Supreme Court of Judicature of Jamaica CRIMINAL BENCH BOOK Supreme Court of Judicature of Jamaica CRIMINAL BENCH BOOK The Honourable Mr Justice F Algernon Smith CD Retired Judge of Appeal The Honourable Mr Justice Karl Harrison CD Retired Judge of Appeal Foreword by The Honourable Mrs Justice Zaila R McCalla OJ Chief Justice of Jamaica Published on behalf of the Government of Jamaica by NOT FOR SALE OR PURCHASE First published in Jamaica, 2017 by The Caribbean Law Publishing Company an imprint of Ian Randle Publishers 16 Herb McKenley Drive P.O. Box 686, Kingston 6 Jamaica, W.I. www.ianrandlepublishers.com © Government of Jamaica ISBN 978-976-8167-90-3 (ebook) NATIONAL LIBRARY OF JAMAICA CATALOGUING IN PUBLICATION DATA A CIP catalogue record for this book is available from the National Library of Jamaica. Disclaimer and Agreement for Use 1. This Bench Book is issued by the Judicial Education Institute of Jamaica. 2. It is important for any user of this Bench Book to understand that it is intended for the use of judges as a guide only. Judges are required suitably to adapt them to the individual case. 3. The Institute does not warrant or make any representation that the contents of the Bench Book is free from errors or omissions. This guide is not intended to be a textbook on criminal law or procedure. Neither is it intended to be exhaustive. The duty lies upon judges, with the assistance of counsel where appropriate, to ensure that any directions given are, as a matter of law, accurate and up-to-date. 4. There will inevitably be occasions when the courts will find that certain of these specimen directions or the notes thereto are incomplete, require adjustment or even that they do not accurately represent the law. 5. The Bench Book will periodically be updated to reflect such changes in the law as come to the Institute’s attention but there will necessarily be a time lag before those changes are reflected. 6. Users of this guide and of the website upon which it is posted are responsible for making their own assessment of the information. The guide should not be used or relied upon as a substitute for independent research or independent legal advice. It is up to the users themselves to verify the accuracy of the information in this guide and to ensure that it is up to date. 7. For the reasons stated, the guide is provided and posted on the internet on the strict understanding that the Judicial Education Institute of Jamaica and its members and agents disclaim all liability for any claims arising, whether directly or indirectly, by reason of any person using or relying on the information in this guide. Agreement for Use By opening this Bench Book you are agreeing: (1) that you have read this disclaimer and agree with the terms and conditions of use of this guide; and (2) that you may use the guide or any information in it personally for legal professional practice but you will not use the same for any commercial publication or activity. Judicial Education Institute of Jamaica All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means electronic, photocopying, recording or otherwise without the prior permission of the Government of Jamaica. Cover and Publication Design by The Caribbean Law Publishing Company Printed in the United States of America CONTENTS Foreword ix Preface xi Acknowledgements xiii Table of Statutes xvii Table of Cases xx Sources xxxix Abbreviations xli 1. INTRODUCTION 1 1-1 Timing of Directions of Law 1 1-2 Written Direction and Routes to Verdict 1 1-3 Summing-up Checklist 3 2. JURY MANAGEMENT 5 2-1 Empanelling the Jury 5 2-2 Challenge of a Juror 6 2-3 Discharging a Juror or Jury 9 2-4 Conducting a View of the Locus In Quo 14 3. TRIAL MANAGEMENT 17 3-1 Opening Remarks to the Jury 17 3-2 Defendant Unfit to Plead and/or Stand Trial 21 3-3 Trial in the Absence of the Defendant 25 3-4 Trial of One Defendant in the Absence of Another/Others 29 3-5 Defendant in Person 32 3-6 Special Measures 36 3-7 Intermediaries 38 3-8 Interpreters 40 4. FUNCTIONS OF JUDGE AND JURY 44 5. BURDEN AND STANDARD OF PROOF 47 6. THE INDICTMENT 50 6-1 The Form of the Indictment – Separate Consideration of Counts 50 6-2 Specimen Counts 52 6-3 Alternative Offences/Alternative Verdicts 52 7. CRIMINAL LIABILITY 55 7-1 Child Defendants 55 7-2 Joint Participation in an Offence 57 7-3 Joint Principals 58 7-4 Accessory/Secondary Liability 59 7-5 The Abolition of Parasitic Accessory/Joint Enterprise 71 7-6 Withdrawal from Joint Criminal Liability 71 7-7 Conspiracy 74 7-8 Criminal Attempts 77 7-9 Causation 79 8. STATES OF MIND 84 8-1 Intention 84 8-2 Recklessness 88 8-3 Malice 92 8-4 Wilfullness 95 8-5 Knowledge, Belief and Suspicion 97 8-6 Mistake 101 9. INTOXICATION 105 10. EVIDENCE – GENERAL 111 10-1 Circumstantial Evidence 111 10-2 Corroboration and the Special Need for Caution 115 10-3 Expert Evidence 123 10-4 Delay 131 10-5 Evidence of Children and Other Vulnerable Witnesses 136 11. GOOD CHARACTER OF DEFENDANT 144 12. BAD CHARACTER OF DEFENDANT 154 12-1 Evidence of Bad Character – General Introduction 154 12-2 Directions Applicable to Admissible Bad Character Evidence 156 12-3 Evidence of Bad Character Adduced by the Defendant 157 12-4 Bad Character Evidence as Important Background/ Explanatory Evidence 159 12-5 Bad Character Evidence – Relevant to an Important Matter in Issue 160 12-6 Important Matter in Issue Between Defendant and Co-defendant 162 12-7 Evidence to Correct a False Impression Given by the Defendant, Going to Credit and Propensity 166 12-8 Section 9(f)(ii) – Defendant’s Attack on the Character of Prosecutor or the Prosecutor’s Witnesses 168 12-9 Non-Defendant’s Bad Character 169 13. SIMILAR FACT EVIDENCE 171 14. HEARSAY 175 14-1 Hearsay General 175 14-2 Witness Absent– Section 31D Evidence Act 179 14-3 Business Documents 183 14-4 Introduced by Agreement – Sections 31C, 31CB, and 31CA of the Evidence Act 184 14-5 Previous Inconsistent Statement 187 14-6 Previous Inconsistent Statement of a Hostile Witness 188 14-7 Statement to Refresh Memory 190 14-8 Previous Consistent or Self-Serving Statements 191 14-9 Statement to Rebut Allegation of Recent Fabrication 192 14-10 Res Gestae 194 14-11 Statements in Furtherance of a Common Enterprise 197 14-12 Out of Court Statements Made by One Defendant 200 14-13 Dying Declarations 201 15. IDENTIFICATION 203 15-1 Visual Identification by A Witness/Witnesses 203 15-2 Identification from Visual Images: Comparison by the Jury 213 15-3 Identification from Visual Images by a Witness Who Knows The Defendant and so is Able to Recognise Him 217 15-4 Identification by Facial Mapping 219 15-5 Identification by Fingerprints 224 15-6 Identification by Voice 227 15-7 Identification DNA 233 16. DEFENDANT – THINGS SAID 246 16-1 Confessions 246 16-2 Lies 251 17. DEFENDANT – THINGS NOT SAID OR DONE 254 17-1 Silence or Conduct when Accused 254 17-2 Defendant’s Unsworn Statement at Trial 256 18. DEFENCES – GENERAL 258 18-1 Self-Defence/ Prevention of Crime/ Protection of Household 258 18-2 Alibi 271 18-3 Duress 275 18-4 Sane Automatism 280 18-5 M’Naghten Insanity including Insane Automatism 283 18-6 The Defence of Accident 287 19. DEFENCES – MURDER 290 19-1 Diminished Responsibility - Abnormality of Mind 290 19-2 Provocation 295 20. SEXUAL OFFENCES 303 20-1 Special Provisions 303 20-2 Historical Allegations 314 20-3 Grooming of Children 316 20-4 Consent and Reasonable Belief in Consent 317 20-5 Capacity and Voluntary Intoxication 318 20-6 Recent Complaint and Distress 323 21. ANTI-GANG OFFENCES 326 22. TRAFFICKING IN PERSONS 330 23. MANSLAUGHTER 335 24. MOTOR MANSLAUGHTER/ DEATH BY DANGEROUS DRIVING 337 25. VERDICT AND DELIBERATIONS 344 25-1 Adjournments 344 25-2 Unanimous Verdicts and Deliberations 345 25-3 Taking Partial Verdicts 347 25-4 Majority Verdicts 347 25-5 Watson Direction 349 25-6 Alternative Verdicts 351 25-7 If the Jury Cannot Ultimately Reach a Verdict 352 25-8 Final Remarks to the Jury 352 26. ANNEXES 353 ANNEX 1 - Special Measures Aide Memoire 353 ANNEX 2 - Practice Direction (Criminal) 356 Schedule Forms 363 Foreword Summation to a jury in the trial of a criminal case requires a thorough knowledge of the case, preparation of the summation and clear delivery to the jury. Jamaican judges have consistently executed this task and have satisfied those requirements in doing so. They have, however, carried out that task without the benefit of a bench book that collates in one place all the material that is usually required for achieving the purpose of a summation. Judges, up to this point, largely have had to put together for themselves the material that they need for carrying out the task of directing juries. This situation has added to the burden of their jobs and led to many variations in the way in which juries are directed. It cannot be denied that a number of successful appeals against convictions have been as a result of misdirections to the jury by the trial judge. Some of those misdirections, no doubt have been as a result of the unavailability to the judge of ready access to guidance from a reliable legal publication dealing with the particular offence being tried.