Garland Marriott v R

• Jurisdiction: Jamaica
• Judge: Brooks JA
• Judgment Date: 16 March 2012
• Neutral Citation: [2012] JMCA Crim 9
• Court: Court of Appeal (Jamaica)
• Docket Number: SUPREME COURT CRIMINAL APPEAL NO 126/2008
• Date: 16 March 2012

[2012] JMCA Crim 9

JAMAICA

IN THE COURT OF APPEAL

Before:

The Hon Mrs Justice Harris P (AG)

The Hon Miss Justice Phillips JA

The Hon Mr Justice Brooks JA

SUPREME COURT CRIMINAL APPEAL NO 126/2008

Garland Marriott

and

R

CRIMINAL LAW - Murder - Eyewitness - No eyewitness present at trial - Reliance on DNA evidence - No case submission - Inadequate direction to jury on DNA evidence

Brooks JA

1 Science plays an ever increasing role in the judicial process. This burgeoning phenomenon requires trial judges to acquaint themselves with the basics of the advances in technology so as to be able to assist juries in determining the issues arising therefrom. This requirement manifested itself in the instant case, where modern science played a prominent role throughout.

2 There was no eyewitness to the double killing that occurred in Fyffe's Pen in the parish of Saint Elizabeth between 14 and 15 June 2003. The Crown relied almostexclusively on Deoxyribonucleic Acid (DNA) evidence in the prosecution of the applicant, Mr Garland Marriott, for two counts of murder arising from those killings.

3 The applicant was convicted on those charges in the Home Circuit Court on 16 October 2008 and sentenced on 7 November 2008 to two concurrent sentences of imprisonment for life. He was ordered to serve 25 years before becoming eligible for parole.

4 The issues arising from his application for leave to appeal against his conviction turn, in large measure, on the reliability of the DNA evidence and the manner in which the learned trial judge directed the jury in relation to that evidence. A single judge of this court refused the applicant leave to appeal but he has renewed his application before the full court.

5 An outline of the background facts will assist the analysis of those issues.

The background

6 Mr Almando Warren and his common law wife Clover Robinson were found dead in their house at the location mentioned above. The cause of death, in the case of Mr Warren, was strangulation, most likely by a length of electrical cord. The cord had been found wrapped about his neck. In Ms Robinson's case, it was due to asphyxia due to haemopneumothorax, resulting from stab wounds to the chest. Each body had injuries to the head and was lying in a pool of blood, presumably belonging to that victim.

7 The police and the forensic officers, who processed the scene after the discovery, removed and secured a number of items from Mr Warren's premises. One item, a shirt, was taken from the street in front of the house. Subsequent investigations led the police to a location in Saint Catherine where they secured other bits of clothing. Of particular interest, with the majority of these items, was the blood which was found on each. Samples of blood were also taken from sites on the floor and walls of the house as well as on fibres found at various locations in the house.

8 The forensic scientists, who processed these items, identified, from DNA analysis, that the blood on one or other of them, belonged, on the Crown's case, to three different people; Mr Warren, Ms Robinson and one other individual, who, for over a year thereafter, remained unidentified. It was only after the applicant was taken into custody that the scientific process was revived, in an attempt to find a DNA match for that of the unidentified blood.

9 The applicant's link to Mr Warren's house, on the Crown's case, was that he had worked on it carrying out electrical installations. This installation was a part of a larger construction project at the premises. Mr Maron Morrell, the person who was in charge of paying for the construction, testifed that he had seen the applicant at the premises on a day in April 2003. He said the applicant was involved in a verbal altercation over money, with the contractor who was supervising the construction. Mr Morrell testified that he (Morrell) brought the project to a premature end in the first week of June 2003. He, however, did not see the applicant at the premises, after that occasion in April.The applicant did not feature again, in the Crown's case, until he had been taken into custody by the police in November 2004.

10 On 2 November 2004, Detective Inspector Rachel Russell, who was in charge of the investigation, interviewed the applicant concerning these killings. During the interview, the applicant offered to give samples of his blood, in order to ‘clear his name’.

11 The samples were duly taken by a doctor. At the trial, it was the Crown's case that there was a high probability of a match between the sample of blood taken from the applicant and the previously unidentified blood. The applicant was, thereafter, arrested and charged for the killings.

12 At the trial, issues arose concerning the chain of custody of the sample of blood taken from the applicant as well as the reliability of the DNA evidence as given by the forensic expert.

The grounds of appeal

13 Mr Equiano, appearing for the applicant, argued, with permission, three grounds of appeal:

‘1. The Learned Trial Judge erred in law by failing to accede to the submission of no case to answer made on behalf of the Applicant.

2. Having allowed the case to go to the jury the Learned Trial Judge failed to give adequate direction and or assistance to the jury on how to evaluate the evidenceadduced in respect of item/exhibit marked X which was pivotal to both the Crown and the Defendant.

3. The Learned Trial Judge [sic] directions to the jury on how to approach and [use] the statistical evidence in the case was [sic] grossly inadequate and misleading.’

Ground One: The Learned Trial Judge's ruling on the submission of no case to answer.

14 Mr Equiano submitted that the evidence adduced by the Crown was not conclusive enough for an inference to be drawn that the blood, tested as being that of the applicant, was actually his. The bases for this submission were twofold. Firstly, there was a gap in the evidence concerning the chain of custody of the sample of blood taken from the applicant. Secondly, there were inconsistencies and omissions in the evidence concerning the identification of the sample.

15 The aspect of the gap in the chain of custody centered on the fact that an envelope, said to have been containing the two tubes or vials, containing the sample, was delivered by a Constable Chaplain Reid to the analyst at the forensic laboratory. Mrs Sherron Brydson was the forensic analyst who first tested the sample of blood contained in the tubes. Her evidence, in examination in chief, was that she received the sample from Constable Chaplain Reid. In cross-examination she agreed that, in fact, she had received the sample from a Ms Hilary Mullings, who was an employee of the forensic laboratory. Neither Ms Mullings, nor anyone else, gave evidence concerning her custody of the sample.

16 In his oral submissions, Mr Equiano argued that there were two unanswered questions in the evidence which indicated breaks in the chain of custody. The first question was, ‘who recieved the item from Constable Chaplain Reid’ at the forensic laboratory and the second was, ‘who did Ms Mullings recieve the envelope marked ‘X’ from’. On Mr Equiano's submission, even if those questions had been answered, the evidence concerning the identity of the sample still remained in disarray; a state that could not be cured after the Crown had closed its case.

17 The issue of the identity of the sample emanated from a number of points in the evidence. These may be best understood if tabulated:

• 1. Constable Vaughn Reid, who witnessed the doctor taking the sample from the applicant, testified that he saw the doctor write something on the tubes containing the blood drawn from the applicant. The constable could not, however, recall what had been written.

• 2. Constable Vaughn Reid delivered the tubes, in an envelope, to Detective Inspector Russell. Detective Inspector Russell testified that she subsequently placed the tubes in a different envelope, which she sealed and labelled ‘X’. She went on to say that she handed the envelope, marked ‘X’, to Constable Chaplain Reid for delivery to the forensic laboratory.

• 3. Constable Chaplain Reid's evidence is that he received from Detective Inspector Russell an envelope marked ‘Garland Marriott’, in Detective Inspector Russell's handwriting. His evidence, as mentioned before, was that he delivered it to the analyst at the forensic laboratory. He testified that he got a reciept for the item and that he delivered that receipt to Detective Inspector Russell. The receipt was not put in evidence and its contents were not revealed.

• 4. Mrs Brydson's evidence was that the envelope which she received from Ms Mullings was marked ‘X’. She also testified, however, that the envelope marked ‘X’ contained a ‘sample of blood allegedly taken from Garland’ (page 800 of the transcript).

There was no issue in respect of coincidence of the dates and times of the various deliveries and receipts. Those details may therefore be omitted.

18 Mr Equiano submitted that Mrs Brydson had been, consistently, very meticulous in giving evidence concerning details of the identification of the items which she had received for testing. On his submission, her evidence that the envelope marked ‘X’ contained two tubes of blood which comprised the sample, without more, should be taken to mean that there was no other means of identification, including labelling, on these tubes. He argued that ‘the inference to be drawn is that the tubes were untagged and unmarked’.

19 Learned counsel concluded that ‘[t]he jury should not be asked to infer that it is the same tubes of blood taken from the applicant that ended up in the hands of Mrs Brydson and tested for DNA’. When asked by this court how he explained Mrs Brydson's reference to the ‘sample of blood allegedly taken from Garland’, Mr Equiano argued that Mrs Brydson could...