Bertram Clarke v R
|17 December 2021
|JM 2021 CA 138
|SUPREME COURT CRIMINAL APPEAL NOS 36 & 43/2016
|Court of Appeal (Jamaica)
 JMCA Crim 51
IN THE COURT OF APPEAL
THE HON Mrs Justice McDonald-Bishop JA
THE HON Mrs Justice Sinclair-Haynes JA
THE HON Mrs Justice Dunbar-Green JA (AG)
SUPREME COURT CRIMINAL APPEAL NOS 36 & 43/2016
Miss Gillian Burgess for the appellant
Bertram Clarke Leroy Equiano for the appellant
Arthur Robinson Miss Kathy-Ann Pyke and Dwayne Green for the Crown
Dunbar-Green JA (AG)
On the night of 26 October 2007, 74-year-old Floris Clarke (‘Mrs Clarke’) was attacked in her home. Mr Bertram Clarke (‘Mr Clarke’), her husband, purportedly found her bleeding in their living room. She was subsequently taken to the Saint Ann's Bay Hospital and later transferred to the Kingston Public Hospital (‘KPH’), where she died on 27 October 2007. She succumbed to haemorrhage due to blunt force injury to the head.
On 25 March 2016, Messrs Bertram Clarke and Arthur Robinson (‘the appellants’) were convicted in the Home Circuit Court for the murder of Mrs Clarke, and on 29 April 2016, Mr Clarke was sentenced to life imprisonment at hard labour with eligibility for parole after 25 years, and Mr Arthur Robinson (‘Mr Robinson’) to life imprisonment with eligibility for parole after 21 years.
Mr Robinson was granted leave, by a single judge of this court, to appeal his conviction. However, Mr Clarke's application for leave to appeal against conviction and sentence was refused by the single judge and so he renewed his application before this court.
It was the prosecution's case that Mrs Clarke was killed by Mr Robinson, who was then 15 years old, and Emmanuel Newland (‘Mr Newland’), who was also a minor at the time. This was, allegedly, pursuant to a murder pact with Mr Clarke, who procured the killing because the relationship with his wife had broken down, and he wanted to occupy the matrimonial house with his mistress with whom he had two children.
Relatives and acquaintances of Mrs Clarke gave evidence at the trial of unflattering, suspicious and accusatory observations that they had made in relation to Mr Clarke's conduct generally, and after Mrs Clarke was injured. At its core, their evidence was that he had neglected Mrs Clarke; he had delayed seeking immediate help and medical care for her; that while she was being treated at the hospital, his main concern was whether she would be able to talk; he had insisted on returning home instead of accompanying her to the KPH; and he gave different explanations for how she might have sustained the injuries which led to her death. There was also evidence that Mrs Clarke had told him to leave the family home the very week of the killing.
None of those witnesses, called by the prosecution, gave direct evidence of any pact among Messrs Robinson, Newland and Clarke. If anything, their evidence was purely circumstantial. Direct evidence of a pact was expected to come from Mr Newland, who had pleaded guilty to the murder of Mrs Clarke and turned prosecution witness. But, Mr Newland became a hostile witness and denied the contents of the two statements in which he purportedly implicated Messrs Clarke and Robinson.
In the end, considerable reliance was placed on a written caution statement and other out of court statements in which Mr Robinson claimed that it was Mr Clarke who had sent him and Mr Newland to kill Mrs Clarke and burgle the house. However, Mr Robinson repudiated the caution statement in an unsworn statement from the dock and said he knew nothing about the killing of Mrs Clarke.
He explained, in his unsworn statement, that he was at Mrs Clarke's residence (along with Mr Newland) in the evening of 26 October 2007 (the date Mrs Clarke was injured), at the request of Mr Clarke, to assist him with removing some gas cylinders from his (Mr Clarke's) vehicle. Whilst awaiting some money from Mr Clarke, he overheard an argument between Mr and Mrs Clarke, followed by a smashing sound. Mr Clarke then emerged from the house with some items, including a baton, which he gave him to dispose of in a pit toilet at the Watt Town All Age school. He refused, and Mr Clarke “draped him up”, pushed a sharp object in his side, and threatened to kill his family if he did not dispose of the items. He took the items from Mr Clarke and disposed of them in a pit toilet at the Watt Town All Age School.
Mr Robinson further said he was forced and threatened into giving a caution statement to the police confessing to the murder. This statement was given in the absence of his parents or an attorney-at-law. A justice of the peace, Mr Redway (‘ JP’), and a teacher, Mr Gregory (teacher’), witnessed the making of the caution statement. Mr Robinson was later taken and lowered, by rope, multiple times into the pit toilet at the Watt Town All Age School, where he retrieved and handed over to the police an item resembling a bat, an implement resembling a penknife, and other material.
For his part, Mr Clarke gave evidence, at the trial, in which he denied any involvement in the death of his wife. He said he was not even home when the attack on his wife took place and that he went home on the eventful evening and found his wife injured. He denied ever being told by Mrs Clarke to leave the family house. As far as he knew, he and his deceased wife had shared a good relationship.
He said he did not know Mr Newland, and did not meet with Messrs Newland and Robinson in October 2007. Neither did he make any promise to pay either of them to kill his wife, as alleged by the prosecution. He explained that on the night of the incident, he went home at 11:00 pm and saw his wife on the floor with a huge bump on her forehead. He saw that she was bleeding from the nose and ears and he thought she had fallen and hit her head on the rails. He wiped her nose and ears with a wet rag and tried to raise her up but could not. He did not realize that she had stab wounds until her clothing was removed at the hospital and blood spewed out. At the hospital, he had asked whether his wife would have been able to talk because he wished to know who had attacked her. He also said he had told family members at the hospital that he needed to go home to retrieve medication and clothes for his wife, and that he also needed to change his clothes which were blood-stained.
With the leave of this court, Mr Clarke abandoned his original grounds of appeal and argued, instead, the following supplemental grounds of appeal, filed on 17 November 2020:
“1. The applicant's trial was unfair in that ‘evidence’ against him emanated from his co-defendant Arthur Robinson who he was not permitted to cross examine;
2. That the learned trial judge misdirected the jury when she failed to give them directions on how to treat the hearsay contained in the various out of court statements of Arthur Robinson with respect to the applicant; [and]
3. That the learned trial judge erred in law when she failed to give a warning that it was dangerous to convict on the uncorroborated evidence of the alleged accomplices which rendered the trial unfair.”
Miss Burgess, counsel for Mr Clarke, submitted that the general rule at common law is that an out of court admission of an accused is evidence against the maker of the admission only and not against any other person implicated by it unless the other person adopts the statement. This rule, she indicated, is “distinct from cases where the co-accused gives evidence from the witness box in the course of the trial in which case it becomes evidence for all intents and purposes”.
This general rule, counsel argued, was violated by Mr Robinson's unsworn statement from the dock, in which he contended that Mr Clarke had threatened him with death if he did not dispose of implements which were later discovered to be connected to the murder of Mrs Clarke. Counsel submitted that although the learned trial judge was alert to the fact that this was a case of a co-accused making an unsworn statement against another co-accused, on which he could not be cross-examined, she failed to properly direct the jury when she told them that they could rely on the unsworn statement and make what they would of it. In so doing, counsel submitted, the learned trial judge misdirected the jury as to the value of Mr Robinson's unsworn statement.
Counsel pointed to pages 3774 – 3775 of the transcript where the learned trial judge said:
“Now, Mr. Arthur Robinson gave an unsworn statement from the dock, which tended to show that the defendant, Mr. Bertram Clarke, was involved in the commission of the offence which you are trying. Examine what he has told you with particular care, for Mr. Arthur Robinson is saying the things he said — I am sorry, you must examine what he has told you with particular care, for Mr. Arthur Robinson, in saying the things he said, may have been more concerned about protecting himself than about speaking the truth. Bear in mind, when deciding whether you can believe what Mr. Arthur Robinson has told you about Mr. Bertram Clarke. Additionally, he did not give any evidence on oath, he gave an unsworn statement, which was not subjected to cross-examination. You should therefore consider the content of his unsworn statement especially as it relates to his co-defendant Mr. Clarke, and determine whether his unsworn statement has any value and, if so, what weight you should attach to it. Remember that an unsworn statement was not tested by cross-examination and has less cogency and weight than sworn evidence. Bear in mind also that Mr. Bertram Clarke, in contrast went into the witness box and gave evidence on oath and was tested in cross-examination.”
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