Carlos Hamilton and Jason Lewis v The Queen (Jamaica)

An appellate court assessing trial error must ask whether the jury would inevitably have reached the same verdict had it been properly directed and all admissible evidence admitted. A provocation direction must address every material evidential basis for loss of self-control. Presence during a violent attack may support joint-enterprise liability where the circumstances justify an inference of intentional encouragement or assistance, although presence alone is insufficient. A defendant’s non-admission to police may be admissible to show his reaction or attitude, subject to the exception for a carefully prepared statement intended for prosecution use. Good-character omissions and evidential errors do not require quashing where the verdict was inevitable. Sentence credit for time awaiting appeal should be proportionate and generally denied only for frivolous or meritless appeals.

The appellants were convicted of murder in the Home Circuit Court, Jamaica, on 2 April 2001. They received life sentences and were ordered to serve 25 years before parole eligibility. On 24 March 2003 the Court of Appeal of Jamaica refused permission to appeal and directed that the 25-year period begin on 2 July 2001.

After the Board referred the case to a full hearing in Hamilton and Lewis v The Queen [2012] UKPC 31, the merits appeal concerned alleged misdirections on provocation, joint enterprise, child-witness evidence and false alibi, the failure to adduce good-character evidence, and the exclusion of statements made by Hamilton to police. The appellants also challenged the loss of three months’ sentence credit. The central questions were whether the convictions were unsafe and whether the sentences should be backdated.

Appeals against conviction dismissed; appeals against sentence allowed in part.

1. The Board identified three errors: the provocation direction omitted Hamilton’s account of an attack by Saleem on the morning of the killing; counsel failed to adduce the appellants’ good-character evidence; and Hamilton’s statements to police were wrongly excluded. Applying section 14 of the Judicature (Appellate Jurisdiction) Act 1962, the question was whether the jury would inevitably have reached the same verdict if the errors had not occurred.
2. The provocation direction was defective because it addressed only the incident at the shop the previous evening. Nevertheless, the evidence as a whole pointed inevitably to a joint attack by Hamilton and Lewis, rather than self-defence or provocation. The jury would therefore inevitably have rejected provocation.
3. Lewis’s presence at the scene during Hamilton’s ferocious attack was not capable of being dismissed as coincidence. The jury could infer that he was there to encourage or assist Hamilton, even if he inflicted no injury. The directions on joint enterprise were adequate.
4. On the assumption that Jamaican common law still required a warning about acting on uncorroborated evidence, no warning of the kind sought was required for a 16-year-old witness. In any event, there was ample corroboration. A false-alibi direction was also unnecessary because the evidence made Lewis’s presence and consequent guilt inevitable if the jury accepted that he had lied.
5. The rule against self-serving statements did not make Hamilton’s statements inadmissible as hearsay. Following R v Pearce (1979) 69 Cr App R 365, a non-admission could be admitted to show the accused’s attitude when confronted with the allegation. The carefully prepared written-statement exception described in that case did not apply. The statements should have been admitted, but their exclusion caused no miscarriage of justice given the strength of the evidence.
6. Under section 31(3) of the Judicature (Appellate Jurisdiction) Act 1962, the appellants were entitled to credit for the whole period spent in custody awaiting appeal. Their appeals were not frivolous or devoid of merit, and the three-month loss-of-time order was disproportionate. The 25-year terms were accordingly backdated to 2 April 2001.

1. Privy Council—Following the earlier permission decision in Hamilton and Lewis v The Queen [2012] UKPC 31, the Board dismissed the appeals against conviction and allowed the appeals against sentence to the extent stated in the present judgment.
2. Court of Appeal of Jamaica—On 24 March 2003, refused permission to appeal and directed that the 25-year period begin on 2 July 2001.
3. Home Circuit Court, Jamaica—On 2 April 2001, convicted both appellants of murder and imposed life imprisonment with a 25-year minimum period before parole eligibility.