Danny Walker v R
| Jurisdiction | Jamaica |
| Judge | Mcdonald-Bishop JA |
| Judgment Date | 15 January 2018 |
| Neutral Citation | JM 2018 CA 17 |
| Court | Court of Appeal (Jamaica) |
| Docket Number | SUPREME COURT CRIMINAL APPEAL NO 78/2012 |
| Date | 15 January 2018 |
[2018] JMCA Crim 2
IN THE COURT OF APPEAL
THE HON Mrs Justice Mcdonald-Bishop JA
The Hon Mrs Justice Sinclair-haynes JA
The Hon Miss Justice Edwards JA (Ag)
SUPREME COURT CRIMINAL APPEAL NO 78/2012
Miss Jacqueline Cummings for the applicant
Mrs Sahai Whittingham-Maxwell and Mrs Natiesha Fairclough-Hylton for the Crown
Evidence - Identification evidence — Prior knowledge — Recognition — Dock identification — Whether trial judge erred in his direction on dock identification and absence of an identification parade — Hearsay — Previous convictions — Whether trial judge erred in allowing evidence of previous convictions into evidence.
Following a retrial in the Home Circuit Court, conducted before Thompson-James J sitting with a jury between 14 and 24 May 2012, the applicant, Danny Walker, was convicted on an indictment that charged him with the offence of murder. The particulars of the offence are that on 1 October 2002, he murdered Nyrokie McDonald. On 13 July 2012, he was sentenced to life imprisonment with the stipulation that he should serve a minimum of 25 years before being eligible for parole.
The applicant sought leave to appeal his conviction and sentence. On 8 June 2015, the application for leave to appeal was considered and refused by a single judge of the court. The applicant renewed his application before this court.
The main witness, on whom the prosecution depended to prove their case against the applicant, was Mr Christopher Robinson, who was the sole eyewitness. His evidence established that on 1 October 2002, at about 10:00 in the night, he was among a group of five men standing on a sidewalk in the Bowerbank area in the parish of Kingston. The deceased was a member of the group. Whilst the men were on the sidewalk, a white Nissan Sunny motorcar drove up and Mr Robinson noticed that the driver of the vehicle was the applicant, whom he knew as “Mr Piggy”. The back windows of the motorcar were up while the front ones were down.
The motorcar drove pass the men, then reversed and stopped beside Mr Robinson. When the motorcar came to a stop, Mr Robinson observed that the applicant was in the company of a female who occupied the front passenger seat. The applicant, who was in the driver's seat, pointed a firearm through the window by the driver's seat and fired in the direction of the men. Mr Robinson ran off and upon his return to the scene of the shooting, he saw the deceased, who appeared to be dead. The deceased was taken to the Kingston Public Hospital and Mr Robinson also went to the hospital.
Later the same night, after having returned from the hospital, Mr Robinson returned to the scene of the incident and saw the applicant drive up and park the same Nissan Sunny motorcar that he was driving at the time of the shooting. He then came out of the motorcar, took out a black firearm, placed it on the top of the motorcar and lit a cigarette. The applicant remained at the location for a while and then drove off.
The police commenced investigations into the fatal shooting of the deceased and on the early morning of 2 October 2002, visited the scene of the shooting and collected an expended bullet and two spent shells. These items were subsequently taken to the Government Forensic Laboratory on 3 October 2002, where ballistic testing was conducted.
On 30 May 2003, almost eight months after the shooting, the applicant was seen by Detective Inspector Phillip McIntosh in a bar acting suspiciously. A search was conducted of his person and a firearm containing eight live rounds was recovered from him. When he was cautioned, he said, “[o]fficer, a me brethren gimme feh sell”. The applicant was arrested and charged with the offences of illegal possession of firearm and illegal possession of ammunition and the items taken from him were submitted to the forensic laboratory for testing.
Ballistics tests done on the firearm recovered from the applicant revealed that the expended bullet and two spent shells that the police had recovered from the crime scene at Bowerbank came from that firearm.
On 27 June 2003, a warrant of arrest for the offence of murder was executed on the applicant. Upon being cautioned, the applicant denied committing the offence and also denied knowing the deceased.
No identification parade was held in respect of the applicant because the investigating officer was of the view that the applicant's attendance at court on the previous charges of illegal possession of firearm and ammunition had exposed him to the public.
A post mortem examination conducted on the body of the deceased revealed that the cause of death was a gunshot wound to the chest.
The applicant gave sworn evidence and put forward a defence of alibi. He said that he was in Clarendon in the company of a female cousin at the time of the incident. He denied involvement in the commission of the offence and denied knowing Mr Robinson and the deceased. He admitted, however, that he is called “Piggy” and that he owned a white Nissan Sunny motorcar at the time of the incident.
The applicant filed four grounds of appeal (the original grounds) and Miss Cummings, on his behalf, sought and obtained leave to argue what she posited as being four supplemental grounds. The original grounds and one supplemental ground relate to conviction and the other three supplemental grounds concern sentence. In substance, the grounds of appeal argued before us in relation to conviction and sentence were as follows:
Conviction
“1. Mis-identity by the witness:— That the prosecution witnesses wrongfully identified me as the person or among any persons who committed the alleged crime.
2. Lack of Evidence:— That during the trial the prosecution, witnesses presented to the Court, conflicting and contrary testimonies in respect of the material evidence which calls into question the integrity of the witnesses testimonies and the fairness of the verdict.
3. Unfair trial:— That the evidence and testimonies upon which the learned trial judge relied upon for the purpose to direct the jury, lack facts and credibility thus rendering the verdict unsafe in the circumstances.”
3a. The disclosure to the jury of the applicant's conviction for illegal conviction for illegal possession of firearm and ammunition has rendered the trial unfair. [supplemental ground]
“4. Miscarriage of Justice:— That the Court wrongfully convicted me based on hearsay evidence versus facts as is evident in the case.”
Sentence
“5. The [s]entence is not in our opinion excessive having regard to the conviction for murder.
6. However we would like the court to consider amending it to instead of [l]ife [i]mprisonment with 25 years before he can apply for parole would the court be minded to substitute the term of imprisonment of 25 years instead.
7. There is a disadvantage suffered by person who are given a term of year before parole than those who are given a term of year to serve.”
Five core issues for the determination of this court have been distilled from the grounds of appeal and the arguments advanced on behalf of the applicant. They are as follows:
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i. whether Mr Robinson was mistaken in his identification of the applicant, thereby rendering the conviction unsafe;
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ii. whether the verdict is unfair and unsafe due to lack of evidence and credibility of the prosecution witnesses;
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iii. whether the learned trial judge erred in allowing evidence of the applicant's previous convictions for illegal possession of firearm and ammunition to be admitted in evidence;
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iv. whether there has been a miscarriage of justice as a result of:
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a. an omission in the statement of the eyewitness;
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b. the break in the chain of custody;
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c. the jury's reliance on hearsay evidence; and
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v. whether the sentence of life imprisonment imposed on the applicant is unfair.
The applicant contended that the main prosecution witness, Mr Robinson, wrongfully identified him as the person who committed the alleged offence. Miss Cummings indicated that although she could find no fault with the learned trial judge's directions on identification, the conditions under which the witness purported to identify the applicant were such as to render the evidence of identification weak, unreliable, incredulous and ought not to have been believed. Miss Cummings pointed to the following facts as establishing the unfavourable circumstances in which the purported identification was made:
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(i) 10:00 at night;
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(ii) the assailant was in a motor vehicle;
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(iii) no light in the car;
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(iv) car windows tinted;
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(v) witness viewed the assailant for 13 seconds;
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(vi) frightening experience as shots were fired;
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(vii) street lights 15 feet and 30 feet away;
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(viii) applicant and his brother resemble and can only be differentiated when they are beside each other;
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(ix) witness last saw the applicant two years before the incident;
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(x) no identification parade was held for the applicant; and
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(xi) dock identification.
For the Crown, Mrs Whittingham-Maxwell submitted that that the identification evidence was sufficient to found a conviction particularly as it rested on recognition and not on a fleeting glance. She maintained that the argument advanced by the applicant is untenable within the context of the evidence as to prior knowledge, the duration of the observation, the lighting, the distance, and the admission of the applicant that at the time in question, he owned and drove a white Nissan Sunny motorcar. We accept the contention of counsel for the Crown.
It was the evidence of Mr Robinson that he...
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