Asserope (Michael)

• Jurisdiction: Jamaica
• Judge: SMITH, J.A.:
• Judgment Date: 19 December 2003
• Neutral Citation: JM 2003 CA 51
• Judgment citation (vLex): [2003] 12 JJC 1904
• Court: Court of Appeal (Jamaica)
• Date: 19 December 2003

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR. JUSTICE FORTE, P THE HON. MR. JUSTICE PANTON, J.A THE HON. MR. JUSTICE SMITH, J.A

R

V

MICHAEL ASSEROPE

L. Jack Hines

Mrs. Jeneice Nelson-Brown

SMITH, J.A.:

1 The appellant Michael Asserope was charged on an indictment which alleged that he, on the 24 ^th day of June, 1999 in the parish of Clarendon murdered Tamara Tamica Osbourne, in the course or furtherance of carnal abuse contrary to section 2(l)d)(iv) of the Offences against the Person Act. He was convicted in the Clarendon Circuit Court on the 6 ^th December, 2001 and sentenced to suffer death in the manner authorized by law.

2 He was granted leave to challenge his conviction on grounds which mainly relate to the trial judge's directions on the DNA evidence.

3 The Prosecution's case

4 The deceased Tamara Osbourne, was ten years of age at the time of her death. She was a student at the Denbigh Primary School and lived with her adopted mother Mrs. Idella Osbourne and her sister Sherona Thomas in Denbigh, Clarendon.

5 The appellant, a taxi driver knew the deceased. In fact he was the "boyfriend" of Sherona, the sister of the deceased, and is the father of Sherona's infant child. On the 24 ^th day of June, 1999 at about 6:45 a.m., Tamara left home for school but did not reach. About 8:15 a.m. Detective Sgt. Evan Williams received information and went to the Best Well Farm in May Pen Clarendon. There, he saw and spoke to the caretaker of the farm. He accompanied the caretaker to a section of the farm where there was a cluster of wild cane. There he saw Tamara Osbourne lying on her back in a pool of blood. There was a large wound to the neck and she was dead. He also saw her school bag about one and a half yards from the body. There were bloodstains on her clothing. There were large pieces of tissue paper on the ground near the body. These pieces of tissue paper had what appeared to be blood stains. There were blood stains on the shrubs around where she lay.

6 On the instructions of Sgt. Williams the body and the crime scene were photographed. Thereafter the body was removed to the Johnson's Funeral Home, Four Paths. Sgt. Williams took possession of the deceased's clothes and shoes. About 4:00 p.m. the same day Sgt. Williams who is also called Mr. Bumpy, saw the appellant at the police station. He approached him and told him that he was investigating the murder of Tamara Osbourne and that he had information that he had driven her to school that morning. The appellant replied, "Mr. Bumpy, me no remember, sir". He searched the appellant's car in his presence and took possession of a number of items including a large dagger in a black sheath. The appellant told Sgt. Williams that the dagger belonged to him. From the pocket of the car Sgt. Williams removed a roll of white toilet tissue paper. The appellant was detained on suspicion of murder.

7 In the Criminal Investigating Branch office Sgt. Williams took from the person of the appellant a wristwatch with a brown leather band, a handkerchief, a leather band belt, a pair of sneakers and a wallet. Later that same day he took from the appellant a pair of denim trousers and underpants.

8 On Saturday, the 26 ^th June, 1999 the appellant was interrogated by Det. Sgt. Williams. During the interrogation the appellant is alleged to have said, "Mr. Bumpy, I want to give you a statement bout what happen Thursday, sah". In the presence of a Justice of the Peace the appellant gave a caution statement which was written down by Sgt. McKenzie of the May Pen C.I.B. In this statement the appellant is alleged to have stated that on the morning of the 24 ^th June he saw Tamara on the road and picked her up in his taxi. When she came in the car she kissed him and told him that she loved him. He drove off with her. She told him she wanted to make love to him. He took her to a spot off the Glenmuir Road. The statement reads in part:

"So me start to mek love with her and then the blood start and Tamara tek the toilet paper and start wipe up and me no remember nothing more after that".

9 The appellant was subsequently charged with murder and carnal abuse. He was cautioned and is alleged to have said "Mr. Bumpy you know say a obeah me wife obeah me sah?" With the appellant's consent, he was taken to the hospital where Dr. Wilson took a sample of his blood. The sample was placed in a glass tube by the doctor who labelled and sealed it and handed it to Sgt. Williams. The police Sgt. testified that the items he took from the crime scene, from the body of the deceased, from the appellant's car, and person, as well as the appellant's clothing and blood sample were placed in separate envelopes which he sealed and labelled "C" to "R". On the 29 ^th June, 1999 he took these envelopes to the Forensic Laboratory and handed them to the forensic analyst.

10 On the 30 ^th June Sgt. Williams attended the post mortem examination done by Dr. Brennan on the body of the deceased. The doctor found injuries which indicated that the deceased was brutally forced to submit to sexual intercourse. He said her throat was cut and she bled to death. Sgt. Williams received from the doctor vaginal swabs and smears and a piece of sternum of the deceased. These were placed in envelopes which he labelled "S" to "U". These were also taken to the Forensic Laboratory.

11 On the 20 ^th September, 1999 Sgt. Williams received from the Forensic Laboratory, certificates in respect of the contents of these envelopes marked "C" to "U" along with some of the envelopes. On the 22 ^nd November, 1999 he received from the Laboratory a DNA report in respect of the items. Evidence was given by Ms. Brydson as to the blood type of the deceased and the appellant and as to the presence of semen and human blood on some of the items she received from the police. For reasons which will...