Anderson (Ovando) v R

JurisdictionJamaica
Judge HARRIS, J.A :
Judgment Date08 November 2006
Neutral CitationJM 2006 CA 58
Judgment citation (vLex)[2006] 11 JJC 0803
CourtCourt of Appeal (Jamaica)
Date08 November 2006
IN THE COURT OF APPEAL
SUPREME COURT CRIMINAL APPEAL NO: 133/04
HON MR JUSTICE PANTON, J.A HON MR JUSTICE KARL HARRISON, J.A HON MRS JUSTICE HARRIS J.A
OVANDO ANDERSON
V
R
Lord Gifford, Q.C. & Thalia Maragh for the appellant
Mrs. Caroline Williamson Hay, Asst. Director of Public Prosecutions (Ag.) and Mr. Vaughan Smith, Asst. Crown Counsel (Ag.), for the Crown

CRIMINAL LAW - Evidence - Identification

HARRIS, J.A :
1

On July 31, 2006 we made the following order in this matter:

2

"The application for leave to appeal is granted. The hearing of the application is treated as the hearing of the appeal. The appeal is dismissed. Conviction and sentence are affirmed. The sentence is to commence from September 25, 2004".

3

The appellant was convicted on June 26, 2004 in the Circuit Court for the parish of Hanover for the non-capital murder of Gregory Daniels. He was jointly charged with one Mark Campbell for capital murder of the deceased. Campbell pleaded guilty to manslaughter and was sentenced to a term of 20 years imprisonment. A term of imprisonment for life was imposed on the appellant with the recommendation that he may not become eligible for parole until he has served 30 years.

4

On August 22, 2003 the deceased was killed at his home in Eaton District and his body was found in the vicinity of his gate. He was gagged and his hands bound behind his back by shoelace. He sustained multiple injuries over his body which were consistent with being inflicted by a machete.

5

Four panes of louvre blades of a window at the back of the house were torn out leaving a space large enough to accommodate an adult. The drawers of a dresser in the master bedroom were found on the floor and the room was in disarray.

6

The appellant was taken into custody on August 25, 2003 released and taken back into custody on September 5, 2003 on which date Campbell and himself were arrested.

7

It was the prosecution's case that the appellant together with Mark Campbell and another man called "Official," killed the deceased. The main witnesses for the prosecution were Miss Lucinda Washington, the common-law wife of the deceased and Mark Campbell, the co-accused.

8

The evidence of Miss Washington was that the appellant was known to her. He worked as a gardener for the deceased and assisted in doing some construction work on their house. She first met him in 2000. She worked in Bermuda but would see him infrequently, on her visits to Jamaica. She had never held a conversation with him but had spoken to him by way of a cursory greeting.

9

On the evening of the incident, she was sitting on a balcony at the back of her home awaiting the return of the deceased, who had gone to close the gate after a male and a female visitor had driven off. They left in a white car. It was getting dark. The lights on the outer area of the house were on. Between fifteen and twenty minutes elapsed when two men came to the side of the house, and stood on a tank in the yard, about eight to ten feet away. One of these men, without shirt, clad in a pair of "cut jeans" and wearing a cap, asked for the deceased. Miss Washington told him he had gone to lock the gate. He repeated the question and she gave him the same response. She viewed his face for about thirty seconds.

10

As she responded, the man walked towards the step and suddenly leapt upon it. A dog which was lying at the top of the step stood up. The man retreated and went back to the other man who was dressed in a baggy shirt and dark pants with a cap pulled over his face. The shirtless man ran back towards the porch where Miss Washington and her granddaughter were. They both ran inside the kitchen, followed by the dog. She tried to lock the kitchen door but experiencing some difficulty in so doing, stood behind it and braced it.

11

Soon after the kitchen door was kicked repeatedly and the kitchen window chopped. Following this, she, along with her granddaughter, ran to the bathroom and locked themselves in. While there, someone said, "Where is the money dem?" Her response was that it was in a locked drawer in the bedroom and she did not have the key. Soon after, she heard commotion in the house. Thereafter, the bathroom window was chopped and someone said that he would be coming back to kill her.

12

About ten to twelve minutes later, she ran to her neighbour's house. He was not there. She returned home, got into a pick up, drove to the police station and made a report. On her way back from the police station she noticed a car behind her which was being driven by the brother of the appellant. She stopped, got into his car and went back to the police station. On her way there, she saw the appellant who entered the car and accompanied them there. He kept looking back and forth. At that time, he was dressed in a maroon coloured top and dark pants. Upon returning home, she discovered that a sum in excess of US$ 4,000.00 as well as cameras, jewellery, a cellular telephone and a silver box relating to the television were missing.

13

It was Campbell's evidence that sometime between twelve noon and one o'clock in the afternoon of the day of the incident, he accompanied someone whom he knew by the name of Official to Official's home in Lucea. There, Official introduced the appellant to him as "Flour." Official cooked a meal of which all three men partook. They spent the afternoon "reasoning about some business" and remained there until about 6 p.m. At that time, the appellant announced that they were going on some business and directed Official that he should take a machete with him. He carried out the instruction.

14

Official was dressed in a pair of black pants with his shirt tied around his waist. The appellant was clad in a blue T shirt, blue jeans pants and a pair of sneakers. He, Campbell was dressed in a brown shirt and blue jeans pants.

15

All three men proceeded to the home of the deceased, first, walking on the main road and later through some bushes. On arrival there, on the appellant's instruction, they stooped behind the columns at the gate. By this time it was dark. The appellant told them that he intended to deal with some business in the deceased's yard. Campbell inquired of Official the nature of the business. He told him "weed business". While hiding behind the column he, Campbell, observed the deceased, a man and a woman standing beside a white car. The man and woman left in the car and the deceased came to close the gate. The appellant walked over to him, pointed a gun at his head and told Official to remove the deceased's shoe laces, use them to tie his hands behind his back and his merino to tie his mouth. This was done by Official.

16

He, Campbell, asked the appellant not to kill the deceased but the appellant told him that it was none of his business and went on to say, "the man dis me long time." The deceased told the appellant that he had brought his friends to kill him. The appellant pushed the gun in his waist, took the machete from Official and gave the deceased several chops. He fell to the ground. While on the ground, on the directive of the appellant, Official gave the deceased two chops.

17

They then went to the back of the house. A blue pick up was there by which two dogs were standing, one of which the appellant called by name. All three men stood beside the pickup. A lady and a child were standing on the verandah. The appellant ran on the verandah, the lady retreated into the house with the child and a dog. Thereafter, the appellant kicked the door several times and chopped out window blades. He then went through the window, opened the door and invited Official and Campbell to enter the house.

18

The lady was in the bathroom screaming and the appellant asked her where was the money. She told him it was in the centre drawer. Official began to search the house. The appellant kicked open a drawer and took from it United States dollars from which he gave him $6000. He also took a camera and a "dish receiver." They left the house and walked back to Lucea. The appellant gave him some money and the camera and under threat forbade him to tell anyone about the matter. Later that night he saw the appellant at the "Clipper" dressed in the same clothes which he was wearing when they went to the home of the deceased.

19

He told others about the incident but did not tell the police because he was scared. He made a report to the police on September 4, and gave a statement to them on September 5, 2003. The appellant and himself were arrested and charged on September 5. At the end of the Crown's case the attorney-at-law for the appellant made a 'no case' submission. To this the learned trial judge did not accede.

20

In an unsworn statement, the appellant denied knowing Campbell or that he participated in the killing of the deceased. He declared that on the day of the incident he had first gone to Savanna La Mar. On his return, he went to visit his girlfriend. He then went back to Lucea and while he was in a taxi, he saw his brother. He got out of the taxi and went into his brother's car in which he saw Miss Washington and her granddaughter. They all went to the police station. Thereafter he went to Eaton. The police came. He then went to his father's house, then to his girlfriend's house, after which he learnt of the deceased's death. This the jury rejected.

21

Reliance was placed on four supplemental grounds of appeal. It is convenient to consider grounds 1 and 2 simultaneously.

22

Ground 1

"That the learned trial judge erred in law in not accepting the submission of no case to answer made on behalf of the Appellant, since the testimony of the witness Mark Campbell who alone implicated the Appellant, taken in the context of the rest of the prosecution evidence, was such that a jury properly directed could not properly have convicted."

23

Ground 2

"The learned trial judge...

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