Smith v The Queen (Jamaica)

JurisdictionUK Non-devolved
JudgeLord Carswell
Judgment Date23 June 2008
Neutral Citation[2008] UKPC 34
CourtPrivy Council
Docket NumberAppeal No 102 of 2006
Date23 June 2008
Nyron Smith
The Queen

[2008] UKPC 34

Present at the hearing:-

Lord Bingham of Cornhill

Lord Hope of Craighead

Lord Rodger of Earlsferry

Lord Carswell

Lord Brown of Eaton-under-Heywood

Appeal No 102 of 2006

Privy Council

[Delivered by Lord Carswell]


The appellant Nyron Smith was on 16 October 2001 convicted at the Home Circuit Court, after a trial before McCalla J and a jury, of the murder on 25 February 2000 of Errol Topping. He was sentenced to imprisonment for life, with a recommendation that he should serve 14 years before becoming eligible for parole. In a written judgement dated 11 April 2003 the Court of Appeal (Forte P, Bingham and Panton JJA) dismissed his appeal against conviction. He has appealed by special leave as a poor person to the Privy Council.


On the evening of 25 February 2000 a street party was held in Eighth Avenue, Newport West, Kingston. When it was in full swing about 9.30 pm Errol Topping, otherwise known as "Ram Puss", was fatally stabbed in the street. He had been dancing with a girl in the street and some kind of altercation took place between Ram Puss and the girl. Shortly afterwards a man came across to him and stabbed him in the chest. The appellant was identified as the assailant by a single eye-witness Dennis Singh, whose testimony was crucial to the prosecution case.


Eighth Avenue is a short street running between First Street and Newport Boulevard. On one side there was a row of shipping containers, which had been made into small shops. One of these, the second from the First Street end, was occupied by the appellant's father as a cook shop. On the night of 25 February 2000 Mr Smith Sr had arranged a "customer appreciation party", at which those present were eating and drinking, some at tables in the street. There was music equipment playing loud music. It appears that there was another similar party taking place nearby at the same time, so there was a fairly large crowd of people in the street.


There was a certain amount of evidence, not all of it clear and some of it conflicting, about the lighting at the place of the attack on the victim. There was a street light on First Street opposite the junction with Eighth Avenue, which Detective Corporal Graham estimated was about one and a half chains (33 yards) from the place where Ram Puss was dancing. Most witnesses deposed that this was lit, though Constable Morgan, who was called for the defence, said that it was not. There was some light from over the wall of the Shipping Association compound on the opposite side of Eighth Avenue from the cook shop. There was also light from Mr Smith's cook shop and from other container shops in the street. Dennis Singh stated at several places in his deposition that there was a light in Eighth Avenue itself opposite the cook shop, but the police witnesses all stated that this was incorrect. He also said that the street was well lit at that point and none of the other witnesses, with the exception of Constable Morgan, deposed that the lighting conditions were poor enough to make identification difficult, although Constable Hall accepted that the side of the road opposite the cook shop was darker. Constable Morgan said that the place was poorly lit, but accepted that he could recognise Ram Puss from where he was standing.


Mr Singh stated in his deposition that Ram Puss and a girl had been dancing energetically in the street for some time, but then she pushed him in the chest, pushing him away from her. They stopped dancing and seemed to be arguing. About a minute or so after this a young man came across the road and pushed a knife with force into Ram Puss's chest. He pulled the knife out and went across the street to talk to a lady by the tree in front of the cook shop. While he was there he put his hand with the knife behind him and one of the group took it from him. Singh shouted out to police officers standing behind him that a man had stabbed Ram Puss, and pointed to a man who he said had done it. He ran across the road to Ram Puss, who was then lying on his back gasping. He claimed that he had not taken his eyes off the assailant from the time of the stabbing to his disposal of the knife. He could see his face throughout. One of the officers held on to the man to whom he had been pointing. He followed the officers over to where one of the officers was holding him.


Constable Randolph Hall was standing talking to a group of police officers attending the party, beside where Singh was situated towards the First Street end of Eighth Avenue. Singh spoke to him and pointed towards a man standing in the street, giving him a description. He had not seen the stabbing himself, nor could he see the man pointed out, as his view was obstructed by the sound boxes. He went over to the man described by Singh, who was the appellant, and told him that he had been accused of stabbing Ram Puss. He searched the appellant, who had no weapon on his person. He resisted arrest, and there was a struggle. Constable Hall and Detective Corporal Graham then took the appellant by car to Newport West police station nearby.


At the station Singh, who came there at the request of the police, was asked if the appellant was the man who had stabbed Ram Puss and said that he was. Singh said in his deposition that the appellant was then behind bars, whereas Detective Corporal Graham said in his deposition that he was in the guard room, although in his evidence he did not specify the location within the station. The appellant made no response to the accusation.


The preliminary enquiry was held in the magistrate's court over four separate days between 27 April and 19 May 2000. Evidence was given at some length for the prosecution by Dennis Singh, who was extensively cross-examined. Depositions were also made by Constable Hall, Detective Corporal Graham, Constable Morgan and Corporal Briscoe. In the course of his evidence, Singh made a dock identification, which appears to have been unprompted, of the appellant as the man who stabbed Ram Puss.


The case came to trial on 30 April 2001 before Dukharan J and a jury. When Singh was called to give evidence, he declined to do so, saying only the following:

"My name is Dennis Singh. I just have something to say. The thing is this, I don't want to go further with this, my life is being threatened. I went to the police, I reported it and nothing was done. I got a call from someone saying they are going to kill my wife, my mother and father and my kids and whosoever is close to me. My parents live in Olympic Gardens. I have a trucking business in Newport West where I operate trucking business all over the island."

He then added: "I am afraid of my life your honour."

The judge discharged the jury at the request of prosecuting counsel and adjourned the trial. Later that day Mr Singh made a statement to the police in which he recounted an incident which had occurred in the court building shortly before the trial commenced and which he found disturbing. It is apparent from the terms of the statement and the fact that prosecuting counsel had no notice that he would refuse to give evidence that this incident triggered his decision, on top of the threat which he said he had previously received.


The retrial commenced on 8 October 2001 before McCalla J and a fresh jury. At the beginning the judge held a voir dire in the absence of the jury to determine the admissibility of Singh's deposition, which the prosecution wished to adduce. Their authority for doing so was section 31D of the Evidence Act 1843, as amended:

"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

(a) is dead;

(b) is unfit, by reason of his bodily or mental condition, to attend as a witness;

(c) is outside of Jamaica and it is not reasonably practicable to secure his attendance;

(d) cannot be found after all reasonable steps have been taken to find him; or

(e) is kept away from the proceedings by threats of bodily harm and no reasonable steps can be taken to protect the person."

Section 31J(1) provides for the admissibility of evidence to attack the credibility of the maker of the statement so admitted or to prove an previous inconsistent statement made by him. Section 31L permits the court to exclude evidence if in its opinion the prejudicial effect of that evidence outweighs the probative value.


In the voir dire a shorthand writer read the transcript of the part of the proceedings in the first trial in which Singh refused to give evidence. A representative of the Witness Protection Unit gave evidence about the difficulties about arranging relocation for Singh and his extended family and the problems which it would make for Singh to leave his business, for which the witness protection scheme could not compensate him. Singh's deposition at the magistrate's court was proved in evidence, then submissions were made by the advocates on its admissibility. The judge ruled:

"I am satisfied by the evidence given that the necessary conditions pursuant to section 31D have been satisfied, and accordingly I will allow the application."


The trial proceeded before the jury, with Singh's deposition, including cross-examination, being read to the jury. The prosecution did not call Constable Morgan or Corporal Briscoe, notwithstanding the fact that they had made depositions. No reason was given, and defence counsel did not raise the matter with the judge.


He did submit that there was no case to answer, based on the quality of the identification evidence, but the judge, rightly in their Lordships' view, refused the application. When the defence case opened the...

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