Clifton Harrison v R
| Jurisdiction | Jamaica |
| Judge | Brown JA |
| Judgment Date | 18 March 2022 |
| Neutral Citation | JM 2022 CA 33 |
| Court | Court of Appeal (Jamaica) |
| Docket Number | SUPREME COURT CRIMINAL APPEAL NO 14/2017 |
[2022] JMCA Crim 15
THE HON Mrs Justice McDonald-Bishop JA
THE HON Mrs Justice V Harris JA
THE HON Mr Justice Brown JA (AG)
SUPREME COURT CRIMINAL APPEAL NO 14/2017
IN THE COURT OF APPEAL
Gladstone Wilson for the applicant
Mrs Tracy-Ann Robinson and Miss Vanessa Campbell for the Crown
Brown JA (AG)
The applicant, Clifton Harrison, was convicted on 27 January 2017, after a trial lasting several days before David Fraser J (as he then was) (‘the learned judge’) and a jury of the murder of Louise Barnes (‘Miss Barnes’) on a day unknown between 30 September 2009 and 2 October 2009. On 27 January 2017, he was sentenced to life imprisonment with the stipulation that he serves 32 years before becoming eligible for parole.
His application for leave to appeal his conviction and sentence was considered by a single judge of this court on 21 May 2020 and refused. As is his right, he renewed his application for leave to appeal his conviction and sentence before this court, which we heard on 1 and 2 July 2021. At the conclusion of the submissions, we reserved our decision.
We will now consider the several grounds of appeal, together with the submissions and arrive at a decision. However, before embarking upon these considerations, it is appropriate that we encapsulate the evidence and material that was placed before the jury, and upon which, ultimately, they returned an adverse verdict.
The case for the prosecution was wholly dependent on circumstantial evidence, inclusive of forensics, from the fact of death, through the identification of Miss Barnes to the nexus of her homicide with the applicant. The evidence at the trial swirled around the fact that Miss Barnes was missing; the efforts to find her, which involved much interaction between the family of Miss Barnes and the applicant; and, ultimately, the forensic examination of the house she owned at Wellside Lane, Old Harbour in the parish of Saint Catherine (‘the Wellside Lane property’). The prosecution's case, understandably, commenced with evidence about Miss Barnes' last sighting and her connection to the Wellside Lane property.
It was the prosecution's case that Miss Barnes was last seen alive on 30 September 2009. Miss Barnes left her home in Saint Thomas to visit the Wellside Lane property, where the applicant resided. Miss Cashara Williams, Miss Barnes' neighbour, saw her walking pass her home towards Cotton Tree Square, carrying a travelling bag and her handbag.
On 2 October 2009, the Old Harbour police received information that led them to Thetford Farm in Old Harbour, where they discovered burnt human remains, with parts of both legs and arms lying separately from the rest of the body. A post mortem examination was done by Dr Prasad, a forensic pathologist, at the location, on the burnt human remains. Dr Prasad gave a part of the femur and mandible of the human remains to the police. This was taken to the Institute of Forensic Science and Legal Medicine (‘IFS&LM’) for analysis. The cause of death was, in the opinion of the pathologist, due to blunt force injury to the head.
Miss Barnes' sister, Mrs Ida Johnson (‘Mrs Johnson’), received information as a result of which she tried to contact the deceased by phone. She also contacted other relatives in order to find out if they knew the whereabouts of her sister. Unfortunately, the efforts made to locate Miss Barnes proved futile. Miss Barnes' two children, Nigel Williams (‘Mr Williams’) and Verinea Bourne (‘Miss Bourne’), who resided overseas, were also made aware.
On 12 October 2009, Mrs Johnson made a missing person's report about her sister at the Old Harbour Police Station. The police thereafter accompanied her to the Wellside Lane property. The applicant was at the premises. They went inside the house, where the police noted that there was a bed in one of the rooms without a mattress.
The applicant told the police that Miss Barnes had instructed him to burn the mattress as it was infested with ‘chinks’ (bed bugs). Sergeant Lawrence, one of the police officers who went to the house with Mrs Johnson, also testified that the applicant told him that Miss Barnes had visited the house and had left on 25 September 2009 to Kingston en route to Saint Thomas and he had not seen her since.
The Crown also relied on forensic evidence based on tests or analyses done on samples collected from the house. Miss Brydson, a former Government Forensic Analyst, visited the Wellside Lane property, collected samples from both bedrooms and made certain observations about the premises. Based on her visit, Miss Brydson concluded that there was no sign of forced entry to the dwelling house, an injured person came in contact with the bed linen in the north-western bedroom (the applicant's room) and that an individual was injured in the north-eastern bedroom (Miss Barnes' room).
Miss Brydson collected samples of what appeared to be bloodstains for further analysis. Among the samples collected were a swab from a brown drop on the southern door of Miss Barnes' bedroom and a sample from a brown stain on a white lace runner in that bedroom.
Deoxyribonucleic acid (‘DNA’) analysis was conducted on the ten samples collected from the house at Wellside Lane, a portion of the mandible and femur from the severely burnt human remains, and buccal swabs from Miss Barnes' son, Mr Williams and her daughter, Miss Bourne. According to Mrs Brydson's evidence, the DNA analysis revealed that the mandible and femur contained female DNA. In addition, DNA analysis done on the femur and the mandible and the DNA obtained from the buccal swabs taken from Miss Barnes' children revealed a maternal relationship between the deceased and Miss Bourne and Mr Williams.
The two samples taken from the white lace runner in Miss Barnes' bedroom corresponded with the DNA findings of the mandible and femur. These tests showed that the burnt remains found at Thetford Farm were those of Miss Barnes and that she had been injured in the house at the Wellside Lane property. Further, the applicant was in control of the premises. There was no sign that the house had been broken into, neither was there any record of any report of any such incident.
The Crown also relied on oral statements made by the applicant to the police as well as a written cautioned statement and a question and answer interview in which he gave two different dates as to when he had accompanied Miss Barnes to the bus stop.
At the end of the prosecution's case, counsel for the applicant made a submission of no case to answer, which was rejected by the learned judge. The applicant then made an unsworn statement from the dock. In his statement, the applicant described himself as a forklift operator. He met the deceased sometime in August 2007 and became the caretaker of the Wellside Lane property. The deceased visited the property in September 2009. However, she left on 25 September at about 5:30 am. At about that time, at her request, and by prearrangement, he walked with her to the entrance of Wellside Lane. He waited with her there until she boarded a public passenger bus that was coming from the direction of May Pen and going towards Kingston. After seeing her off, he returned home, slept for about half an hour, had breakfast, then left to Kingston to conduct business. That was the last time he saw or heard from Miss Barnes.
Three weeks later, he received a telephone call from Mrs Johnson. That call caused him to return to the Wellside Lane property. On his arrival, he saw Mrs Johnson in the company of two other women. Mrs Johnson told him that she had not heard from Miss Barnes in three weeks. That news traumatised him. He commented that he would sadly miss her. He and Miss Barnes had never quarrelled, had any misunderstandings or issues. He ended by saying, she would take things for him on her visits to the property.
At the commencement of the hearing, the applicant sought and obtained leave to abandon the original grounds of appeal filed in the Criminal Form B1 and to argue five supplementary grounds filed on 8 April 2021. The supplementary grounds are listed below:
“1. The [learned judge] fell into error by not upholding the non-case [sic] submission made on behalf of the Appellant and so allowed the Jury to speculate about possible, credible inferences from suggested information unconnected to any act of murder.
2. In his charge to the Jury the [learned judge] used two different standards of credibility that should be applied which was unfair to the Appellant and obviously contributed to the verdict of guilty.
3. The good character of the Appellant did not benefit from a fulsome direction which would have the effect of placing the Appellant's position in a favourable light which was a requirement in the circumstances.
4. The evidence adduced during the trial can best be described as tenuous and suggestive leading to a verdict that is inconsistent with any logical conclusion of guilt. This inconsistent verdict was also encouraged by some of the directions given by the [learned judge] that were unfair to the Appellant's expectation of a fair treatment of his case.
5. The sentence imposed by the [learned judge] was excessive in all the circumstances having regard to sentences handed down in other cases of Murder based partially or wholly upon circumstantial evidence.”
Mr Wilson, on behalf of the applicant, made submissions under grounds one and four together. The complaint under ground one was that the prosecution failed to forge a scientific link between the applicant and other confirmatory DNA samples from the crime scene. In the face of that failure, the...
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