Jabari Sensimania Nervais v The Queen
| Jurisdiction | Caribbean States |
| Judge | Barrow, J. |
| Judgment Date | 27 June 2018 |
| Court | Caribbean Court of Justice |
| Docket Number | CCJ Appeal No. BBCR2017/002; BB Criminal Appeal No. 2 of 2012 |
| Date | 27 June 2018 |
Caribbean Court of Justice
Byron, P.CCJ; Saunders, J.CCJ; Wit, J.CCJ; Hayton, J.CCJ; Anderson, J,CCJ; Rajnauth-Lee, J.CCJ; Barrow, J.CCJ
CCJ Appeal No. BBCR2017/002; BB Criminal Appeal No. 2 of 2012
Mr Douglas L Mendes SC, Mr. Andrew O G Pilgrim QC, Ms Naomi J E Lynton and Ms Kamisha Benjamin for the appellant
Mr Anthony L Blackman, Deputy Director of Public Prosecutions (Ag), Ms Krystal C Delaney, Senior Crown Counsel and Neville Watson, Crown Counsel for the respondent
Criminal law - Murder — Appeal against conviction — Evidence — Confession — Whether confession was corroborated — Joint enterprise — Whether summing up was unbalanced.
Jabari Sensimania Nervais (‘Nervais’) and Dwayne Omar Severin (Severin), were convicted of murder and the mandatory sentence of death by hanging was imposed on each of them on 21st February 2012 and 28th May 2014 respectively. Both sought leave to appeal their conviction and sentence on the grounds that their convictions were unsafe, and the mandatory sentence of death was unconstitutional. Nervais and Severin also sought leave to appeal as a poor person. We granted leave to appeal and leave to appeal as a poor person for both appellants and also ordered that the appeals against conviction would be heard separately and the appeals against sentence consolidated. We now turn to Nervais' appeal against conviction.
Nervais' appeal against his conviction for murder involved largely uncontroverted facts. The controversy in the trial was centred on the admissibility of the repudiated confession statements given by Nervais, which the trial judge admitted as voluntarily made, and on the last-minute defence of alibi.
The Prosecution's case was that on 17th November 2006 at around 9:00 in the evening, Jason Burton, the deceased, was carrying on his business as a vendor from a booth in the area of Nazarene Gap, Jackson, St. Michael. There were other persons around. An alarm was raised that a group of men dressed in black were approaching, which caused the deceased and other persons to run away. A number of gun shots were fired. The Prosecution alleged that one person fired a single shot in the direction of the running men and the deceased was struck by the bullet. He ran a bit further, stopped, collapsed and died. The undisputed evidence of the pathologist, Dr Jones, was that death was caused by a single gunshot wound.
Nervais was arrested on the 22nd August 2007 and charged that day with the murder of the deceased after he had made oral statements and a written confession to a police officer. At the trial, Nervais challenged the making and the voluntariness of the confessions and at the Court of Appeal, he argued that the judge erred in deciding to admit the oral and written confessions. However, he did not pursue that course before this Court.
The confessions Nervais made to the police officer began with Nervais exclaiming after his arrest, that a named companion was the one “who talk” and that he, Nervais, would tell the police what happened. This was followed with the officer telling Nervais that the allegation against him was that a group of men went to Nazarene Gap and one of these men fired a gun shot at persons there. The officer then told Nervais he was suspected of being the person who was responsible for murdering Jason Burton. In response, the officer testified, Nervais said he and others “went in Jackson ‘pon de block to bore a man. I end up shooting at some men and one get shoot. The next day I hear a man dead.”
In the confession that he signed after he made that statement, Nervais repeated the substance of that statement in terms that
“I fire a shot in the men direction. All of the men run and disappear. I wasn't certain but one of the men that did running stumble like he get shoot… The next day I hear in the news ‘pon the radio that a man was shot in Jackson and that the police investigating.”
In the written confession, Nervais also told the police that same night they went to St. Joseph to visit his friend “Tupac” and responded to the subsequent inquiry of the police officer that the proper name of Tupac was Jason Holder. Nervais also answered an inquiry from the police to say he didn't know about other shots being fired and that he fired one shot.
The Prosecution called Jason Holder as a witness, and he testified that on a night in November 2006, Nervais in the company of “a couple fellows”, visited his home in St. Joseph and asked him for money to put gas in the car. Holder testified that he gave Nervais ten dollars. He said he had not seen Nervais since that night.
In his unsworn statement from the dock after the Prosecution closed its case, Nervais told of being arrested by the police in July 2007, being brutalized, asked about a gun and about the deceased, and then released. He then told of being arrested again by the police in August 2007 and being tortured at the police station and signing a statement and a police officer's note book. After so stating Nervais said, “that's it”, and sat down. It was then that defence counsel prompted Nervais to speak about 17th November 2006. In response, Nervais stated that on the day in question he woke up late, went to the beach with his girlfriend until 4:00pm, then went to karaoke from 8:00pm until 2:00 am the next day. It was a complete alibi he gave, with no notice of an alibi defence. He did not call his girlfriend or anyone else as witness to his alibi.
One of the witnesses Nervais called, gave an account similar to Nervais' account of the two of them being arrested on 18th August 2007. He also stated that he heard Nervais being assaulted and beaten. The Prosecution asked the jury to disbelieve this testimony.
Having been found guilty of murder, the mandatory sentence of death was imposed by the trial judge. Nervais appealed his conviction and sentence on the grounds that the verdict was unsafe and the sentence excessive, but the Court of Appeal dismissed the appeal and affirmed the conviction and sentence. Nervais further appeals to this court and advances five grounds against conviction.
Nervais' first ground of appeal was that the Court of Appeal erred in law when they found that the learned trial judge's “misstep” in telling the jury that the evidence of Jason Holder corroborated the disputed written statement was not so significant as to affect the safety of the conviction. This ground asserts it was a misdirection which amounted to a miscarriage of justice when the trial judge, after recalling to the jury that Holder testified that Nervais visited on a night in November 2006, directed the jury that Holder's “… evidence is significant members of the jury, because it corroborates the written statement of the accused Nervais.” At the trial, after completing her summation, the judge inquired of counsel whether there was anything she had said that needed correcting and Defence counsel identified the judge's direction as to corroboration as needing correction. Defence counsel said to the trial judge that Holder had not stated that Nervais came to his home on 17th November 2006, as defence counsel apprehended the judge had told the jury, but that he came on an unspecified night in November.
To this court, counsel for Nervais submits that it was the obligation of the judge to have corrected this misdirection in the plainest terms and she should have done so in accordance with the method outlined in R v. Moon. [1969] 1 WLR Namely, the court must: (1) repeat the direction given; (2) acknowledge that it was wrong; (3) tell the jury to put out of their minds all the misdirection they had heard from the court and; (4) direct the jury on the law in clear terms incapable of being misunderstood. In this regard, counsel for Nervais argues, the only step taken by the judge was to repeat the direction and this failed to undo the “misstep.”
Counsel further submits that the learned trial judge never accepted that there was no corroboration and failed to acknowledge that she had made an error. Counsel contended that the direction on corroboration misled the jury as to the weight to place on the written statement. This made the conviction unsafe, it was submitted, because there was really no other evidence but the confession and leaving the misdirection without the correction prescribed in Moon amounted to a miscarriage of justice.
On a close examination of the words used by the judge in directing the jury, the objection taken by defence counsel to the judge, that the judge had erroneously directed the jury that Holder had testified that Nervais had come to his home in the night of 17th November 2006, was mistaken. The judge did not tell the jury Holder had specified the date. The judge directed the jury that Holder had said “one night in November 2006”; the judge did not supply the date. Therefore, the judge did not misdirect the jury.
A further inquiry is whether the judge was wrong to tell the jury that Holder's testimony corroborated the statement made by Nervais in the confession, that he had visited Holder the fateful night. The submission that the judge erred in so stating raises issues of whether the law requires corroboration of a confession which is repudiated, what amounts to corroboration, and whether Holder's evidence could be so regarded. The judge's reference to corroboration may have come from the Australian case of McKinney v. R [1991] LRC (Crim) 387 in which a narrow majority of the High Court determined to establish “a general rule of practice” that judges should warn juries to exercise caution when considering a disputed confession which was not corroborated. However, it was expressly decided in that case that corroboration of a confession is provided by the accused signing...
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