Cox et Al v R

• Jurisdiction: Jamaica
• Court: Court of Appeal (Jamaica)
• Judge: Rattray, P.
• Judgment Date: 20 December 1995
• Neutral Citation: JM 1995 CA 65
• Docket Number: Criminal Appeal 104 & 105 of 1993
• Date: 20 December 1995

Court of Appeal

Rattray, P., Gordon and Patterson, JJ.A.

Criminal Appeal 104 & 105 of 1993

Cox et al

and

R.

Appearances:

Dennis Daly, QC., and Walter Scott for applicant Cox.

Robin Smith for applicant Howell.

Miss Carolyn Reid and Mrs. Valerie Stephens for the crown.

Criminal Practice and Procedure - Leave to appeal — Seven counts of capital murder — Quality of identification evidence — Whether the trial judge erred in law in allowing the case to go to the jury — Court held that the trial judge in ruling that there was a case to answer was indicating that the applicant was in his view guilty of the counts which had been confined in the no-case submission — Appeal was allowed.

Rattray, P.

1 On the 27th October 1993 Irving Cox and Floyd Howell were convicted in the Home Circuit Court on seven counts of capital murder and from this conviction they have applied for leave to appeal. The trial before Harrison, J. and a jury lasted several days and involved detailed cross-examination of witnesses and submissions by counsel. The venue of the murders for which the applicants were charged was Seaview Gardens in the parish of St. Andrew.

2 On the night of Saturday the 24th February 1990 there was a set up or wake or nine-night being kept on premises lot 1623 Seaview Gardens for a deceased person, Howard Dennis who had been gunned down a few days before in that community. Present were about fifty persons in the house, in the pathway or lane and on the premises. They were engaged in the normal activities attendant on such an event, singing, playing dominoes and other games, eating and drinking. The area was lit by a street light and an electric light connected to the outside of the house.

3 At about 1:30 a.m. to 2:00 a.m. on the 25th February, a group of about seven men, dressed in black and some armed with guns, invaded the area, causing the assembled persons to scatter in panic. Some of them ran into the dwelling house occupied by the Dennis family. Suffice it to say, the gunmen entered the house and executed by shooting seven men who had sought refuge there.

4 The narrative of the events which took place on that gruesome early morning is recorded in the testimony of the three eye-witnesses who escaped the slaughter in the Dennis home — Lascelles Dennis, Jnr., called ‘Little Demus’, a brother of the deceased man for whom the wake was being held, his father Lascelles Dennis, Snr., and one Howard Johnson. The crux of the determination as to whether the convictions should stand is to be found in the identification evidence with regard to the presence and participation of the two applicants. Supporting this is the evidence of the police witnesses who investigated the murders. The defence was a denial by the applicants of their presence and participation put forward in the case of Irving Cox by means of an unsworn statement and in the case of Floyd Howell from the witness box by way of an alibi supported by a witness, his aunt, one Velmore Tomlinson.

5 On behalf of the applicant Irving Cox, Mr. Dennis Daly, Q.C. supported by Mr. Walter Scott of counsel made the quality of the identification evidence the main thrust of their attack on the validity of the conviction and its ability to withstand the scrutiny of appellate review.

6 The motive for the massacre was either to silence witnesses or as a reprisal against the giving of statements in the previous murder of Howard Dennis. The witnesses as to identification claimed to recognise the two applicants as persons whom they had known prior to the incident.

7 The gunmen had come running or walking fast off the main around a corner of the narrow lane or pathway on which the Dennis’ home was situated. Their appearance caused sudden panic and a frantic effort on the part of those gathered there including the witnesses to escape to safety. As they ran they shouted ‘gunman, gunman’.

8 The quality of the identification evidence given by the three eyewitnesses was crucial to a determination as to the guilt of the applicants. With respect to the applicant Irving Cox, the witness Lascelles Dennis, Jnr., 19 years of age at the time of the murders, testified to having seen him on at least three occasions before in the Seaview community and at Machado on East Queen Street near the Palace Theatre. The last time he had seen him was about a month before. He was told that his name was ‘Short Piece’ and he knew him by that name on the night of the killing. He recognised among the men who came around the corner both applicants, Floyd Howell and Irving Cox whom he knew as ‘Short Piece’. He also recognised ‘Eddie Bap’, Peter and ‘Natty’. He ran inside his house and into his back bedroom shouting “gunman!” Everybody was running. In the back bedroom were several persons including his brother Christopher Gore, who was asleep in bed. The gunmen began banging at the front door calling out ‘police, police’. He heard ‘Eddie Bap’ whose voice he recognised asking for ‘Demus’, the name by which he is called. He hid in the bedroom behind a barrel and a hanging shelf. He then heard ‘Eddie Bap’ tell everybody to lie down and after that ‘Eddie Bap’ said “kill everybody.” The witness then heard gunshots. Christopher had awakened and had gone outside. He had heard the gunmen talking and Eddie “like him a say him come fi kill off the whole a mi family because dem a call up him name.” After same time he ventured out and found seven dead men, four in the dining room, two in the living room, and one in another bedroom. He had witnessed his brother Howard shot down a few days before and had given the names of ‘Eddie Bap’ and Peter to the police in connection with that murder.

9 The very morning of the killing of the seven men he gave a statement to Superintendent Donald Brown. It is important to note that in the statement given to Superintendent Brown he never called the name ‘Short Piece’ at all. The names he called as the persons he identified were Peter, ‘Eddie Bap’ ‘Natty’ and Floyd. He gave descriptions of three other men. A remarkable feature of the applicant Cox is that his face on the left side has a large scar running down from the hair line at the forehead to below the left ear. No such description appears amongst those given by the witness to Superintendent Brown. He further stated that all the men except for ‘Natty’ who lives in Riverton, live in Seaview Gardens. The applicant Cox never lived in Seaview Gardens. The witness Howard Johnson was playing ludo at the wake when he saw seven men with guns rush around the corner in the lane. He knew five of them ‘Shorty Piece’, ‘Fly’ (Howell), Natty Morgan, ‘Eddie Bap’ and Peter.

10 The transcript reveals the following:

“HIS LORDSHIP: What parts of their body you could recognise?

A: Them in bare black so I couldn't recognise them body so good.

Q: So how you know is Fly and Shorty Piece?

A: Because I know them by their voice.”

11 He ran into the bedroom, some of the gunmen entered the house through the front and some through the back. ‘Shorty Piece’ went through the front. He heard ‘Eddie Bap’ say: “Kill off everybody,” and gun shots followed. Himself and others went through the bathroom top and into another house. He knew ‘Shorty Piece’ from South (Maiden Lane) but had never spoken to him before. The first time he spoke to him was at central police lock-up on the 16th of August 1990. ‘Shorty Piece’ and himself were in the cell alone at the police station and he pointed out ‘Shorty Piece’ to the police, Inspector Ivanhoe Thompson saying: “Is him that, Mr. Thompson.” ‘Shorty Piece’ laughed and said: “Do anything what you want to do.” He had seen ‘Shorty Piece’ at South about a month before. He knew Floyd because they lived in the same community near to each other.

12 In a statement given by him to the police on the morning of the killings he mentions the names of ‘Eddie Bap’, Peter, ‘Natty’ and Floyd, as among the seven gunmen he saw. He does not mention ‘Short Piece’. The other men he stated “are young men, between fifteen years and sixteen years old. They all live in Seaview Gardens.” The applicant Cox does not live in Seaview Gardens and does not fit any of the descriptions given.

13 The other witness as to identification was Lascelles Dennis Snr. the father of Lascelles Dennis Jnr., and of Howard Dennis, for whom the wake was being kept, and the step-father of Christopher Rose who was killed in the massacre. He was sitting in his living room with three friends on the fatal early morning. He heard strong running outside and shouts of ‘gunman!” People stampeded through his house. The living room glass was smashed and the applicant Howell came in with a long gun. He had known Howell for several years. Howell ordered all of them to lie down and said: “All of you going die tonight.” The others lay down but he went and stooped behind the settee. Howell held the gun to the heads of three men, Merrick, Lee Monteith and Jackson, and he heard three explosions. He heard gun shots also in other room He heard them searching next door for ‘Demus’ and three men passed the doorway, ‘Short Piece’, ‘Eddie Bap’ and Howell. When asked: “Who you call ‘Short Piece’?” He answered: “Cox.”

14 He had seen ‘Short Piece’ in Seaview quite a number of times. ‘Eddie Bap’ and Floyd had guns, but not ‘Short Piece’. ‘Short Piece’ and ‘Eddie Bap’ went through the dining room and Howell went through the glass door. However, before he went ‘Eddie Bap’ pushed in his head and asked Howell if everybody in there was dead and Floyd Howell said yes. ‘Eddie Bap’ questioned about the condition of one of the men who was dressed in green and Floyd fired another shot in the room. Mr. Dennis Snr. had identified the applicant in the dock as Cox. In cross-examination the following emerged:

“Q: This time you spoke of ‘Shortpiece’ and said his name was Cox. Did you say that?

A: Yes.

Q: So I ask you, when did you discover...