Wayne Hamil v R
| Jurisdiction | Jamaica |
| Judge | Fraser JA |
| Judgment Date | 26 March 2021 |
| Neutral Citation | JM 2021 CA 33 |
| Docket Number | SUPREME COURT CRIMINAL APPEAL NO 61/2016 |
| Court | Court of Appeal (Jamaica) |
[2021] JMCA Crim 12
IN THE COURT OF APPEAL
THE HON Miss Justice Phillips JA
THE HON Miss Justice Straw JA
THE HON Mr Justice Fraser JA (AG)
SUPREME COURT CRIMINAL APPEAL NO 61/2016
Hugh Wildman for the applicant
Miss Sophia Thomas and Miss Shanique Farquharson for the Crown
Fraser JA (AG)
This is an application brought by Mr Wayne Hamil for leave to appeal against his conviction and sentence. He was convicted on 30 June 2016, in the Trelawny Circuit Court, for wounding Saint O'Brian Downie with intent to cause him grievous bodily harm. Mr Hamil was sentenced to pay a fine of $1,000,000.00 or serve three years' imprisonment at hard labour, and given one month to pay. During the hearing the court was advised that the fine has been paid.
The applicant's first application for leave was refused by a single judge of this court on 17 August 2018. That application has now been renewed before the court. Following oral arguments in this matter, written submissions were filed on 20 October and 23 November 2020.
It will be necessary to first recount the proceedings at trial, before treating with the grounds of appeal advanced on behalf of the applicant.
The primary facts on the case for the prosecution came through the evidence of the complainant, Saint O'Brian Downie and his father Altimont Downie. The complainant testified that, on 24 March 2014, he was driving his car through the Hopewell square in the parish of Hanover. As he was doing so, he saw in the square, the applicant who was then a constable of police and also District Constable (D/C) Jolly, both of whom he knew before. The complainant outlined that the applicant came out in front of his car, causing him to have to brake suddenly. The applicant then came to his car door and beat his hand on it and told him, among other things, that he was “ready to fight this morning”. The complainant stated that he drove off, turned around and went back through the square. At the square he told D/C Jolly to, “Tell the officer to ease off because he always see me and trouble mi”. The applicant could have heard when he said this.
He indicated that the applicant then said, “You want stop and see what mi do you?” As he continued to drive, the applicant chased the complainant's car and used his baton to hit the complainant's right elbow. The complainant stopped his car. The applicant opened the car door and dragged the complainant out of his car. The applicant then hit at the complainant with the baton and both of them fell to the ground. The applicant tried to pull his service revolver. The complainant related that his feet and the applicant's feet got in a tangle and the applicant called out to D/C Jolly to come and shoot him, the complainant. D/C Jolly came and pulled him away and other persons pulled away the applicant. The complainant then stated that the applicant pulled his firearm from his waist. While D/C Jolly was still holding the complainant, the applicant fired one shot in the air and then fired four shots at the complainant. He got two shots, one to his upper right leg and the other to his lower left leg. He indicated his father was present when he got shot. The complainant denied being the aggressor.
The complainant's father testified that he was driving immediately behind his son, the complainant, on the morning of the incident, when he saw the applicant and D/C Jolly whom he knew before. He indicated that the applicant ran towards the complainant's car and used his baton to hit the complainant on his hand (indicating his elbow). The complainant then stopped the car. The applicant opened the door and held the complainant (indicated his front collar). The applicant then took the complainant out of the car and tried to hit him again with the baton. He further narrated that the applicant and the complainant “grabbed up” and fell to the ground. He heard the applicant call for D/C Jolly to shoot the complainant. D/C Jolly went and held the complainant and he held the applicant, while the applicant was on the ground sitting and he stood over him. He then outlined that while the complainant was being held by D/C Jolly, the applicant took out his gun, fired one shot in the air and then turned the gun to the complainant and fired four shots.
Apart from the evidence of the complainant and his father, the other significant evidence for the prosecution came from Mr Albert Morris, a senior investigator from The Independent Commission of Investigations (INDECOM). Mr Morris conducted an investigation into the matter soon after the incident and recorded a statement from the applicant. In that statement, the applicant said that he knew the complainant well as a robot taxi driver who was always in conflict with the police. He indicated that he and D/C Jolly were on duty in Hopewell square, when he stopped the complainant's car and told him he was not wearing his seat belt. The complainant was verbally abusive to him and then sped off. Shortly after, the complainant returned to the square spouting a lot of expletives.
The applicant further stated that he went over to where the complainant had slowed his car and told him to stop the vehicle. He then struck the complainant with his baton on his right hand that was resting on the window ledge. The complainant stopped the vehicle, came out and punched him, the applicant, twice in his face and held him around his throat. He also held the complainant around the throat. Relating the complainant's ongoing actions at that time, the applicant said, “I was been fed by his fist in my face”. The applicant further outlined that he shouted out for D/C Jolly, and both himself and the complainant fell to the ground. He continued to hold onto the complainant who persisted in punching him to his face.
The applicant stated that he felt like water was running down his face and tasted blood in his mouth. He told D/C Jolly to fire two shots from his gun but D/C Jolly continued to hold onto the complainant's hand. The applicant indicated he felt scared and alone. Therefore, he pulled his service pistol and fired two shots in the air. He further stated that after he fired the shots, the applicant “launched” towards him. They were both on the ground and he was on his back. He said that it dawned on him that the complainant was not scared by the shots and was still coming at him. He pointed his service pistol in the direction of the complainant's lower body and fired one shot. The complainant was still coming at him. He then pointed his service pistol to the complainant's lower region and fired one more shot. The applicant stated that he realised the complainant was shot as the complainant tried to come at him again, but he could not get up.
The applicant was subsequently charged by Mr Morris for wounding with intent. During Mr Morris' testimony, the statement given to him by the applicant was admitted into evidence.
The defence case was consistent with what the applicant said in the statement he gave to Mr Morris. In his sworn testimony, the applicant, who was the sole witness for the defence, said the complainant was the aggressor and that he was doing his duty as a policeman, when the incident occurred. He indicated that while he was trying to stop the complainant, the complainant was driving off his vehicle, so he tapped him on his arm to get him to stop. The complainant came out of his vehicle and attacked him, punched him twice in the face, grabbed his throat and he fell. There was a struggle and in order to defend himself and prevent his firearm being taken away, he fired a shot in the air. He said that the complainant did not retreat or seem scared and came after him. Thereupon, he fired two shots to the lower part of the complainant's body.
At the hearing, counsel for the applicant advanced the following three grounds of appeal:
“1. The learned trial judge erred by telling the jury that the statement given by Mr Hamil to Mr Morris of INDECOM was not evidence of the truth and thereby he had misdirected them in law and had eroded the defence of self-defence.
2. The directions to the jury on self-defence were inadequate.
3. The learned trial judge's direction on good character was flawed.”
After the hearing, through written submissions filed 22 October 2020, Mr Wildman, for the applicant, sought leave to advance the following further ground of appeal:
“4. The charge brought by INDECOM was illegal and amounts to a nullity.”
Miss Thomas, for the Crown, responded to this ground in written submissions filed 23 November 2020. Based on the court's request to Ms Thomas, on 4 March 2021 copied to Mr Wildman, for further documentation, Ms Thomas, on 17 March 2021, provided the court with the original information and depositions relating to the proceedings against the applicant in the Lucea Resident Magistrate's Court (now Parish Court). Mr. Wildman in response to the court's request, on 4 March 2021 sought the court's leave to also rely on an additional authority, which he supplied.
The grounds of appeal will be addressed in turn.
Mr Wildman submitted that the direction given by the learned trial judge to the jury on the effect of the applicant's out of court statement was grossly incorrect, out of line with the authorities and constitutes a material misdirection, rendering the conviction liable to be quashed. The direction of which he complained is found at pages 69 (lines 14 – 25) – 70 (lines 1–8) of the transcript of the learned trial judge's summation. It is in the following terms:
“Now, in the course of the evidence of Mr Morris a statement that was given by Constable Hamil that very day was read...
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