The Tribune

By RASHAD ROLLE

Tribune Senior Reporter

rrolle@tribunemedia.net

THE Court of Appeal has overturned the verdict of a man who was found guilty of manslaughter in a 2009 killing. Xavier Taylor killed James Gardiner on November 2, 2009 after the two had an altercation. Taylor argued that he stabbed Gardiner in self-defence.

The jury during the trial first returned a guilty verdict on the charge of murder but were told that if they could not return a unanimous verdict on that charge they should consider manslaughter.

The jury, on December 4, 2017, found Taylor not guilty of murder but unanimously guilty of manslaughter. Taylor was sentenced to 15 years in prison.

During the trial, statements of witnesses Vanessa Cooper and Bradley Williamson were admitted under section 66 of the Evidence Act. However, after their statements were admitted but before the trial ended, the witnesses were located but not called to give evidence.

Taylor appealed that verdict, arguing the judge was wrong to admit the statements of Cooper and Williamson.

The Court of Appeal has agreed and has now ordered a retrial on the offence of manslaughter.

“Section 66 of the Evidence Act permits statements of witnesses to be admitted into evidence once a judge is satisfied that, inter alia, notwithstanding that all reasonable steps have been taken to locate a witness, the witness cannot be located,” the judges wrote in their written ruling. “In the present case, the trial judge preliminarily determined that she was not satisfied that the Crown had taken sufficient steps to locate Vanessa Cooper.

“Thereafter, she allowed the Crown to give further evidence of their efforts and consequently admitted the statement. In the court’s view, once Vanessa Cooper had been located the prosecution had an obligation to call her as a witness or at minimum tender her for cross examination. In the circumstances of this case, however, the judge ought not to have admitted the evidence of Vanessa Cooper after determining that all reasonable steps to locate her had not been exhausted.

“Relative to the witness Bradley Williamson, section 66 of the Evidence Act cannot apply to a witness who was found and served but does not appear. Therefore, the judge erred by allowing Williamson’s statement to be admitted pursuant to section 66 of the Evidence Act.

“The admission of both statements under section 66 of the Evidence Act leads to the conclusion that the verdict by the jury is unsafe and unsatisfactory having regard to the circumstances of the case. Further, the judge was wrong to direct the jury that they could proceed to consider manslaughter in circumstances where they could not arrive at a verdict on the substantive charge of murder. It was clear, however, that the jury found the appellant not guilty on the charge of murder and therefore the appellant could only be retried on the charge of manslaughter.”

During the trial, the crown argued that the deceased went to his girlfriend’s house and met Taylor there. The deceased’s girlfriend has a child with Taylor.

According to the evidence, the girlfriend told the deceased what was to be discussed could wait until the following day.

“The deceased demanded his DVD player which the appellant handed to him and told him to leave,” the judges wrote. “The deceased, however, although he left the house did not leave the premises. An altercation took place between the deceased and the appellant during which the deceased was stabbed to the chest and died from the injury sustained. The crown maintained that the appellant was the aggressor and that he went after the deceased with the knife which was used to stab the deceased.

“The appellant gave a statement to the police in which he acknowledged stabbing the deceased. He maintained, however, that he was acting in self-defence. At trial the appellant gave evidence and maintained his position that the information he provided in his record of interview with the police was the truth.”