Calvin Powell and Another v R

• Jurisdiction: Jamaica
• Judge: Brooks JA
• Judgment Date: 05 July 2013
• Neutral Citation: [2013] JMCA Crim 28
• Docket Number: SUPREME COURT CRIMINAL APPEAL NOS 16 and 17/2010
• Court: Court of Appeal (Jamaica)
• Date: 05 July 2013

Calvin Powell Lennox Swaby

and

R

[2013] JMCA Crim 28

Before:

The Hon Mrs Justice Harris JA

The Hon Miss Justice Phillips JA

The Hon Mr Justice Brooks JA

SUPREME COURT CRIMINAL APPEAL NOS 16 and 17/2010

JAMAICA

IN THE COURT OF APPEAL

CRIMINAL LAW - Murder - Death sentence - Whether the trial judge erred in allowing the trial to continue after hearing prejudicial utterances to the jury - Whether the evidence of stolen items from the deceased's property was adequate to ground conviction

Brooks JA

1 Manchester residents, Mr Richard Lyn and his wife Julia, were last seen alive at a funeral service on Saturday, 9 December 2006 at about 4:30 pm. On the following morning, unsuccessful attempts to find them, led to the police being called. The police entered the Lyns' house and found that it had been ransacked and that there were spots of blood at various places in the dwelling. Several household items, including large appliances and furniture, were noticed to be missing, and there was no sign of the Lyns. Mr Lyn's Toyota Rav 4 and Mrs Lyn's Toyota Fielder station wagon were alsomissing. Both motor vehicles were variously described as being grey, silver or silver-grey in colour.

2 A trace of the missing items led the police to apprehend the appellants, Messrs Lennox Swaby and Calvin Powell. In fact, the appellants had turned up at Miss Petrina Lewis' house at about 3:00 am on 10 December with some household items that proved to have been taken from the Lyns' house. At the time, they were in a silver Rav 4. They left the household items with Miss Lewis for her to store them. In the days following, items, subsequently identified as belonging to the Lyns, were found in premises associated with one or other of the appellants. On 30 December, the police found the dead, badly decomposed bodies of both the Lyns, at the Martin's Hill garbage dump, in the parish of Manchester.

3 Both appellants were jointly charged, tried and convicted, on an indictment containing two counts, for the murder of the Lyns. On 20 January 2010, they were each sentenced to imprisonment for life in respect of count one of the indictment, which charged them for killing Mr Lyn, and each sentenced to death in respect of count two, which charged them for murdering Mrs Lyn. They have sought leave to appeal against their respective convictions and sentences. A single judge of this court refused them permission to appeal against conviction but granted leave to appeal against the sentences imposed. They have renewed their applications for leave to appeal against the convictions, before the court.

4 The evidence against the appellants included evidence produced through the use of technology. All the evidence, including the recent possession of the items, was, however, circumstantial. On the matter of the convictions, the main issue on appeal was whether the various bits of evidence against them, which concerned mostly postmortem activities, were capable of proving that the men were involved in the killings. There was also the question of whether certain prejudicial evidence, improperly blurted out by a witness, should have resulted in the trial being aborted and restarted before a different jury. In respect of the sentences, it was pointed out, and the Crown conceded the point, that the procedure in relation to the passing of the sentence of death, was flawed and could not be supported.

The grounds of appeal

5 Dr Williams, with the permission of the court, abandoned the grounds of appeal that had been filed originally on behalf of Mr Powell, and argued, instead, in respect of the convictions, that:

‘The directions of the learned trial judge on the presumption arising from possession of goods recently stolen were inadequate…The jury were not directed how, if at all, they could find the appellant guilty of murder committed in the course or furtherance of robbery, if they found he was in possession of goods recently stolen from the deceased and his explanation was not accepted.’

In the circumstances, he argued, the verdict cannot be supported having regard to the evidence.

6 Ms Bogle, on behalf of Mr Swaby, adopted Dr Williams' formulation of the grounds of appeal in respect of the convictions. In addition to those grounds, learned counsel also argued the following ground:

‘The learned trial judge erred in allowing the trial to continue [after] utterances by Miss Pearl Robinson which was overwhelmingly prejudicial and which prejudice was [sic] incurable by addresses to the jury…’

7 In this judgment, it is proposed to set out the essence of the evidence adduced by the prosecution and by the defence, respectively, and, thereafter, individually analyse the issues raised by the grounds of appeal.

The prosecution's case

8 Although during the course of commendable police-work, a number of various elements had to be brought together in supporting the case against the appellants, an attempt to make a brief synopsis will be made. It will be approached respectively from the bases of the connection between the appellants and the Lyns' property, the technological evidence, the oral testimony of witnesses and the answers given by each of the appellants under caution.

a. The connection between the appellants and the Lyns' property

9 A part of the evidence tending to support recent possession of the goods that had been taken from the Lyns' house, is that when the police entered the house at alittle after 10:00 am on 10 December, Deputy Superintendent Daley observed a lot of meat in the kitchen. He said that the meat was in the process of thawing out. This suggests that the meat was removed from refrigeration within hours prior to the arrival of the police. The Lyns' refrigerator was one of the items found at Mr Powell's house.

10 Apart from both men being in a silver Rav 4 during the early morning of 10 December, Constable Elvis Bowers saw Mr Swaby driving ‘a silver Toyota Rav Four, silver-gray [sic] Toyota Rav Four’ (page 257 of the transcript) at about 9:30 am that day. They went together, in the vehicle, to transact business. At the time, Mr Swaby told Constable Bowers that the vehicle belonged to a lady in Black River.

11 An employee of the Lyns saw them driving in Mrs Lyn's Toyota Fielder station wagon at about 2:00 pm on Saturday, 9 December. They were on their way to a funeral. At about 10:00 pm on 10 December, Mr Richard Whyne saw Mr Powell driving a grey Toyota station wagon. Mr Whyne also saw Mr Powell driving a grey Rav 4 on 11 December. He had never seen Mr Powell driving any of those vehicles before.

12 Miss Petrina Lewis, mentioned above, who was once in an intimate relationship with Mr Swaby, and has a son by him, also saw both appellants again in the same Rav 4, on the Wednesday following their early morning visit to her house. The Wednesday was 13 December. Both came to her home and she accompanied them in the vehicle. She, at times, referred to the Rav 4 as a ‘van’. As was the case on 10 December, Mr Swaby was the driver of the vehicle.

13 She saw Mr Swaby twice on the following day (14 December). On both occasions he was driving the Rav 4. On one of the occasions, he was with Constable Bowers. She asked Mr Swaby about the Rav 4 and he told her that it was ‘for a family member that come from abroad’ (page 83 of the transcript).

14 She testified that on the Saturday following (16 December), the police came to her house and took the items that Mr Swaby had left there. These included a coffee-maker, a toaster oven, a microwave oven and a bed comforter. All these items were later identified by the Lyns' household helper, Miss Pearl Robinson, as belonging to the Lyns.

15 On 16 December Detective Sergeant Colin McKenzie and other police officers, at about 11:00 am, went to a dwelling house occupied by Mr Swaby and his mother and there, on the outside of the house, in a shed and in a fowl coop, were appliances such as a washing machine, and other items of furniture, which proved to have been taken from the Lyns' residence. Mr Lyn's golf gear and other items of the Lyns' furniture were retrieved from a locked room inside the house.

16 The police stopped Mr Powell at about 5:30 pm on 16 December, while he was driving a white Mack garbage truck. Detective Sergeant McKenzie searched Mr Powell's person and found in a billfold that he had in his pocket, Mr Calvin Lyn's driver's licence and his elector's registration card. The billfold also contained two small photographs of the Lyns' children. According to Mr Maurice Lyn, the Lyns' son, those photographs were normally in a locket, which Mrs Lyn usually wore on a chain around her neck. A cellulartelephone SIM card and a Siemens cellular telephone were also taken from Mr Powell. The SIM card was also in the billfold. More will later be said about the SIM card and telephone.

17 Having apprehended Mr Powell, the police took him, on the same day, to his home at New Green in Manchester. A search of the house resulted in the seizure of a refrigerator and a stove. These were also identified as having been taken from the Lyns' house.

b. The technological evidence

18 The police, and the jury, were aided by technology in this matter. The first area of technology was evidence of the transaction recording system operated by the National Commercial Bank (NCB) for its Autobanking Machine (ABM). That system showed that Mrs Lyn's card was used, on 10 December at 6:17 am, in an unsuccessful attempt to withdraw money from her account. The attempt failed because of an incorrect personal identification number (PIN) having been used.

19 As part of the normal operation of the NCB booth housing the ABM, photographic images are taken of the persons utilising its services. The photographic images that were taken during the period 6:07 to 6:14 am on 10 December showed the appellants entering the booth and using the machine.

20 The next...