Alton Heath and Others v R

• Jurisdiction: Jamaica
• Judge: Brooks JA
• Judgment Date: 20 December 2012
• Neutral Citation: JM 2012 CA 116
• Docket Number: SUPREME COURT CRIMINAL APPEAL NOS 59, 60, 62 and 66/2010
• Court: Court of Appeal (Jamaica)
• Date: 20 December 2012

Alton Heath Desmond Kennedy

and

R Marlon Duncan Chadrick Gordon

[2012] JMCA Crim 61

Before:

The Hon Mr Justice Panton P

The Hon Mrs Justice Mcintosh Ja

The Hon Mr Justice Brooks Ja

SUPREME COURT CRIMINAL APPEAL NOS 59, 60, 62 and 66/2010

JAMAICA

IN THE COURT OF APPEAL

CRIMINAL LAW - Abduction - Rape - Indecent assault - Murder - Whether there was admission of prejudicial evidence - Whether there was a common design - Whether there were discrepancies in the identification evidence

Cecil J Mitchell for the applicant Alton Heath

William Hines for the applicant Desmond Kennedy

Robert Fletcher for the appellant Marlon Duncan

Dr Randolph Williams for the appellant Chadrick Gordon

Mrs Caroline Hay and Miss Christine Johnson for the Crown .

Brooks JA

1 In an era when gruesome crimes have become almost commonplace, the circumstances that brought about the deaths of Katrina Webb and Simone Vernon, on 20 October 2005, are particularly chilling. The two women and their friend, who will be referred to herein as L, were abducted at gunpoint, from a bar at Newport West in the parish of Saint Andrew. This was at about 9:00 pm. The three men who abducted them took them to a playfield at nearby Greenwich Town, where other men were awaiting their arrival. L was taken into a bathroom where she was raped by several of the men, as apparently, were the other women. She, however, did not witness that assault.

2 She was, thereafter, taken out of the building to the playfield, where she and the other women, in the presence of each other, were subjected to further indecent assaults. The question, of what next was to be done with the women, then arose. The question was directed to one of the men, ‘Moonie’. He announced their fate: ‘[w]e a go carry them up de so go kill them.’ There was unanimous support for the announcement.

3 The three women were then marched, naked, to a nearby sewage plant. At the plant, they were taken to the mouth of a large pipe, which went deep into the ground and was used as a conduit to take sewage to the sea. There, L was shot. She heard a conversation between the men, as well as other shots, which suggested that her friends suffered the same fate. All three women were thrown into the pipe.

4 Only L lived to tell the tale. She survived because, when she was shot, she pretended to be dead. She was thrown into the pipe first. As the liquid washed her down, she got hold of and desperately clung to, a broken portion of the pipe. She used it to prevent her further descent. Whilst there, in the dark, she felt the bodies of both her friends slide past her. The other two women were never seen alive again and, despite searches, including the use of underwater camera technology, their bodies were never found.

5 When she thought that it was safe to do so, L climbed out of the pipe. She got assistance and made a report to the police. She attended various identification parades, held at different times thereafter, and she pointed out respectively, Messrs Alton Heath, Desmond Kennedy, Marlon Duncan and Chadrick Gordon, as being among the perpetrators. Mr Gordon was charged with two counts of murder ‘in the furtherance of robbery or abduction or rape or indecent assault’. The others were each charged with two counts of murder committed in the course or furtherance of abduction or rape or indecent assault.

6 All four were convicted on 15 March 2010 in the Circuit Court Division of the Gun Court at a trial presided over by Smith J. At the trial, L's credibility, as the sole witness as to fact, was the major issue. As a result of the convictions, Mr Gordon was sentenced to death, while each of the others, in respect of each count, was sentenced to imprisonment for life. Those were each ordered to serve 35 years imprisonment before becoming eligible for parole, and their respective sentences were ordered to run concurrently.

7 All four have applied for permission to appeal against his respective convictions and sentences. For the purposes of this appeal, Messrs Heath and Kennedy are applicants while Messrs Duncan and Gordon are appellants. They will, however, solely for convenience of reference, be collectively referred to herein as appellants.

8 Several issues were raised by counsel representing the appellants. They include the questions of the admission of prejudicial evidence, the correctness of the imposition of the sentence of death, identification and common design. These issues will be considered during the course of the judgment, but will be done in the context of the complaints by each appellant. It would, therefore, be of assistance to first outline the participation of each appellant according to L's evidence.

Chadrick Gordon — He was one of the three original abductors and was known before to L. His mother operated a bar in Newport West and he walked with a limp. He was the man armed with the gun at the bar from whence the women were taken and was the driver of the car used to take them away. He was the one giving directions to the others at the bar. He had sexual intercourse with L and led the way to the place where the sewage pipe was. He told L that his brother had died in a bar in L's area and the women had to die for it. 2. Alton Heath — He forced L to perform oral sex on him and he had sexual intercourse with her. During that interlude, he had a gun, which he pointed at her head and threatened to shoot her. He was present on the playfield when the announcement of the intention to kill the women was made. He ‘roughed-up’ a little boy who was present on the playfield at the time. 3. Desmond Kennedy — He had sexual intercourse with L, forced her to perform oral sex on him and boasted that he only allowed pretty girls to perform that task. He had a flashlight and encouraged the abductors. L said he was ‘boosting them’. 4. Marlon Duncan — He had sexual intercourse with L and made fun of her. He commented on her breasts and made himself noticed by ‘going on extra’. He also was ‘boosting’ the abductors. 5. All were present when, ‘Moonie’, one of the men in the group, announced that they were going to take the women ‘up de so go kill them’. There was no dissent to the statement.

1 It is apparent that the jury believed L's testimony in regard to these matters.

Chadrick Gordon o/c Andre Reid

9 Dr Williams, on behalf of Mr Gordon, concentrated his efforts on two main issues. First, he argued that the verdict was tainted by inadmissible and irrelevant evidence about Mr Gordon's previous convictions. Learned counsel argued that the evidence was wrongly admitted and that the learned trial judge did not adequately direct the jury to reject it. Secondly, Dr Williams argued that the sentence of death imposed on Mr Gordon was inappropriate.

10 In respect of the first issue, the evidence about the previous conviction was elicited during cross-examination, by counsel for Mr Gordon. This was in the face of the learned trial judge warning counsel, in advance, of the danger of his tack. Despite that warning, learned counsel persisted:

‘Q. He had a case at Half-Way-Tree for offensive weapon, a knife; isn't that so?

A. Yes.

Q. A penknife which was found in his pocket?

A. I think that was the offence.

Q. Don't tell me as an investigating officer you didn't check it out?

A. It could have been dangerous drugs too? [sic]

Q. Ganja?’

That exchange is set out at page 554 of the transcript. The transcript of the cross-examination continues in a similar vein to page 555, where the learned trial judge brought it to an end, saying:

‘[Counsel], I cannot see the relevance of that in relation to this case. Let's get to the issues that are involved, please.’

11 The learned trial judge dealt with this irrelevant evidence in her summation to the jury. At page 1072 of the record, she said:

‘[The police officer] said he went to Half-Way-Tree, where he arrested Mr. Reid, and he said that Mr. Reid had been charged at the Half-Way-Tree Court for the offence of offensive weapon and other things, but that is not of any moment to the case. We are not trying him on anything besides what is contained in the indictment here . He said the record at Half-Way-Tree had the name Andre Reid.’ (Emphasis supplied)

12 We agree with the written submissions on behalf of the Crown that defence counsel's line of questioning must have been carried out on Mr Gordon's instructions. We also agree that, on that basis, Mr Gordon cannot, now, complain that the evidence that he elicited before the jury tended to taint his character. In any event, we find that the learned trial judge's treatment of the questions, at the time and her summation to the jury, would have made it clear that the evidence was not relevant to the task that the jury had to perform. We cannot agree with Dr Williams in respect of this issue.

13 In respect of the second issue raised by Dr Williams, learned counsel for the Crown conceded that the sentence of death cannot be sustained. This trial was held before the decision of Peter Dougal v R [2011] JMCA Crim 13. The court at first instance would, therefore, not have had the benefit of the direction, given in Dougal. Nonetheless, the principle that led to the setting aside of the sentence of death in Dougal, applies equally to the instant case. Panton P at paragraph [16] set out his reason for that decision. He said:

‘Having concluded that this murder was among the worst of the worst, I have one reservation however and that is in respect of [Mr Dougal's counsel's] complaint that there was no indication that the death penalty would have been considered as an option as there was no notice given. He said that had he been notified to that effect, he would have attended the sentencing hearing with a different approach in mind .’ (Emphasis supplied)

14 The direction set out in Dougal, which...