Craig Thompson & Anthony Blake v R
| Jurisdiction | Jamaica |
| Judge | Phillips JA |
| Judgment Date | 07 June 2019 |
| Neutral Citation | JM 2019 CA 41 |
| Date | 07 June 2019 |
| Court | Court of Appeal (Jamaica) |
[2019] JMCA Crim 21
SUPREME COURT CRIMINAL APPEAL NOS 59 & 65/2013
The Hon Miss Justice Phillips JA
The Hon Miss Justice P Williams JA
The Hon Miss Justice Edwards JA (AG)
Michael Lorne, Miss Damelia Young and Mikael Lorne for the appellants
Mrs Natalie Ebanks-Miller and Mrs Taniesha Evans-Bibbons for the Crown
Criminal Law - Murder — Appeal against conviction — Evidence — Admissibility — Whether there was misrepresentation of evidence — Whether judge failed to give adequate directions on circumstantial evidence, identification and alibi.
After hearing submissions in this appeal, we gave judgment on 31 May 2019 in the following terms:
These are the promised reasons.
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“1. Mr Blake's appeal against conviction and sentence is dismissed.
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2. Mr Thompson's appeal against conviction is dismissed.
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3. Mr Thompson's application for extension of time and for leave to appeal his sentence relating only to giving credit for the full time spent in custody before sentence is granted. The hearing of the application for leave to appeal is treated as the hearing of the appeal and is allowed. The sentence of life imprisonment with eligibility for parole after 25 years' imprisonment at hard labour is set aside, and in giving credit for the three years and five months spent in custody before sentence, a sentence of life imprisonment with eligibility for parole after 21 years and seven months' imprisonment at hard labour is substituted therefor.
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4. The sentences of both appellants are to be reckoned as having commenced on 29 July 2013.”
The appellants (Mr Craig Thompson and Mr Anthony Blake) sought to challenge their convictions (and, in the case of Mr Blake, his sentence) for the offence of murder on the grounds of misrepresentation of evidence; and the absence of adequate directions on circumstantial evidence, identification, and alibi. They were tried and convicted before Pusey J (the learned trial judge) for the said offence in the Home Circuit Court. On 29 July 2013, both men were sentenced to life imprisonment at hard labour, with Mr Thompson being eligible for parole after 25 years, and Mr Blake being so eligible after 15 years. They sought leave to appeal against their convictions, and with regard to Mr Blake, he also sought leave to appeal his sentence. On 3 August 2016, Morrison P granted leave to both appellants to challenge their convictions (and, in respect of Mr Blake, also his sentence), due to his concern as to the adequacy of the learned judge's directions on identification.
The Crown called seven witnesses in support of its case against the appellants.
The first was Mr Edward Pryce (father of Mr Dwight Pryce (the deceased)), who testified that on 4 February 2010, sometime after 12:00 pm, he visited Glen Drive, in the parish of Saint Andrew, where he saw his son lying face down motionless, with wounds to his forehead and chest. He also testified that he had identified his son's body to the doctor and the police at the post mortem examination.
Mr Timothy Allen was the Crown's second and sole eye witness. He testified that on 4 February 2010 at 1:30 pm, he was standing at the fence inside his friend Bobby's yard on Glen Drive. Whilst there, he saw both appellants with guns “[w]alking and looking and ‘schreechying’” up towards the deceased, who was “coming up Dead Man's Lane towards Glen Drive”. He stated that he knew both men before, Mr Thompson as “Rass” or “Rasta” for three to four years, and Mr Blake as “Barry” for over 15 years. The deceased was coming from the “gully bank” where he went to buy cash pot. After he saw the deceased, Mr Allen said he heard “[a] very loud gunshot” and then the deceased fell on his face. He stated that other people were on the lane at the time but he indicated that only the appellants had guns. Both appellants ran, and Mr Allen testified that thereafter he went to look at the deceased, and observed blood coming from his head, chest and “all over”. He then ran off to call a relative of the deceased and saw Judith, the deceased's sister. He made a report to the police that day and later gave a statement to the police. On 16 February 2010, he identified both men at an identification parade.
Mr Allen was asked questions in relation to photographs of the scene that had been placed on a CD and tendered and admitted into evidence as exhibit two. Mr Allen identified where he was at the time of the incident, and indicated that nothing had obstructed his view of the incident. Mr Allen testified that photographs numbered 29, 30 and 31 depicted where he was standing, and that from where he was standing, he could “see everything clean and clear”.
Under cross-examination it was suggested to Mr Allen that during the preliminary enquiry at the Half-Way-Tree Parish Court, he had told the court that he was “sitting under a mango tree about to eat a mango”. He denied eating the mango but indicated that at times he was sitting and sometimes standing. Mr Allen denied that he was at his house at the time of the shooting. Mr Allen admitted that trees and flowers were at the fence from which he had observed the incident, and that portions of the fence were built with blocks and mesh wire, but denied that they would have restricted his ability to see. He also admitted that the deceased was his “good friend” and that he had known him since he was a child.
The scene of crime expert, Detective Corporal Leighton McAnuff, testified that when he visited the scene on the date of the incident, he had examined, photographed, sketched and processed the scene. He observed a male body lying motionless face down, and several spent shells in close proximity to the body. After returning to the Constant Spring Police Station, he swabbed the appellants' hands to test for gunshot residue, and the samples were bagged and labelled. The photographs he took of the scene were placed on a CD that was, as indicated, admitted into evidence as exhibit two. Under cross-examination, he described a wall in the photograph as a “high concrete block wall” with “bushes and trees on both sides”.
Detective Sergeant Desmond Roache conducted the identification parade where Mr Allen identified both men. Detective Corporal Sophia Pink was the investigating officer in the matter. She indicated that upon visiting the scene, she saw the body of the deceased with wounds to the head, foot and bottom. She collected the ballistic certificates that were tendered and admitted into evidence as exhibit three. Dr S N Prasad Kadiyala, medical practitioner and consultant forensic pathologist, testified that he conducted the post mortem on the body of the deceased and he observed six gunshot wounds to the: (i) right upper buttocks; (ii) right mid buttocks; (iii) right mid thigh; (iv) right lower anterior chest; (iv) right temporal region of the head; and (vi) right occipital region of the head. The cause of death was multiple gunshot wounds to the head.
The Crown's final witness was Miss Marcia Dunbar, government analyst at the Forensic Science Laboratory. She testified that on 12 February 2010, she received samples in envelopes marked ‘A’, ‘B’ and ‘C’ which she had analysed for gunshot residue. Envelope A contained four samples taken from the hands of the deceased; envelope B contained four samples taken from the hands of Mr Blake; and envelope C contained four samples taken from Mr Thompson's hands. Only two samples taken from the deceased revealed the presence of gunshot residue where an elevated level was found on the back of his right hand, and gunshot residue at an intermediate level was found on the swab taken from his right palm. Two samples from Mr Blake revealed the presence of gunshot residue at the trace level on the palm and the back of his left hand. Of the samples taken from Mr Thompson, gunshot residue at trace level was found in the right palm. She later compiled a certificate based on her findings. Under cross-examination by counsel for Mr Thompson, Miss Dunbar admitted gunshot residue could be transferred to a person who came in contact with it; that trace level is the lowest form of contamination; and that gunshot residue from an elevated level could be transferred to a person being handcuffed.
Mr Blake gave an unsworn statement in which he denied killing the deceased or being present when he was killed. He stated that on the date in question, he and Mr Thompson were playing a game. They later went “on the Gully Bank in a shop buying some weed when [they] heard gunshots”. He then saw people running “up and down, coming from Glen Drive side” on to the “Gully Bank”. He was there for a while and decided to leave once the police had arrived because he had some weed in his possession. After leaving the shop, he went to the next lane to “build” and smoke his weed. He later received a phone call that the deceased's sister was crying at the police station and saying that he had killed the deceased. He therefore went to the police station. He lamented the fact that he had been in custody since 4 February 2010, almost four years, for a crime that he had not committed. He said that Mr Allen could not have seen him because he had not been there.
Mr Ricardo Blake, Mr Anthony Blake's brother, testified on his behalf. He stated that on the date in question, between 12:00 pm to 1:00 pm, he was on Dead Man's Lane where the deceased went to buy cash pot. Upon the deceased's return, Mr Blake stated that he heard “a loud explosion”. He then turned around and saw two men who “were strangers in the area”, firing shots at the deceased until he fell to the ground. After firing at the deceased, one of the men bent down and picked up something. He ran off to go home and on his way back, he saw Mr Allen “coming out his house and...
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