Brissett (Loretta) v R

• Jurisdiction: Jamaica
• Judge: SMITH JA:
• Judgment Date: 20 December 2004
• Neutral Citation: JM 2004 CA 41
• Judgment citation (vLex): [2004] 12 JJC 2029
• Court: Court of Appeal (Jamaica)
• Date: 20 December 2004

IN THE COURT OF APPEAL

BEFORE:

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

SUPREME COURT CRIMINAL APPEAL NO. 69/2002

LORETTA BRISSETT

v

R

Deborah Martin

Paula Llewellyn, Senior Deputy Director of Public Prosecutions

CRIMINAL LAW - Murder - No case submission - Circumstantial evidence - Unfair comment - The "rule" in Hodge

SMITH JA:

1 On the 21 ^st March 2002, Loretta Brissett, the applicant, was convicted in the Home Circuit Court before Cooke J and a jury for the murder of Franklyn Johnson. She was sentenced to life imprisonment; the learned judge specified that she should serve 25 years before becoming eligible for parole.

2 On November 3, 2003 her application for leave to appeal was refused by a single judge. She has now renewed this application before the court. The prosecution's case was based on circumstantial evidence.

3 The applicant shared a visiting relationship with Franklyn Johnson the deceased. The applicant lived in Mount Horeb with her children. The deceased lived in Moy Hall, St. James with his then 14 year old daughter Tonia, who at the time of the trial was a student at the St. James High School.

4 In July, 1999 Tonia attended the Corinaldi Avenue Primary School. She knew the applicant as 'Netty' who she said, stayed with her father but would go home on weekends. She testified that on July 25, 1999 she went home from school and saw the applicant and the deceased. The applicant, she said, asked her father (the deceased) to allow her, Tonia, to spend the weekend with the applicant. The deceased agreed. That same evening, a Friday, Tonia and the applicant journeyed to the house of the applicant in Mount Horeb.

5 During the night the applicant left the house without saying to Tonia where she was going. She did not return until the afternoon of the following Monday. She told Tonia that she and the deceased were going to the country on the following Sunday to "look some mangoes". Tonia further testified that the applicant told her that the deceased had packed his bag and had left but she did not know where he had gone. Tonia who was the deceased's only child, told the court that the deceased had never left home without telling her. According to Tonia, the applicant informed her that the deceased had told her (the applicant) that she should take the furniture at his house, but, if she did not want them she should not give them to anyone. About 2:00 p.m. that Monday at the behest of the applicant, Tonia and Rosemarie (the applicant's daughter) along with the applicant set out for the deceased's house in Moy Hall.

6 On the way they stopped in Montego Bay for the applicant to make arrangement for a truck to transport the furniture. The applicant told the owner of the truck to be at the deceased's house about 6:00 p.m. From there the three of them proceeded to the deceased's house. The applicant had taken two buckets from Mount Horeb. She told Tonia and Rosemarie that she needed the buckets to carry "dirt" to throw into the pit toilet (latrine). She said that the deceased had told her to throw his clothes in the latrine and throw dirt on them.

7 The applicant took possession of the shovel which was on a table behind the deceased's house. She took Tonia and Rosemarie into an unfinished house beside the deceased's house. There with the shovel the applicant dug the earth and filled the buckets. Tonia and Rosemarie made six trips to the latrine to empty the buckets into the pit. While the applicant was digging she told them to look out for anyone passing the gate and "looking up in the yard". Tonia said while they were throwing dirt into the pit Rosemarie lit a piece of paper and threw it into the pit. Tonia looked into the pit and saw some of the deceased's clothes. After the exercise the applicant told the girls to wash the buckets at a nearby standpipe.

8 As arranged, the truck arrived at about 6:00 p.m. The applicant and the two girls moved furniture from the deceased's house and had them placed on the back of the truck. Tonia said she saw the deceased's travelling bag and slippers in the house. According to Tonia the deceased had given the applicant one of the two keys he had for the house. The other one the deceased kept with a bunch of keys. On this occasion the applicant had used the deceased's key to get into the house.

9 When they had almost finished packing the furniture onto the truck, Mr. Fletcher, a neighbour came over to the deceased's premises. He spoke with the applicant. After the packing was done, the truck drove off. The applicant was in the cab of the truck with the driver. The two girls were in the back. The truck was driven to the house of the applicant in Mount Horeb. There the furniture was unloaded. A television and a radio were placed in the house of the applicant and the other things under the cellar of her house. Tonia spoke of a second trip to Moy Hall by the applicant, Rosemarie and herself. On this occasion the applicant dug earth beside the unfinished house and Tonia and Rosemarie threw it into the latrine.

10 Subsequently the applicant made arrangements for Tonia to change schools. She started to attend the Mount Horeb All Age School where the applicant's children attended. Tonia recalled that one day when she was at school, her mother, her aunt and two policemen visited her. She accompanied them to the applicant's house. The applicant was at home then. The police told the applicant that Tonia's mother had come for her. The applicant replied that Tonia's father had told her that she must not give her to anyone. The police insisted that Tonia's mother must have custody of her. Tonia was taken from the applicant and went to live with her aunt in Norwood, St. James. Tonia testified that since the 25 ^th July, 1999 she had not seen or spoken to her father. Her father she said had not told her that he was going anywhere.

11 In cross-examination she said that she used to live with her father's friend in Hanover before going to live with her father in Moy Hall. She had told her father that one Romaine had sexually molested her.

12 Mr. Huntley Fletcher, the neighbour of the deceased told the Court that he knew the deceased as "Orange man" and "Peter". He used to see and speak with the deceased every day. He knows the applicant; she used to visit the deceased. He recalled seeing the applicant at the house of the deceased late July, 1999. It was a Sunday. The deceased was there planting coco. The following morning- Monday morning, he did not see the deceased.

13 The witness returned from work about 7:30 p.m. that day. He did not see the deceased. He saw a truck in the deceased's yard. He also saw the applicant, Tonia (the deceased's daughter) and another girl and two men in the deceased's yard. They were moving the deceased's furniture from his house and packing them on the truck. Mr. Fletcher went to the gate of the deceased's premises and said "Wha happen man, how I see you yesterday and you moving and you nuh say anything at all to me?" According to him, he thought the deceased was there. The applicant, he said, "hushed him," took him aside and told him that "two men ran after Orangeman during the night and she nuh see him so she a move out him things because she don't want dem can't catch him and do her anything". He said he asked her where she was moving to and she said "up the line, up soh". Since that day he had not seen Orangeman (the deceased).

14 Detective Constable Cleveland Fray, a police photographer attached to the Area One Crime Scene office went to the deceased's house on the 24 ^th November, 1999. There he saw Detective Inspector Keith Brown and one Mr. Hugh Sloley. He observed men "digging at the front section of a pit latrine." He saw the diggers take building blocks, sand and dirt, male clothing, sheets, a pix axe, a pair of black shoes, cassettes and last of all- a skull and bones. The skull, he said, appeared to be that of a human being. He took charge of the bones the skull and some of the clothes. Some of the things were tagged and sent to the forensic lab and subsequently retrieved. Some of these things such as sheets, shirt, pillowcases, a pick axe were exhibited. According to this witness some of the bones were placed in a box and buried at the Pye River Cemetery on the 1 ^st December, 1999.

15 On the 14 ^th September, 2001, Detective Fray went with other police officers, Dr. Sarangi and persons from the Public Health Department to the spot in Pye River where the bones were buried. He witnessed the exhumation of the bones. Dr. Murari Prasad Sarangi, a Consultant Forensic Pathologist, testified that on the 14 ^th September 2001, he was present at the exhumation of the skeletal remains of a body.

16 Subsequent to the exhumation, he examined the skeletal remains at the Cornwall Regional Hospital Morgue in the presence of Detective C. Brown. The skeletal remains were comprised of fifty five pieces of bones viz an intact skull, an intact mandible bone, intact humeri, two intact clavicles, 21 ribs some intact and some broken, 15 pieces of vertebrae, a single piece of sternum with the first rib attached to it. His evidence was to the effect that the bones were of human origin and from one person only. The bones were those of a male between the ages of 35 and 45. In his opinion the person had died about two years of the date of his examination of the bones. He gave, in detail, the scientific bases for these conclusions.

17 Mr. Hugh Slowly the pastor of the Mount Zion Apostolic Church gave evidence to the following effect. The deceased was his nephew. He did not know the age of the deceased, but the deceased was younger than he and he was 43. Sometime in August, 1999 he went to the deceased's house in Moy Hall. In November, 1999 he went back to the deceased's house. The police went with him. Arrangements...