Boxx (Dale) v R

• Jurisdiction: Jamaica
• Judge: DOWNER, J.A. , PANTON. J.A. , CLARKE J.A. (Ag.)
• Judgment Date: 16 December 2002
• Neutral Citation: JM 2002 CA 52
• Judgment citation (vLex): [2002] 12 JJC 1602
• Court: Court of Appeal (Jamaica)
• Date: 16 December 2002

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR. JUSTICE DOWNER, J.A THE HON. MR. JUSTICE PANTON, J.A THE HON. MR. JUSTICE CLARKE, J.A. (Ag.)

R

v.

DALE BOXX

Dr. Randolph Williams for the appellant

Sandra Chambers Crown Counsel for the Crown

DOWNER, J.A.

1 Introduction

2 After a trial lasting five days which was concluded on June 23, 2000, in the Hanover Circuit Court at Lucea, Dale Boxx was found guilty of capital murder and sentenced to suffer death "in the manner prescribed by law". This was a jury trial with Granville James, J., presiding. Dale Boxx was indicted and tried with the co-accused, Robin Murray. Murray was found to be not guilty as no further evidence was adduced against him just before the close of the Crown's case against both accused.

3 The crucial evidence was given by Carlyle Chambers, the brother of the deceased, Neville Chambers. As related by the learned judge in his summing up the witness said that he was in a bar in the village of Bamboo seated on the customer side with his back to the front entrance. Further, he stated that there was a back entrance to the side of the building. The building was well lit with electric bulbs and he heard words from his brother. They were watching television and the learned judge stated the situation thus at pages 338–339 of the Record:

"He said that there was a television set in the bar and that they were watching the T.V. and he demonstrated that the television set was about seven feet from the ground. They were watching the T.V. and that suddenly he heard his brother said, 'Say what this for?' He said that the back door was open and he heard an explosion like a gun shot. He said he turned his head to look in the direction where he heard this sound come from and he got a shot in his neck. He said, that he saw two persons standing at the back door. And this is important you remember Mr. Foreman and members of the jury, I told you about visual identification, that it is important. You have to be careful in deciding the case in relation to the question of visual identification.

Mr. Carlyle Chambers said, I saw the accused Boxx. He said, he saw his face he was about five feet away from him when he saw him and that Boxx was the shorter of the two persons that he saw. And that he saw his face it was not for long but for about twenty seconds." [Emphasis supplied]

4 Then the learned judge continued the narrative thus at page 340 of the Record:

"He then heard footsteps coming from the back door and more gun shots and then the gun shots calm down. Then his head was lifted up and he heard like gun shots again and they walked off. He went out to the gate and he saw Neville Chambers his brother the deceased lying in blood at the roadside and his clothes were dirty. Mr. Mahoney asked him further question to determine what about his clothes being dirty, and it turned out there was blood on his clothing. A car was stopped a Lada motor car and Neville Chambers was placed in this vehicle the evidence shows that he was taken to Cornwall Regional Hospital, and he died."

5 As the witness did not know the accused before, an identification parade was held on the 31 ^st July, 1998. The incident was on 8 ^th May, 1998, this was some seven weeks after the fatal shooting. On the Crown's case the witness walked slowly, and identified the accused. This version was given by the witness and the police officer who conducted the parade. It should also be noted that the accused requested his mother to be present and this was granted. The evidence shows that the parade was conducted fairly. The accused had a scar on his forehead, and this was covered over. A similar covering was put on all the other members of the parade, so that the scar could not be seen on the suspect. There was a suggestion but no evidence to support it, that the witness walked more than once on the parade before identifying the accused. The judge generously directed the jury that if that was so then it could either raise doubts as to the correctness of the identification or that the witness was making sure that he picked out the man he saw on the night of the incident.

6 In the light of the defence of alibi the following aspect at page 353 of the Record is of importance to the defence:

"The accused asked the Sergeant if he was satisfied for the arrangement for the identification parade and he said yes. The witness Mr. Carlyle Chambers was called and he asked Mr. Chambers if he knew why he was there, and Mr. Chambers told him that he was there to identify the person who was the suspect in the murder matter. The Sergeant said, that Mr. Carlyle Chambers stopped in front of the suspect and he said, this is the man and that the accused Boxx said, Officer, Mi nuh know nothing bout it. The identification parade form was signed and it was tendered in as exhibit 2. And as I told you if you want to Mr. Foreman and members of the jury, you can take that form with you when you retire to consider your verdict."

7 This has to be compared however with the arresting officer's evidence, that immediately after the parade he said (at page 244 of the Record):

"Officer a Robin Murray trick me and carry me goh deh sah."

8 On the merits of the case, identification was the issue and as there was a formidable challenge both before the jury and in this court, it is pertinent to examine how the learned judge directed the jury on this aspect of the case.

9 At the very outset of his summing up, the judge alerted the jury to the importance of visual identification as experience has shown that mistakes were made in this area. He adapted his directions to circumstances of a jury in the heart of rural Jamaica. The learned judge highlighted the issue for the jury, thus (at page 314 of the Record):

"In this particular case you must ask yourselves the question, was it the accused who is before the court the man who went to the First and Last Bar at Bamboo District and shot and killed Neville Chambers because that is really the issue that you are being asked to determine."

10 Then the learned judge continued as follows:

"Now, Mr. Foreman and members of the jury, this brings me to the consideration of the matter of visual identification, what is seen with the eye. You no doubt know that sometimes persons are mistaken about the identity of others. It has happened to me and I am sure it has happened to you at sometime or the other."

11 In these general directions the learned judge focused on the particulars in the case as they relate to identification. This was how it was put at pages 315–316 of the Record:

"During the review of the evidence I am going to point out to you particular circumstances relating to visual identification. And it is very, very important that you consider very carefully all aspects of the evidence relating to visual identification. For example, you will give those considerations to the lighting. You will recall that Mr. Mahoney in his examination of the witnesses asked about the location of the lights. He asked about distances. He asked about the length of time that in particular the first witness Mr. Carlyle Chambers had to observe the person whom he said he saw so that he was able to identify him subsequently and you will recall that Mr. Carlyle Chambers said that it was about twenty seconds that he had to observe this person. It is a matter for you, Mr. Foreman and members of the jury. But as the opportunity arises I will point out to you in reviewing the evidence details relating to this question of visual identification but bear in mind the fact that you have to consider that aspect of the case together with the other aspects very, very carefully. In reviewing the evidence, I will remind you of points relevant to the area of visual identification."

12 Turning to the specifics of identification with the strength and weaknesses pinpointed, the learned judge reiterated the circumstances of the identification thus at pages 319 – 320 of the Record:

"They were watching the T.V. and that suddenly he heard his brother say, 'Say what this for?' He said that the back door was open and he heard an explosion like a gun shot. He said he turned his head to look in the direction where he heard this sound come from and he got a shot in his neck. He said, that he saw two persons standing at the back door. And this is important you remember Mr. Foreman and members of the jury, I told you about visual identification, that it is important. You have to be careful in deciding the case in relation to the question of visual identification.

Mr. Carlyle Chambers said, "I saw the accused Boxx.' He said, he saw his face he was about five feet away from him when he saw him and that Boxx was the shorter of the two persons that he saw. And that he saw his face it was not for long but for about twenty seconds." [Emphasis supplied]

13 As a matter of law, Ms. Sandra Chambers for the Crown stressed that the learned judge decided that this was not a case of fleeting glance which would have obliged him to take the case from the jury. He directed the jury how to compute twenty seconds, thus at pages 320–321 of the Record:

"Now Mr. Foreman and members of the jury, some of you might be wearing a watch that has a second hand. I ask you when you go to the jury room to look at your watch let somebody give some sound when the twenty seconds starts and a sound when the twenty seconds finish. Ask yourselves the question, if you look at a person for two (sic) seconds would you be able to know that person when you see that person again under the circumstances that Mr. Carlvle Chambers said that he saw this man. Sometimes you know twenty seconds can be a long time. In certain circumstances I suppose it can be a short time. So according to Mr. Carlyle Chambers about twenty seconds when he had the opportunity of looking at this man, and based on Mr...