Anglin (D.) v R

• Jurisdiction: Cayman Islands
• Judge: (Goldring, P., Field and Morrison, JJ.A.)
• Judgment Date: 22 October 2018
• Court: Court of Appeal (Cayman Islands)
• Date: 22 October 2018

ANGLIN (D.)

and

R.

(Goldring, P., Field and Morrison, JJ.A.)

Court of Appeal (Cayman Islands)

Criminal Procedure — appeals — reopening appeal — very limited jurisdiction to reopen appeal — leave to appeal against conviction for second time refused where no procedural defect, no arguable injustice, proposed grounds of appeal wholly without merit and no exceptional circumstances

Held, refusing leave to appeal:

(1) Ground 1 was wholly without merit. The relevant Cayman Islands law on provocation was set out in s.186 of the Penal Code (2007 Revision). In the present case there was no call at all for the Chief Justiceto leave provocation to the jury. It had not been raised by the highly experienced counsel representing the applicant. Indeed, it was not the applicant’s case. Moreover, on the evidence it would have been a submission wholly without merit. The applicant’s conduct was the antithesis of someone who had lost self-control, as was required by the law of provocation. The applicant went to the nightclub armed with a firearm and ammunition, and committed a cold-blooded shooting. Not only was there no evidence of a loss of self-control, but it was also inconceivable that any jury could conclude that a reasonable man, with or without the characteristics of the applicant, facing the provocation alleged, would in response shoot the provocateur three times, once from point-blank range in the head (para. 15; paras. 20–22).

(2) There was also nothing in Ground 2. The report of a forensic psychologist, prepared for the hearing of the setting of the minimum term, provided no basis at all for a finding that the applicant was suffering from diminished responsibility at the time of the offence. It was not therefore necessary or expedient to admit the report under s.16 of the Court of Appeal Law (2011 Revision). Furthermore, there had been before the Chief Justice a detailed report from a professor of psychiatry who rejected a diagnosis of post-traumatic stress disorder and also rejected diminished responsibility. His primary diagnosis was of an anti-social personality disorder. Not surprisingly, the Chief Justice rejected the explanation of post-traumatic stress disorder. If the court had jurisdiction to reopen the applicant’s appeal, and decided to do so, it would be bound to refuse leave (paras. 23–32).

(3) The present case did not meet the very demanding criteria for reopening a concluded appeal. The jurisdiction of the Court of Appeal was statutory. There was nothing on the face of the Court of Appeal Law which stated that a concluded appeal could not be reopened, although one had to read the statute against the background of the public interest in finality in legal proceedings. In short, the legislation of the Cayman Islands did not provide for the reopening of a concluded appeal. Section 36 of the Court of Appeal Law provided that where no special provision was contained in Cayman law, the court should look to the law and practice in Jamaica, and if such law and practice had no application, then to the English Court of Appeal. The court did not hear full inter partes argument, but it gave its preliminary views on the assumption that s.36 applied and required it to consider the law of Jamaica and, if necessary, of England, regarding the possible opening of a concluded appeal. The Jamaican Court of Appeal had a limited residual jurisdiction to reopen a concluded appeal in exceptional circumstances where there was a likelihood of substantial injustice to the appellant if it did not do so, including where there had been a defect in procedure or an irregularity amounting to fraud or mistake which had caused the previous hearing to be a nullity. Neither a change in the law nor fresh evidence were in themselves sufficient for the court to reopen a case. As the law in Jamaica was adeveloping jurisdiction, it was also pertinent to refer to the law and practice in England. The English Court of Appeal had a very limited residual jurisdiction to reopen a concluded appeal in cases of nullity or where it was necessary to avoid real injustice in exceptional circumstances where there was no alternative remedy. In criminal cases the jurisdiction was probably limited to correcting procedural errors. Assuming by reason of s.36 of the Court of Appeal Law that this court was obliged to follow current practice in Jamaica, the court would observe that it was a developing jurisdiction. It was likely that the Jamaican approach would reflect that in England. It was clear that the present case did not meet the very demanding criteria for reopening a concluded appeal, whether in Jamaica or in England. First, the defect was not procedural. Secondly, there was no arguable case of injustice, the applicant’s grounds of appeal being wholly without merit. Thirdly, there were no exceptional circumstances which made it appropriate to permit this appeal to be reopened, the applicant merely sought a second bite at the cherry. Fourthly, nothing that the applicant now sought to advance could affect the safety of his conviction for murder. The public interest lay overwhelmingly in favour of finality. The application to reopen the appeal against conviction would be refused (paras. 33–61).

Cases cited:

(1)Grant v. R., [2018] JMCA App 13, followed.

(2)R. v. Gohil, [2018] EWCA Crim 140; [2018] 1 W.L.R. 3697; [2018] 1 Cr. App. R. 30, followed.

(3)R. v. Hockey, [2017] EWCA Crim 742; [2018] 1 W.L.R. 343; [2017] 2 Cr. App. R. 23; [2017] 2 Cr. App. R. (S.) 31, referred to.

(4)R. v. Melius, [2016] EWCA Crim 1538, considered.

(5)R. v. Pinfold, [1988] Q.B. 462; [1988] 2 W.L.R. 635; [1988] 2 All E.R. 217; (1988), 87 Cr. App. R. 15, considered.

(6)R. v. Yasain, [2015] EWCA Crim 1277; [2016] Q.B. 146; [2015] 3 W.L.R. 1571; [2016] 2 All E.R. 686; [2015] 2 Cr. App. R. 28; [2016] 1 Cr. App. R. (S.) 7, considered.

(7)Taylor v. Lawrence, [2002] EWCA Civ 90; [2003] Q.B. 528; [2002] 3 W.L.R. 640; [2002] 2 All E.R. 353; [2002] C.P. Rep. 29, considered.

Legislation construed:

Court of Appeal Law (2011 Revision), s.7: The relevant terms of this section are set out at para. 33.

s.16: The relevant terms of this section are set out at para. 26.

s.36: The relevant terms of this section are set out at para. 37.

Penal Code (2007 Revision), s.185(1): The relevant terms of this sub-section are set out at para. 23.

s.185(2): The relevant terms of this sub-section are set out at para. 24.

s.185(3): The relevant terms of this sub-section are set out at para. 25.

s.186: The relevant terms of this section are set out at para. 15.

The applicant was convicted of murder and sentenced to imprisonment for life.

The applicant shot and killed the victim in a crowded nightclub with an unlawful firearm. The applicant and his girlfriend had allegedly been harassed and provoked by the deceased and his companions in an altercation immediately before the offence. He denied the offence but was convicted of murder in 2011 and sentenced to life imprisonment. He was also convicted of the attempted murder of a second man whom he shot during the same incident, and of unlawful possession of the firearm, for which he was sentenced to terms of imprisonment to run concurrently. His appeal to the Court of Appeal was dismissed. It had been based on three grounds: (a) the poor quality of the identification evidence; (b) that witness anonymity orders should not have been made; and (c) in any event those orders should have been discharged at the close of the prosecution case. He was refused leave to appeal to the Privy Council.

Pursuant to the Conditional Release Law 2014, the Grand Court (Smellie, C.J.) subsequently set the minimum term of imprisonment to be served before the applicant would be eligible for consideration for conditional release at 30 years (that judgment is reported at 2018 (1) CILR 85).

The applicant now sought leave to appeal against his conviction again. He appeared to have changed his position, accepting, contrary to his previous denials, that he did in fact shoot the victim. He sought to argue that his conviction for murder should be quashed and a conviction for manslaughter substituted on the basis of provocation (Ground 1) or diminished responsibility (Ground 2).

The applicant appeared in person;

D. Perry, Q.C. and E. Lees, Senior Crown Counsel, for the respondent.

1 GOLDRING,...