Facts
1. The appellant shot and Killed Kymani Bailey a 17-year-old student in a car park in
Knutsford Boulevard in Kingston. The appellant was a licensed firearm owner.
During the incident a total of Thirteen shots that were fired by the appellant struck the
deceased. Two shots entered his body from the front striking the thigh and Scutum
and were not by themselves life threatening.
2. However, the remaining eleven shots entered the body of the deceased through
different parts of his back. The appellant contended that he had fired these shots in
lawful defense of himself.
3. He was charged with murder. At trial the defence despite objections admitted the
unsworn written statement of an absent witness, Xavier Newton – Bryant against the
appellant subject to section 31D of the Evidence Act. While the unsworn written
statement of another absent witness, Michael Kinglock was not admitted.
4. He was the only independent witness who would have seen the beginning of the
incident where the deceased walked up behind the appellant who was urinating and
said "P***y hole, don't move", holding his hand in a position pointing to the man who
was urinating.
5. The appellant appeared as if he was pulling up his zipper but came up with a gun
instead and fired several shots in the direction of the man who had walked up behind
him. The deceased then turned and ran and Kinglock stated he saw something fall but
did not know who it fell from.
6. While Bryant’s statement that was admitted stated that he was on the ground floor of
the football federation building when he heard an explosion which he recognized as a
gunshot. Six to eight seconds later he heard six more gunshots in rapid succession.
7. He went to the window and saw a man staggering from the left of his view and
holding his midsection. He then turned on the sidewalk and fell on his face in the
front of the building. Then he saw another man coming towards the man on the
ground with a gun in his hand. He was standing about five feet away from the injured
man when he fired seven more shots in rapid succession. The man was lying on his
face.
Grounds of Appeal
8. The appeal considers the constitutionality of section 31D of the Evidence Act and the
trial 0 exercise of discretion to admit the evidence of Bryant and not Kinglock. While
assessing whether the exercise of the prosecution’s discretion had been discharged in
relation to section 31D of the Evidence Act.
Basis for Appeal
9. What were the basis for allowing the appeal?
10. The main basis for allowing the appeal was held on the issue of whether it was fair to
admit the statement of Bryant, apparently damning for the appellant and leave the jury
ignorant of Kinglock’s statement which was much more favourable to him?
Law (Prosecution’s Discretion)
11. The board held that the prosecuting counsel mistook the nature and extent of her
prosecutorial discretion. As she stated that she had the discretion to call witnesses.
However, although the general rule provides that the prosecution has a discretion to
be exercised by the prosecutor acting as a minister of justice, in the interest of
fairness.
12. Therefore the prosecution does not need to call witnesses who are incapable of belief
or whose evidence is pure repetition (R v Haringey Justices, Ex p Director of Public
Prosecutions [1995] QB 351, 356 ).
13. The next principle of prosecutorial discretion provides that the prosecution ought
normally to call or offer to call all the witnesses who give direct evidence of the
primary facts of the case, unless for good reason, in any instance, the prosecution
regards the witness’s evidence as unworthy of belief.
14. In most cases the jury should have available all of that evidence as to what actually
happened, which the prosecution, when serving statements, considered to be material,
even if there are inconsistencies between one witness and another.
Analysis
15. Fairness required that both statements should have been admitted as Kinglock’s
statement was primary to establish how the incident began. The board also discussed
the fact that the admission of Kinglock’s statement might not have exonerated the
appellant. As the jury might have convicted either way with the undeniable fact that
shots were proliferated into the deceased would have been a large problem to
overcome.
16. However, the jury should have been introduced to Kinglock’s statement as it in large
part Corroborated the on how the incident began. The appellant was entitled to have
his case assessed, and his own evidence evaluated, considering all the available
evidence.
Judge’s Discretion
17. The board held that the Trail Judge also failed to ensure the overall fairness of the
proceedings. As she should have invited prosecuting council to adduce Kinglocks
statement into evidence. If that invitation, improbably, had been declined, the judge
could, on grounds of fairness, have declined to admit Bryant's statement unless
Kinglock's statement were also admitted.
18. While the trial judge also had the option of introducing the statement of kinglock
herself as a last resort, (R v Oliva [1965] 1 WLR 1028, 1035-1036). The board held
that it was not sufficient to suggest that defence council could have adduced the
statement of kinglock. The fact that the defense was given notice by the prosecution
of its intention to adduce the statement of kinglock would have caused them to be
taken by surprise that only Bryant’s statement was adduced.
Conclusion
19. It was, the responsibility of prosecuting counsel and the trial judge to ensure that the
proceedings were fair, and they failed to do so. This failure was compounded by an
inadequate direction on Bryant's evidence.
Constitutional Challenge
20. Why did the constitutional challenge to section 32 D of the Evidence Act fail?
Law
21. 31D of The Evidence Act of Jamaica
Subject to section 31G, a statement made by a person in a document shall be
admissible in criminal proceedings as evidence of any fact of which direct oral
evidence by him would be admissible if it is proved to the satisfaction of the court that
such person…
(c) is outside of Jamaica and it is not reasonably practicable to secure his attendance;
…
22. 20(6)(d) of the Constitution
Evidence against the accused at a criminal trial should be given by witnesses who attend
court to give evidence on oath, who can be cross-examined by or on behalf of the accused
and whose demeanour under questioning can be assessed by the tribunal charged to
evaluate the reliability of their evidence.
23. The first ground of assessment was the history of common law exceptions to the
hearsay rule that has been established for centuries such as the, dying declarations and
statements forming part of the res gestae. While other statutory exemption that
followed.
24. The board evaluated and opined that it would be wrong to construe section 13 and
20(6)(d) of the constitution as guaranteeing that there would not be any further
statutory exceptions to the hearsay rule, applicable in criminal proceedings. However,
it is clear that any new exceptions must not compromise the fairness of the
proceedings which section 20 is designed to protect.
25. The board also considered the Strasbourg principle that the admissibility of evidence
is governed by national law and its sole concern is to assess the overall fairness of the
criminal proceedings in question, Kostovski v Netherlands (1989) 12 EHRR 434.
26. Continuing by stating that the right to a fair trail can never be compromised in any
circumstances. However, the constituent rights in article 6 and section 20(6) are not
themselves absolute. Article 6 should not be treated as laying down rules of nonderogation or deviation. As what really matters is the overall fairness of the
proceedings.
27. The board also evaluated the presence of adequate safeguards in the law of Jamaica,
for the rights of the defence when it is sought to admit a hearsay statement:
Section 31D prescribes with clarity the conditions to be met before application may
be made.
28. The safeguard relevant to this case is the requirement that all reasonable steps must
have been taken to secure the attendance of the witness. The Court of Appeal R v
Michael Barrett (Appeal No. 76/97, unreported, 31 July 1998) stresses this principle
by stating that the section refers to all reasonable steps.
Conclusion
29. Therefore, it was held that with the history of exceptions to the hearsay rule, the
Strasbourg principle of fairness and the safeguards provided for in the Act does not
violate the constitutional provision. As the provision in and of itself is not absolute.
Therefore, the primary consideration should be the overall fairness of the trial.
Required Direction to the Jury
30. What are the contents of the warning to the jury which the Privy Council said were
required for the admission of evidence under section 31D of the Evidence Act?
31. The trial judge must give the jury a careful direction on the correct approach to
hearsay evidence. The importance of such a direction has often been highlighted: see,
for example, Scott v The Queen, above, p 1259. It is not correct to say that a
statement admitted under section 31D is not evidence, since it is.
32. The board stated that it would however be necessary to remind the jury, irrespective
of how obvious it may be to them, that such a statement has not been verified on oath
nor the author tested by cross-examination.
33. The judge should also point out the potential risk of relying on a statement by a
person whom the jury have not been able to assess and who has not been tested by
cross-examination and should invite the jury to scrutinise the evidence with particular
care. It is proper, but not perhaps very helpful, to direct the jury to give the statement
such weight as they think fit.
34. They must bear in mind that they are presented with an apparently plausible
statement, undented by cross-examination, by an author whose reliability and honesty
the jury have no extraneous reason to doubt. Therefore, the jury may well be inclined
to give it greater weight than the oral evidence they have heard.
35. It is however, more desirable to direct the jury to consider the statement in the context
of all the other evidence, but again the direction should not stop there. If there are
discrepancies between the statement and the oral evidence of other witnesses, the
judge should direct the jury's attention specifically to them.
36. It is worth noting that the omission of some of these directions will necessarily render
a trial unfair, but because the judge's directions are a valuable safeguard of the
defendant's interests.
Disparities in Statements
37. What were the apparent disparities in the Statement of Byant, Constable Wynter and
the statement of Kinglock?
38. The privy council held that in the summing up the judge had a duty to establish the
disparities in the statement for the jury. Bryant stated that he heard all of thirteen
explosions and witnessed the execution of seven of these shots approximately eight
seconds after hearing the first set of explosions.
39. He stated that he had not witnessed anyone picking up a gun but witnessed onlookers
picking up spent shells and bullets.
40. While in Kinglock’s statement he stated he heard several shots not specifying the
amount and witnessed that the deceased had pointed in his hand in the direction of the
appellant telling him not to move. The appellant shot at the deceased and the deceased
ran off so the appellant ran after him in the same direction.
41. Kinglocks statement differs from that of Bryant and Wynter as he stated he saw
something fall. However, he was not sure who it fell from. His statement also differs
as he stated that the first round of shots are the only omnes he heard come from the
appellant’s gun. As shortly after he say the van rapidly reverse and speed off.
42. While in Wynters evidence at trial he stated that he heard five or six explosions first
then another set of explosions sounding like gunshots. His evidence differs as he
stated that he found the deceased in a crouching position holding on to his groin.
43. However, after calling in the incident and attempting to chase down the van that he
saw speed away. He returned fining the deceased lying on his face downward with
gunshot wounds in his back. This differs from Bryans account as Bryan stated that he
fell on his face from the onset, but Wynter stated that he found him crouching in first
instance.
44. Also, it is noteworthy that because Bryan t stated that he did not see anyone take up a
gun does not mean that the gun was not removed from the scene. He also did not
witness the decreased threatening the appellant. Byant stated that the deceased fell on
his face however Wynter being the only one who interacted with the witness gave
evidence to state that the witness was in a crouching position first before maying on
his face revealing the gunshot wounds to his back. So this would have really left a lot
of unanswered questions for the jury.