Garnett Edwards v R

• Jurisdiction: Jamaica
• Judge: PHILLIPS JA
• Judgment Date: 30 June 2011
• Neutral Citation: JM 2011 CA 63
• Docket Number: SUPREME COURT CRIMINAL APPEAL NO. 57/2008
• Court: Court of Appeal (Jamaica)
• Date: 30 June 2011

[2011] JMCA Crim 27

JAMAICA

IN THE COURT OF APPEAL

BEFORE:

THE HON MR JUSTICE HARRISON JA

THE HON MISS JUSTICE PHILLIPS JA

THE HON MRS JUSTICE McINTOSH JA

SUPREME COURT CRIMINAL APPEAL NO. 57/2008

GARNETT EDWARDS

and

R

Patrick Atkinson QC for the appellant

Jeremy Taylor, Mrs Ann-Marie Feurtado-Richards and Miss Kelly-Ann Boyne for the Crown

CRIMINAL LAW - Murder - Unfair trial - Poor description given by witness

PHILLIPS JA

1 This is an appeal from the conviction and sentence of the appellant on 2 May 2008 in the Home Circuit Court. The appellant was charged with the offence of murder, the particulars of the offence being that on 13 February 1999, the appellant murdered Dougal Wright in the parish of Saint Andrew in the course or furtherance of a robbery. He was sentenced to life imprisonment with a stipulation that he not be eligible for parole before 15 years. On 6 July 2009, a single judge of appeal granted leave to appeal on the basis that, although there was no medical or other evidence to support the prosecution's theory that the gunman's bullet had gone through the body of the witness Mr Donovan Bailey and lodged in the body of the deceased, the learned trial judge left this to the jury as an ‘inescapable inference’.

History of the proceedings

2 This matter has had a long history. The appellant was first convicted on 15 March 2002 after a trial in the Home Circuit Court before Marsh J and a jury for capital murder and sentenced to death. His appeal against conviction was dismissed and his sentence affirmed by this court on 25 June 2003. The appellant appealed to the Privy Council and on 25 April 2006, his appeal was allowed, the conviction set aside and the matter remitted to this court for it to determine whether a new trial should be held. On 27 April 2007, this court ordered that there should be a new trial in the interests of justice. The retrial took place between 31 March and 2 May 2008, with the result already indicated above.

3 The Crown adduced evidence through six witnesses, two of whom were civilian witnesses. The main witness for the Crown was Deputy Superintendent Donovan Bailey (DSP Bailey), who held the rank of sergeant at the time of the incident in February 1999. The appellant gave sworn evidence.

The case for the prosecution

4 DSP Bailey, who at the time of the incident had been a police officer for over 28 years, testified that on 13 February 1999, between 10:30 am and 11:00 am, he was at a wholesale meat processing shop at the Dames and Anderson Roads intersection. He had driven to the shop and while there he saw a friend, Dougal Wright (the deceased) and other patrons. Subsequently both DSP Bailey and Mr Wright went across the road to the Mango Tree Bar. Both men approached the bar with Mr Wright being to the left and ahead of DSP Bailey. Mr Wright asked the bartender for a cold ‘red stripe’ and DSP Bailey requested a cold ‘Heineken’. DSP Bailey further testified that as soon as he had asked for the beer, he heard a voice behind him say, ‘Big man, give me wha yuh have’. He said that he immediately spun around to his right, and saw a man pointing a gun in the direction of his chest. He told the court that he had never seen the person before. He described the gun that he saw as a 9 millimetre pistol with an extended magazine. He immediately put his hand in the air and said, ‘I have nothing’. The man was two arms' length from him, and he said, ‘I was actually seeing from his face to the hand where the gun was’. He said he hesitated and the assailant said ‘Pussy hole, lif up you shut’. He still hesitated, and then he said that he shifted to his left and with his right hand grabbed at the firearm, which was pointed at him.

5 He testified further that the assailant had the firearm in his right hand and when he grabbed at the firearm, his hand actually touched the firearm. At the same time, he heard an explosion, which he assumed was coming from the firearm, and then he felt a burning sensation in the right side of his abdomen ‘to the front’. He grabbed his side, felt heated fluid on his hand and ran outside the building, back to the wholesale shop.

6 DSP Bailey gave evidence that neither the head nor the face of his assailant was covered, and so there was nothing blocking his view of him. He described him in examination-in-chief, as a ‘man with very very low cut hair’. He gave an estimate of two minutes as having elapsed from the time he entered the bar until the time he ran out of it, and one and a half minutes from the time he spun around to the time he ran from the bar. He said that he had observed his assailant's face for about one minute from the time he spun around, and then for a few more seconds after he had received the wound. He was taken to the hospital in his car, where he remained and received treatment for 30 days. He showed the jury a residual scar at the right side of his abdomen where he had felt the burning sensation and the heated fluid. He told the court that he could not recall if there were any other persons in the bar that day and also that he had not seen Dougal Wright alive since that date.

7 DSP Bailey told the jury that two months later, on 14 April 1999 at 2:00 pm he was driving through the Allman Town area in the vicinity of the said Mango Tree Bar. When he reached the stop sign at the intersection of Anderson Road and Dames Road, he saw, standing in the middle of the road, about 35 feet away from him, the same person who, on 13 February, had stood in front of him at the Mango Tree Bar, confronted him with the firearm and had shot him. He said that he had made a mental picture of his assailant when he had confronted him in the bar, and when he saw him in April, at the intersection, he was ‘very afraid and frightened’. His assailant was then dressed in a ‘lime green shocking colour pants and a white shirt’, and he stopped for a moment at the traffic sign and ‘take a good look at him’. Then he turned onto Dames Road, drove slowly past him at approximately 10 miles an hour while he (his assailant), was still in the road, being as close as 6-8 feet to him. He then saw a police patrol car and signaled the driver to stop. He pointed out his assailant to the police at which time he would have been about 100 metres away from him. He said that on this occasion, from the stop sign, and while he drove past, he would have had the assailant under his observation for about two minutes, and throughout that period he would have observed his face, as there was nothing blocking his view, and it was a bright sunny day. He did say, however, that the windows of his car were wound up and were lightly tinted, which allowed one to see from the inside of the car to the outside easier than a person outside could see inside the car.

8 DSP Bailey then informed the court that having received a call at his home, he went to the Cross Roads Police Station guard room approximately two and half hours later, and saw the said assailant sitting on a bench there. He stated that the person was still dressed in the same ‘shocking green pants’ and white shirt that he had seen him wearing earlier. He said that his hairstyle was different from it had been on 13 February, as his hair was ‘taller’ and on that day in February he had worn a light blue shirt. He identified the person whom he had seen in the police station as the appellant in the dock.

9 In cross-examination DSP Bailey accepted, as an experienced member of the Jamaica Constabulary Force (28 years), that observation is a very important tool in the trade. He said that where possible, one looks for distinct features in making identifications and that one would be able to describe a distinguishing mark on a person's face ‘if it is observed’. He agreed that in his statement to the police he had described the appellant as having a dark brown complexion, being 5′6″tall, approximately 23 years old, with black, low cut hair, having a clean oval face, and a normal voice, and accepted that there was nothing specific in the description that he had given.

10 In further cross-examination he stated that he had heard the voice of the appellant about 30 seconds after he had entered the bar. He said the light in the bar was not as bright as it was on the road but ‘it was very bright’. He said that he did not sit down that day, nor did his friend, the deceased, do so. He confirmed that he did not notice other persons in the bar that day, and stated that he had not taken any special note of the bartender. He had not seen her face. He reiterated and maintained that he was absolutely sure that the mental picture that he had of the person who shot him on 13 February was the said man that he saw on 14 April, ‘after viewing him for that period of time’.

11 The evidence of the bartender Miss Jennifer Smith was important to both the prosecution and the defence. Unfortunately, Miss Smith died before she could give sworn evidence in court and her statement, which had been taken by Deputy Superintendent Maurice Goodgame (since retired), was admitted into evidence as exhibit 2, without objection, pursuant to the provisions of the Evidence Act. Since various aspects of the statement have been relied on by counsel in the appeal, we have set it out in its entirety for easy comprehension. Miss Smith stated:

‘I am a bar assistant employed to Icilda Thompson, who is the proprietor of the Mango Tree Bar situated at 36 Anderson Road, Kingston 5. The telephone number is 928-1829.I live at the same address.

I have been working at this bar for the past twelve years during which time it changed three owners. The bar is located at the corner of Anderson and Dames Roads. The entrance faces Anderson Road and the building is closed with roller shutter. The counter is L-shape, (sic) a long and a short side. The long side faces the entrance, and customers who sit at that...