David Russell v R

• Jurisdiction: Jamaica
• Judge: Harris JA
• Judgment Date: 27 September 2013
• Neutral Citation: [2013] JMCA Crim 42
• Docket Number: SUPREME COURT CRIMINAL APPEAL NO 32/2011
• Court: Court of Appeal (Jamaica)
• Date: 27 September 2013

David Russell

and

R

[2013] JMCA Crim 42

Before:

The Hon Mrs Justice Harris JA

The Hon Mr Justice Morrison JA

The Hon Ms Justice Lawrence-Beswick JA (Ag)

SUPREME COURT CRIMINAL APPEAL NO 32/2011

JAMAICA

IN THE COURT OF APPEAL

CRIMINAL LAW - Murder - Whether appellant denied a fair trial

Harris JA

1 This appellant, David Russell, was convicted in the Home Circuit Court on 15 April 2011, on two counts of an indictment charging him with the murders of Emilio Richards and Omar Watson. He was sentenced to a term of 30 years imprisonment at hard labour on count one. On count two he was sentenced to life imprisonment with the stipulation that he should serve 40 years before becoming eligible for parole.

2 A single judge refused an application by the appellant for leave to appeal against conviction. Before us was a renewal of that application. On 31 July 2013, the application was treated as the hearing of the appeal. The appeal was dismissed and the conviction and sentences were affirmed. It was ordered that the sentences should commence on 15 April 2011. We promised to put our reasons in writing. This promise we now fulfil.

Prosecution's case

3 The prosecution's case was that sometime after two o'clock in the afternoon of 28 May 2006, Detective Constable Michael Anderson was travelling along the Dumbeholden main road in the parish of St Catherine. On reaching an area of the road in the vicinity of the Salt Pond Housing Scheme, he observed three vehicles travelling in a convoy immediately ahead of him. The convoy was headed by a brown Honda Civic motor car followed by a white Toyota and a blue motor car. As soon as Constable Anderson obtained an opportunity to pass these cars he did so. However, before passing, he noticed that the appellant, who was the driver of the Honda Civic motor vehicle, put his hand over the top of the car, and pointed towards the Salt Pond Housing Scheme. The cars which had been following went in the direction of the housing scheme. This housing scheme was close to a cane field. The appellant stopped, reversed and then proceeded in the same direction as the two cars.

4 When the appellant halted, Constable Anderson passed him. While passing, Constable Anderson said that he had a lateral view of the appellant's face, at which time, they were about 8 feet apart. He asserted that, after passing, he looked in his rear-view mirror and was able to secure a full view of the appellant's face for about 8 seconds.

5 The appellant, Constable Anderson related, had been previously known to him for about six years. He had known him as Bigga Pang. He knew where the appellant lived and had seen him on various occasions over the years.

6 On arrival at work at the Spanish Town Police Station that afternoon, Constable Anderson accompanied his superior officer and other policemen to a cane field near the Salt Pond Housing Scheme in Dumbeholden. A white Toyota motor car owned by Andy Richards, the uncle of Emilio Richards, was seen there. The bodies of the deceased men were observed in the rear seat of that vehicle. Their hands and faces were bound.

7 The appellant was taken into custody on 1 June 2006. After he was charged and arrested, he underwent a question and answer session, conducted by Sergeant Michael Simpson, the investigating officer. The contents are as follows:

‘Question one: What is your name?

Answer: David Andrew Russell.

Question two: Are you called by any other name?

Answer: Yes. Bigga Pang.

Question number three: What is your date of birth?

Answer: March 13, 1964,

Question four: What is your occupation

Answer: Businessman.

Question five: Where do you work?

Answer: Self employed. David Russell. 1/6/06.

Question six: How long are you self-employed?

Answer: A couple of years now. Some five years.

Question seven: How long have you been living at Westbay?

Answer: From 1996.

…

Question eight: Who is living with you there?

Answer: Mother, father, brother, niece and nephew.

…

Question nine: Who is the owner of the house where you are living?

Answer: Mr. Gladston Russell, my father.

Question ten: What type of house, is it — what type of house, is it a two-storey house or a one-storey house?

Answer: Is just a regular house, and they build up on it and add on upstairs.

Question seven [sic]: Are you the owner of a motor vehicle?

Answer: Yes,

Question twelve: What type of vehicle, colour, make, year, is it a right hand drive vehicle and what is its license number?

Answer: Honda Civic motor car, 2001, left–hand drive, and brown colour, and I do not remember the registration number.

Question thirteen: Are you the owner of any other motor vehicle?

Answer: Yes, a 1987 Mercedes Benz, which is parked in the garage downstairs and a white Toyota Land Cruiser, which is write off.

Question fourteen: Is the 2001 Honda Civic registered in your name?

Answer: Yes, …

Question fifteen: Do you know a man by the name of Omar Watson, o/c “Blacks” o/c “Lotto”?

Answer: Yes, I know him as Omar or “Blacks”.

Question sixteen: Do you know his address?

Answer: No, I only know that he lives in Newlands.

Question seventeen: How long have you known Blacks o/c Omar.

Answer: About five years.

Question eighteen: Where did you meet him?

Answer: I think over Hellshire.

Question nineteen: The man you called name Blacks, have [sic] he ever visited your home?

Answer: Yes.

Question twenty: How many times?

Answer: Plenty times.

Question twenty-one: Do you know Blacks [sic] girlfriend?

Answer: No.

Question twenty-two: Do you ever meet any of Blacks [sic] children?

Answer: No.

Question twenty-three: What type of work.

twenty-three: What type of work Blacks does?

Answer: No, but I know him have a shop up at Hellshire

Question twenty-four: Do you and Blacks, have ever been in any business or transaction?

Answer: Yes.

Question twenty-five: What type of transaction of [sic] business that you and Blacks ever had?

Answer: He bring [sic] things to sell me.

Question twenty-six: When you mentioned things that he brought to sell you, what type of things do you mean?

Answer: Like a few ounces.

Question twenty-seven: When you say ounces, what are you referring to?

Answer: Like coke.

Question twenty-eight: Is coke called cocaine:

Answer: Yes.

Do you know — question twenty-nine. Do you know that coke and cocaine are drugs?

Answer: Yes

Question thirty: Do you see [sic] ganja?

Answer: No.

Question thirty-one: Do you sell cocaine?

Answer: No, but if I know somebody that wants something, I will tell them a price and make a money off it.

Question thirty-two: Do you know Emelio, o/c Biggs?

Answer: No.

Question thirty-three: Do you know Gregory Park or Caymanas Race Track?

Answer: Yes, I know Gregory Park and Caymanas Race Track, because I own a horse there.

Question thirty-four: When was the last time you spoke with Blacks, Omar, whose name is also Lotto.

Answer: Last week Sunday the 28 ^th day of May 2006.

Question thirty-five: Have you ever spoken between Black and Omar are [sic] /or the man call “Lotto” any time, between 21 ^st day of May 2006, and Saturday, the 27 ^th day of May, 2006?

Answer: I spoke to him on Saturday the 27 ^th of May 2006.

Question thirty-six: What time on Saturday did you speak with him?

Answer: I don't remember what Time.

Question thirty-seven: How did you talk with him?

Answer: On the phone and in person.

Question thirty-eight: Where did you see him?

Answer: He come to my house in the night.

Question thirty-nine: Was he alone when you saw him on the 27 ^th day of May 2006.

Answer: No, he wasn't alone

Question forty: Who was with him?

Answer: Two other guys, I don't know them.

Question forty-one: Were you alone when Lotto and the two men visited you?

Answer: Yes.

Question forty-two: What type of transaction did you and these men have?

Answer: No answer.

Question forty-three: Are you the owner of a license [sic] firearm?

Answer: No.

Question 44: If any of the men who was at your house on Saturday the 27 ^th day of May, 2006, say that you showed them a firearm, are they telling a lie?

Answer: Yes

Question 45: What type of clothes were you wearing on the night in question?

Answer: A line [sic] suite.

Question 46: Do you know how the men reached your house on Saturday the 27 ^th day of May, 2006?

Answer: They drive [sic] a white car.

Question 47: Do you know the make car or what type of car?

Answer: It was a station wagon. I don't know if it is a Toyota or Caldina.

Question 48: What was the visit about?

Answer: They just come to talk to me about something.

Question 49: What was that something?

Answer: (No answer)

Question 50: How long were these men at your house?

Answer: About half hour.

Question 51: What was the time they left, night or day?

Answer: In the night.

Question 52: Did you make any contact with any of the men that Saturday night after they left?

Answer: Yes, I called one of them.

Question 53: Who did you call?

Answer: “Blacks”.

Question 54: How did you make this communication and by what means?

Answer: I called him with the cellular.

Question 55: What is the number for your cellular and “Blacks” cellular?

Answer: My cellular number is 425–5355 and “Blacks” cell is 362–7499.

Question 56: What type of cellular do you own?

Answer: Both of them is Digicel.

Question 57: What did you two speak about?

Answer: (No answer).

Question 58: When was the next time you saw these three men?

Answer: Sunday, the 28 ^th , they came to my house about 1:30 p.m. in the afternoon.

Question 59: Before the men came to your house on the Sunday morning, the 28 ^th May, 2006, did you speak to “Blacks” on the telephone or see him in person?

Answer: He called me on the phone.

Question 60: What did he speak to you about?

Answer: He asked what's going on, if I see the guy that they came to see on Saturday night and I told him no and I am not getting through.

Question 61: Who was the guy?

Answer: Some guy name “Robby” from Red Hills.

Question 62: What type of business “Robby”...