Wright (Dwight) v R

• Jurisdiction: Jamaica
• Judge: MCINTOSH, J.A. (Ag.)
• Judgment Date: 23 April 2010
• Neutral Citation: JM 2010 CA 66
• Judgment citation (vLex): [2010] 4 JJC 2303
• Court: Court of Appeal (Jamaica)
• Date: 23 April 2010

[2010] JMCA Crim 17

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR JUSTICE HARRISON, J.A THE HON. MISS JUSTICE PHILLIPS, J.A THE HON. MRS JUSTICE MCINTOSH, J.A. (Ag.)

DWIGHT WRIGHT

v.

REGINA

Hugh Wilson, for the appellant.

Miss Dahlia Findlay for the Crown.

CRIMINAL LAW - Murder - Provocation

MCINTOSH, J.A. (Ag.)

1 [1] On the 2 ^nd June, 2008, the appellant Dwight Wright was convicted for the murder of Marvin Thorpe, in the Circuit Court for the parish of Hanover, after a trial which lasted four days. He was sentenced on that same day to life imprisonment with the stipulation that he would be eligible for parole after he had served seven years.

2 [2] Mr. Wright applied for leave to appeal against his conviction and sentence and the single judge who considered and granted his application expressed the view that he "should be afforded the opportunity to canvas the issue as to whether provocation was properly withdrawn from the jury". The learned judge added that although his defence was that of self defence, "it is not inconceivable that in the presentation of that defence provocation did not (sic) arise as a subsidiary issue".

3 [3] Accordingly, the single ground of appeal argued by Mr. Hugh Wilson, counsel for the appellant, was that:

"the learned trial judge erred by withdrawing the issue of provocation from the jury and thereby deprived the appellant of the right to have the issue of manslaughter left to the jury."

4 [4] We heard this appeal on the 25 ^th February 2010 and gave our decision sans reasons on the 26 ^th February 2010, when we allowed the appeal, set aside the conviction for murder and substituted therefor a conviction for manslaughter. We now give our reasons for that decision.

5 The Prosecution's Case.

6 [5] The evidence of the circumstances which led to the death of Mr. Marvin Thorpe came from the prosecution's sole eye witness, Dwayne Haughton who testified that at about 9:00 pm, on the 7 ^th August, 2006, the date which was earmarked for the celebration of the anniversary of Jamaica's independence, he was in Lethe Square, in the parish of Hanover, playing music on a turntable. It appeared that he was providing the music for the night's festivities. He was the person in the role popularly referred to as 'the Selector'.

7 [6] While he was so engaged, he saw the appellant, Dwight Wright, walk over to Marvin and they started to argue. They were arguing for about 5 minutes. Then he saw that the appellant had his hand in his right pocket "and then he stab Marvin and run off." The area was lit by street lights, light from the stall where he was and lights from a Petcom Service Station across from the stall. He had an unobstructed view of the two men and he was able to see that it was a ratchet knife that the appellant had used to stab Marvin. He was also able to say that the appellant stabbed Marvin because he saw that he "pushed the knife".

8 [7] Marvin did nothing before the appellant stabbed him but after the stabbing, he picked up a piece of iron that was leaning against the stall/shop to the side of which they were arguing and ran after the appellant, trying to fling the iron at him but he was unable to do so and fell to the ground. In cross examination he said the piece of iron was beside Marvin for the duration of the argument/dispute but he denied the suggestion that Marvin had used the iron pipe to hit the appellant and that the appellant had stabbed Marvin as he moved to hit him again.

9 [8] Another prosecution witness David Hemmings testified that he was at Lethe Square that night and had seen the appellant run pass him. Then he had seen Marvin with a knife stuck in his chest, heading in the appellant's direction. Marvin had pulled out the knife, made three steps and then collapsed. He did not recall seeing Marvin with a piece of iron in his hand neither when he was running after the appellant nor when he collapsed.

10 The Defence.

11 [9] The appellant gave an unsworn statement in which he told the jury that he was in Lethe Square that night of the 7 ^th of August 2006 and had seen Dwayne Thorpe (clearly, referring to the deceased). They had a dispute and the deceased attacked him with a piece of iron. "When he attacked me with the piece of iron" the appellant said, "he hit me on my hand and when he was going to hit me again with the piece of pipe iron I pushed the knife forward and stab him in the left side and I ran off".

...