Beckford (Emilio) and Kadett Brown v R

• Jurisdiction: Jamaica
• Court: Court of Appeal (Jamaica)
• Judge: BROOKS, J.A. (Ag.)
• Judgment Date: 21 May 2010
• Neutral Citation: JM 2010 CA 77
• Judgment citation (vLex): [2010] 5 JJC 2101
• Date: 21 May 2010

[2010] JMCA Crim 26

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR JUSTICE PANTON, P THE HON. MR JUSTICE MORRISON, J.A THE HON. MR JUSTICE BROOKS, J.A. (Ag.)

EMILIO BECKFORD

KADETT BROWN

v

R

Miss Audrey Clarke for the appellant Beckford

Delano Harrison, Q.C. for the appellant Brown

Miss Kamar Henry and Mrs Andrea Martin Swaby for the Crown

CRIMINAL LAW - Murder - Life imprisonment - Miscarriage of justice - Unsafe verdict

BROOKS, J.A. (Ag.)

1 [1] On 10 July 2008 the appellants Emillio Beckford and Kadett Brown were convicted of murder in the Circuit Court for the parish of Saint Elizabeth. Each man was sentenced to imprisonment for life and specific periods were set before parole became available. Their respective applications for leave to appeal the convictions and sentences found favour with a single judge of this court and they now pursue the appeals before the court.

2 The prosecution's case

3 [2] The appellants do not contest the events leading to the death of Mr Kevin Watson; the victim of the offence. They, however, deny being present at the time of its commission. The eyewitnesses to the event testified that on 23 April 2006 at about 2:00 a.m., a masked man, with a firearm in hand, interrupted a game of dominoes being played at a bar at Cornwall District, Saint Elizabeth. The intruder asserted that he was not going to kill anyone. He, however, demanded money and their cellular telephones from the five men there gathered, including Mr Watson. All complied, except for one, who had neither money nor telephone.

4 [3] Thereafter, the gunman pointed the handgun at the forehead of Mr Watson and asked Mr Watson why he was looking at the gun. After a very brief exchange of words the gun was discharged, wounding Mr Watson to the head. The gun was then turned on another member of the gathering and he was shot twice. The weapon was, thereafter, turned on a third man, Joseph Atkinson, and he was shot twice. Mr Atkinson, however, struggled with the attacker, who then called for help. An accomplice of the gunman, also masked, entered the room and used a knife, with which he was armed, to attack and injure Mr Atkinson. Eventually Mr Atkinson was able to escape. His attackers then fled. All three victims of the attack were taken to the Black River Public Hospital where Mr Watson died as a result of the gunshot wound to his head. The other two were treated for their injuries.

5 [4] The following day, Monday, 24 April 2006, Ms Claudia Thompson took her son, the appellant Kadett Brown, to the Lacovia Police Station. There he was turned over to the police. On the Crown's case, she is said to have told Detective Corporal Carty that Mr Brown had confessed to her that he had killed Watson. Corporal Carty is said to have cautioned Mr Brown, who expressed remorse for what had occurred, sought forgiveness and agreed to give a statement.

6 [5] Later that day, Corporal Carty, in the presence of a Justice of the Peace, again cautioned Mr Brown and thereafter recorded, in writing, a statement given by Mr Brown. In the statement, Mr Brown gave an account of the events at the bar. The relevant part, for these purposes, (at page 153 of the transcript) states:

"...[The accomplice] have a gun, he give it to me. He said we a go rob di bar and I go wid him in the bar. I take the cash from some man, den di gun go off and hit dem , [the accomplice] run and leave me and mi run wid di gun in the bushes. Him ring mi phone and we meet up in the bushes. [The accomplice] take the gun and from there, I go home and I am so sorry about what happen...." (Emphasis supplied)

7 A question and answer session, under caution and in the presence of the same Justice of the Peace, immediately followed the taking of the statement. It too was recorded in writing. Among the questions and answers were the following:

"Question 21 — in the same statement that you gave the police on Monday the 24.04.06, did you say the gun go off and hit them?

Answer-yes.

Question 22 — what do you mean by the gun go off and hit them?

Answer- it just go off .

Question 23 - did you squeeze the trigger?

Answer - mi hand just touch it. " (Emphasis supplied) (Page 156 of the transcript)

8 [6] On 27 April 2006, Corporal Carty went to Reading District in Saint Elizabeth where he accosted the appellant, Mr Emilio Beckford, whom he did not know before, but who was pointed out to him. Corporal Carty says that he cautioned Mr Beckford and told him that he was a suspect in the murder of Kevin Watson. Mr Beckford's response was "Mi nuh know nutten weh yuh a talk 'bout."

9 [7] He took Mr Beckford to the Lacovia Police Station where, without any further caution, he asked Mr Beckford "if he knew one Kadett Brown". Mr Beckford's reply, according to Corporal Carty was, "A Kadett shot di man dem". Corporal Carty asked further questions:

"I asked him if he was there and he replied, 'Yes, but me never do nutten'.

I asked him what he did with the gun. He replied 'Mi gi it back to Preacher'. "

10 The case for the defence

11 [8] At the trial, both appellants gave unsworn statements. Both denied having given any statements to the police. Ms Thonnpson testified, denying that she had said that Mr Brown had confessed to her. In addition, Mr Beckford specifically denied knowledge of the murder; he said on this point, "I did not go onywhere that night".

12 Analysis of Mr Beckford's case

13 [9] Miss Clarke, for Mr Beckford, argued that Mr Beckford's conviction should be quashed because the only evidence against him was the evidence of Detective Corporal Carty who said that Mr Beckford had mode a statement in which he admitted to being present at the time of the shooting. The absence of the caution was, according to Miss Clarke, fatal to the Crown's case. In her written submissions. Miss Clarke said (in port):

"...The prosecution in relying on the statements which the Investigator testified were mode by the Appellant and links him to the commission of the offence, failed to call evidence of the circumstance (sic) of the statement being made and which would satisfy the requirement of proof that the circumstances were not oppressive."

14 [10] The representatives for the Crown, before us, conceded that Mr Beckford's conviction could not be properly upheld. They made some criticisms of the manner in which the learned trial judge directed the jury in respect of Mr Beckford's oral statements. In their written submissions, learned Crown Counsel also agreed that:

"...the Crown [failed] to adduce evidence of the circumstances under which the statements were made...so as to discharge their burden, that is, that they were freely and fairly obtained...[this] rendered the verdict unsafe and amounted to a miscarriage of justice."

15 [11] In Ibrahim v R [1914] AC 599, at page 609, the Privy Council, in an appeal from Hong Kong, stated:

"It has long been established as a positive rule of English criminal law, that no statement by an...