Edward Bitter v R
| Jurisdiction | Jamaica |
| Judge | F Williams JA |
| Judgment Date | 18 March 2016 |
| Neutral Citation | JM 2016 CA 29 |
| Docket Number | SUPREME COURT CRIMINAL APPEAL NO 54/2012 |
| Court | Court of Appeal (Jamaica) |
| Date | 18 March 2016 |
[2016] JMCA Crim 10
JAMAICA
IN THE COURT OF APPEAL
The Hon Mr Justice Morrison P
The Hon Mrs Justice Sinclair-Haynes JA
The Hon Mr Justice F Williams JA (AG)
SUPREME COURT CRIMINAL APPEAL NO 54/2012
Ian Wilkinson QC and Mrs Shawn Wilkinson for the applicant
Miss Paula Llewellyn QC Director of Public Prosecutions and Miss Trichana Gray for the Crown
F Williams JA (AG)
On 22 February 2016 when this matter came before us, we made the following orders:
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(i) application for leave to appeal against conviction and sentence refused.
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(ii) sentence to be reckoned as having commenced on 11 May 2012.
This is a fulfillment of our promise made then to put our reasons in writing.
The applicant was convicted of the murder of Mr Horace Smellie, a taxi operator, after a trial before G Smith J and a jury in the Home Circuit Court. The trial began on 25 April 2012 and he was found guilty on 3 May 2012. The applicant was sentenced to life imprisonment on 11 May 2012 and it was ordered that he was not to be eligible for parole until after serving 25 years' imprisonment.
The Crown's case was based primarily on circumstantial evidence, the main strands of which were these:
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i. Mr Smellie was found around 6:10 pm on 18 May 2006 at Rosewell Terrace, St Andrew with gunshot wounds; and pronounced dead on arrival at hospital.
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ii. Around 11:30 pm the same night the applicant was found seated around the steering wheel of a motor car which was last in the possession of the deceased. It was identified by the person who had lent it to the deceased: Ms Joan Bowerbank, its owner. The car bore registration plates that could not be traced. However, other plates were found in the trunk of the car which was opened by keys given to the police by the applicant. Those other plates were those assigned to the motor car that belonged to Ms Bowerbank.
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iii. The applicant, when accosted by the police, attempted to flee, but was held and searched and a .38 Smith & Wesson revolver taken from the front of his waistband. Forensic tests established that a bullet taken by the forensic pathologist at the post-mortem examination from the body of the deceased was fired from the gun taken from the applicant.
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iv. The hands of the applicant were swabbed shortly after he was taken into custody; and the tests done on those swabs showed that the applicant had gunshot residue (a) at an elevated level on his right palm; (b) at an intermediate level on the back of his right hand; (c) at an intermediate level on the palm of his left hand; and (d) at a trace level on the back of his left hand.
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v. The applicant was found wearing jewellery which was identified as belonging to the deceased by the brother of the deceased, Mr Francoise Kirlew; and Ms Bowerbank.
The evidence for the Crown came from 12 witnesses. They were: (i) Mr Francoise Kirlew; (ii) Ms Joan Bowerbank; (iii) Constable Karl McCarthy; (iv) Dr S N Prasad Kadiyala; (v) Sergeant Donovan Allen; (vi) Constable Dovern McKenzie; (vii) Constable Steven Carridice; (viii) Miss Camille Ramsay; (ix) Miss Marcia Dunbar; (x) Detective Corporal Kevin Brown; (xi) Detective Sergeant Norman Smith; and (xii) Deputy Superintendent Carlton Harrisingh.
Only the briefest outline of their evidence will be given, as the applicant's complaints in this case relate, in the main, not so much to any deficiency in the evidence itself, but more so to alleged deficiencies in the summation of the learned trial judge.
In summary, the main bit of evidence led from Mr Kirlew was as to his identifying as belonging to Mr Smellie, his brother, the items of jewellery that the police testified were taken from the applicant at the time of his detention at the Denham Town Police Station on the night in question. The identification was done on 12 June 2006 at the Constant Spring Police Station. These items of jewellery included a ‘lion-face gold ring’; ‘a wedding band, gold with some stones in it, a small, thin, round ring, and there was another one with the letter “F”.’ Additionally, he identified: ‘…a necklace, red green and gold with a gold pendant, a basketball gold pendant’ (page 11 of the transcript). He owned and had worn two of the rings (the lion-faced one and the one with the letter “FO for about two years, before giving them to the deceased. The deceased would wear them all the time. He also identified his deceased brother's photograph on a funeral programme, which programme was admitted into evidence through him as exhibit 1. He additionally identified his brother's body to the doctor who conducted the post-mortem examination.
In relation to the jewellery, the position taken by the applicant (seen in pages 411 to 412 of the transcript) was to claim ownership of: ‘…the chain with the Jamaica flag on it.’ (which, he stated, was given to him by a girlfriend of his named Nicky); as well as: ‘the gold chain, the silver chapparita, the gold ring, flat top ring, the two ring, the married ring and the flat head ring.’ He denied knowledge of any other item of jewellery.
Miss Bowerbank was called to establish her ownership of the motor car that the police testified that they had seen the applicant in, just before he was apprehended; and that she had lent the said motor car, which was a 1992 white Toyota Corolla registered 9105 AR, to the deceased. She had lent the vehicle to the deceased some time in mid May of 2006 — possibly the 15 th . She identified the vehicle at the Grant's Pen Police Station; and also at the Half Way Tree Court.
Constable Karl McClarthy was the next witness for the Crown. In a nutshell, he testified that he and other police personnel received a transmission from police control, as a result of which they proceeded to a location in the vicinity of lot 24 Rosewell Terrace in the Shortwood area of St Andrew. There he saw the body of a man lying on the ground, face down, with what appeared to be bullet wounds. They took him to the University Hospital of the West Indies, where he was pronounced dead. The crime scene was left unprotected. He identified the photograph on exhibit 1 (the funeral programme) as seeming to be that of the person whom the police took to the University Hospital.
Dr S N Prasad Kadiyala was the next witness for the prosecution. It was he, in his capacity as forensic pathologist, who performed the post-mortem examination on the body of the deceased, which, he confirmed, was identified by Mr Francoise Kirlew, the brother of the deceased. In his opinion, the cause of death was a gunshot wound to the chest. There were two gunshot wounds to the body. Of perhaps greatest importance in his testimony is that part in which he indicated that he removed from the body of the deceased, a slightly-deformed lead bullet, washed the blood from it, wrapped it in a piece of tissue, placed it in an envelope, sealed, labeled and signed the envelope and handed it over to Sergeant Smith, #1708. He put masking tape on the envelope and signed the masking tape and the envelope. He had made a diagram of the bullet in his notes of the post-mortem examination and had made the inscription of a part of his initials (“P”) on the base of the bullet. The post-mortem examination was done on 1 June 2006.
Thereafter, Sergeant Donovan Allen testified. He gave evidence that on the night in question, around 11:30 pm he, Constable Steven Carridice and Woman Corporal Newell were on mobile patrol, when they came upon a parked white Toyota Corolla motor car with a male sitting behind the steering wheel. It was parked in the vicinity of number 171 Orange Street, near to Torrington Bridge and was parked facing Cross Roads. The accused, after handing a white paper cigar to Woman Corporal Newell, attempted to hasten away to the rear of the Corolla motor car, when he, Sergeant Allen, held him. With the assistance of the others, he was searched and a .38 Smith & Wesson revolver with two live rounds taken from him.
Sergeant Allen's evidence continued to the effect that keys to the trunk of the Corolla motor car were handed to him by the applicant. When the trunk was opened, licence plates 9105 AR were found inside and confirmed by police control as properly belonging to that vehicle. There was no record of the licence plates that were on the vehicle at the time: PB 1658. The applicant stated that he had found the motor car at Clock Tower Plaza at Half Way Tree. The applicant was taken to the Denham Town Police Station with the firearm and ammunition in his presence and view. A wrecker took the motor car there as well. There the firearm and ammunition were placed in separate envelopes which were sealed and labeled in the applicant's presence and handed over to the station guard on duty (whose name he could not recall). A short time after, he retrieved the envelopes and took them with him to the Trench Town Police Station where he handed them over to a corporal who put them in a “strong pan”.
He subsequently (on 22 May 2006) took the two envelopes to the forensic laboratory and handed them over to the ballistics expert, whom he believed was named “Harrison”. Woman Corporal Newell took the items of jewellery from the applicant. Through Sergeant Allen, the firearm and the envelope in which it was contained were admitted into evidence as exhibit 3.
Detective Constable Donvern McKenzie next testified. He was at the time attached to the Area 5 Scene of Crimes section and had the responsibility of, inter alia , swabbing hands for gunshot residue. He testified to swabbing the hands of the applicant around 11:00 am on 19 May 2006. This was done with...
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