The identification of the issues on appeal – paragraph [41]
Two preliminary applications – paragraphs [42] – [45]
Issue A – The admissibility of the cellular phone and video evidence (exhibit 14C)
(including the judge’s directions to the jury on these matters) – paragraphs
[46] – [187]
Issue B – The judge’s handling of the jury management issues which arose during the
trial – paragraphs [188]-[267]
Issue C – The judge’s directions to the jury (other than in relation to the admissibility of
the cellular telephone and video evidence) – paragraphs [268]-[423]
Issue D – The admissibility of Deputy Superintendent Thompson’s evidence – paragraphs
[424]-[443]
Issue E – The impact of publicity – paragraphs [444]-[500]
Issue F – Sentencing – paragraphs [501]-[541]
Disposition of the appeals – paragraphs [542]-[545]
Introduction
[1] This is the judgment of the court, to which each member has contributed a
substantial part.
[2] The appellants are Messrs Shawn Campbell (also known as ‘Shawn Storm’), Adidja
Palmer (also known as ‘Vybz Kartel’), Kahira Jones, and Andre St John (also known as
‘Mad Suss’). For the purposes of this judgment, save where it is necessary to refer to the
appellants individually by name, we will refer to them collectively as ‘the appellants’.
[3] The appellants were charged with the murder of Mr Clive “Lizard” Williams (‘the
deceased’). The case for the prosecution was that the deceased was murdered on 16
August 2011, but the case was unusual in that the deceased’s body was never found.
[4] Mr Calvin Haye and Mr Shane Williams were charged along with the appellants
with the murder of the deceased. However, the prosecution did not proceed to trial
against Mr Haye, while Mr Williams was ultimately acquitted by the jury.
[5] On 13 March 2014, after a trial lasting 64 days before Campbell J (‘the judge’) and
a jury in the Home Circuit Court, the appellants were convicted of the murder of the
deceased. And, on 3 April 2014, the judge sentenced all four appellants to imprisonment
for life at hard labour. He ordered that Messrs Campbell and Jones should each serve a
minimum of 25 years in prison before becoming eligible for parole, while Messrs Palmer
and St John should serve a minimum of 35 years and 30 years respectively.
[6] Pursuant to leave to appeal granted by a single judge of this court on 13 March
2017, the appellants now appeal against their convictions and sentences. They have filed
numerous grounds of appeal, canvassing a range of issues. In broad outline, these may
be summarised as concerning (i) the admissibility of evidence derived from cellular
telephone analysis and video recordings; (ii) the credibility of the prosecution’s sole eyewitness; (iii) the judge’s management of various issues concerning the jury (including
whether they were subjected to undue pressure as a result of the hour at which they
were invited to retire); (iv) the judge’s directions to the jury; (v) the admissibility of
evidence adduced from Deputy Superintendent Vernal Thompson; (vi) the impact of
publicity on the fairness of the trial; and (vii) whether the sentences which the judge
imposed were manifestly excessive.
The facts in summary
[7] In order to make the issues which arise on this appeal intelligible, we must first
summarise the facts of the case, albeit in some detail.
[8] The case against the appellants was based on a combination of direct evidence
and circumstantial evidence. The principal item of direct evidence came from Mr Lamar
Chow (otherwise known as ‘Wee’), the prosecution’s sole eyewitness.
[9] The case for the prosecution was to the following effect. The deceased and Mr
Chow were given two unlicensed firearms, which were said to belong to Mr Palmer, for
safekeeping. Despite a deadline of 8:00 pm on 14 August 2011 having been set by Mr
Palmer for the return of the firearms, the deceased and Mr Chow were unable to account
for the firearms at that time. They were therefore summoned to Mr Palmer’s house at 7
Swallowfield Avenue, Havendale, to meet with him.
[10] In this judgment, we will refer to 7 Swallowfield Avenue interchangeably as ‘the
house’ or ‘the premises’.
[11] On 16 August 2011, urged and accompanied by Mr Campbell, Mr Chow and a
reluctant, fearful, deceased, travelled by taxi to the house. When they arrived, Mr Palmer,
Mr Jones and Mr St John were all present. Mr Palmer then proceeded to question the
deceased and Mr Chow as to the whereabouts of the firearms and what plans they had to
replace them. The deceased’s response was that he would buy replacements. Immediately
after that, Mr Jones held the deceased from behind, whereupon Mr Chow ran into a room
at the rear of the house and tried unsuccessfully to lock himself inside of it. Messrs Palmer
and Campbell opened the door to the room, and Mr Palmer held Mr Chow around the neck
and brought him back to the hall-way of the living room. There, Mr Chow saw the
deceased lying motionless on his back on the ground. The deceased appeared to be trying
unsuccessfully to speak, while Mr Jones stood bending over him. Mr St John, with a
building block in his hands, also stood over the deceased.
[12] Fearing for his own safety, Mr Chow fled from the house, climbed over the gate
and ran up the road. He was chased by Mr Palmer, who sought to have him return to the
house, assuring him that he had nothing to worry about. Mr Chow did not go back to the
house. Instead, he went with Mr Palmer to a hospital where Mr Palmer was treated for a
dog-bite that he had apparently received during the chase. On the following day, Mr
Palmer invited Mr Chow to accompany him, Mr Campbell and others to Guyana. The
purpose of the trip was to avoid questioning by the police. However, Mr Chow declined to
go and made his own arrangements to leave the community in which he lived.
[13] Nothing was seen or heard of the deceased after 16 August 2011. His girlfriend,
Ms Oneika Jackson, who last saw him on the morning of that day, had communicated with
him by way of text messages throughout the day, including during the trip to the house,
right up to around 7:26 pm that evening. However, after that, her calls to the deceased’s
cellular telephone went unanswered. In addition, the deceased’s sister, Mrs Stephanie
Brakenridge (who was also called Nadine), made several futile attempts to contact him by
telephone in the afternoon of 16 August 2011, after having spoken to him that morning.
She had last seen him two days before, on 14 August 2011, when he and Mr Chow came
to her house in Waterford. On that occasion, they both appeared to be frightened and
were constantly on their cellular telephones.
[14] On 22 August 2011, a team of police officers went to the house. They were
investigating an “alleged” case of homicide. The house appeared to be unoccupied at that
time. An inspection of the house revealed disorderly and ransacked rooms, with items of
clothing all over the floor in one of them. The police officers also observed that the house
smelled like disinfectant (“Fabuloso”).
[15] On 24 August 2011, Mr Chow gave a statement to the police. Based on the
information received, a police team accompanied him to Havendale, where he pointed out
the house to them.
[16] On 25 August 2011, having ordered a forensic examination of the premises, the
police placed yellow tape around the perimeter wall, treating the premises as a crime
scene. When the police returned there on 27 August 2011, it was discovered that the
entire interior of the house had been destroyed by a fire, of which the police had had no
report.
[17] The police forensics team conducted their investigations on 29 August 2011, at
which time it was reported that a foul odour had by now started to emanate from the
living room of the house. Upon completion of the forensic examinations, caution tape was
again placed along the perimeter wall of the premises. But, on a subsequent visit to the
premises on 30 September 2011, it was discovered that the rear of the house had been
demolished. A search for the body of the deceased by digging up the rear of the premises
proved fruitless.
[18] The police took the appellants into custody on 30 September 2011. Among the
items of property taken from Mr Palmer were four cellular telephones, including two
Blackberry smart-phones. Two cellular telephones belonging to Messrs St John and
Williams were also retrieved and a total of 10 cellular telephones were seized during the
operations. These telephones were handed over to the Communications Forensics and
Cybercrimes Unit (‘CFCU’) of the Jamaica Constabulary Force (‘JCF’).
[19] As might have been expected, Mr Chow’s credibility was severely impugned at the
trial. Among the matters relied on for this purpose were: (i) the alleged internal
inconsistencies and discrepancies in his evidence; (ii) the technical evidence, which we
will mention below, relating to the timing and place of origin of telephone calls to and
from his cellular telephone on 16 August 2011; and (iii) the production of a letter dated
13 November 2013 purportedly written by him to the Public Defender. In the letter, Mr
Chow stated that he had in fact seen the deceased alive after 16 August 2011, and that
he, Mr Chow, had been pressured by the police to give the statement which he gave on
24 August 2011.
[20] In addition to Mr Chow’s testimony, the prosecution relied heavily on evidence
derived from the cellular telephones. This evidence included numerous text messages,
Blackberry messages, voice notes and a video, all of which were said to have been
extracted from a Blackberry Torch cellular telephone, a digital data storage card (SD card)
and a subscriber identity module card (SIM card). Both cards were found in that cellular
telephone. That instrument was allegedly taken from Mr Palmer. As the context allows,
we will refer to that instrument and its cards as exhibit 14C.
[21] Some of the text messages were from Ms Jackson’s cellular phone. The text
messages suggested that, when they were written, the deceased was, against his better
judgment, in a car with Mr Campbell and Mr Chow, on the way to a meeting with Mr
Palmer. In his text exchanges with Ms Jackson, the deceased expressed palpable fear for
his life and begged her to have his sister call the police to rescue him.
[22] According to the prosecution, those bits of correspondence and communication
media, taken as a whole, suggested the fact of the killing, the reason for the killing, the
method of disposal of the deceased’s body and the identity of at least one of the killers,
namely, Mr Palmer.
[23] In order to ground this evidence, the prosecution adduced evidence from
representatives of Digicel (Jamaica) Limited (‘Digicel’). Their evidence described in
considerable detail the nature of cellular telephone technology, the architecture of the
cellular telephone network in Jamaica and the methodology of cellular telephone analysis.
[24] Detailed evidence of the cellular telephone analysis was provided by Corporal
Shawn Brown, who was a communications analyst and certified cellular site surveyor
assigned to the CFCU. Pursuant to notices issued to Digicel, purportedly under the
provisions of section 16(2) of the Interception of Communications Act (‘the ICA’), Corporal
Brown obtained communication data (call data records, text message and subscriber
information) relating to various cellular telephone numbers, including those attributed to
the deceased and Mr Palmer. With the aid of a computer, Corporal Brown was able to
confirm that, during the course of 16 August 2011, there was constant communication
between Mr Campbell, the deceased and Mr Chow, for the most part; and also, to a lesser
extent, between Mr Campbell and Mr Palmer.
[25] Further evidence was adduced through Detective Sergeant Linton of the CFCU of
his analysis of voice notes, Blackberry and text messages from exhibit 14C. Among the
telling pieces of evidence relied on by the prosecution were Blackberry messages sent on
19 August 2011, attributed to Mr Palmer, stating that they had chopped up the deceased,
“fine fine”, like “mincemeat”, and “dash him weh”.
[26] Not surprisingly, all of this evidence was strongly challenged by counsel for the
defence. In cross-examination, the analytical methodology used by both Constable Brown
and Sergeant Linton in relation to the cellular telephones and the Blackberry messages
was attacked; questions were raised in relation to the chain of custody, the general
integrity of the exhibits and the potential for corruption of the data. Sergeant Linton’s
integrity and impartiality were also impugned.
[27] In their defence, all of the appellants gave unsworn statements from the dock.
They maintained their innocence and denied any participation in the murder of the
deceased.
[28] Mr Palmer denied ever seeing the deceased at the house. The only time he recalled
encountering the deceased, he said, was at stage shows when the deceased accompanied
Mr Campbell to them. Mr Palmer recounted the events leading to his arrest and eventual
charge for the murder of the deceased and the multiple allegations by the police against
him that turned out to be false. He also referred to the fact that the then Minister of
National Security had publicly ascribed blame to him as one of the factors “mashing up
Jamaica”. He contended that this was prejudicial to his defence.
[29] Mr Palmer’s sister gave favourable evidence as to his character, his family history
and his educational qualifications.
[30] Mr Campbell said that on 16 August 2011 the deceased and Mr Chow had freely
followed him in a vehicle to Havendale. He said that the deceased exited the vehicle at a
nearby guest house and Mr Chow exited at 7 Swallowfield Avenue. He said that he left Mr
Chow there and, later that same night, Mr Chow came to his house and told him that Mr
Palmer had received a dog-bite and had to be taken to the hospital. At that time, Mr Chow
made no mention of any other incident.
[31] Mr Jones stated that he had never killed anyone, he was not a murderer, and Mr
Chow and the police had conspired to send him and the other appellants to prison by
telling lies on them.
[32] Mr St John stated that he was a professional barber and that he was accused of
murder because of his association with Mr Palmer. He was unaware of where the deceased
lived. However, on 16 August 2011, when Mr Chow entered the premises at 7 Swallowfield
Avenue, he was on his way out, heading to his barber shop. Mr Chow, he said, was
unaware that the dog was loose and Mr Palmer, in an effort to protect Mr Chow, got
bitten. Mr St John said that he took the dog and tied it to the back of the house, and on
his return, Mr Palmer and others were not in the yard. He also maintained that the police
and Mr Chow were conspiring against him.
[33] Apart from its length, the appellants’ trial was also unusual in other respects. First,
on 7 January 2014, while the trial was in progress, a report was made to the judge of an
encounter between a member of the jury and one of the counsel appearing for the
defence. As a result, the judge made various enquiries of all concerned in chambers and
decided, with the apparent agreement of all counsel present, to continue with the trial.
[34] The judge then informed the jury of the report which he had received and told
them that he had conducted an enquiry into the circumstances. The judge explained that,
having spoken to the juror, the counsel involved and all the attorneys present, “we are
firmly of the view that what transpired was an innocent interaction, it came out of
inadvertence … and it is unlikely to affect us adversely, or in any way”. The usual warning
was then issued to the jurors before they were discharged for the day (Vol IV, pages