Germaine Smith v R
| Jurisdiction | Jamaica |
| Judge | Brooks JA |
| Judgment Date | 15 January 2021 |
| Neutral Citation | JM 2021 CA 5 |
| Docket Number | SUPREME COURT CRIMINAL APPEAL NOS 32, 35, 36, 38/2012 |
| Court | Court of Appeal (Jamaica) |
[2021] JMCA Crim 1
IN THE COURT OF APPEAL
THE HON Mr Justice Brooks JA
THE HON Mrs Justice Sinclair-Haynes JA
THE HON Miss Justice Straw JA
SUPREME COURT CRIMINAL APPEAL NOS 32, 35, 36, 38/2012
Dwight Reece for the applicant Germaine Smith
Gladstone Wilson for the applicant Daniel Edwards
Miss Nancy Anderson for the applicant Andrew Thomas
Robert Fletcher for the applicant Jimmy Ellis
Mrs Kameisha Johnson O'Connor for the Crown
Ms Althea Jarrett, the Director of State Proceedings, for the Attorney General (at the invitation of the court)
Mrs Pauline Brown-Anderson and her family lived at Buzz Rock, Effortville, in the parish of Clarendon. Theirs was a humble home, with walls constructed of wood and cardboard. Both the internal and external walls had a number of holes. On 23 May 2008, at about 11:20 pm, gunmen invaded their home, entering by a door to a room occupied by Mrs Brown-Anderson's five children. One of the men murdered her 14-year-old son, Ishmael Wellington, while he slept in his bed. Mrs Brown-Anderson and one of Ishmael's sisters witnessed the slaying. The sister was in the same room with Ishmael, but his mother watched from an adjoining room. She had looked through a hole in the cardboard partition wall.
On 18 January 2012, a jury convicted the applicants, Messrs Germaine Smith, Daniel Edwards, Andrew Thomas and Jimmy Ellis, for that crime. On 16 March 2012, P Williams J (the learned judge), as she then was, sentenced each of the applicants to life imprisonment. She ordered each of them to serve a period of imprisonment before becoming eligible for parole.
A single judge of this court refused the applicants' respective applications for leave to appeal from those convictions and sentences. All four have renewed their applications before the court. The proposed grounds of appeal have raised a variety of issues, but prominent among them are the issues of:
-
a. the learned judge's refusal of the no-case submissions made on behalf of the applicants;
-
b. the learned judge's directions to the jury on:
-
i. visual identification, generally;
-
ii. dock identification;
-
iii. joint enterprise; and
-
iv. unsworn statements;
-
-
c. conflict of interest of defence counsel;
-
d. the length of the sentences;
-
e. Mr Thomas' age; and
-
f. his constitutional right to a trial within a reasonable time.
On the night of the shooting, Mrs Brown-Anderson, was awakened by people outside, banging on her door and shouting. She looked through the hole in the wall into her children's room. She saw two men enter that room. She knew the men before by the names, “Heavy Man” and “Mad Dem”. At the trial, she identified the applicant, Mr Smith, as “Heavy Man”, and the applicant, Mr Edwards, as “Mad Dem”.
She saw Mr Edwards shoot Ishmael, while Mr Smith went to her daughters' bed and fired shots. The men then went outside. Mrs Brown-Anderson looked outside through another hole. There she saw three more men, all armed with guns, standing by a water tank. They were pointing the guns at her house. They were “Lasha”, “Rocky” and “Shawa”. She identified Mr Ellis as ‘Rocky’ and Mr Thomas as “Shawa”. She knew all five men before, by seeing them in her community, and particularly, she saw some of them as they played football at a “common” that is opposite her house. She knew them by their respective nicknames.
Her ordeal was not over. Mr Smith and Mr Edwards came to a door to her room that led outside. They broke the door and Mr Edwards entered the room. He beat her about the head with his weapon and then left. She saw all the men run off.
Mrs Brown-Anderson then found that Ishmael was dead and both her daughters, wounded. The police visited the scene and took four of the family members to the hospital to be treated for gunshot wounds. Ishmael's body was later taken to the hospital and he was pronounced dead.
Mrs Brown-Anderson, at different times in November and December 2008, identified Messrs Smith, Ellis and Thomas at identification parades. She only identified Mr Edwards while he was in the prisoner's dock in court. He had not been placed on an identification parade. There was no explanation for that failure.
Her daughter, who will be referred to herein, as W2, also testified. W2 said she heard the shouting and the banging. She looked through a hole in the wall next to her bed, and saw men outside. She saw a man enter her room. She heard gunshots and closed her eyes. After a short while, she went to her mother's room. There, she heard banging on her mother's door that led outside. She looked outside through a hole in the wall, and saw Mr Ellis at the water tank. She recognised him as someone whom she knew before as ‘Rocky’.
While her mother braced that door, W2 went under her mother's bed. There she saw her stepfather. A man came into the room and started beating her mother. The person was dressed in the same clothes as the person who had come into her room. W2's mother fell to the floor and the man fired a shot. After the man left, her mother got up. It was then that W2 noticed that she herself had been shot. Her sister had also been injured, but Ishmael lay motionless in his bed.
Each of the applicants made an unsworn statement from the dock. They all denied being involved in the killing. Each said that he was at home at that time. Messrs Edwards and Smith denied ever having seen either Mrs Brown-Anderson or W2 before, while Mr Thomas denied knowing anywhere at Buzz Rock.
The applicants had some grounds of appeal in common. Those common grounds, whether by all or some of the applicants, will be dealt with below as the issues that have been outlined above. The unique grounds will be dealt with thereafter.
Messrs Smith and Ellis filed grounds that complained that the learned judge erred in rejecting the no-case submission. They asserted that the identification evidence was so tenuous and inconsistent that she was wrong to have left it for the jury's consideration. In addition, counsel who represented Mr Ellis at the trial, argued in his no-case submission that the evidence against Mr Ellis, that he was outside the house, with no word or action attributed to him, was such that it amounted to mere presence. It therefore could not properly support a conviction.
Mr Reece, appearing for Mr Smith, and Mr Fletcher, appearing for Mr Ellis, both stressed, what they submitted, were weaknesses in the identification evidence, inconsistencies in respect of the opportunities for observing the perpetrators and contradictions between the evidence of the two eyewitnesses. Learned counsel argued that those matters should have led the learned judge to withdraw the case from the jury. Learned counsel, as part of their respective submissions, relied on the second limb of the guidance in R v Galbraith [1981] 1 WLR 1039, which stipulates that the case should be withdrawn from the consideration of the jury when the evidence is so unreliable that no reasonable jury, properly directed, could convict on it.
In Director of Public Prosecutions v Varlack [2008] UKPC 56 their Lordships, sitting in the Privy Council, at paragraph [22], approved, as an accurate statement of law, the statement that, a trial judge, when considering a submission of no case to answer:
“is concerned only with whether a reasonable mind could reach a conclusion of guilty beyond reasonable doubt and therefore exclude any competing hypothesis as not reasonably open on the evidence”.
That learning is consistent with the guidance provided in R v Galbraith, where, it was said, at page 1042 of the report:
“…Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness's reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury….”
Learned counsel are not on good ground in respect of their submissions. There was sufficient evidence before the jury as to the opportunities for observing the perpetrators who entered the house and who were outside.
Mrs Brown-Anderson testified that she saw Mr Smith's face for a minute when he was in her children's room. He was then three to four feet away from her. That room was illuminated by light from a 100-watt electric bulb that was burning outside, and by light from an electric bulb that was burning in her room. She saw his face again, when he came to the door of her room. She said that she last saw him the morning of that day when he walked past her house.
Her evidence in respect of Mr Ellis is that he was about seven feet away when she looked through the hole and saw him with the other two men outside by the tank. She saw the faces of all three for about a minute. The outside lights illuminated their whole bodies. The nearest light was about 11 feet from where the men were. She said that she knew Mr Ellis for about 10 years before that day; that is, from he was a child. She would see him about three times per week, usually in the town of May Pen, at a place where bleach is sold. She, however, had never spoken to him.
The negatives associated with the testimony in respect of these applicants are:
-
a. an inconsistency between her testimony and her statement to the police about the electric light in her room being on at the time of the intrusion;
-
b. the small holes through which Mrs Brown-Anderson was able to view the perpetrators;
-
c. the fright associated with the experience;
-
d. the fact that she...
To continue reading
Request your trial