sic] anything, but when assessing the quality of the evidence given by the prosecution, you must take into account the fact that it was uncontradicted by any evidence coming from the accused. You take into consideration the fact that the witnesses he called, witness who gave evidence. Nevertheless, you may take into account what he has said, what the accused man has said and give it such weight as you think fit, in coming to your conclusion as to whether or not he is guilty of this indictment [sic].” (Emphasis supplied)

13 Mrs Neita- Robertson argued that the learned trial judge's summation to the jury, concerning the effect of Mr Edwards' unsworn statement, was misleading and had the effect of inviting the jury to disregard what Mr Edwards had said. She argued that in telling the jury that Mr Edwards' statement was not evidence, the learned trial judge erased any credibility that the statement could have had with the jury. Learned Queen's Counsel submitted that that direction left Mr Edwards without a defence and rendered the trial unfair. She relied on, for support, the cases of R v Cedric Gordon (unreported) Court of Appeal, Jamaica, Supreme Court Criminal Appeal No 109/1989, judgment delivered 15 November 1990, Alvin Dennison v R [2014] JMCA Crim 7, R v Lobell [1957] 1 QB 547, R v Michael Salmon (1992) 29 JLR 32 and Director of Public Prosecutions v Leary Walker (1974) 12 JLR 1369.

14 Mrs Palmer-Hamilton, for the Crown, submitted that the learned trial judge's direction was correct in law. She argued that the learned trial judge did not only give that direction, but he juxtaposed the relevant elements of the unsworn statement against the issues raised by the prosecution in its effort to prove the matters required to constitute the offence. Learned counsel submitted that the learned trial judge gave his direction in a clear and concise manner and the jury would have been in no confusion in respect of the effect of the unsworn statement. Mrs Palmer-Hamilton submitted that the learned trial judge was fair to Mr Edwards in this regard. She relied, in support of her submissions, on the cases of R v Frost and Hale (1964) 48 Cr App Rep 284 and DPP v Leary Walker.

15 The issue raised by this ground of appeal has been the subject of much judicial comment at the appellate level. Section 9(h) of the Evidence Act expressly recognises the right of a person charged with an offence “to make a statement without being sworn”. Although all the judicial opinions on the issue accept that an unsworn statement does not constitute evidence, there have been varied views as to the proper way in which the principle may be communicated to the jury. The predominant view emanating from the judgments of this court is that juries should not be told that the unsworn statement is not evidence.

16 Those varying stances have not provided sufficient clarity to trial judges, as several continue to direct their respective juries that the unsworn statement is not evidence. It is unnecessary to review all the authorities dealing with the point because, fortunately, the law in this area was the subject of an admirable assessment in a magisterial judgment by Morrison JA (as he then was) in Alvin Dennison v R.

17 In Alvin Dennison v R the trial judge described the accused's statement as

“some words”. She pointed out that the unsworn statement “has less weight than evidence” and again, “that it carries less weight than if he had sworn on the Bible”.

18 This court held that the directions contravened the approach required by this court. The defence in that case was self-defence, and self-defence was raised on the prosecution's case. The honesty of the accused's assertion that he believed that he was under attack was, therefore, an important factor for the jury to consider. Morrison JA said, at paragraph [56], that:

“…contrary to the proscription in all of the authorities, the learned...