Daley (Dermid) and Sylvannus McQueen v R
| Jurisdiction | Jamaica |
| Judge | PHILLIPS, JA |
| Judgment Date | 24 September 2010 |
| Judgment citation (vLex) | [2010] 9 JJC 2401 |
| Court | Court of Appeal (Jamaica) |
| Date | 24 September 2010 |
CRIMINAL LAW - Murder - No case submission
On 27 April 2005 the joint trial of Sylvannus M c Queen, Dermid Daley and Evon Williams for the offence of murder commenced in the Circuit Court in Savanna-la-Mar in the parish of Westmoreland. The particulars of the offence were that on 17 February 2004, they had murdered Sean Isaacs. The trial lasted several days and on 5 May 2005, the Crown offered no further evidence against the accused Evon Williams and the judge directed the jury to return a formal verdict of not guilty, which they did and he was discharged. On 18 May 2005, Sylvannus McQueen and Dermid Daley were convicted and sentenced to life imprisonment, with McQueen not to be eligible for parole before serving 25 years and Daley not before 20 years.
Dermid Daley filed an application for leave to appeal against conviction and sentence on 30 May 2005. On 1 May 2006, a single judge of this court granted leave to appeal, "in order for the court to consider whether or not the learned trial judge gave adequate directions on the issues of visual identification, credibility and reliability". This, she said was "in light of the evidence given by Emmanuel Campbell (who testified that he identified the applicant by way of recognition at the time of the commission of the offence) as well as the evidence of Sergeant Cleveland Williams as to what transpired on the identification parade held for the applicant McQueen which Mr. Campbell attended".
Sylvannus M c Queen filed an application for leave to appeal against conviction and sentence on 2 June 2005 and a single judge of appeal reviewed the application and refused leave to appeal. That application was therefore renewed before us.
The appeal and application were heard on 24 and 25 November 2009 and on 30 July 2010 we delivered our decision. We promised then to reduce our reasons to writing. This we now do.
The case for the prosecution
The case for the prosecution stated succinctly, is that Mr Sean Isaacs, otherwise called "Papa", was sitting at a bar in Retirement in the parish of Westmoreland with some people having a drink when one of those persons took out a firearm and shot him in the head and the chest, as a result of which he received injuries from which he died. The evidence led by the prosecution at the trial was to the effect that it was the applicant who had shot and killed the deceased and it was the appellant who had rented and was the driver of the "get away" car.
Of 12 witnesses called by the prosecution, there were only two eye witnesses, namely Emmanuel Campbell and Dain Parkinson, the former in respect of the appellant and the latter in respect of the applicant.
Mr Campbell testified that on the day that "Papa" died, 17 February 2004, he had been doing work for, "Killer Sanko" who was building a supermarket in Retirement. He recalled that at 2:00 pm he was mixing mortar when a red car drove up from the direction of Negril and stopped against the roadside, about eight feet from where he was. He said that the car was owned by a man known as "Berry". Mr Campbell said that as the car stopped, he was coming out of the building with two pans of concrete in his hands, when he saw the driver whom he had seen before sitting around the steering wheel in the red car. He identified the driver as the appellant.
Mr Campbell further said that he was able to see the appellant clearly as there was nothing covering his face. He said that he knew the appellant's father, who was called Danny, or "Danny Star", for a long time, "nuff years", indeed over ten years, and he used to see him often with "Papa" at the same place where "Papa" was killed, under the mango tree by the bar known as "Eddie". He also used to talk to Danny often. He however did not know the appellant's name. The bar, he said was about a chain away on the other side of the road. He said that the last time he had seen the appellant was at the said bar about 3?5 months previously, and on that occasion there had been a party and the appellant had been there for about five or six hours, from the day into the night. Danny had been there also. He described the bar at the time of the incident as being one big round table around which persons sit. This table was under a mango tree.
Mr Campbell swore that he had known the appellant about one year before the incident and he said at first that he had not seen him often during that period and then when pressed by Crown Counsel and the learned trial judge to be more specific he stated, "every other month" he "pass me and go a Berry", that is the owner of the said red car. He would see him both in the day and in the night.
Mr Campbell said that on the day in question while working he heard "gunshot fire", coming from the bar at the mango tree. He said that he then saw a man running from that direction with a gun in his hand and while he was running he was firing his gun in the direction where the people were sitting. He said that he saw the man with the gun run to the red car, go inside the back seat of the car and "hide there." Then the car drove off "fast". He said that the appellant did not come out of the car at any time while the car was parked there, which was for about 20 minutes, and he observed his face for about three to four minutes.
On 5 March 2005, he attended the Negril Police Station as he put it, to identify "Danny Star's"' son as it was he that he had seen at the wheel of the red car that day. He said there were nine persons on the identification parade and they all had on masks, that is, cloths around their heads, and without any assistance from anyone he said he pointed out "Danny Star's" son.
In cross-examination Mr Campbell when pressured agreed that he had stated at another time before "a judge" that he had only seen the appellant's face once before. He agreed that the windows of the car were tinted but said that they were at half mast and so he could see who was inside the car. It was then suggested to him that he had pointed out two different persons, which at first he said he did not recall doing and then he denied doing so, but accepted that he had said so at another time, and then finally agreed that he had pointed out two different persons on that day, but said that he could have made a mistake the first time.
It was then suggested to him that pointing out "Danny Star's son" as the person who drove the car on the day that "Papa" was killed was a mistake. It was further suggested that the other person that he first pointed out was a brown skinned person, which he denied, insisting that on the first parade he could not have made a mistake. Finally it was suggested to him that "Papa" was his good friend and used to buy him things and that was why he had come to court to make up this tale in respect of the appellant. Mr Campbell denied that "Papa" was his good friend, but said that he "just move with everybody in a the area... when him come in a the area". He said he bought liquor and food for everyone. It was further suggested to him, which he denied, that "Papa" gave him money.
In re-examination Mr Campbell indicated that he had pointed out "Danny Star's" son the second time, and he endeavored to explain why he had pointed out somebody else on the first parade. He said that there was no reason, but it was the first time he had done anything like that, he was frightened and he had panicked. He said he was told that he could point out anyone and so he did just that. He then confirmed that "Danny Star's" son was not on the first parade but he was on the second one. He also tried to make it clear that the appellant was not someone whom he had only seen once before but was someone whom he saw all the time.
The eye witness to the actual shooting was Mr Dain Parkinson. He testified that he knew Sean Isaacs, and he knew that he was also called "Papa". On 17 February 2004 at about 2:00 ? 3:00 pm he was under a graham mango tree at the bar in Retirement, Westmoreland with his brother, the deceased, a "rasta guy", and there were some other persons, who were sitting across the road, in a restaurant. He said that while drinks were being imbibed he noticed a Burgundy L Touring motor car drive up and stop on the left side of the road. This car, he said belonged to one "Berry" whom he did not know by any other name. He then saw someone come around the "flowers" tree and sit beside the deceased, whom he identified as the applicant. He said that the applicant was sitting there with them around the table. He said that he had seen the applicant before, on more than one occasion in Retirement District, but he did not know him, and he did not know his name. The first time that he had seen the applicant would have been about two months before in the daytime, and he had not spoken to him, save and except to say "hi". He had also seen the applicant about 4?6 times in the interim just driving past.
On the day in question he said that he could see the applicant's face as there was nothing obstructing his view, nor was there anything covering his head. Further he was sitting only 10?12 feet away from him. He said "Papa" greeted the applicant and invited him to have a drink. He was unable to say what was the content of the conversation, as he said they both had Bahamian accents and he did not understand what they were saying. They were sitting there for about 15 to 20 minutes when he heard more than one explosion coming from the direction of the applicant. He said he saw the applicant firing...
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