Christopher Lewis v R
| Jurisdiction | Jamaica |
| Judge | Phillips JA |
| Judgment Date | 03 June 2013 |
| Neutral Citation | JM 2013 CA 61 |
| Date | 03 June 2013 |
| Court | Court of Appeal (Jamaica) |
| Docket Number | SUPREME COURT CRIMINAL APPEAL NO 79/2008 |
[2013] JMCA Crim 26
JAMAICA
IN THE COURT OF APPEAL
The Hon Mrs Justice Harris P (Ag)
The Hon Mr Justice Dukharan JA
The Hon Miss Justice Phillips JA
SUPREME COURT CRIMINAL APPEAL NO 79/2008
Linton Gordon and Miss Tamiko Smith instructed by Frater , Ennis and Gordon for the appellant
Miss Paula Llewellyn QC, Director of Public Prosecutions and Mrs Andrea MartinSwaby for the Crown
CRIMINAL LAW - Murder - Whether verdict unreasonable - Whether the judge properly dealt with identification evidence - Whether appellant denied a fair trial
The appellant was tried in the Home Circuit Court over a period of several days commencing on 26 May 2008 for the offence of murder. The particulars of the charge were that, on 14 June 2003, in the parish of Saint Andrew, the appellant murdered Neil Wright in the course or furtherance of a robbery. He was convicted of murder on 5 June 2008 and, on 13 June 2008 he was sentenced to life imprisonment, with a stipulation that he should be ineligible for parole until he had served a period of 40 years imprisonment. On 7 January 2011, a single judge of this court granted him leave to appeal.
The prosecution's case in a nutshell was that on 14 June 2003, two armed gunmen, one of whom was the appellant, entered the ‘jerk pork pit’ located at Lot 65F Golden Way in the parish of Saint Andrew, and shot and killed one of the patrons attending the establishment. The prosecution called 12 witnesses, four of whom were civilian witnesses, namely Gifton Gillings, Frank McCaulsky, Robert Reynolds and Grace Plummer, who were all at the ‘jerk pork pit’ on that fateful night.
Mr Gifton Gillings gave evidence that he was a farmer and on that night he had attended the business place of Miss Plummer, the said ‘jerk pork pit’ with his friend, Mr Reynolds and some of his (Reynold's) co-workers, including the deceased, Neil Wright. Mr Gillings stated that he was seated around a table drinking beer, with his back against the shop, and facing a private driveway which ran from the premises. Mr McCaulsky and Mr Reynolds were seated to his left at the table and Mr Wright was standing to his right. He testified that the premises were well lit, and he saw when a motor car reversed into the driveway and two men alighted from it. The men came to about 9 feet from where he was and said, ‘[t]his is a hold up, nobody move’. The men, he said, were both armed with what he thought was a snub nose revolver, and what appeared to be a 3.8 automatic gun, which they pointed in his direction.
It was Mr Gillings' evidence that the man with the revolver stepped past him, went to Miss Plummer who was at the jerk pork pit, and said, ‘Gal, gimme the money. You gal, gimme the money, yuh want a buss yuh?’ That assailant was then 6 feet away from him. Miss Plummer, he said, indicated that she had only $5.00 which she was willing to give him. The other man who he later identified as the appellant, was still at the entrance, and he ordered, ‘Unno put unno han' pon unno head.’ Mr Gillings, who gave evidence that he was a licensed firearm holder got up from his seated position and fired two shots at the appellant. He then, he said, turned the muzzle of his gun to the other armed intruder and fired three shots in his direction, and heard Miss Plummer say, ‘Him get it, him get it’. He stated that he saw Mr Reynolds fire two shots at the appellant who ‘jumped up’ and then retreated to the motor car which was in the private driveway. The car sped off, but not before both he and Mr Reynolds had fired shots at it. He said he thought he heard gunshots being fired back at him, and after the men drove away, he saw Neil Wright lying face down on the ground. He also realized that he had been shot in his elbow and had been hurt in one of his fingers. He was taken to the hospital, where he remained for six days and was treated for a fractured arm.
Mr Gillings estimated that the appellant spent about 15 minutes, at the premises, during which time he had been ‘looking at him’ under strong lighting conditions. He described his licensed firearm as a ‘super 38 istol’ which used super 38 ammunition, and which held 10 rounds, which he had discharged that night. He also indicated that he had given his firearm and ammunition to the police for them to be subjected to ballistic examinations. He further testified that he attended an identification parade and after walking along the line up of men ‘two, three times’, he asked the appellant to step forward, turn left, move his hand from behind him, resume his original position, and he then identified the appellant standing under the number eight, as the man who had shot him.
He was challenged in cross-examination that he had said in his statement to the police that he had given a description of the appellant, namely, that he was of a light black complexion, slim build, about 5' 6’-7’ and sporting a low cut hair style. He indicated to the police in his statement, however that he was not able to give a description of the clothes the appellant had been wearing that night. He admitted that he had said in the statement, ‘I might be able to identify the other gunman. If seen again I might be able to identify him’ (emphasis supplied), which statement he said, was with reference, to the appellant, as the other gunman had succumbed to injuries received that night.
He explained that he made that statement, due to ‘shocks’, but maintained that he was speaking the truth. He also said that he would not be able to identify the car if seen again. He accepted that he had walked the room at the identification parade three times, and had said when he stopped in front of the appellant at the parade at number eight that ‘it looked like number 8’. He said that this did not mean that he was not sure who the assailant was. In fact, he explained this statement by saying, ‘I did that because I was scared of my life, I did that because I was scared’. He finally concluded in cross-examination by saying, ‘yes, the truth is, it look like him, it was really him’, but also agreed with the suggestion put to him by counsel for the defence, that if the person on the parade, had really been the assailant that night, he would not have said ‘it look like him’, but that ‘it was him’. In re-examination, he stated that the person that he had identified at the identification parade, was the person who had held him up and shot him on 14 June 2003.
Mr McCaulsky gave evidence that he was sitting at the table with Mr Gillings, with his back towards the pathway. He confirmed that the area was well lit. He said that he heard the car drive up, looked around and saw the two men coming down the pathway. He said that the men got to a distance of 4 feet from him, indicated that it was a hold up. One of them went on to the jerk pit, and then the man, closest to him who remained in the pathway, pointed a semi-automatic gun at him. He indicated that both of the men were armed. He then heard gunshots coming from the jerk pit. After several shots were fired, he saw the man who was in the pathway stumble and then go back up the pathway into the car. He said that he had seen Mr Gillings and Mr Reynolds with firearms that night and he observed that after the shooting, he saw that Mr Gillings was bleeding from his left arm and he saw another man lying face down in the pathway. He was not cross-examined.
Mr Reynolds was also sitting at the table with Mr Gillings, when he saw a car coming along outside the driveway. The car, he said, was a beige Toyota motorcar. He said the car backed into the driveway and a male person alighted from it. He came within 4 yards of him, with a pistol in hand and ordered the persons at the table to put their wallets on the table. He said another man with a revolver walked past them, and Mr Gilllings pulled his firearm and fired two shots, one to the person in front of them and one to the man who had walked past them. The person in front of them returned the fire, and he (Reynolds) then pulled his firearm and fired shots also. In his words, ‘[i]t was all pandemonium’, people were running around. He shot at the car that was then moving away. After the shooting stopped, he noticed that his worker Neil Wright had been shot and killed. He said that the gun used to kill him was a .38 revolver, and he described the guns held by the gunmen as ‘chrome, shine’. He testified that he was a licenced firearm holder and that his firearm was a ‘super 38’ which used super 38 ammunition, and on that night he had used five rounds. He confirmed that the place was well lit. He said that the police came on the scene and searched the area and found ‘the firearm’. They also took his gun from him, although it had since been returned to him. He was not cross-examined.
Miss Grace Plummer gave evidence that she operated the jerk pit at 65 Golden Way and on that night she was in the jerk pit about 6 feet from the table where Mr Gillings was seated with Mr McCaulsky, Mr Reynolds and others. She confirmed that Mr Gillings was facing the passage, whereas with regard to the other two men, one had his back turned to the entrance and the other faced the side of Mr Gillings. She observed a brown silver looking Corolla motorcar reverse into the entrance with the engine still running and the lights still on. She saw a man come out of the car with a silver and black gun which he pulled from his waist and indicating that it was a hold up, ordered that no-one move, and that they should empty their pockets and keep their hands on their heads. She noticed a second man come out of the car and approached her with a gun in his hand also, which looked like a 38. He directed her to ‘[g]ive mi what you have’. She offered him two $5.00 which she placed on the table, he chucked her, then she...
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