Campbell as a part of that common design, his text of the 16th of
August was indicating that he knew of Kartel’s plan. He was texting
that a serious thing, cause people a goh dead. Those texts were being
sent between 11 minutes after 1:00 and 11:45 on the 16th. So, what
the Prosecution is saying, when you put the voice notes messages of
Adijah Palmer and what Shawn Williams [sic] was texting, you see
that there was a plan.
The second thing the Prosecution is relying on to establish the death
of Clive ‘Lizard’ Williams is that the men responsible for the loss of the
guns were identified. Men were given, they knew who they gave the
guns to, and these were the men who were supposed to return the
guns. Wee and Lizard as the defaulters. So, firstly, you have this plan
to kill the men who default, and then they were identified who were
going to be killed.
And we are going to look in due course at the text messages between
Onieka Jackson, you remember her? Onieka Jackson, and Clive ‘Lizard’
Williams, the deceased, which started from 6:53 p.m. to 7:37 p.m.,
telling the men that Kartel wanted to see them. So there are those
text messages between ‘Lizard’ Williams and his girlfriend saying they
have been summoned, ‘Teacha waa si mi’ and the statement of Shawn
Campbell telling the men that Kartel wanted to see them. When you
go to the testimony of Mr. Lamar Chow, you will see where he said
that was said by him. The third thing that the prosecution is relying
on that ‘Wee’ and ‘Lizard’ were summoned to account to Kartel. The
fourth thing is that when they arrived at the premises, Kartel was in
the yard at 7 Swallowfield Avenue. Also present in the yard was ‘Mad
Suss’, that is the reference to Mr. St. John, Andre St. John, there was
also a young lady.
The evidence of Mr. Lamar Chow describes a girl who was always
following Kartel. Well, I suppose Mr. Palmer, being a celebrity of sort
, people will follow him. And what the prosecution is relying on in
this chain of circumstances is that when they arrived at 7 Swallowfield
Avenue, these persons were there, that Kartel asked the men to enter
the house and asked them to account, that Lamar Chow started to
explain, started to account. In fact, Lamar Chow started to say he had
bills to pay, him light bill to pay and he had to take a little work at
Facey and whilst that was going on ‘Lizard’ was attacked and ‘Wee’
Lamar Chow fled.
The next point that the prosecution is relying on that Chow was
brought back by Palmer and Shawn Campbell into the area where they
had been before and there they saw ‘Lizard’ was seen lying motionless
on the ground with Andre St. John and Kahira Jones and another man
over him. Imagine that. He had walked into that building on his own
steam, if you accept what Mr. Chow had said, we are going to look
very closely on the evidence. He had walked into that room, the
witness who came, his girlfriend, I don’t recall whether it was his
girlfriend at this time or his sister, described that he was not sick, he
was a healthy young man. You remember his sister saying his dancing
ability was what caused him to be called ‘Lizard’, because of how he
moved. ‘Lizard’ was lying on his back when the men brought back
Chow into that room. He went in on his own steam and was lying
there on his back, if you accept what Chow said.
The next thing the prosecution – and you bear in mind, you bear in
mind because you saw photographs of it, what 7 Swallowfield Avenue
looked like. You could not see into that place from the street, that is
the evidence that is not challenged before you, very high walls from
the gate, the high metal gate did not afford anybody looking in and
seeing anything that was going on there. You have to wonder why,
even in those circumstances, if you accept what Chow says, the men
were invited by Adidja Palmer into the darkened house because they
could not – anybody passing on that road, could not have been able
to know what is happening in that yard and as the evidence will point
out, since we are at this point, there were no cars there, nobody has
said any cars were there but there was this large group of men in
there, so anybody passing could see nothing. So the high walls
surrounding the tall gate, the condition that ‘Lizard’ was in, motionless
on the floor, he could not, said the prosecution, along with the pit bull
outside, he would not have been able to make it out of that place, if
you accept what Chow said.
The next item the prosecution is relying on is the video of the room
which Superintendent Thompson and Chow identified and the audio
that was heard speaking of killing a man at a time that was consistent
with Mr. Palmer’s return to Havendale.
The next point that the prosecution is relying on is Shawn Campbell’s
‘schooling’, telling Lamar Chow to say, if asked, he was to say that
‘Lizard’ never came in the car. The next point, the clear words of Mr.
Palmer that they can never find ‘Lizard’. You may – the prosecution
also relies on the change in the whole tone of Mr. Palmer’s messages
and just prior to the 16th there was this urgency, ‘If I doan get mi gun
him and him mumma a guh dead.’ After that, after the 16th, no
mention of that urgency, that is another thing the prosecution is
relying on.
The next thing the prosecution is relying on [sic] that subsequent to
the 16th, the extension of the first invitation for ‘Wee’ to travel with
Palmer because what ‘Wee’ had said is that he had never, although
he had been overseas, he had never travelled on one of these concerts
or wherever overseas with Palmer. The day following the 16th, he is
invited to travel with Palmer and he was offered, on his evidence,
Chow’s evidence, by Campbell, to buy him a suitcase for the reason
that Palmer did not want the police to question him, Chow.
The next thing that the prosecution is relying on is the extensive
search that was done from hospital, through morgue, through burial
sites where bodies are found. Those extensive searches and the fact
that although you have heard from his girlfriend, that is the girlfriend
of ‘Lizard’ Williams, that they had a stable relationship, they lived
together, that they were texting each other almost the entire day of
the 16th, she has never heard from him again.
HIS LORDSHIP: Is he alive or is he dead? His sister has never heard
from him. His girlfriend has never heard from him. And these are
people with whom he has no quarrel. It is a matter for you, but those
are the areas the Prosecution is relying on to say, when you put those
circumstances together, it leads to one direction, that Clive ‘Lizard’
Williams is dead. That is what the Prosecution is saying …
… Madam Foreman and your members, we will continue looking at
the circumstances which the Prosecution has placed before the Court,
to establish the death of Clive ‘Lizard’ Williams.
The next one, this cleaning of the house. You recall Police Officer
Thompson indicating there was a smell of Fabuloso and the odor of
death, the burning down of the house. This house had only been
acquired some eighteen months prior to this fire. You will recall that
the analyst, the forensic experts who visited the scene of the fire was
[sic]
of the opinion that the fire had been deliberately set. The police
officer, Superintendent Thompson was of the view – well, it was his
evidence that it was the first time he was experiencing a situation
where someone had a home which appeared, on the face of it, to be
an expensive house, it had been damaged seriously, totally by fire
which had been set deliberately, and no report had been made about
it.
The next thing on which the Prosecution rely in this chain of
circumstances – and before I leave the point of the burning of this
house – – the fact is the house was burnt prior to an examination, a
visit by the experts who were supposed to come and examine the
house to see if there were any clues, anything they could use to detect
what had happened there. This fire was prior to that visit. And you
may think that it is important because of what the Defence lawyer had
said in respect of the police operation in this case, because they have
said that the police have concocted the evidence, that they are corrupt
and the whole thing, the entire prosecution’s case is a conspiracy
against the accused men. In those circumstances you will want to
examine, is this the action of the police in destroying, in setting fire to
the house before? How did it come about? It is a matter for you.
The final area of the circumstances that the Prosecution has tendered
before you, is the demolition of sections of the house which also had
not been reported. Now, that is the Prosecution’s evidence that they
have put before you in order to establish the death of Clive ‘Lizard’
Williams.”
[299] And thirdly, in a passage which the appellants have heavily criticised, the judge
said this (Vol IX, page 4747 of the transcript):
“Circumstantial evidence must always be narrowly examined if only
because evidence of this kind may be fabricated to cast suspicion on
another. It is also necessary, before drawing the inference of the
accused [sic] guilt from circumstantial evidence to be sure that there
are no other coexisting circumstances which could weaken or destroy
[the]
inference. On the other hand, it is often said that
circumstantial evidence is very often the best evidence. It is
the evidence of surrounding circumstances which by, or
designed coincidence, is capable of proving the proposition
with the accuracy of mathematics.” (Emphasis supplied)
[300] The appellants submitted that this last statement was a material misdirection
because, even if the judge’s comment about “the accuracy of mathematics” was allowable,
he should have subjected the items of circumstantial evidence upon which the prosecution
relied to this mathematical test for the benefit of the jury. Or he would have needed, at
least, to point the jury to those items of evidence which may have fallen short of that
standard. The judge gave no help in this regard, therefore leaving the jury with the
impression that the circumstantial evidence in this case had reached the level of
mathematical accuracy.
[301] Referring again to McGreevy, the Crown submitted that no special direction was
required of the judge in relation to the circumstantial evidence and that it sufficed for the
judge to make it clear to the jury that they must not convict unless satisfied beyond
reasonable doubt of the guilt of the accused.
[302] As Lord Morris of Borth-Y-Gest indicated in McGreevy (at pages 510-511), “it
would be undesirable to lay it down as a rule which would bind judges that a direction to
a jury in cases where circumstantial evidence is the basis of the prosecution case must
be given in some special form provided always that in suitable terms it is made plain to a
jury that they must not convict unless they are satisfied of guilt beyond all reasonable
doubt” (emphasis as in the original). In this case, as we have already indicated, the judge
told the jury more than once in ample terms of the need for them to be sure of the guilt
of the appellants before they could return a verdict of guilty. In our view, therefore, the
requirements of the law in relation to circumstantial evidence were fully met.
[303] Finally, on this point, as regards the judge’s remark that circumstantial evidence
was capable of “proving the proposition with the accuracy of mathematics”, this was, as
it seems to us, no more than a comment. It is clear from the context in which it appears
that the judge was not intending to suggest a test to be applied in cases of circumstantial
evidence. Rather, he was merely indicating, as he had already said in so many words, the
potential of circumstantial evidence to be “the best evidence”. Nowhere in the summing-
up did he suggest to the jury that the evidence in this case was required to reach the
standard of mathematical accuracy and there was therefore no need, as the appellants
contended, “to subject the items of circumstantial evidence to this mathematical test for
the benefit of the jury”.
[304] Ground 7 therefore fails.
(iv) The directions on how to approach the appellants’ unsworn statements (ground
9/AP, KJ, AStJ)
[305] As we have noted, each of the appellants made an unsworn statement from the
dock. At the end of his review of the evidence relied on by the prosecution, the judge
began his review of the appellants’ cases by indicating to the jury that, at the close of the
prosecution’s case, each of them had a choice of whether to say nothing at all in defence,
to make an unsworn statement from the dock, or to give evidence on oath. He also
explained that, in each of the first two instances, the appellants could not be asked any
questions, but that, had they opted to give evidence, they would have been open to crossexamination and questions from the judge, like any other witness. The judge then went
on to say this (Vol IX, pages 5101-5103 of the transcript):
“In any event, they gave unsworn statements. And I am to tell you
that one of the things you cannot do is, because they did not give
sworn statements, you cannot say on that, that they are guilty, that
would be wrong. You can’t do that. Because as I indicated, that is a
right provided by law.
If they – as I indicated to you, Madam Foreman and your members –
if they had gone in the witness box they could have been crossexamined. You and your members may, perhaps, be wondering why
the accused had elected to make an unsworn statement. That, it
could not be because he had any conscientious objection to taking the
oath since if he had, he could affirm. Could it be that the accused was
reluctant to put his evidence to the test of cross-examination? If so,
why? He had nothing to fear from unfair questions because he would
be fully protected from these by his own counsel and by the Court.
Madam Foreman and your members, it is exclusively for you to make
up your minds whether the unsworn statement has any value and, if
so, what weight should be attached to it. That is for you, the jury, to
decide whether the evidence for the prosecution has satisfied you of
the accused guilt beyond reasonable doubt and that, in considering
your verdict, you should give the accused unsworn statement only
such weight as you may think it deserves.”
[306] The appellants take no issue with these directions, so far as they go. But, in ground
9, they complain that the judge erred by failing “to inform the jury of the possible effects
of the statements on their consideration of the appellants’ case”. This failure, the
appellants contend, deprived them “of a full and adequate consideration of their case”.
[307] In support of this ground, the appellants made a number of points. By telling the
jury that he was going to “…look at the case as put up by the accused”, the judge, the
appellants say, failed “to individualize and thereby particularise the respective defences to
emerge from the unsworn statements”. Accordingly, the directions were general in
character and not tailored to each of the appellants. As such, they were not in keeping
with the law as laid down in the decisions of the Privy Council in Director of Public
Prosecutions v Leary Walker (‘Walker’) (1974) 12 JLR 1369, and of this court in
Delroy Laing v R [2016] JMCA Crim 11, R v Michael Salmon (unreported), Court of
Appeal, Jamaica, Supreme Court Criminal Appeal No 45/1991, judgment delivered 24
February 1992 and Alvin Dennison v R [2014] JMCA Crim 7. In particular, learned
counsel submitted, the judge failed to tell the jury that each unsworn statement could
have had the effect of (a) convincing them of the innocence of the accused, or (b) causing
them to doubt, in which case, the accused would be entitled to an acquittal, or (c)
strengthening the case for the prosecution. This non-direction, counsel for the appellants
contended, amounted to a mis-direction in law, with the result that the appellants’
defences were not fairly left to the jury for their consideration and the appellants were
therefore denied a fair chance of acquittal.
[308] For the Crown, it was submitted that the judge’s treatment of the appellants’
unsworn statements was adequate and entirely in keeping with the guideline directions
laid down by the Privy Council in the leading case of Walker.
[309] In Walker, in response to a specific request from this court for guidance on the
objective evidential value of an unsworn statement, the Board stated the following (at
page 1373):
“Much depends on the particular circumstances of each case. In the
present case, for example, even on the approach that everything the
respondent said in his unsworn statement was true, no jury (unless
perverse) could have acquitted him on the ground of self-defence.
There are, however, cases in which the accused makes an unsworn
statement in which he seeks to contradict or explain away evidence
which has been given against him or inferences as to his intent or
state of mind which would be justified by that evidence. In such cases
(and their Lordships stress that they are speaking only if such cases)
the judge should in plain and simple language make it clear to the jury
that the accused was not obliged to go into the witness box but that
he had a completely free choice either to do so or to make an unsworn
statement or to say nothing. The judge could quite properly go on to
say to the jury that they may perhaps be wondering why the accused
had elected to make an unsworn statement; that it could not be
because he had any conscientious objection to taking the oath since,
if he had, he could affirm. Could it be that the accused was reluctant
to put his evidence to the test of cross-examination? If so, why? He
had nothing to fear from unfair questions because he would be fully
protected from these by his own counsel and by the court. The jury
should always be told that it is exclusively for them to make up their
minds whether the unsworn statement has any value, and, if so, what
weight should be attached to it; that it is for them to decide whether
the evidence for the prosecution has satisfied them of the accused’s
guilt beyond reasonable doubt, and that in considering their verdict,
they should give the accused’s unsworn statement only such weight
as they may think it deserves.”
[310] These guidelines have been consistently followed and applied by trial judges in
this jurisdiction. Indeed, as Gordon JA observed in R v Michael Salmon (at page 3),
“when they are applied no challenge to a summing-up can be successful”.
[311] In the most recent review of the position in Alvin Dennison v R, this court
summarised the effect of the authorities in this way (at paragraph [49]):
“In a variety of circumstances, over a span of many years, the
guidance provided by the Board in DPP v Walker, which also
reflected, as R v Frost & Hale confirms, the English position up to
the time of the abolition of the unsworn statement, has been a
constant through all the cases. It continues to provide authoritative
guidance to trial judges for the direction of the jury in cases in which
the defendant, in preference to remaining silent or giving evidence
from the witness box, exercises his right to make an unsworn
statement. It is unhelpful and unnecessary for the jury to be told that
the unsworn statement is not evidence. While the judge is fully
entitled to remind the jury that the defendant’s unsworn statement
has not been tested by cross-examination, the jury must always be
told that it is exclusively for them to make up their minds whether the
unsworn statement has any value and if so, what weight should be
attached to it. Further, in considering whether the case for the
prosecution has satisfied them of the defendant’s guilt beyond
reasonable doubt, and in considering their verdict, they should bear
the unsworn statement in mind, again giving it such weight as they
think it deserves.”
[312] In our view, there can be no doubt from the language used in the extract from the
summing-up set out at paragraph [305] above that the judge had the Walker prescription
firmly in mind. Thus, he told the jury that it was exclusively for them to decide whether
the unsworn statements had any value and, if so, what weight should be attached to
them. This direction clearly distinguishes the case from a case like Delroy Laing v R, in
which the judge, wrongly as this court held, went on to tell the jury what value the
unsworn statement may have had, thus usurping the jury’s function.
[313] However, basing themselves on a passage from the judgment of Gordon JA in R
v Michael Salmon, the appellants complain that the judge ought also to have told the
jury that the unsworn statement of each appellant might “(a) convince them of the
innocence of the accused, or (b) cause them to doubt, in which case the [appellant] is
entitled to an acquittal, or (c) it may and sometimes does strengthen the case for the
prosecution”.
[314] We accept that this might have been a useful addition, by way of overall summary
of the position, to the judge’s directions on the weight to be attached to the unsworn
statement. But we would also observe that neither Walker nor any of the subsequent
authorities on the point, including R v Michael Salmon itself, lists this as an essential
ingredient of the standard direction on the value to be placed on the unsworn statement.
[315] In this case, the judge told the jury plainly that it was for them “to decide whether
the evidence for the prosecution has satisfied you of the accused [sic] guilt beyond
reasonable doubt and that, in considering your verdict, you should give the accused [sic]
unsworn statement only such weight as you may think it deserves”. In our view, this
restatement of the direction which the judge had previously given on the standard of
proof, in the context of his directions on the value of the unsworn statement, would have
made it clear to the jury that, if they accepted the truth of what was said in a particular
defendant’s unsworn statement, or if it left them in doubt, the prosecution would have
failed to prove the case against that defendant beyond a reasonable doubt.
[316] Finally, on this point, as regards the complaint that the judge’s directions on the
unsworn statement “were general in character and not tailored to each of the appellants”,
it suffices to point out, we think, that having given his general directions on how to
approach the unsworn statements, the judge undertook a detailed review of the unsworn
statement given by, and the evidence given in support of the case of, each of the
appellants (Vol IX, pages 5103-5139 of the transcript).
[317] Ground 9 therefore fails.
(v) Whether the judge made unjustified, unreasonable, improper, palpably biased and/or
prejudicial comments with respect to different aspects of the evidence (ground 10/AP,
KJ, AStJ)
[318] Ground 10 reads as follows:
“The Learned Trial Judge erred at many points in his summation where
he made unjustified, unreasonable, improper and prejudicial
comments and omissions pertaining to different aspects of the
evidence. In addition, at different points he misquoted the evidence
and made palpably biased comments, all of which were fatal to any
possibility of a fair trial.”
[319] On this ground, the appellants submitted that there were “many deficiencies” in
the summing-up. Mrs Neita-Robertson specifically referred to the following matters:
(a) The judge’s summation was “… replete with comparisons between what the
defence was asserting and the question whether the defence was saying that the
police force and prosecutors are concocting a story”. Further, that “[t]his
juxtaposition was designed to contrast the appellant’s credibility with that of the
forces of the state and must have had the effect of ridiculing the appellants and
their cases”. Learned counsel, by way of example, referred to an extract of the
summation at Vol IX, page 4783 of the transcript:
“For you to understand, you have to see the entire context.
Remember I gave you an order in which the Prosecution is
saying these circumstances took place, starting with the plan,
starting with what Mr. Palmer had said would happen, if you find
that was said because remember, what the defence is saying, is
that it’s all manipulated; it’s spliced; it’s put together; it is a
fabrication; the police force in this matter has conspired against
all five of them. So you have to bear that in mind. This is a
conspiracy. I don’t know if it said that it extends as far as the
Honourable Minister, but he was certainly mentioned as being
somebody who was trying to prejudice the fair trial of Mr.
Palmer.”
(b) The summing-up “also included amplified imaginative storytelling”. In this regard,
the appellants referred in particular to two extracts from the summing-up, both of
which formed part of the judge’s summary of the items of circumstantial evidence
relied on by the prosecution (Vol IX, pages 4737-4739 of the transcript):
“The next point that the prosecution is relying on [sic] that Chow
was brought back by Palmer and Shawn Campbell into the area
where they had been before and there they saw ‘Lizard’ was
seen [sic] lying motionless on the ground with Andre St. John
and Kahira Jones and another man over him. Imagine that. He
had walked into that building on his own steam…” (Page 4737)
(Emphasis supplied)
“The next thing the prosecution – and you bear in mind, you bear
in mind because you saw photographs of it, what 7 Swallowfield
Avenue looked like. You could not see into that place from the
street, that is the evidence that is not challenged before you,
very high walls from the gate, the high metal gate did not afford
anybody looking in and seeing anything that was going on there.
You have to wonder why, even in those circumstances, if you
accept what Chow says, the men were invited by Adidjah Palmer
into the darkened house because they could not – anybody
passing on the road, could not have been able to know what is
happening in that yard and as the evidence will point out, since
we are at this point, there were no cars there, nobody has said
any cars were there but there was this large group of men in
there, so anybody passing could see nothing. So the high walls
surrounding the tall gate, the condition that ‘Lizard’ was in,
motionless on the floor, he could not, said the prosecution, along
with the pit bull outside, he would not have been able to make
it out of that place, if you accept what Chow said.” (Pages 4738-
4739)
(c) The judge attempted to convey to the jury a sense of how dangerous the
appellants were by indicating that Mr Chow and the deceased, who were not “very
soft guys”, were really scared on the night of 16 August 2011 (Vol IX, page 4844-
4845 of the transcript):
“Again, now, Madam Foreman and your members, those are not
two very soft guys, these are men who lock guns, these are men
who lock guns. In fact, on the very night of the incident, on the
16th, the evidence is that a gun was brought to Chow to lock. So
these are men you would think wouldn’t scare easily, their knees
wouldn’t buckle readily, they wouldn’t get frighten just so. But
they were telling you here, ‘We were scared, knowing the
situation we were into’.”
(d) The judge wrongly recounted the content of various text messages to the jury as
though they were evidence of their contents without the maker having been called
to speak to their contents. There was thus a free for all in directing the jury on
material which ought not to have been left to them (Vol IX, page 4770 of the
transcript).
(e) The judge wrongly recounted to the jury the evidence of the police in relation to
a report about one ‘Gaza Slim’, when that evidence ought not to have been allowed
in, much less repeated, as it had no relevance whatsoever and was highly
prejudicial with no probative value (Vol IX, page 4761 of the transcript):
“[Mr Williams’ girlfriend, Oneika Jackson,] mentioned a person by the
name of ‘Gaza Slim’. Now, that name, ‘Gaza Slim’, you will recall the
evidence of Superintendent Thompson, which was to the effect that
one of the things, one of the reports that he received on the 29th of
October [sic], 2011, he received certain reports in respect of an
alleged case of robbery against a person called Vanessa Sadler,
otherwise called ‘Gaza Slim’. And the alleged report named a suspect,
Clive Williams. So, this person who she has identified as a part of the
–what she calls the Gaza Family, had made a report, shortly after–if
not shortly, on the date the 29th of October [sic], he having gone
missing on the 16th of October, [sic] that Clive ‘Lizard’ Williams had
held her up with a firearm. The important point in that–is that the
officer said that he gave instructions on the report for investigations
to be conducted on Gaza Slim’s report, and specifically, to record
statements from the relative of Williams, now being called a suspected
robber.”
(f) In leaving to the jury the condition of the house at Havendale (supposedly where
the deceased was killed) and emphasising that the house appeared to have been
cleaned and later burnt, the judge deliberately implied that this was an attempt to
conceal evidence (Vol IX, pages 4743-4744 of the transcript):
“The next one, this cleaning of the house. You recall Police
Officer Thompson indicating there was a smell of Fabuloso and
the odor of death, the burning down of the house. This house
had only been acquired some eighteen months prior to this fire.
You will recall that the analyst, the forensic experts who visited
the scene of the fire was of the opinion that the fire had been
deliberately set. The Police Officer, Superintendent Thompson
was of the view–well, it was his evidence that it was the first
time he was experiencing a situation where someone had a
home which appeared, on the face of it, to be an expensive
house, it had been damaged seriously, totally by fire which had
been set deliberately, and no report had been made about it.”
(g) Although the house was at the time of the examination a crime scene under the
control of the police, the judge couched his comments in terms designed to make
it appear ridiculous that the police may have had anything to do with the
compromise of the crime scene (Vol IX, pages 4743-4744 of the transcript):
“The next thing on which the Prosecution rely in this chain of
circumstances–and before I leave the point of the burning of
this house–the fact is the house was burnt prior to an
examination, a visit by the experts who were supposed to come
and examine the house to see if there were any clues, anything
they could use to detect what had happened there. This fire was
prior to the visit. And you may think that it is important because
of what the Defence lawyer had said in respect of the police
operation in this case, because they have said that the police
have concocted the evidence, that they are corrupt and the
whole thing, the entire prosecution’s case is a conspiracy against
the accused men. In those circumstances you will want to
examine, is this, the action of the police in destroying, in setting
fire to the house before? How did it come about? It is a matter
for you.”
(h) The judge, having placed the wrong appellant standing over the motionless body
with a block, drew an intervention from counsel, but failed to correct the error (Vol
IX, pages 4892-4893 of the transcript):
“MS. T. HARRIS: M’Lord, I would also seek your special
assistance, my recollection of the evidence does not speak to my
client standing over somebody with a block; it speaks to him with
a block, but my evidence is he was not standing over the
motionless body with a block. That is my recollection of the
evidence. Perhaps I could get assistance in relation to the
transcript.
HIS LORDSHIP: Okay.”
(i) The judge speculated and made biased comments about a girl allegedly seen at
the premises in Havendale (Vol IX, pages 4851-4852 and 4868 of the transcript):
“It was also not denied that there was a girl–I think the witness
Chow referred to her as Candice–there. The question we ask, if
this girl Candice was, in fact, there would she have seen what
happened upon Chow’s entry to the yard? And why is it she didn’t
accompany Cartel [sic] to the hospital because remember, the
evidence is, by Chow, she came later.”
“Remember now, Madam Foreman and your members, what
Wee, Lamar Chow said when he got there, who he saw in the
yard? He said he saw Kartel, he saw a girl who always a follow
Kartel, and he saw Mad Sus [sic]. Question, if it is, Madam
Foreman and your Members that Wee went in, the dog came at
him, Kartel tried to protect him and got bitten, would the girl
have seen what happened? Would Mad Sus [sic] have seen what
happened? Why is it only Lamar Chow who went to Andrews
Hospital? The girl went after, which suggests that I am willing to
come. Why didn’t she go with him? She would have seen what
happened in the yard. Why didn’t she go? She went to Andrews
that is the evidence before this Court. It is a matter for you
Madam Foreman and your Members.”
(j) The judge demonstrated palpable bias when he improperly commented as follows
(Vol IX, page 5025 of the transcript):
“And this is why we are saying the person who did this, the
person who did this, one has to look at the text and what it is
saying in order to assist you, to assist yourself, as finders of fact
in this case, to say how you must treat with this text. Because
one construction I would say, as a matter of fact, that could be
placed on it, is that it is final, it speaks to, to speaks to a disposal
of ‘Lizard’ and that the author of this must have known he is
totally unlikely to surface any time after this text was done. A
comment I make, and you can deal with the comment in any
way you wish, that it would be a most uncouth police officer to
have gone ahead and produced a text like this, unless he knows
as a fact that Lizard is dead.” (Emphasis supplied)
(k) The judge recounted a text message speaking to a gun transaction which had
nothing at all to do with the case and was therefore entirely prejudicial and without
any probative value (Vol IX, page 5000 of the transcript):
“Now, this particular message is on the 19th of August, and it
refers to, ‘Well, mi tell Shawn she him have fi buy dem back, a
waan tell yu seh mi still gi him a new 45 weh mi jus get fi gwaan
watch him head, and tell him seh, any man miss it di same
treatment’.”
(l) The judge referred to “the case startler”, when posing the question whether the
police were manufacturing evidence in a simple area of the evidence, thus
ridiculing the defence contention on the point (Vol IX, page 5081 of the transcript):
“So the case startler is that the police has manufactured the
evidence here and their conduct must be closely scrutinize [sic]
because the Crown must satisfy you to the extent that you feel
sure that the evidence was not fabricated, concocted, or altered
to the detriment of these accused men because that is what they
claimed.”
(m) The judge attempted to minimise the significance of the fact that the CD which
was referred to as ‘JS1’ was missing by suggesting that it was of no great moment,
given the evidence that Mr Joseph Simmonds, the person who prepared the disc,
would also summarise the information which it contained in his witness statement
(Vol IX, pages 4949-4952 of the transcript).
(n) The judge offered the analogy of the baton change in a relay in an attempt to
explain the gap in the integrity of the exhibits, thus giving the jury an option to
sanitise the evidence that the content of exhibit 14C might have been tampered
with. The analogy was very weak and deceptive because it failed to address the
fact that it was established that the “evidence/baton” was compromised (Vol IX,
pages 5011-5012 of the transcript):
“It will be for you to say, Madam Foreman and your members,
whether, in fact, the content of the phone had been tampered
with. Because, it is clear from the evidence that somebody, in
fact interfered, whichever word you want to use, tamper,
tampered with, or did something to the phone on days whilst it
was in the custody of the police. Remember the directions I gave
you in respect of a break in the continuity, a chain of custody, a
gap in that chain, which is like a relay when you think of it. The
baton, in order to get to where you want it to go, it has to be
passed from one hand to the other. The difference with that
analogy, if the baton falls you can pick it up and run, if you
manage to get there you get there. However, with this chain of
custody, the Court has to be ensured that the baton, when it is
retrieved, it is the same condition as when it fell, it was picked
up and moved in the same condition. And I told you, you assess
how you make the assessment to determine whether this,
despite the fact that the baton fell, or put it the other way, there
is a gap in the custody, whether, in fact, you maintain a
reasonable doubt as to the integrity of the material, the contents
of the phone.”
(o) The judge referred to Mr St John as “Mad Suss”, which was his stage name and in
the context in which it was used was purely prejudicial.
[320] In support of these submissions, Mrs Neita-Robertson referred to and relied on the
caution given by Lord Lane in the decision of the Privy Council in Byfield Mears v The
Queen [1993] UKPC 13, [1993] 1 WLR 818, 822, against a “fundamentally unbalanced”
summing-up:
“The Court of Appeal took the view that the trial judge was not putting
forward an unfair or unbalanced picture of the facts as he saw them.
In rejecting the defendant’s submission that the comments of the
judge were unfairly weighted against him, the court asked themselves
whether the comments amounted to a usurpation of the jury’s
function. In the view of their Lordships it is difficult to see how a judge
can usurp the jury’s function short of withdrawing in terms an issue
from the jury’s consideration. In other words this was to use a test
which by present day standards is too favourable to the prosecution.
Comments which fall short of such a usurpation may nevertheless be
so weighted against the defendant at trial as to leave the jury little
real choice other than to comply with what are obviously the judge’s
views or wishes. As Lloyd L.J. observed in Reg v.
Gilbey (unreported), 26 January 1990:
‘A judge … is not entitled to comment in such a way as to
make the summing up as a whole unbalanced … It cannot be
said too often or too strongly that a summing up which is
fundamentally unbalanced is not saved by the continued
repetition of the phrase that it is a matter for the jury.’”
[321] Lord Lane went on to accept that, as the Crown had submitted in that case, it was
necessary to take the summing up as a whole. He therefore considered that the court
should ask itself whether there was, in the words of Lord Sumner in Ibrahim v The
King [1914] AC 599, 615 –
“… something which … deprives the accused of the substance of a fair
trial and the protection of the law, or which, in general, tends to divert
the due and orderly administration of the law into a new course, which
may be drawn into an evil precedent in future.”
[322] On this basis, Mrs Neita-Robertson submitted that the judge’s summing-up in this
case was fundamentally unbalanced, thus depriving the appellants of the substance of a
fair trial.
[323] In response to these complaints, the Crown was content to submit that the judge
gave a fair and balanced summation; he looked at the evidence from both sides and gave
guidance to the jury on how to critically examine that evidence, while consistently
reminding them where necessary that it was a matter for them; and the various comments
identified by the appellants were not sufficiently prejudicial as to be fatal or make the trial
unfair.
[324] We accept the Crown’s submission. By any measure, this was, as we have already
observed, a long trial. Perhaps of necessity, the summing-up, which covered 437 pages
of the printed transcript, was also a long one. In it, following on from 64 days of trial, the
judge sought to give to jury an accurate synopsis of the case that had been presented
through the mouths of 24 witnesses for the prosecution, six for the defence, five unsworn
statements from the dock and 25 exhibits.
[325] As might perhaps inevitably be expected in any such exercise, there were a few
errors in detail, such as when the judge placed the wrong appellant as one of the persons
who stood over the motionless body of ‘Lizard’ in the house at 7 Swallowfield Avenue. It
is also true that, had he had it to say again, the judge would probably have avoided the
use of the possessive pronoun “we” in explaining the inference which the prosecution was
asking them to draw from a certain piece of evidence (“this is why we are saying”); or
characterising the defence contention that the police may have been involved in
fabricating evidence as “the case startler”.
[326] But, in our view, these were no more than missteps in the course of what was a
thorough and well-balanced summing-up. Apart from the obviously inadvertent use of the
word “we”, the appellants were completely unable to point to anything to suggest that
the judge was affected by either actual or apparent bias. The reference to the defence
suggestion that the police may have fabricated evidence of a cover-up of the murder of
the deceased as “the case startler” was no more than a comment – and a slightly
ambiguous one as well – on the evidence which the jury had to consider. In referring to
Mr St John as “Mad Suss”, the judge was doing no more than repeating the name by
which he was described by Mr Chow – more than once – in his evidence. The judge’s
comments of which complaint is made were all, as it seems to us, perfectly justified by
the evidence in the case. In addition, the judge was in any event careful to emphasise to
the jury at each point, as he had done at the outset of the summing-up, that the ultimate
decision on whether the appellants were guilty or innocent was solely theirs to make and
that they should feel free to disregard any comments which he might make on the facts
and to substitute their own views therefor (see paragraph [283] above). Further, that they
were “the supreme judges of the facts”, and that they were accordingly “not bound by
comments which either the judge or counsel make, unless those comments accord with
the views that you hold on the facts” (Vol IX, page 4720 of the transcript).
[327] In our view, taken as a whole, therefore, the aspects of the summing-up
highlighted by Mrs Neita-Robertson cannot be said to have been of such a nature as to
deprive the appellants of the substance of a fair trial and the protection of the law.
[328] Ground 10 therefore fails.
(vi) Whether the judge dealt with the defence of Mr Shawn Campbell properly (ground
9/SC)
[329] Mr Campbell, who filed a separate ground of appeal under this head, complained
as follows:
“The [judge] failed to fully instruct the jury, or instruct them at all, in
relation to Shawn Campbell’s defence, including his statement from
the dock, depriving him of a fair and balanced consideration of his
case, resulting in a substantial miscarriage of justice.”
[330] In support of this ground, Mr Bert Samuels made extensive written and oral
submissions on Mr Campbell’s behalf. At the heart of these submissions was the contention
that the judge failed to analyse and treat Mr Campbell’s unsworn statement with the same
detail and attention which he gave to the allegations against him; and that he failed to
leave to the jury all possible favourable inferences that could be drawn from the
statement. By so doing, it was submitted, the judge deprived Mr Campbell of the possibility
of a verdict of acquittal and thereby denied him a fair trial.
[331] Mr Samuels submitted further that the judge’s directions to the jury on what Mr
Campbell had said in his unsworn statement (i) misrepresented Mr Campbell’s statement
that the deceased and Mr Chow “freely followed” him to Havendale on the evening of 16
August 2011; (ii) failed to mention that Mr Campbell said that he did not take the deceased
to 7 Swallowfield Avenue, but dropped him off at the guest house some 10 minutes’ drive
away; and (iii) failed to tell the jury 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.
[332] To give these points graphic force, Mr Samuels produced a table of the differences
of which he complained between Mr Campbell’s unsworn statement and the judge’s
account of it in the summing-up (emphasis as in the original):
STATEMENT FROM THE
DOCK
Volume 8 –
Page
Numbers
SUMMATION Volume 9 –
Page
Numbers
- “Upon going there I reported,
I was held for three
days…About a week after my
mother called me and say she
got a message from the
Constant Spring police station
that I must report again,
being a law abiding citizen,
I did so. This time they take
me for twelve days and then
release me again…Four days
after that I was summoned
by the police to the Constant
Spring Police Station again, this
Page 4366,
(lines 10-25)
Page 4367
(lines 1-3)
“He heard of a report for
questioning and going
there, he was held for three
days…He said 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”
Pages 5131
(lines24-
25), Page
5132 (lines
1-10)
time as a person of interest.
When I went there…” - “I am not a murderer or have I
ever taken part in any alleged
offence pertaining to an
alleged deceased Clive
Williams.”
Page 4367
(lines 7-10)
“I am not a murderer, nor
have I ever,” neither has he
ever taken part in any alleged
plan in respect of Clive
Williams”
Page 5132
(lines 11-13) - “On August 16, 2011, Lamar
Chow and Clive Williams freely
followed me to Havendale”
Page 4367
(lines 13-18)
“What Mr. Shawn Campbell
had said is that he took
Lamar Chow to, and Mr.
Williams, Clive Williams to
Havendale.”
“Lamar Chow and Clive
Williams followed me to
Havendale”
Page 5133
(lines 20-21)
5133 (lines
19-21) - “…at no time did he told me
about he seeing any body on
the ground or anything like
that”
Page 4368
(lines 2-4)
“No time did he tell me about
anything on the ground or
anything like that” on the
ground”
5132 (line
25)-5133
(line 1)
[333] On the basis of this table, Mr Samuels submitted that a comparison between what
Mr Campbell said in his unsworn statement and how it was transmitted to the jury by the
judge demonstrated the omissions and misquotations in the summing-up, resulting in an
unfair presentation of the appellant’s defence to the jury.
[334] Mr Samuels submitted further that the judge did not point out to the jury that Mr
Chow’s letter dated 13 November 2013 to the Public Defender also supported Mr
Campbell’s statement that he left Clive Williams at the guest house. This piece of evidence,
if believed, lent support to Mr Campbell’s defence that he did not participate in the
common design as he had taken Clive Williams, not to Swallowfield Avenue, but to the
guest house and nowhere else. The judge’s failure to draw it to the jury’s attention as an
item of evidence which was corroborative of the defence of Mr Campbell, severely
damaged the strength of his defence.
[335] Mr Samuels submitted that Mr Chow’s credibility was further impaired by the
contents of his further statement dated 24 August 2011, which this court admitted as
fresh evidence at the commencement of the hearing of the appeal. In this 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. This contradicted his evidence at the trial, in
which he placed the time of arrival at Havendale at 5-5:30 pm, and other answers given
by him in cross-examination, in which he indicated that he had in fact departed from
Portmore at about 5-5:30 pm that same day.
[336] Mr Samuels submitted that this was further compounded by the evidence of the
cell-site positioning of Mr Campbell, which, as the judge correctly told the jury (Vol IX,
page 4712 of the transcript), placed him “well away from the vicinity of 7 Swallowfield
Avenue at the time the prosecution alleges that the video was shot”. Despite
acknowledging the defence’s contention that the positioning of Mr Palmer and Mr
Campbell was “very materially discrepant”, the judge failed to alert the jury to the
significance of this evidence to Mr Campbell’s defence that he did not have anything to do
with whatever may have happened at Swallowfield on 16 August 2011, or at all.
[337] For all these reasons, as well as a number of others referred to in the printed
skeleton arguments, Mr Samuels submitted that the judge’s failure to present Mr
Campbell’s defence in a fair and balanced manner amounted to a departure from his
entitlement to a fair trial by depriving him of a fair and balanced consideration of his
defence.
[338] For the Crown, it was submitted that the judge dealt with the case for Mr Campbell
in a fair and balanced manner and that there was accordingly no miscarriage of justice.
[339] In order to assess Mr Campbell’s complaints on this ground, we will first compare
the actual text of his unsworn statement with the terms in which it was left to the jury by
the judge.
[340] Having stated his name and address, Mr Campbell said the following in his unsworn
statement (Vol VIII, pages 4365-4368 of the transcript):
“… I am 34 years old. I attended Jose Marti Technical High School
where I graduated with four subjects. I then attended Jamaica
German Automotive School. I studied there for three years as a
Mechanical Engineer. I graduated with a certificate.
… I then worked at JUTC for six years. I started as an apprentice then
extended to Grade 1 Mechanic …
However, in October 13, I was at home and I hear on the news that I
am supposed to report to the Constant Spring Police Station for
questioning. Upon going there I reported, I was held for three days.
Then after my lawyer, then Mr. Michael Deans filed for a habeas
corpus. I was released by the police at Constant Spring Police Station.
They asked me to leave my number, my mother’s number and land
line for my home.
Upon doing that the police say if they need me for anymore
questioning they would call me. Bout a week after my mother call me
and say she get a message from the Constant Spring Police Station
that I must report again, being a law-abiding citizen I did so. This time
they take me for 12 days and then release me again and say if they
need me they going to call me again. Four days after that, I was
summoned by the police to the Constant Spring Police Station again,
this time as a person of interest. When I went there, [with] my then
lawyer Mr. Michael Deans, I was asked to do a Q and A. Based on that
I was charged for Murder. M’Lord, I would like to make this clear I am
not a murderer or have I ever taken part in any alleged offence
pertaining to an alleged deceased Clive Williams. I, Shawn Campbell,
am no murderer.
On 16 August, 2011, Lamar Chow and Clive Williams freely followed
me to Havendale. Upon reaching at Havendale, Clive Williams came
out of the vehicle at the guest house, m’Lord. And then Lamar Chow
came out of the vehicle at Swallowfield …
Then Lamar Chow came out at the Swallowfield address, then I leave.
That same night Lamar Chow came to me at my house and told me
that dog bite ‘Kartel’ and mi carry him guh hospital …
A dog bite ‘Kartel’ and mi carry him guh hospital. At no time did he
tell me about seeing any body on the ground or anything like that.