Grant v State
| Jurisdiction | UK Non-devolved |
| Judge | Lord Bingham of Cornhill |
| Judgment Date | 16 January 2006 |
| Neutral Citation | [2006] UKPC 2 |
| Date | 16 January 2006 |
| Docket Number | Appeal No. 30 of 2005 |
| Year | 2006 |
| Court | Privy Council |
[2006] UKPC 2
Present at the hearing:-
Lord Bingham of Cornhill
Lord Hutton
Lord Rodger of Earlsferry
Baroness Hale of Richmond
Lord Carswell
Privy Council
[Delivered by Lord Bingham of Cornhill]
At about 4.30 am on 18 April 1999 the appellant shot and killed Kymani Bailey, a 17 year-old student, in a car park off Knutsford Boulevard in Kingston. He was charged with murder, tried before McIntosh J and a jury and, on 28 February 2003, convicted. At the trial, despite defence objections, the unsworn written statement of an absent witness, Xavier Newton-Bryant, was admitted against the appellant, on the application of the Crown, under section 31D of the Evidence Act. The unsworn written statement of another absent witness, Michael Kinglock, was not admitted. On appeal against conviction, the appellant challenged the constitutionality of section 31D and also the trial judge's exercise of discretion to admit the evidence of Bryant, and to admit the evidence of Bryant without that of Kinglock. The Court of Appeal (Bingham and Walker JJA, and Harrison JA(Ag)) rejected both challenges in reasoned judgments delivered on 12 July 2004. Before the Board, both challenges have been repeated. They are resisted by the Director of Public Prosecutions, and the Attorney General has intervened (as he did in the Court of Appeal) to address the constitutional challenge. The appeal raises important questions on the constitutionality of section 31D and exercise of the judicial power to admit unsworn written statements of absent witnesses.
The facts
The area of factual dispute at the trial was, and remains, very limited. Most of the salient facts relied on by the Crown were common ground. The appellant was the licensed owner of a 9 mm Sig Sauer semi-automatic pistol. During the incident early on the morning of 18 April he fired 13 shots which struck the deceased. Two of those shots entered his body from the front, striking the thigh and the scrotum. Those wounds, if treated, were not of themselves life-threatening. Eleven of the shots entered the body of the deceased through different parts of his back, when he had his back towards the appellant. The firing of each shot required a separate pull on the trigger of 1.5 kilograms. Hollow point bullets were used. The cause of death was multiple gunshot wounds. The deceased died in a matter of minutes. The issue for the jury's decision was whether, as the appellant contended, he had fired these shots in lawful defence of himself. That required the jury to address three questions. First, before and at the time of the shooting, was the appellant subject to a threat or attack, or what he perceived to be such? Secondly, if so, was the threat or attack such, or perceived to be such, as to justify the use of reasonable force in self-defence? Thirdly, if so, did the force used by the appellant go beyond what could in all the circumstances, making allowance for the emergency of the moment, be justified? It was of course for the Crown to rebut this defence, if properly raised, beyond reasonable doubt and not for the defence to make it good. The partial defence of provocation was not advanced by the defence, but the trial judge correctly treated it as potentially raised by the evidence, and properly left it to the jury.
The appellant drove straight from the car park where the shooting occurred to the Half-way Tree Police Station in St Andrew where he handed over his pistol and volunteered a statement, which was recorded. In this statement the appellant said that at about 4.15 am he left a bar to return to his van in the car park. As he approached the van he stopped to urinate against a wall. He was zipping up his trousers and heard someone behind him say "Pussy hole, don't move". He turned round and saw a man pointing a gun at him. The man was to his right. He pulled out his fully-loaded firearm from his waistband, pointed it at the man and began to squeeze the trigger. He did not know how many shots he fired or if any caught the man. The man ran to the edge of the wall and continued to the other side, where he was out of the appellant's sight. The appellant followed the man and looked around the wall where the man, still holding the gun, was facing him. The appellant pointed the gun in the man's direction and squeezed the trigger again. He did not know how many shots were fired, or if any caught the man. After firing this second time, the appellant noticed a group of people running from Knutsford Boulevard towards where he was. To avoid the crowd, he walked to his van and drove to the police station. He had never seen the other man before, and he would not recognise him again. It was dark where the appellant was standing, but moderately lighted where the man stood. His attention had been drawn to the gun in the man's hand, and he had not noticed anything else.
The trial
At trial, the Crown called only one witness who saw any part of the shooting incident. This was Constable Wynter, who testified that he was along Knutsford Boulevard between 3.30 and 4.30 am on 18 April, near the Asylum Nightclub, off duty. He heard 5 or 6 of what he described as explosions sounding like gunshots, coming from the direction of a car park. He walked to see what was happening, and while doing so heard another set of explosions, sounding like those he had heard before and coming from the same direction. He started to run to the car park which was surrounded by buildings, one of them the Jamaica Football Federation building. There were vehicles in the car park, and he saw a man in a crouching position on the piazza of the Federation building, with his arms around the mid section of his body and slightly bending forward. After that he heard no explosions. He then heard a voice behind him, and noticed a person who went to a dump truck and drove off. Wynter made a call to the police by radio, returned to his car and tried without success to follow the truck which had driven off. On returning to the car park, he saw the man he had earlier seen in a crouching position lying face downwards, with gunshot wounds to his back, gasping. He saw nothing in the man's hand. Other police officers were called to the scene. They saw the deceased lying on the ground wounded. They found no weapon, and interviewed no potential witnesses. None of these officers witnessed the shooting incident.
Two statements had, however, been made to the police by witnesses who said they had seen the incident or part of it. The first statement was made by Xavier Newton-Bryant, a 40 year-old security officer and former police officer, on 30 April 1999. He said that he was on duty on the ground floor of the Football Federation building when he heard an explosion which he recognised as a gunshot. He became very alert. Six to eight seconds later he heard six more gunshot explosions in rapid succession. He went to the window, moved the blinds and looked out. He saw a man come into view from his left. He was staggering and holding his mid-section. He then turned on the side walk and fell on his face in front of the building about five or six feet from where Bryant was standing. He then saw another man coming towards the man on the ground with a semi-automatic pistol in his hand. He was standing about five feet from the injured man when he pointed the gun at the man on the ground and fired seven more shots in rapid succession. The man was still lying on his face. Bryant telephoned the police and reported what he had seen. On returning to the window he did not see the man who had fired the shots, but the other man was still lying on the ground. He did not see the man who was shot with a gun, and did not see anyone pick up a gun from the ground (although onlookers were picking up spent shells and bullets).
Michael Kinglock, a 32 year-old driver and night watchman, gave a written statement to the police on 7 May 1999. He said that on the morning of 18 April he was on duty in one of the buildings overlooking the car park. At about 4.15 am he went on to the third floor balcony to look over the car park, where there was little activity. He then saw a man walking towards the Football Federation building. The man stopped at the side of the building and urinated. He then saw another man walk up to the man who was urinating and heard him say "Pussy hole, don't move", holding his hand in a position pointing to the man who was urinating. The latter appeared as if he was pulling up the zip on his trousers, but came up with a gun instead and fired several shots in the direction of the man who had walked up behind him. That man turned around and ran. Kinglock saw something dropped, but did not know who it fell from. He saw several persons running to the car park. The man who had fired the shots ran in the same direction as the other man. Kinglock then saw a white van which reversed and sped away. From Kinglock's position he could not see what further transpired at the front of the Football Federation building, and he never saw either of them again after they ran from his sight. Only once did he hear several shots fired from the gun held by the man who was urinating.
Before the preliminary inquiry was held in this case, the Crown gave notice to the defence that it intended to put in evidence at the inquiry the statements of Bryant and Kinglock, of which copies were attached. Bryant, and possibly Kinglock also, was warned to attend the inquiry, but neither of them did so and it seems that the statements were not read to the court at that stage. The names of these witnesses were not included on the back of the indictment. After the inquiry and before the trial, the Crown again gave the defence a notice of its intention to adduce the statements of Bryant and Kinglock. The trial began...
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