M’Lord, Madam Foreman and members of the jury, I would like to say
that I am innocent man of this charge, and all that I am asking for,
Madam Foreman and members of the jury, to consider – what I would
also ask for is to get back my life to continue taking care of my sick
mother and my daughter and further my career as an Artist and a
certified mechanical engineer …”
[341] In leaving Mr Campbell’s defence to the jury (Vol IX, pages 5131-5133 of the
transcript), the judge summarised his unsworn statement by, first, reminding the jury of
what he had said about his schooling, qualifications and work history. The judge then
continued in this way:
“However, in October 30, he heard of a report for questioning [sic]
and going there, he was held for three days, and his lawyer applied
for habeas corpus. He was released by the police, and they took his
baby mother and himself, took their numbers. He said they would call
him if they needed him for any further questions. He said that that he
was called there again, and he is a law-abiding citizen. He was kept
for twelve days; released. He was asked to do a question and answer,
and based on that he was charged for murder.
He said ‘I am not a murderer, nor have I ever’, neither has he ever
taken part in any alleged plan in respect of Clive Williams.
He says, ‘I, Shawn Campbell, am no murderer, and on August 16,
2011, Lamar Chow and Clive Williams followed me to Havendale, and
on reaching at Havendale, Clive Williams came out at the guesthouse.’ It’s important to remember that, that’s what he has
maintained. ‘Lamar Chow came out of the vehicle at Swallowfield,
then I leave, then I leave. That same night, Lamar Chow came to me
at my house, and told me that dog bite Kartel and him, meaning him,
Lamar Chow, carry Kartel goh to hospital. No time did he tell me about
anything on the ground or anything like that. Some of the things he
did, he did not mention anything like that on August the 16th, when
he came to my house. I am an innocent man of this charge. All I am
asking is for that to be considered,’ and to get back to his life to take
care of his sick mother and daughter and to further his career as an
artist, and certified mechanical engineer.” (Emphasis supplied)
[342] In our view, a comparison of what Mr Campbell said in his unsworn statement with
what the judge told the jury in leaving it to them plainly reveals that Mr Samuels’ principal
complaints about the latter are unfounded. In stating this conclusion, we have not lost
sight of the table which we have reproduced above. But such differences as emerge from
the comparison which it invites are, in our view, differences in choice of language only,
revealing no significant divergences in meaning.
[343] For instance, it is true that the judge did not use Mr Campbell’s exact words as
regards Mr Chow and the deceased having travelled with him to Havendale on 16 August
2011, which were that “Lamar Chow and Clive Williams freely followed me to
Havendale” (emphasis supplied). However, it seems to us that the way in which the judge
put it (“Lamar Chow and Clive Williams followed me to Havendale”) (emphasis supplied)
was nonetheless perfectly apt to convey the meaning for which Mr Samuels contends:
that is, neither man was coerced by Mr Campbell to travel with him to Havendale on 16
August 2011.
[344] In fact, the judge told the jury more than once that what Mr Campbell was saying
was that although Mr Chow and the deceased had followed him to Havendale, the latter
came out of the vehicle at the guest house (see, for instance, Vol IX, page 4751 of the
transcript).
[345] The same point appears even more clearly from the judge’s reminder to the jury
(which Mr Samuels may have overlooked) that Mr Campbell stated that, “on reaching at
Havendale, Clive Williams came out at the guest-house” (Vol IX, page 5132 of the
transcript). In other words, he did so voluntarily. It is also equally clear from the sentence
which we have highlighted in the quotation from the summing-up set out in paragraph
[341] above (“It’s important to remember that, that’s what he has maintained”) that the
judge fully appreciated and took steps to convey to the jury the importance to Mr
Campbell’s case of demonstrating (i) the voluntary nature of the deceased’s presence on
the journey to Havendale, and (ii) that the deceased had not gone all the way to the
house at 7 Swallowfield Avenue, but had disembarked at the guest house.
[346] Not content to leave it there, the judge then went on to remind the jury again of
the very point, in the context of the case as a whole, when he explained to them how the
cases for the prosecution and for the defence stood in opposition to each other (Vol IX,
page 5733 of the transcript):
“What Mr. Shawn Campbell had said is that he took Lamar Chow …
and Mr Clive Williams to Havendale. In his version Clive Williams came
off at the guest-house; the Prosecution is saying, in fact, both men
exited the car at Havendale. And in doing that, Mr. Shawn Campbell
accomplished all that he was to do in the common design.”
[347] As regards the judge’s failure to tell the jury specifically that Mr Campbell’s
statement that he had voluntarily reported three times to the police station, before he was
charged, was consistent with his innocence, Mr Samuels developed the point more fully
in his written submissions in this way:
“It is submitted that this conduct which [Mr Campbell] said was driven
by his good character as a ‘law abiding citizen’ was also consistent
with innocence and ought to have been brought to the jury’s attention
for consideration where the person putting it forward was charged for
the crime of murder. In other words whereas evidence of evading the
police is capable of an adverse inference, it is submitted that
volunteering to go to the police on three (3) separate occasions, even
where you are kept for 3 or 12 days in custody previously inures to
your benefit in assessing your conduct whether its [sic] consistent with
innocence or guilt. At no time did the [judge] make this favourable
point to the jury concerning the Appellant, Shawn Campbell.”
[348] Along similar lines, Mr Samuels also directed attention to the fact that, in his
unsworn statement, Mr Campbell had on three occasions made the point that he was “no
murderer”; and that he had never taken part in any “alleged offence pertaining to an
alleged deceased Clive Williams”.
[349] By this submission, it was plainly being contended that Mr Campbell was a person
of good character. In these circumstances, having made an unsworn statement from the
dock, he was at the very least entitled, as is now well-established in the jurisprudence of
this court, to the benefit of a direction as to the relevance of his good character as it
affects the issue of propensity to commit the offence of murder (see, for instance, Horace
Kirby v R [2012] JMCA Crim 10, per Brooks JA at para. [11]). But, it appears that, initially
at any rate, the judge did not read Mr Campbell’s defence in this way. For, despite having
given Mr Palmer the benefit of a standard good character direction in the main body of
the summing-up, he did not do so in relation to Mr Campbell.
[350] In his earlier directions in relation to Mr Palmer, the judge had said this (Vol IX,
pages 5108-5109 of the transcript):
“You have heard, Madam Foreman and your members, that the
defendant is a young man of good character … Of course, good
character cannot, by itself, provide a defence to a criminal charge, but
… it is evidence which you can take in account, in his favour. As I have
said, the fact that he is of good character may mean that he is less
likely than otherwise might be the case, to commit the crime with
which he is charged.
I have said that these are matters to which you should have regard in
the defendant’s favour. It is for you to decide what weight you should
give to them in this case. In doing this, you are entitled to take into
account everything you have heard about the defendant in relation to
his character here in court, including his age, the fact of his kindness
to his parents, his upbringing, and that he has no previous run ins
with the law. Having regard to what you know about this defendant,
you may think … that he is entitled to ask you to give favourable
weight to his good character when deciding whether the Prosecution
has satisfied you of his guilt.”
[351] So, when the judge asked counsel at the end of the summing-up if there was
anything that he had omitted to tell the jury, counsel for the prosecution, Mr Taylor,
enquired whether the judge might not want to give good character directions in relation
to Messrs Campbell and Jones. Agreeing immediately, the judge then added this (Vol IX,
pages 5141-5142 of the transcript):
“This morning, in fact, Madam Foreman and your members, you recall
I did, in fact, give a good character direction in respect of Mr Palmer.
You would recall that I said that the defendant is to be regarded as a
man of good character. And if you so regarded, that would support
his credibility. This means that it is a factor which you should take into
consideration when deciding whether you believe his evidence or not,
and that is a direction that would equally apply to the accused, Jones
and Campbell, and Williams. In the first place, despite the fact that
they did not give evidence, you bear that in mind.
In the second place, the fact that he is of good character may mean
that he is less likely than otherwise might be the case to commit this
crime. That is as far as I would go in that particular area. You bearing
[sic]
the fact of his good character, and the fact that being a man of
good character, you put that in the scale when you look at the
evidence, and you may very well find that that good character will
cause you to say he is less likely than otherwise might be the case to
commit the crime with which he is charged.”
[352] No doubt not finding it possible to do so in the light of these directions, Mr Samuels
made no complaint of a failure by the judge to give any good character directions at all in
respect of Mr Campbell. But he did complain that the judge failed to tailor the good
character directions to each accused, and in particular Mr Campbell, and so denied him of
a fair treatment of his defence and, ultimately, a verdict favourable to him.
[353] We agree with Mr Samuels in one respect: it seems to us that more careful
consideration of the good character issue at the planning stage of the summing-up may
well have led the judge to deal with the matter in a more structured way in relation to
each of the defendants in respect of which it arose, particularly Mr Campbell.
[354] That having been said, however, it seems to us that the directions which the judge
gave were more than adequate to convey to the jury the potential impact in law of Mr
Campbell’s assertion that he was, as Mr Samuels put it, a law-abiding citizen who willingly
cooperated with the police when called upon to do so. It was clearly a matter for the jury
to decide, having been properly directed on the matter, what weight they should give to
Mr Campbell’s unsworn statement, taking into account all the circumstances of the case.
Having given the jury ample directions on the standard of proof more than once during
the course of the summing-up, the judge had in fact reiterated that point to them
immediately before Mr Taylor’s intervention, telling them that (Vol IX, pages 5139-5140
of the transcript):
“As I told you … you must be satisfied to the extent that you feel sure
of the guilt of the accused before you can find them guilty … If you
have any doubt, if you maintain any reasonable doubt in respect of
the accused, you must acquit.”
[355] Taking all the judge’s directions together, therefore, it seems to us that there could
have been no question of any imperfection in them as regards the effect of Mr Campbell’s
good character, if such there was, jeopardising the fair treatment of his defence by the
jury.
[356] As we have noted, Mr Samuels also made further general complaints about the
judge’s failure to put Mr Campbell’s case to the jury fairly (the principal ones having to do
with the effect of Mr Chow’s 13 November 2013 letter to the Public Defender; and the
evidence of the cell-site positioning of Mr Campbell). In this regard, we think that it suffices
to note that, after summarising the case for the prosecution at a relatively early stage of
the summing-up, the judge went on to give the jury this general summary of the case for
the defence (Vol IX, pages 4711-4712 of the transcript):
“The Defence, on the other hand, deny that they were involved in the
death of Clive Williams, if, in fact, he is dead. They don’t know. That
the main witness for the Prosecution, Lamar Chow, in a letter dated
the 13th of November 2013, addressed to the Public Defender, advised
that he had seen Clive ‘Lizard’ Williams after the 16th of August 2010
[sic]
. That Clive Williams never came to 7 Swallowfield Avenue on the
16th of August, 2011. That he had exited the taxi at the guest house
in the same community of Havendale, that there were inconsistencies
between items of evidence produced by the Prosecution that passed
great doubts on their reliability that Chow’s testimony of the arrival
time at 7 Swallowfield Avenue, and the cell site positioning of Palmer
and Campbell are very materially discrepant. That the cell site
positioning places Shawn Campbell well away from the vicinity of 7
Swallowfield Avenue at the time the Prosecution alleges that the video
was shot.
The defendants further allege that the evidence produced by the
Prosecution was manipulated by the police as part of a conspiracy to
convict the five accused. Adijah Palmer complains that his fair trial has
been prejudiced by the Minister of National Security who blamed him
for being responsible for crime in Jamaica.
The expert Linton, Mr. Patrick Linton on whom the Prosecution relied
was charged as being unprofessional and that he bore malice against
Mr. Palmer. And that the witness, Chow’s statement was a concoction
made up by the police with Chow’s cooperation. That’s the two sides.”
[357] In our view, this perfectly accurate statement of the defence case adequately
conveyed to the jury those elements of Mr Campbell’s defence which Mr Samuels
complains were not dealt with properly, or at all. The question of whether the matters
referred to by the judge in the above passage provided corroboration of Mr Campbell’s
defence was entirely a matter for the jury to decide, having considered the evidence of
which the judge reminded them.
[358] Finally, on this ground, we will mention Mr Samuels’ yet further complaint that, as
regards the time at which he, Mr Campbell and the deceased arrived at the house in
Havendale on 16 August 2011, Mr Chow’s credibility was further impaired by the contents
of his further statement dated 24 August 2011 (see paragraph [335] above). As will be
recalled, the court admitted this statement as fresh evidence at the outset of the hearing.
[359] The first point to be noted is, of course, the obvious one that the jury did not have
the benefit of this statement at the trial. So, the question for this court must be to assess
the value of Mr Chow’s further statement in the context of the evidence given at the trial
as a whole. As the Privy Council put it in Dial & Dottin v State of Trinidad & Tobago
[2005] UKPC 4, at paragraph 31, “[i]f the Court concludes that the fresh evidence raises
no reasonable doubt as to the guilt of the accused it will dismiss the appeal”. (See also
Kevon Williams v R [2016] JMCA Crim 2, where this court applied this principle at
paragraphs [40]-[41].)
[360] It is clear from the judge’s summary of the defence set out at paragraph [356]
above that the question of inconsistencies in the evidence as to the time of arrival at 7
Swallowfield Avenue of Mr Chow, Mr Campbell and the deceased had already loomed large
at the trial. By their verdict, the jury resolved this question in favour of the prosecution.
[361] In the 24 August 2011 statement, Mr Chow told the police that he, Mr Campbell
and the deceased arrived at Havendale at about 8:00 pm on the evening of 16 August
2011, thus contradicting (i) his evidence at the trial, in which he placed the time of arrival
at Havendale at 5-5:30 pm; and (ii) other answers given by him in cross-examination,
which suggested that he had in fact departed from Portmore at about 5—5:30 pm that
same day. To this extent, therefore, the 24 August 2011 statement added another layer
of inconsistency to Mr Chow’s evidence. The statement also omitted any reference to the
car in which Mr Chow travelled to Havendale making a stop at the guest house that
evening before arriving at the house.
[362] Despite these differences, however, Mr Chow’s account as to what took place once
the three men arrived at the house on the evening of 16 August 2011, including his own
attempt to flee the premises after seeing the deceased lying unmoving on the floor in the
house, remained unimpaired by anything contained in the 24 August 2011 statement. In
these circumstances, therefore, we are clearly of the view that Mr Chow’s further
statement dated 24 August 2011 raises no reasonable doubt as to the guilt of Mr Campbell
or as to the correctness of the jury’s verdict in the matter.
[363] Mr Campbell’s ground 9 therefore fails.
(vii) Whether the judge dealt with the respective defences of the other appellants
adequately or fairly (Ground 14/AP,KJ,AStJ)
[364] In ground 14, the appellants (other than Mr Campbell) complained that the judge
“failed to deal with the respective defences of the appellants adequately or fairly”. Mr
Senior-Smith argued this ground principally in relation to Messrs St John, Jones and
Palmer. He submitted that, instead of leaving the various defences to the jury completely
and clearly, the judge’s summing-up was replete with deficiencies in the presentation of
each of their cases, with the result that each appellant accordingly lost the protection of
law.
[365] In support of this complaint, Mr Senior-Smith identified a number of specific
matters. First, it was said that the appellants lost the protection of the law when their
defences were treated by the judge as one composite whole. With specific regard to
Messrs Jones and St John, he contended that, by lumping all the defences together, the
judge failed to assist the jury to appreciate that there were real differences between the
cases against and the defences of each of the defendants. In this regard, he submitted,
there ought to have been “some element of deconstruction” in the judge’s summation of
the evidence. The main focus of the complaint on this score was that part of the summingup in which the judge set out to “just put in a nutshell – a rather large nutshell in this
case – what the two sides, what the two versions in this case are …” (Vol IX, page 4708
of the transcript). It was submitted that the vice of the judge’s approach was that, by
treating the defences together, the judge “unwittingly” prejudiced the position of certain
of the appellants, Messrs Jones and St John in particular, against whom there was no
evidence of any overt acts in support of the common design postulated by the prosecution.
[366] For its part, the Crown submitted that all that the judge was attempting to do was
to provide the jury with an overview of the respective cases for the prosecution and the
defence and that he had done so adequately. In particular, Mr Taylor referred us to a
number of passages from the summing-up in which, it was submitted, the judge cautioned
the jury against merging the defences of the appellants and directed them to consider the
cases against and for each of them separately.
[367] Mr Senior-Smith referred us to a number of authorities to support his points in
relation to a trial judge’s duty in summing-up to the jury in a criminal case.
[368] In EL-Jalkh v R [2009] NSWCCA 139, a decision of the New South Wales Court
of Criminal Appeal, the court considered it (at paragraph [82]) to be “… essential, if a
summing up is to be fair and balanced, that the defence case be put to the jury”. The
court also referred (at paragraph [83]) to Regina v Schmidt [1965] VR 745, 748, in
which Winneke CJ observed that “…[f]ailure to put the defence is, of course, a wellrecognized ground of appeal”; Regina v Tomazos (NSWCCA 6 August 1971), in which
Issacs J added that “… [a] trial according to law includes as an essential prerequisite that
the trial judge has put fairly, cogently and with clarity to the jury the accused’s defence”;
and R v Malone (NSWCCA 20 April 1994), in which Blanch J stated that “[i]f a jury is not
given the opportunity fairly to consider the defence case, then there has been a
miscarriage of justice”.
[369] On this basis, the court in EL-Jalkh v R concluded (at paragraph [148]) that:
“… it is the essential function of a trial judge in summing-up to a jury
that the trial judge, having identified the issue or issues in the trial,
put the defence case on this issue or those issues and that the trial
judge make such reference to the evidence as may be required to
enable the jury properly to understand the defence case and that it is
not sufficient for the trial judge to say to the jury that they should give
consideration to the arguments which have been put by counsel.”
[370] Mr Senior-Smith next referred us to Mencarious v R [2008] NSWCCA 237,
another decision of the New South Wales Court of Criminal Appeal, in which the court
considered that, depending on the circumstances of the particular case, the issues which
arise, the length of the trial and the complexity of the facts relevant to the particular issue,
the trial judge in summing-up “may need to provide a resume of the evidence so that the
jury understands how the relevant law may be applied to it” (per McClellan CJ at CL, at
paragraph 55).
[371] Lastly on this point, Mr Senior-Smith referred us to R v Amado-Taylor [2000]
EWCA Crim 25, a decision of the Court of Appeal of England and Wales, particularly for
the following points which emerge from the judgment of Henry LJ in that case: (i) the
longer a trial lasts, the greater will be the jury’s need for assistance from the trial judge
relating to the evidence (paragraph 9); (ii) putting the defence fairly and adequately to
the jury cannot be done without referring to the evidence when the defence has sought
to exploit inconsistencies in the prosecution witnesses’ account (paragraph 11); and (iii)
it is only in a short and simple case, which this was not, that no review of the facts by the
trial judge might be required (paragraph 12).
[372] For the Crown, Mr Taylor did not dissent from anything said in any of the
authorities referred to above. Nor do we. Indeed, a trial judge’s duty in summing up to
the jury as described by the Australian authorities to which Mr Senior-Smith so helpfully
referred us, is entirely in keeping with the established jurisprudence of this court. In R v
Boucher (1991) 28 JLR 35, 39, for example, Gordon JA (Ag) (as he then was), described
it as the duty of the trial judge “to lay before the jury all the evidence that supports or
tends to support a defence raised in language which they easily appreciate and assist
them to understand it in its proper context”.
[373] We therefore approach the appellants’ complaints under this head on the basis
that the judge was under a duty to put the cases for each of the appellants clearly and
fairly to the jury; and that this duty involved not only identifying the issues which arose
in each case, but also, this having been a long trial, providing the jury with an adequate
summary of the evidence in the case, sufficient to enable them to appreciate the
complaints by the defence as to the alleged inconsistencies in the evidence. A failure to
do so may in a proper case amount to a miscarriage of justice.
[374] We have already set out (at paragraph [356] above) that portion of the summingup in which, after summarising the case for the prosecution, the judge undertook the
same exercise in relation to the cases of all the defendants. Having done so, the judge
went on to identify in some detail what he described as the main issues for the jury’s
determination. We therefore consider that, in summarising the case for the defence in one
broad compass, “in a nutshell”, as the judge put it, he was doing no more than establishing
for the jury the overall context within which to consider the detailed directions which were
to follow.
[375] At several subsequent points in the summing-up, the judge made it plain to the
jury that their obligation was to consider the case and the evidence in respect of each
defendant separately.
[376] First, in directing the jury on the burden of proof, the judge emphasised the
obligation on the prosecution to prove the guilt of each defendant to the jury’s satisfaction
(Vol IX, page 4728 of the transcript):
“In every single criminal case which comes before these courts, every
single accused person is always presumed to be innocent until you,
Madam Foremen and your members, by your verdict say he is guilty.
There is absolutely no burden on any accused person to prove his
innocence. The burden of proof rests on the prosecution throughout
the case and never shifts. Before you can convict the accused men,
the prosecution must satisfy you, by the evidence, so that you feel
sure of each accused man’s guilt.”
[377] Second, after reminding the jury of the evidence upon which the prosecution relied
to establish that the defendants killed the deceased and acted together in doing so (Vol
IX, pages 4747-4751 of the transcript), the judge again summarised the defence of each
of the defendants (Vol IX, pages 4751-4753 of the transcript):
“Now, what is the response of the defendants? They claim that they
were not present at Swallowfield Avenue at the material time, neither
were they involved in the death of Williams. Mr. St. John says he was
on his way out of the premises. Mr. Palmer says he never encountered
Clive Williams at 7 Swallowfield Avenue, he has never sent anyone to
kill Clive Williams nor did he do it himself. Mr. Campbell stated that
Chow and Clive Williams followed him to Havendale and Williams came
out of the vehicle at the guesthouse and Chow came out of the vehicle
at Swallowfield Avenue then he, Campbell, left. That’s what Kahira
Jones says and I’m going to tell you that each case in respect of the
accused men are [sic] to be dealt with separately. I will give you more
directions in respect of what Kahira Jones said [sic] is that Chow and
the police dem plan up to tell lie ‘pon him. ‘Dem say dem a guh send
mi guh a prison.’ And Mr. Williams, Shane Williams says he is not in
any murder or know of any murder. He doesn’t know Mr. Chow. He
denied that his name was Terrence or that his voice appeared on the
video.
… And what Mr. St. John says, I am only here because I am associated
with Mr Palmer. He doesn’t know where Clive Williams is. He did not
see him on the 16th of August. He doesn’t know of any plot or any
plan about this alleged murder, whatsoever.”
[378] Third, before turning to a detailed review of the evidence, the judge told the jury
how they should approach the case (Vol XII, page 4756 of the transcript):
“Your approach to the case … should therefore be as follows: If
looking at the case of any of the five accused, you are sure of the
intention to commit the offence, [sic] took part in committing it,
however great or small, is guilty. I must tell you that mere presence
at scene of the crime is not enough to prove guilt, but if you find that
that particular accused was on the scene and intended and did, by his
presence alone, encourage the others in committing the offence, he
is guilty.”
[379] And finally, close to the end of the summing-up, having reviewed for the benefit
of the jury the unsworn statement given by each of the defendants, the judge reminded
them yet again of the need to keep the cases against each defendant separate (Vol IX,
page 5139 of the transcript):
“As I told you, each case in respect of each accused is separate. The
evidence against each is separate and you are to try the case that
way. A verdict against one doesn’t necessarily mean you have to find
the same verdict against each one of them. The evidence is separate
against each. The verdicts that are open to you on this indictment, is
[sic]
guilty or not guilty of the charge of murder.”
[380] In our view, in each of the instances quoted in the foregoing paragraphs, the judge
was careful to exhort the jury to treat the cases both against and for the appellants
separately. Taken together, we are satisfied that the jury must have appreciated that this
was the correct approach to the case.
[381] Mr Senior-Smith then directed our attention specifically to Mr Jones’s defence. His
first complaint was that having told the jury that he would give them “more directions in
respect of what Kahira Jones said” (see paragraph [377] above), the judge then proceeded
to devote “only six and a half lines” of the transcript to Mr Jones’ defence.
[382] This is what the judge told the jury (Vol IX, page 5137 of the transcript):
“In respect of Mr. Kahira Jones, 27 years of age, he is a disc jockey,
live [sic] at 3745 Waterford, St. Catherine. Knows didja [sic] Palmer
for years. Never killed anyone. Never. Not a murderer. Lamar Chow
and the police them plan up to tell lie pan dem sey dem a send all of
us to prison. Thank you. That is what he said.”
[383] And this is what Mr Jones actually said in his unsworn statement (Volume VIII,
page 4370):
“Good afternoon Madam, Foreman, m’Lord, and members of the jury,
good afternoon. M’Lord, good afternoon, Madam, Foreman and
members, my name is Kahira Jones. I am 27 years of age. I am a Disk
Jockey. I live at 3745 Chantilly Road, Waterford, St. Catherine. I know
Mr. Adijah Palmer for years. Him help grow mi, he was my next door
neighbor. I never killed anyone at all never. I am not a murderer. Mr.
Lamar Chow and the police dem plan up fi tell lie pon mi. Dem seh
dem a send all of us a prison. Thank you, m’Lord, Madam Foreman.”
[384] It seems to us that a comparison of the judge’s summary with Mr Jones’ unsworn
statement reveals that, in all material respects, the former was in fact a virtually complete
reflection of the latter. So there is nothing, in our view, in Mr Senior-Smith’s complaint
about the brevity of the judge’s summary.
[385] But Mr Senior-Smith next went on to submit that there was material which
emerged during the trial from which Messrs St John and Jones’ defence might have
benefitted. In this regard, he referred in particular to the circumstances of Mr Chow’s
identification of Mr Jones as one of the persons to whom he and the deceased had spoken
over the telephone on 14 August 2011, and Messrs St John and Jones as being among
the persons who were present at the house at 7 Swallowfield Avenue on the evening of
16 August 2011.
[386] For the Crown, Mr Taylor submitted that, given the limited role which the issue of
identification played in the case on the evidence, the judge’s extensive directions on the
issue cannot be said to have been deficient in any way at all.
[387] Mr Chow identified Mr Jones as someone whom he knew from Waterford, through
the deceased, for about three years (Vol II, pages 397-399 of the transcript). However,
he did not know what kind of work Mr Jones did. Mr Chow had known the deceased for
six years and he also knew his mother, sister, brother and most of his family members
(Volume II, page 403). In particular, he knew the deceased’s sister, whose name was
Nadine, and had been to her home a few times.
[388] Mr Chow testified that on 14 August 2011 he accompanied the deceased to
Nadine’s house at about 5 o’clock in the afternoon. At that time, he said, the deceased
was behaving “shaky, scared” (Vol II, page 413 of the transcript). He, Mr Chow, was also
feeling shaky and scared. While at Nadine’s home, the deceased placed a call to someone,
using the speaker function on his cell phone. Mr Chow recognised the voice of Mr Jones,
with whom he had spoken over the telephone several times before and whose voice he
knew. He heard Mr Jones tell the deceased “everything good you don’t have to worry
yourself”. The deceased responded by telling Mr Jones to “beg” Mr Palmer for him,
whereupon Mr Jones told the deceased “nuh worry yourself, him a deal wid him fi him,
deal wid him fi wi” (Vol II, pages 417-419 of the transcript). Mr Chow also testified that
he too had received a few calls from Mr Jones, in which Mr Jones “seh nuh worry yuhself,
him a deal with it fi mi, him a talk to di boss fi mi and dem ting de” (Vol II, page 467 of
the transcript). Mr Chow understood Mr Jones’s use of the words “di boss” to be a
reference to Mr Palmer (Vol II, page 469 of the transcript). And the statement that he
was not to worry to be in reference to “[t]he threat whe we was [sic] getting” (Vol II,
page 469 of the transcript).
[389] As has already been noted, Mr Chow’s evidence was that two days later, on the
evening of 16 August 2011, he went to 7 Swallowfield Avenue in the company of Mr
Campbell and the deceased. He identified Messrs Palmer, Jones, St John and Campbell as
being among the persons whom he saw in the house. He was able to see Mr Palmer from
the light of his cell phone, which “was on the right beside of him shining bright up, the
phone like a flashlight on the phone a torch phone like”. From that light, he saw Mr
Palmer’s “whole face and body”, a distance of an arm’s length away (Vol II, page 494 of
the transcript). As regards Mr St John, he observed his face from about four to five feet
away. At one point Mr St John in fact came close to him, “about arm’s length” and he was
also able to see him from the Blackberry Torch cell phone that was nearby “shining light”
(Vol II, pages 499-500 of the transcript). In relation to Mr Jones, he knew that it was him
because he saw his face; indeed, he said, “[a]ll of them face I know. I know them that
well”. He was able to see Mr Jones’ face because “[t]he phone light was shining” (Vol II,
pages 500-501 of the transcript). He had been to the house about twice before and seen
Mr Jones and Mr St John, each of whom had his own room and appeared to live there
(Vol II, pages 502-503 of the transcript). And, as regards Mr Campbell, Mr Chow said that
he knew him “pretty well”, and that he was able to see “everything, his whole body, his
whole face” from about an arm’s length away, with “the phone light shining constantly”
(Vol II, pages 501-502 of the transcript).
[390] According to Mr Chow, Mr St John was the person who opened the gate for them
when he arrived at the house in the company of the deceased and Mr Campbell on the
evening of 16 August 2011 (Vol II, page 559 of the transcript); while Mr Jones was the
person who held the deceased “backway”, immediately after Mr Palmer asked him (Mr
Chow) and the deceased to state their plans with regard to the missing firearms (Vol II,
page 446 of the transcript). Mr Chow testified that, later, having been brought back into
the hall-way by Mr Palmer and Mr Campbell after his unsuccessful attempt to escape, he
saw the deceased lying on the ground, not moving, with Mr Jones “standing, bend over
him”, and Mr St John “over him with like a block … [w]eh you use to build up house” (Vol
II, pages 453-454 of the transcript).
[391] Neither Mr Palmer, nor Mr Campbell, nor Mr St John denied that Mr Chow had
been in their presence at some point on 16 August 2011. As has been seen, Mr Palmer
categorically denied knowing anything at all about the murder of the deceased; and when
Mr Chow was cross-examined by Mr Tavares-Finson, it was put to him that the only contact
which he had with Mr Palmer that day was that he had placed him in a taxi-cab and
accompanied him to the Andrew’s Memorial Hospital after he had been bitten by the dog
at his house (Vol II, page 604 of the transcript). For his part, Mr Campbell’s case was that,
on the day in question, while he and Mr Chow had travelled together to 7 Swallowfield
Avenue, they had let off the deceased at the guest house (Vol VIII, page 4367 of the
transcript). And, in the case of Mr St John, he was on his way out from 7 Swallowfield
Avenue, when Mr Chow entered the yard and was attacked by the dog. According to Mr
St John, it was in the attempt to protect Mr Chow from the dog that Mr Palmer was bitten
by it (Vol VIII, page 4373 of the transcript).
[392] But, under searching cross-examination by Mr Pierre Rogers, who appeared for Mr
Jones at the trial, it was several times suggested to Mr Chow that he was lying about Mr
Jones’ involvement in the matter (Vol II, pages 669-755 of the transcript). However, Mr
Chow maintained, firstly, that it was Mr Jones’s voice which he had heard over the
telephone on 14 August 2011 when he and the deceased visited Nadine’s home that
evening (“Sir, I know his voice pretty well” – Vol II, page 751 of the transcript); and,
secondly, that it was Mr Jones whom he had seen hold on to the deceased from behind
at the house on 16 August 2011, and later standing over the deceased’s motionless body
on the ground.
[393] And, in relation to Mr St John, Miss Tamika Harris, who appeared for him at the
trial, suggested to Mr Chow in cross-examination that he did not see Mr St John “with any
block”; nor did he live at 7 Swallowfield Avenue or have a bedroom there (Vol II, pages
775-776 of the transcript). Mr Chow denied both suggestions.
[394] There was also a significant dispute as regards the identification of the voices of
Mr Palmer and Mr Campbell in the video recording upon which the prosecution placed
much reliance.
[395] No doubt in the light of these factors, the judge chose to deal with the question
of identification at some length, telling the jury that “identification is a problem that comes
before the court with great frequency” (Vol IX, page 4875 of the transcript). The judge
then went on to say this (Vol IX, pages 4875-4878 of the transcript):
“The witness, Lemar Chow, has given evidence of a visual
identification of the participation of four of the accused persons; that
is, Palmer, Shawn Campbell, Kahira Jones and Andrew [sic]? St. John
who, the Crown is saying, was [sic] acting together and in an assault
of ‘Lizard’ and the witness, Lamar Chow.
There is [sic] also claims of identification of the voice of Palmer and
Shawn Williams in a video. That video scene has been identified as
being in Mr Palmer’s house at 7 Swallowfield Avenue. The time stamp
of the video confirms the time as being relevant; that is, it was
recorded on the 16th of August, 2011. The audio message on the video
are of voices which appear to be seeking a means to kill a man. A
tattoo on one of the men in the video has been identified as being
similar to a tattoo on a man identified in a photograph as being
Andrew [sic] St. John.
In considering the whole question of identification, Madam Foreman
and your members, you should consider whether the Prosecution
witness, Mr. Lamar Chow, is a witness of truth and to disregard the
evidence, unless you so find.
In this case, the defence has been that the case against the accused
is a concoction and fabrication of evidence against the accused men
by Mr. Chow and the police. If you and your members are so satisfied
as to the witness truthfulness, then you can go on to consider the
reliability of his evidence as it deals with the question of identification
because the case against the accused men depends, to a large extent,
on the correctness of the identification of the accused of which the
defence claims is fabricated and incorrect.
I must therefore warn you of the special need for caution before
convicting any of the accused in reliance on identification. That is
because it is possible for an honest witness to make a mistaken
identification. There have been wrongful convictions in the past as a
result of such mistakes. Madam Foreman and your members, an
apparently convincing witness can be mistaken as can a number of
apparently convincing witnesses. Although it’s only one witness we
have in this case who has done any identification you, Madam
Foreman and your members, should therefore examine carefully the
circumstances of the identification by Mr. Chow; the circumstances
under which that identification took place; how long did Chow had
[sic]
the person he says was the accused under observation; at what
distance; in what light; did anything interfered [sic] with his
observation; did he know the persons he was identifying before. If so,
how long had he known the person; how familiar is he with the
person; how often he used to see them. If it is only the occasion when
he used to see that person, had he any special reason for
remembering the person.
You look at all those factors to determine whether there was a
sufficiency of opportunity to afford Chow to say definitely. Until you
are sure that this is the person that he saw, you look at the light, you
look at the distance, you look at the time that they were together. If
he had known the men before and from that you say whether you can
rely, if you find he is a witness of truth, that you can rely on him.”
[396] The judge then dealt with the issue of voice identification (Vol IX, pages 4878-
4880 of the transcript):
“The Prosecution, Madam Foreman and your members, also relies on
voice identification to identify the accused and like I told you, like with
visual identification you must be aware that voice identification poses
the same type of danger because, as you know, it may very well have
happened to you where you think you see somebody and you go up
and you start talking and it turns out you are wrong; the person turns
around and said, ‘I don’t know you from adam [sic],’ and you mutter
some words and move on.
So you have to be careful. Did Chow know these persons before? Was
the lighting there good? It’s a matter for you.
And I will tell you now that with the voice identification, there is the
same type of danger because to put it in our vernacular, ‘people sound
like people’. The danger is more acute as those well recognized in
visual identification and it has some additional dangers. You must
examine the duration of the speech to determine whether there is a
sufficiency of words to allow for identification; the level of familiarity
with the voice of the person doing the identification. In order for the
evidence of a witness that he recognized an accused person by his
voice to be accepted as cogent, there must be evidence of the degree
of familiarity the witness has had with the accused and his voice,
including any prior opportunity the witness may have had to hear the
voice of the accused. The occasion when recognition of the voice
occurs must be such that there were sufficient words used so as to
make recognition of that voice safe on which to act. The correlation
between the knowledge of the accused [sic] voice by the witness and
the words spoken on the challenged occasion, affects cogency. The
greater the knowledge of the accused, the fewer the words needed
for the recognition. The less familiar the witness is with the voice, the
greater necessity there is for more spoken words to render recognition
possible and therefore safe on which to act.
So you bear that in mind, Madam Foreman and your members.”
[397] The judge then invited the jury to consider the circumstances of the identification
of each of the defendants by Mr Chow. In relation to Mr Jones and Mr St John (observing
that “the witness refers to him as Mad Suss”), the judge reminded the jury, at Vol IX,
pages 4883-4885 of the transcript, that –
“[Mr Chow] said he had known [Mr St John] for three years. Said he
was able to see Mad Suss, his face. He was about four to five feet
away from him. He was within arm’s length.
He said that Kahira Jones was also in that room. He saw all of their
faces. Kahira was between himself and [the deceased], and the phone
light was shining. And as I told you, he said he had seen Mad Suss at
the house on previous occasions.
In the room he had seen him standing over [the deceased] with a
building block. It was generally argued that the room, the lighting was
not sufficient. The light, it was not a flashlight, but a flashing light;
that no distance had been given in respect of some of the men. There
was no time given as to how long this event had taken place, how
long were they there for, so that you could properly assess how much
time they had to spend looking at each person’s face.
It was also urged that the person who is claiming to do the
identification was doing it under trying circumstances. He would have
been apprehensive about his safety, and that could have affected his
ability to discern or to properly discern all that is taking place around
him.
So, those are some of the things you bear in mind. You look at the —
although no period was given, but you were told that an account was
given, that one of the men started to relate, when he was questioned
as to what happened, started to relate a story. Would that have taken
some time? Would that time, based on what you heard of what was
being related, would that have afforded the witness sufficient
opportunity, and bearing in mind these are men he says he knows.
The situation is, according to him, he entered that room with Palmer,
Shawn Campbell, and [the deceased]. He had seen Mad Suss outside.
So you bear all those things in mind when you look at the
circumstances of the identification.”
[398] In giving these directions, the judge plainly had in mind the benchmark for
identification cases set by R v Turnbull [1977] QB 224, and the numerous decisions of
the Privy Council and this court in which it has been applied. For present purposes, it is
sufficient to quote the following oft-quoted passage from the judgment of Lord Widgery
CJ in Turnbull (at page 228-229):
“First, whenever the case against an accused depends wholly or
substantially on the correctness of one or more identifications of
the accused which the defence alleges to be mistaken, the judge
should warn the jury of the special need for caution before
convicting the accused in reliance on the correctness of the
identification or identifications. In addition he should instruct them
as to the reason for the need for such a warning and should make
some reference to the possibility that a mistaken witness can be a
convincing one and that a number of such witnesses can all be
mistaken. Provided this is done in clear terms the judge need not
use any particular form of words.
Secondly, the judge should direct the jury to examine closely the
circumstances in which the identification by each witness came to
be made. How long did the witness have the accused under
observation? At what distance? In what light? Was the observation
impeded in any way, as for example by passing traffic or a press
of people? Had the witness ever seen the accused before? How
often? If only occasionally, had he any special reason for
remembering the accused? How long elapsed between the original
observation and the subsequent identification to the police? Was
there any material discrepancy between the description of the
accused given to the police by the witness when first seen by them
and his actual appearance? If in any case, whether it is being dealt
with summarily or on indictment, the prosecution have reason to
believe that there is such a material discrepancy they should supply
the accused or his legal advisers with particulars of the description
the police were first given. In all cases if the accused asks to be
given particulars of such descriptions, the prosecution should
supply them. Finally, he should remind the jury of any specific
weaknesses which had appeared in the identification evidence.
Recognition may be more reliable than identification of a stranger;
but even when the witness is purporting to recognise someone
whom he knows, the jury should be reminded that mistakes in
recognition of close relatives and friends are sometimes made.
All these matters go to the quality of the identification evidence. If
the quality is good and remains good at the close of the accused’s
case, the danger of a mistaken identification is lessened, but the
poorer the quality, the greater the danger.
In our judgment when the quality is good, as for example when
the identification is made after a long period of observation, or in
satisfactory conditions by a relative, a neighbour, a close friend, a
workmate and the like, the jury can safely be left to assess the
value of the identifying evidence even though there is no other
evidence to support it; provided always, however, that an
adequate warning has been given about the special need for
caution.”
[399] Mr Senior-Smith’s submission was that, in all the circumstances of this case, in
which Mr Chow was the sole eyewitness upon whom the prosecution relied, the judge was
also required to deal with the weaknesses in the identification evidence and the possible
effect of these weaknesses on Mr Chow’s credibility. For this submission, Mr Senior-Smith
relied on the following statement of the position by Edwards JA (Ag) (as she then was) in
Vernaldo Graham v R [2017] JMCA 30, at paragraph [38]:
“In a case in which the identification of the assailant depended solely
on the evidence of a single eyewitness, whose evidence was flawed in
several material respects, the trial judge is required not only to draw
the jury’s attention to the weaknesses in the evidence, the possible
effect on the credibility of the witness, any material discrepancy and
inconsistency that may exist affecting the overall quality of the
identification evidence, but must also analyse the significance of such
weaknesses, where necessary.”
[400] While the judge did not, in formulaic compliance with the Turnbull guidelines,
specifically characterise them as “weaknesses” in the identification evidence, it seems to
us that he clearly had the issue in mind in the course of the directions set out at paragraph
[397] above. Thus, the judge invited the jury’s attention to the lighting, which the defence
contended to be inadequate to allow for a proper identification; the fact that there was
no evidence as to the distance from which Mr Chow was able to view some of the
defendants or the length of time for which he had them under observation; the fact that
Mr Chow’s purported identification of the defendants would have been made “under trying
circumstances”, thereby potentially affecting his ability to make a proper identification;
and the possibility that Mr Chow might “have been apprehensive about his safety, and
that could have affected his ability to discern or to properly discern all that is taking place
around him”.
[401] In Dwayne Knight v R [2017] JMCA Crim 3 (at paragraph [64]), to which Mr
Senior-Smith also referred us, McDonald-Bishop JA (Ag) (as she then was) referred to the
earlier decision of this court in R v Leroy Lovell (1987) 24 JLR 18. In that case, it was
held that “where the issue of identification arises in a criminal trial, two questions call for
careful direction from the trial judge, (a) whether or not the witness was mistaken, and
(b) whether the witness is credible”. In our view, the judge’s directions in this case, taken
overall, were more than adequate to enable the jury to determine whether they could rely
on Mr Chow’s identification of Messrs St John and Jones as persons who were present at
Mr Palmer’s house on the evening of 16 August 2011, and participated in the events in
the manner described by him.
[402] As regards voice identification, we note that Mr Senior-Smith made no specific
complaint as to the judge’s directions on this score. However, for completeness, we will
add that the judge’s directions (see paragraph [396] above) were entirely in keeping with
the directions sanctioned by this court in Donald Phipps v R [2010] JMCA Crim 48,
paragraphs [131]-[144]; and subsequently approved by the Privy Council in Donald
Phipps v The Director of Public Prosecutions & the Attorney General of Jamaica
[2012] UKPC 24, paragraphs 21-27.
[403] Mr Senior-Smith’s final complaint related to what he described as the judge’s
perfunctory treatment of Mr Palmer’s defence. He submitted that the material placed
before the court by Mr Palmer was not adequately or fairly evaluated, particularly in
relation to the evidence adduced on his behalf. Mr Palmer’s categorical denial of having
had anything to do with the death of the deceased was not given appropriate weight by
the judge in all the circumstances.
[404] We have already set out the two passages from the summing-up in which the
judge summarised the cases of each of the appellants, including Mr Palmer (see
paragraphs [356] and [377] above). As we have noted, the judge went on at a later stage
of the summing-up to deal in greater detail with the defence of each defendant
individually. With regard to Mr Palmer, the judge began with his unsworn statement (Vol
IX, pages 5103-5105 of the transcript):
“We now look at the unsworn statement of Mr. Adidja Palmer. He
says, he gives his name and he says, ‘Thirty-eight years old, I am
innocent of all these charges. I have never been to 7 Swallowfield
Avenue and seen ‘Lizard’ there. In fact, the only time I have ever
encountered Clive Williams is when he travelled with Shawn at a
stage show, never encountered him at Swallowfield Avenue.
M’Lord, the incident that occurred on the 30th of September, 2011,
I was at a hotel in New Kingston. Police entered, put me and a
female companion on the ground, handcuffed us, took us
downstairs in the lobby where I was greeted by other police
officers and members of the media who was already there.
I was taken to Central Kingston Police Station. After that, the police
escorted me to my house in St. Andrew, where as a matter of fact,
one being the home in Swallowfield Avenue. I was taken to
Portmore where the house was searched. I was removed to
Spanish Town MIT Headquarters. A few days later after doing a
question and answer with Mr. Thompson, I was charged for
murder of Clive Williams.
After being at Gun Court, it came over the news that decomposed
body [sic] was found at my residence, at my Swallowfield
residence, which turned out to be a lie. Nothing of the sort was
there. My Lord, in an effort to have my bail denied, not only did
the police say that there was a decomposing body, on a
subsequent bail hearing, the police said the blood of ‘Lizard’
Williams was found at Swallowfield Avenue which also turned out
to be not true. On more than one occasion my bail was denied
because of allegations that always turn out not to be true.’ He said
in a bid to prevent the denial [sic] of bail, that four cellular phones
had been found in his cell. He contacted INDECOM to investigate
the matter and like all other allegations against him it wasn’t true.
He said, further, that during the case, the course of the trial, he
was of the view that someone or a group of persons are conspiring
against himself and his friends.
He said recently the Minister of National Security, Peter Bunting,
took his music and image to the States claiming that Vybz Kartel
lyrics is glorifying scamming, all this whilst he was in custody
awaiting trial. Even in Jamaica, at one point, the Honourable
Minister said that he was one of four essential factors ‘mashing up’
Jamaica. He was one of them, one of the factors that was ‘mashing
up’ Jamaica and he considers that if that is not prejudicial he
doesn’t know what is.
And he says he bleached his skin and he is heavily tattooed but
that is merely superficial, that is about the persona of Vybz Kartel
not Adidja Palmer and that he move to say that even you may
sometimes judge in a wrong way by the way people look. He says
he is not an alien from space that landed, he is a normal man like
anybody else, that he even has a family and he mentioned that his
grandmother and cousin and mother-in-law are here.
He says, ‘My hands are clean of Clive Williams’ blood if, indeed,
Clive Williams is dead, is deceased.’ He says, ‘I have never sent
anyone to kill Clive Williams nor did I do it myself. I, an [sic]
innocent man, that is all I have to say.’ That’s what he said.”
[405] This was in fact a virtually verbatim reproduction of what Mr Palmer himself had
said in his unsworn statement. There is, therefore, as it seems to us, no basis for Mr
Senior-Smith’s contention that the judge had, by his directions, significantly diluted the
strength of the unsworn statement. This was in fact the third time that the jury was being
reminded by the judge that Mr Palmer’s defence was that, in essence, the case against
him was a concoction and that, if indeed Mr Williams was dead, he had had nothing to do
with it.
[406] Mr Senior-Smith complained further that, after summarising Mr Palmer’s unsworn
statement, the judge’s concluding statement, (“That’s what he said”) was deficient in that
it contained no analysis at all. But we are unable to see what more the judge should have
told the jury, given the view which we have already expressed that the judge’s directions
on the approach to the unsworn statement, that is, that they should give it such weight
as they thought it deserved, were unexceptionable (see paragraphs [315]-[316] above).
[407] Following on from his summary of the unsworn statement, the judge then invited
the jury’s attention to the evidence of the witnesses who were called on Mr Palmer’s
behalf. His sister, Ms Moreen Nelson, spoke to his kindness, leading the judge, as has
already been seen, to give him the benefit of a standard good character direction, in terms
of which no complaint has been made. Retired Senior Superintendent Major, as has
already been seen, gave evidence as to the authenticity of the 13 November 2013 letter
allegedly written by Mr Chow. And the Public Defender and the two other members of his
staff gave evidence as to the provenance of the 13 November 2013 letter. We have already
expressed the view that such comments as the judge allowed himself in respect of the
language of that letter were fully justified in the circumstances and, in all other respects,
in our view, the judge’s summing-up was perfectly fair to Mr Palmer.
[408] Ground 14 therefore fails.
(vii) whether, on the evidence adduced at the trial, the judge erred in not leaving it
open to the jury to return verdicts of manslaughter, or at any rate in relation
to the appellants Jones and St John (Grounds 15 and 16/AP, KJ, AStJ)
[409] The judge twice told the jury that, on the evidence which they had heard, there
were only two verdicts open to them, guilty or not guilty of the charge of murder (Vol IX,
pages 4732 and 5139 of the transcript).
[410] In ground 15, the appellants complain that the judge “erred in directing the Jury
only in relation to binary verdicts whereas the material evidence in the trial left open the
possibility of verdicts of Manslaughter”. And, in ground 16, which relates specifically to
Messrs Jones and St John, the complaint is that the judge failed to direct the jury that, on
the evidence, they “may have been found to be bereft of the necessary intention to kill or
cause grievous bodily harm, as there was no evidence of a plan, conspiracy or common
design with anyone else as regards the deceased prior to or on the [16th] August, 2011”.
[411] Mr Senior-Smith submitted that the judge failed to distinguish sufficiently between
the evidence against each of the appellants and thereby failed to assist the jury in relation
to the additional verdicts that were open to them on the evidence. The judge’s error, he
further submitted, was that he approached the case against each of the appellants as if
he was a principal in the first degree, whereas there were shortcomings in the
prosecution’s case which, even assuming the death of the deceased, left several questions
unanswered. These included, when did the deceased die, where was he killed, how did
he die, who actually committed the physical act of the killing him, and what was the
degree, type and/or nature of the involvement of each of the defendants? All of these
questions, it was submitted, warranted “a more discriminating set of instructions from the
” (Appellants’ Joint Written Submissions, page 137). Instead, it was submitted, the
general pith of the directions was to – unfairly – treat each of the defendants as a principal
in the first degree, without making any distinction between the principal actors and those
who, on the evidence, may have played a secondary role and not shared the same
intention as the principal actors.
[412] And, on ground 16, with specific reference to Messrs St John and Jones, Mr SeniorSmith submitted that the judge ought to have directed the jury that the limited
involvement which Mr Chow attributed to them was an insufficient basis upon which to
find them guilty of murder.
[413] Mr Senior-Smith relied heavily on the already very well-known joint decision of the
United Kingdom Supreme Court and the Privy Council in R v Jogee and Ruddock v The
Queen (‘Jogee & Ruddock’) [2016] UKSC 8, [2016] UKPC 7, which we will consider in
a moment.
[414] In response to these submissions, Mr Taylor pointed out that this was a case in
which the appellants were all indicted as principals. What the prosecution set out to prove
to the jury’s satisfaction, therefore, was that they acted together and shared a common
intention to murder the deceased. In these circumstances, it was submitted, there was no
duty on either the prosecution to prove or the judge to direct the jury to consider who
was a principal in the first degree and who was a principal in the second degree. The
effect of section 81 of the Offences Against the Person Act (‘OAPA’) is that principals in
the second degree would still be liable to the same punishment as principals in the first
degree. In this case, there was no indication from any of the defendants at the trial or in
the evidence of any lesser intention at any point in time. In the light of this, Mr Taylor
submitted that the particular problem of “parasitic accessorial liability” considered in
Jogee & Ruddock, that is, where the scope of the common design has been exceeded
by one party and it is sought to make a secondary party liable for the unintended
consequences, simply did not arise in this case. There was therefore no basis upon which
the judge could have left a manslaughter verdict to the jury.
[415] Section 81 of the OAPA provides as follows:
“In the case of every felony punishable under this Act every principal
in the secondary degree, and every accessory before the fact, shall
be punishable in the same manner as the principal in the first degree
is by this Act punishable; and every accessory after the fact to any
felony punishable under this Act (except murder) shall be liable to be
imprisoned for a term not exceeding two years, with or without hard
labour; and every accessory after the fact to murder shall be liable to
be imprisoned for life, with or without hard labour; …”
[416] Section 81 therefore makes good Mr Taylor’s first point, which was that, on the
facts alleged by the prosecution, and naturally subject to proof, it was open, as a matter
of law, to the jury to find the appellants guilty of murdering the deceased, whether the
evidence showed them to be principals in the first or second degree. The governing
principles applicable to such cases were restated by the court in Jogee & Ruddock in
this way (UKPC 7, paragraph 1):
”In the language of the criminal law a person who assists or
encourages another to commit a crime is known as an accessory or
secondary party. The actual perpetrator is known as a principal, even
if his role may be subordinate to that of others. It is a fundamental
principle of the criminal law that the accessory is guilty of the same
offence as the principal. The reason is not difficult to see. He shares
the physical act because even if it was not his hand which struck the
blow, ransacked the house, smuggled the drugs or forged the cheque,
he has encouraged or assisted those physical acts. Similarly he shares
the culpability precisely because he encouraged or assisted the
offence. No one doubts that if the principal and the accessory are
together engaged on, for example, an armed robbery of a bank, the
accessory who keeps guard outside is as guilty of the robbery as the
principal who enters with a shotgun and extracts the money from the
staff by threat of violence. Nor does anyone doubt that the same
principle can apply where, as sometimes happens, the accessory is
nowhere near the scene of the crime. The accessory who funded the
bank robbery or provided the gun for the purpose is as guilty as those
who are at the scene. Sometimes it may be impossible for the
prosecution to prove whether a defendant was a principal or an
accessory, but that does not matter so long as it can prove that he
participated in the crime either as one or as the other. These basic
principles are long established and uncontroversial.”
[417] But Jogee & Ruddock was concerned with a different problem, arising from a
distinct set of facts. With slight modifications to the illustration used in that case by Lords
Hughes and Toulson, the issue in that case may be stated in this way: where two persons
(D1 and D2) set out to commit the offence of, say, robbery (crime A), and, in the course
of that joint enterprise, D1 commits the offence of, say, murder (crime B), does D2 fall to
be treated as an accessory to the offence of murder (and therefore equally guilty of
murder), irrespective of whether or not he himself intended to kill or cause grievous bodily
harm to the victim?
[418] In Chan Wing-Siu v The Queen (‘Chan Wing-Siu’) [1985] AC 168, it was held
that, in such circumstances, D2 would be guilty of murder if he foresaw the possibility that
D1 might act as he did. As Lords Hughes and Toulson explained in their joint judgment in
Jogee & Ruddock (at paragraph 2), the upshot of Chan Wing-Siu was that –
“D2’s foresight of that possibility plus his continuation in the enterprise
to commit crime A were held sufficient in law to bring crime B within
the scope of the conduct for which he is criminally liable, whether or
not he intended it.”
[419] In Jogee & Ruddock, for reasons which it is not now necessary to explore, it
was held that Chan Wing-Siu represented a misstep in the development of the criminal
law and that it, and the later cases which followed it, should be overruled. Among other
things, the court considered (at paragraph 84) that “… the rule brings the striking anomaly
of requiring a lower mental threshold for guilt in the case of the accessory than in the
case of the principal”. It was therefore held that, on the facts of the illustration given
above, in order for D2 to be guilty of murder, there would have to be evidence from which
the jury could find that he also intended to kill or cause grievous bodily harm to the victim.
But, on the other hand, “[i]f a person is a party to a violent attack on another, without an
intent to assist in the causing of death or really serious harm, but the violence escalates
and results in death, he will be not guilty of murder but guilty of manslaughter” (per Lords
Hughes and Toulson at paragraph 96). (And see generally paragraphs 88-99 of the
judgment, where the applicable principles are restated.)
[420] In order to make good his second point, which was that the facts of this case were
wholly different from the kind of case which gave rise to the decision in Jogee &
Ruddock, Mr Taylor referred us to the subsequent decision of this court in Joel Brown
and Lance Matthias v R [2018] JMCA Crim 25. That case also involved a challenge on
appeal to the appellants’ convictions for murder, arising out of an alleged joint enterprise
to kill, on the ground that the trial judge erred in not leaving manslaughter to the jury. In
distinguishing Jogee & Ruddock, McDonald-Bishop JA said this (at paragraph [102]):
“In sum, this was not a case which, on the evidence, involved a
plan to carry out one crime (crime A) and during the course of
carrying out crime A, to which the appellant was a voluntary
participant, murder, which was another crime (crime B), was
committed by someone else. In short, the circumstances of this
case do not warrant the application of the principles emanating
from R v Jogee; Ruddock v The Queen treating with parasitic
accessory liability.”
[421] In our view, this conclusion is equally applicable to this case. As Mr Taylor pointed
out, the appellants were indicted jointly for murder. The case for the prosecution was that
they acted together and in concert in murdering the deceased. Their defences were a
denial that they committed the offence. There was therefore nothing in the evidence to
ground a suggestion that any of them may have had an intention other than the intention
to kill or to cause grievous bodily harm. In these circumstances, in our view, the question
of manslaughter did not arise and the judge was entirely correct to remove it from the
jury’s consideration.
[422] The question of whether, if believed, the actions which Mr Chow attributed to
Messrs St John and Jones were sufficient to show that they were part of a common design
to kill the deceased was a matter entirely for the jury. The judge explained this carefully
and correctly to the jury in the following passage of the summing-up (Vol IX, pages 4716-
4718 of the transcript):
“The prosecution’s case is that the five accused committed this offence
together and I tell you, Madam Foreman and your members, where a
criminal offence is committed by two or more persons, each of them
may play a different part but if they are in it together as part of a joint
plan or agreement to commit it, they are each guilty. Where persons
together engage themselves upon pursuing a common design or
purpose, then anything done in pursuit of that common design, each
person who participated in the execution of that common design or
purpose becomes liable for the act of each other.
When you talk about a common design or a plan, those words don’t
mean that there has to be any formality about it. A plan that we are
talking about of this nature to commit an offence may arise on the
spur of the moment, nothing needs to be said at all. Such a plan may
be made with a nod or wink or a knowing look. Such a plan may be
inferred from the behaviour of the party. We don’t need no formality
fi wi guh siddung and draw up an agreement ‘this is what wi go do’, a
nod or a wink, a knowing look, that can constitute the plan. Madam
Foreman and your members, the essence of the common design for a
criminal defence is that each defendant share [sic] the intention to
commit the offence and took some part in it however great or small,
so as to achieve that aim. Your approach to this case should,
therefore, be as follows: If, looking at the case of any of the accused,
you are sure that the intention that I have mentioned, he took some
part in committing it with others, he is guilty.”
[423] Grounds 15 and 16 therefore fail.
Issue D – The admissibility of Deputy Superintendent Thompson’s evidence –
Ground 12 (SC)
[424] In an additional ground of appeal filed on 16 May 2018, Mr Campbell contends as
follows:
“The Learned trial judge allowed inadmissible hearsay
evidence from the investigating officer, Deputy
Superintendent Vernal Thompson, which was wholly
prejudicial and recounted that evidence to the jury in a
manner which negatively implicated the accused men,
including Shawn Campbell, resulting in a substantial
miscarriage of justice.”
[425] The background to this issue is as follows. It will be recalled that Miss Oneika
Jackson was the girlfriend of the deceased, Mr Clive Williams. During her examination-inchief, Miss Jackson was asked to identify some of the deceased’s friends and associates.
In the former category, she named Mr Campbell, and in the latter category she named a
group of disc jockeys called “the Portmore empire”, otherwise known as “the Gaza family”
(Vol I, page 68 of the transcript). She described them as a group who “will go to stage
show [sic] and perform”. Among others, she named Mr Palmer (“Vybz Kartel”) and Mr
Campbell (“Shawn Storm”) as members of the Gaza family. She added that the Gaza
family had female associates as well, among them “Gaza hindu” and “Gaza Kim” (Vol I,
page 69 of the transcript).
[426] Deputy Superintendent Thompson (‘DSP Thompson’), then an Inspector, was the
investigating officer in the matter. As was to be expected, he gave detailed evidence as
to the circumstances of his first involvement in the case and the various steps which he
took during the investigations. These included his first visit to 7 Swallowfield Avenue on
22 August 2011, when he discerned a strong fragrance similar to that of “Fabuloso” in the
living room and an adjoining cubicle; a second on 25 August 2011; a third on 27 August
2011, when he observed that the entire interior of the house had been burnt out by fire;
a fourth on 29 August 2011, accompanied by a team from the forensic laboratory, when
he discerned a foul odour coming from the living room; and a fifth on 30 September 2011,
when he observed that the “entire rear of the dwelling house was demolished, crushed
into one heap” (Vol VII, page 3851 of the transcript).
[427] Further investigations revealed that a missing person report had been made to the
police in respect of “Clive Williams, otherwise called ‘Lizard’”, by Mr Williams’ sister, Mrs
Stephanie Brakenridge.
[428] DSP Thompson conducted a question and answer session with Mr Palmer on 24
October 2011. He testified that, at the end of this session, he told Mr Palmer words to the
effect that, “me a goh charge you for the murder of Clive Lloyd Williams otherwise called
Lizard … even though his body has not been found” (Vol VII, page 3859 of the transcript).
[429] DSP Thompson then told the court that, on 29 October 2011, he received “certain
information in respect to an alleged case of robbery against one Vanessa Sadler …
otherwise called ‘Gaza Slim’” (Vol VII, page 3860 of the transcript). This evidence led to
an intervention from Mr Lorne, who then appeared for Mr Campbell. Explaining his
concern, Mr Lorne said this:
“I am just wondering about the names of persons who are
not before the court and I do not think that it is relevant to
the offence [sic] that is taking place here, so I ask my friend
to be cautious lest it become prejudicial.”