Christopher Thomas v R

• Jurisdiction: Jamaica
• Judge: Morrison P
• Judgment Date: 31 July 2018
• Neutral Citation: JM 2018 CA 88
• Docket Number: SUPREME COURT CRIMINAL APPEAL NO 78/2013
• Court: Court of Appeal (Jamaica)

[2018] JMCA Crim 31

IN THE COURT OF APPEAL

Before:

THE HON Mr Justice Morrison P

THE HON Miss Justice P Williams JA (AG)

THE HON Miss Justice Edwards JA (AG)

SUPREME COURT CRIMINAL APPEAL NO 78/2013

Christopher Thomas

and

R

Lord Anthony Gifford QC and Vernon Daley for the applicant

Miss Kathy-Ann Pyke and Leighton Morris for the Crown

Morrison P

Introduction

1 The applicant has now been tried three times for the murder of a detective corporal of police, Mr Dave Daley (‘the deceased’). The first trial, which took place in February 2008, resulted in a hung jury. The second trial resulted in his conviction on 5 May 2010. On that occasion, he was sentenced to a term of imprisonment for life, with the stipulation that he should not become eligible for parole until he had served a minimum of 30 years. On 30 September 2011, the applicant's appeal against this conviction and sentence was allowed and, in the interests of justice, the court ordered a new trial 1. The ground on which the appeal succeeded was that the conduct of prosecuting counsel in the cross-examination of a witness for the defence, and the trial judge's inaction in the face of it, were such as to undermine the integrity of the trial and thereby rendered it unfair.

2 The applicant's new trial for the murder of the deceased again took place in the Home Circuit Court, this time before Sykes J (as he then was) (‘the judge’) and a jury, in July 2013. On 11 July 2013, he was again convicted and, on 20 September 2013, the judge sentenced him to a term of 40 years' imprisonment at hard labour, with a stipulation that he should serve a minimum of 20 years before becoming eligible for parole.

3 The applicant applied for leave to appeal against his conviction and sentence. The application having been considered and refused by a single judge of appeal on 28 August 2015, the applicant now renews the application before the court. The basis of his application is that the trial was vitiated by unfairness on the part of prosecuting counsel in her conduct of the case, as well as by error on the part of the judge.

4 The case for the prosecution was based on the testimony of two eye-witnesses to the killing of the deceased, Messrs Leighton Gallimore and Haroon Smith. Although there were some differences in detail between them, their evidence was to the general

effect that, on the evening of Monday, 12 February 2007, the applicant shot and killed the deceased at a high-rise residential complex in the Brook Avenue community in the parish of Saint Andrew. On the evening in question, it appeared that someone tossed a stone, described in the evidence as about the size of a cricket ball, from an upper floor of the complex. The stone fell in front of a car being driven by the deceased. He stopped and got out of the car, apparently to investigate. Armed with a gun, he gave chase to a man, known only as Joel, who was standing nearby. The deceased discharged a shot from his firearm in Joel's direction, whereupon Joel fell to the ground. As the deceased walked towards Joel, the applicant ran up behind the deceased, pulled a gun from his waist and shot him in his back. The deceased fell and the applicant continued to fire shots at him. Shortly afterwards, the applicant went over to Joel's body, before returning a few minutes later, accompanied by another man, to the spot where the deceased had fallen. The applicant and the other man then fired several further shots (“too numerous to count”) at the deceased. During the first and second shooting of the deceased by the applicant, according to one of the eye-witnesses, the deceased was murmuring and crying for help. After the shooting subsided, the applicant and the other man fled; and the place fell quiet until the police arrived

5 The police response was led by Superintendent Michael Phipps, who was then the Deputy Superintendent of Police in charge of investigations for the Saint Andrew South Division. Upon his arrival at the scene of the shooting at some time after 9:50 pm on 12 February 2007, he saw and spoke to other police officers who had preceded him there. He also received further information and observed the dead bodies of two persons. He recognised one of them as that of Detective Corporal Dave Daley, who was known to him previously, and the other was later identified as that of a Mr Joel Anderson of the Brook Valley Community. Superintendent Phipps testified at trial that, during the ensuing investigation of the double homicide, both on the night of 12 February 2007 and afterwards, he interviewed “several persons who were potential witnesses … [and] also caused statements to be recorded” 2. Messrs Gallimore and Smith were among the persons from whom he recorded statements subsequent to the night of the killings.

6 At the trial, both eye-witnesses positively identified the applicant as the person who shot the deceased. Mr Gallimore testified that the applicant had been known to him for three years before 12 February 2007; while Mr Smith said that he and the applicant grew up in the same community and he had therefore known the applicant from childhood. Both eye-witnesses said that the state of the lighting, the distance at which they were able to observe the applicant and the general circumstances in which he was seen were adequate to allow them to identify him correctly.

7 The applicant gave evidence on his own behalf. He said he lived on one of the blocks in the complex. On the evening in question he was on the pathway between his block and another talking on his cell phone when he heard explosions. He went to his aunt's house, which was on the third floor of the same block on which he lived. He spent some 45–50 minutes there before returning to the pathway downstairs, where he

saw a lot of people, objects on the ground, police tape, police officers and a line of police cars at the scene. At that point, he called a taxi-cab and went off to his girlfriend's home on Molynes Road, where he remained for the rest of the week. He did not have a gun with him that night, nor did he shoot anyone

8 On 25 February 2007 3, accompanied by his attorney-at-law, the applicant turned himself in to the police, after hearing on the television news that he was wanted by them. In answer to his counsel in examination-in-chief, he told the court that he had no criminal convictions and that, before his arrest, he had had plans to further his education by pursuing a degree in business management or marketing.

9 The judge told the jury 4 that identification was “at the heart of this case” and directed them extensively on the issue. In his written submissions on behalf of the applicant 5, Lord Gifford QC described the judge's directions on identification as “most thorough and fair”; and, in the result, no issue of identification arises on this application for leave to appeal.

10 But the applicant complains that (i) his right to fair trial was fatally compromised by persistently improper conduct on the part of prosecuting counsel at his trial (grounds 1 and 2); (ii) the judge failed to give proper or adequate directions to the jury as to how to treat with evidence of his good character (ground 3); and (iii) the judge erred in

withdrawing the question of defence of another from the jury's consideration (ground 4). The applicant also complains that the sentence which the judge imposed was manifestly excessive in all the circumstances of the case

The fair trial issue

11 Grounds of appeal 1 and 2 are as follows:

Ground 1

“The fair trial of the Applicant was fatally compromised by the conduct of prosecuting counsel during the evidence in chief of Detective Superintendent Phipps, in that she repeatedly asked improper and irrelevant questions designed to convey to the jury that there were other witnesses who had implicated the Applicant, other than the witnesses Leighton Gallimore and Haroon Smith who were called at the trial …”

Ground 2

“The fair trial of the Applicant was further fatally compromised by the conduct of prosecuting counsel during her cross-examination of the Applicant, in that she repeatedly asked improper questions, suggesting that the Applicant's wish to obtain legal representation before he turned himself in at a police station was evidence of his guilty knowledge. Prosecuting counsel continued with this improper line of questions in defiance of the rulings of the learned trial judge, and by her demeanour disrespected the learned trial judge …”

12 These grounds, as will have been seen, relate specifically to the conduct of prosecuting counsel in, first, her examination-in-chief of the investigating officer, Superintendent Phipps; and, second, her cross-examination of the applicant. It is therefore necessary, as Lord Gifford very helpfully did in his supplemental grounds of appeal and written submissions, to refer to the passages complained of in some detail.

13 Early on in examination-in-chief, prosecuting counsel led evidence from Superintendent Phipps that, on the night of the killings and afterwards, he interviewed several potential witnesses and caused statements to be recorded from them. He begun to add that he obtained the name of someone, but he was stopped by a successful objection by Lord Gifford (who also appeared for the applicant at the trial). The following exchanges between prosecuting counsel, the witness and the judge then ensued 6:

“Q. Now, based on having received statements …

A. Yes, ma'am.

Q. … and your observation that you made, did you commenced [sic] investigation against anyone in relation to this matter.

LORD GIFFORD: No, please. I object to that question. Both my friend and the officer know quite well what the hearsay rule is about.

HIS LORDSHIP: I don't know, don't know what the officer knows.

LORD GIFFORD: But certainly, my friend knows.

HIS LORDSHIP: Yes, ….

Q. You said —— so did you commence investigation into any...