Alton Baker v R
| Jurisdiction | Jamaica |
| Judge | V Harris JA |
| Judgment Date | 08 April 2022 |
| Neutral Citation | JM 2022 CA 040 |
| Docket Number | SUPREME COURT CRIMINAL APPEAL NO 70/2017 |
| Court | Court of Appeal (Jamaica) |
[2022] JMCA Crim 20
THE HON Miss Justice Straw JA
THE HON Mrs Justice V Harris JA
THE HON Mrs Justice Brown Beckford JA (AG)
SUPREME COURT CRIMINAL APPEAL NO 70/2017
APPLICATION NO 194/2021
IN THE COURT OF APPEAL
Leroy Equiano for the appellant
Mrs Christine Johnson-Spence and Mrs Nickeisha Young Shand for the Crown
On 17 March 2017, the appellant, Mr Alton Baker, was convicted on an indictment that contained two counts of murder following a trial before a judge (‘the trial judge’) and jury in the Saint Elizabeth Circuit Court. He was sentenced on 7 July 2017, on both counts, to life imprisonment at hard labour, with the stipulation that he should serve 30 years before becoming eligible for parole. Those sentences were ordered to run concurrently.
The appellant applied for leave to appeal his conviction and sentence. On 29 December 2019, a single judge of this court granted him leave to appeal his conviction but refused leave to appeal his sentence. Consequently, the appellant's pursuit of his appeal against conviction is before us.
At the outset of the hearing, counsel for the appellant, Mr Leroy Equiano, sought, by way of a notice of application for court orders filed 22 October 2021, an extension of time to file submissions. Mr Equiano also sought leave to abandon the original grounds of appeal and argue instead the supplemental grounds of appeal filed on 22 October 2021. Crown Counsel, Mrs Nickeisha Young Shand, indicated that the Crown was not opposing the applications. Accordingly, we made the following orders:
“1. Extension of time is granted to the applicant to file submissions. The submissions filed on 22 October 2021 [are] to stand as properly filed.
2. The applicant is granted permission to abandon the original grounds of appeal.
3. Leave to argue supplemental grounds of appeal filed 22 October 2021 is granted.”
Having heard submissions from counsel for both parties on the substantial appeal, we reserved our decision, which we now provide. We wish to register our gratitude to both counsel for their industry and very helpful submissions.
The harrowing discovery, which ultimately led to the trial and conviction of the appellant, occurred on 8 January 2014 in the parish of Saint Elizabeth. These are the undisputed facts. On that tragic day, at approximately 4:10 pm, Mr David Williams (a witness for the prosecution) arrived at his home in Thornton District. Shortly after, he noticed that his son, Deswick Williams, was not home as expected. He enquired of his whereabouts but received no reassuring answer.
Likewise, Mr Jocelyn Coke realised his son, Ashnell Coke, was missing when he had not returned home at approximately 7:00 pm on that same day. The last time Mr Coke saw his son was at approximately 12:30 pm earlier that day at their home. Subsequently, they both left. He spoke with Ashnell on the phone at about 3:30 pm. As the night approached, Ashnell was nowhere to be found. Mr Coke went in search of him. Ashnell, he said, would always go to Mr Williams' house, and so he went there first to enquire of his whereabouts. Needless to say, he was met with the startling realisation that Deswick was also missing.
At about 10:00 pm that night, Mr Williams and five other persons, including Mr Coke, went in search of the two boys. They went to a river by “Donkey Pasture” or “Jackass Pasture”, about three miles from Mr Williams' home. It was Mr Williams' evidence that Deswick would always go fishing there. Nearby the river, Mr Williams noticed Deswick's bicycle “lean up on the road side”. Two chains from the bicycle, he saw Deswick's slippers. Another two chains from the slippers, they came upon a body, face down in the water. As he got closer, Mr Williams observed from the river bank, standing at about three feet from the body, that it was his son Deswick. The rest of his body was covered with “bush”, and his feet were under the river bank.
Mr Williams then went to the Siloah Police Station and reported that he found Deswick's body, having earlier reported to the police that he was missing. He led them to where the body was found. When police officers from Mandeville arrived, they removed the “bush” from Deswick's body and discovered another body lying on top of him. This second body was identified as that of Ashnell.
The prosecution's case was that the two 15-year-old boys, Ashnell Coke and Deswick Williams (‘the deceased boys’), were murdered by the appellant. In support of its case, the prosecution called eight witnesses, namely, Mr David Williams, Mr Joscelyn Coke, Miss Shanna Codner, Detective Corporal Davion Beezer, Miss Janice Graham, Mr Kenroy Lewis, Corporal Howard Richards and Detective Corporal Courtney Carty.
The prosecution depended predominantly on statements allegedly made by the appellant to a civilian (his grandmother) and the police, as well as circumstantial evidence. The parties agreed that the post-mortem and forensics reports were to be admitted into evidence without calling the expert witnesses. However, since the jury were required to draw inferences from certain circumstances, as well as for utmost clarity and understanding of the proceedings below, the prosecution's evidence, as far as is relevant to this appeal, is outlined in some detail as follows.
Miss Graham's evidence was that she had been a resident of Thornton District in Saint Elizabeth for over 40 years. In January 2014, she had a neighbour, Miss Millicent Robinson, whose house was demonstrated to be about 40 feet away from her home. The appellant was identified in the dock as Miss Millicent Robinson's grandson. Miss Graham knew him from his birth. He was also known as “Don Man”. When at home, Miss Graham would see the appellant visit his grandmother at least once per day. They would greet each other at times but did not converse. Thornton is a quiet district, so she could stay at her house and hear “what's going on over Miss Millicent's house”. She would also hear the appellant speak whenever he visited with his grandmother.
On 8 January 2014, at around 4:00 pm, Miss Graham was in her bedroom watching television when she heard the appellant calling out to his grandmother. She found it strange that he was shouting and so she lowered the volume on her television and looked through an open glass louvre window. In re-examination, she explained that she turned down the television because the appellant was talking loudly and cursing, and she had never seen him in that sort of rage before.
She saw the appellant go to the back of the house with a long machete in his right hand. He was at a distance of 20 feet away, and her view of him was unobstructed. She observed his face, hair and upper body and confirmed that it was the appellant. Miss Graham's account of what she heard the appellant saying is as follows (page 58, lines 11 to 25, and page 59, lines 1 to 10 of the transcript):
“HIS LORDSHIP: Tell us what he was cursing say.
THE WITNESS: ‘Ah kill the two bloodclaat boy dem who a nyam out mi grung [a colloquial word for farm].’
Q. Tell us exactly.
A. Yes, he was saying, ‘ah kill di two bloodclaat boy dem weh a thief out mi grung.’
…
Q. Anything else?
A. Yes. ‘Mi chop dem in ah dem bloodclaat head and a same so if me ketch Kenroy me a go push di machete through him neck.’
HIS LORDSHIP: Kenroy?
THE WITNESS: Kenroy.
HIS LORDSHIP: Me a go push di machete what?
THE WITNESS: Through him neck. Yes, ‘cause him drive down him car pon me and a same so if no pickney in deh me ah go kill di whole ah dem too.’
HIS LORDSHIP: Any pickney what?
THE WITNESS: In ah di car him a go kill di whole a dem too.”
Subsequently, the appellant's grandmother told him to calm down and offered him food which he asked her to put away until later. Shortly after, he left. About 20 to 25 minutes had passed from the time Miss Graham first saw the appellant to when he left. She observed his face for that entire period. She also testified that the distance between Miss Millicent's house and Jackass Pasture was approximately 20 minutes when walking quickly.
During cross-examination, Miss Graham described how the appellant was dressed. Her evidence was that he wore a brown long sleeve jacket, a black undershirt, black pants and a cap; she could not see his shoes. When questioned about the window she looked through, Miss Graham insisted that she was looking through the side bedroom window. She was confronted with the statement she had given to the police where it was recorded that she had said, “I was looking through my glass louver [sic] blade window, in my front bedroom, which is to Miss Millicent's premises”. She explained that it was a window in the front bedroom, but she would not have called it the front window.
It was revealed in the evidence that about two and a half years before the trial, Miss Graham began wearing glasses because she was having problems with her eyes. Miss Graham explained in re-examination that she has diabetes, and it began to affect her vision, but she could see clearly until 2016 (her observations of the appellant took place on 8 January 2014).
Miss Graham admitted that she did not remember the appellant's first name and that it was about a week after the incident, having called her daughter (who went to school with the appellant), that she was reminded of it. This call to her daughter occurred after she gave her statement to the police. However, Miss Graham said she had spoken to her nephew, a Corporal stationed at the Mandeville Police Station, before giving her statement to Detective Corporal Carty. Miss Graham also stated that when she had spoken with a District Constable on 9 January 2014, she did not give him the appellant's name. It was suggested to her that she gave...
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