Gouldbourne (Machel) v R

• Jurisdiction: Jamaica
• Judge: MORRISON JA:
• Judgment Date: 22 July 2010
• Neutral Citation: JM 2010 CA 101,[2010] JMCA Crim 42
• Judgment citation (vLex): [2010] 7 JJC 2202
• Court: Court of Appeal (Jamaica)
• Date: 22 July 2010

MACHEL GOULDBOURNE

v

R

[2010] JMCA Crim 42

BEFORE:

THE HON. MR JUSTICE MORRISON JA THE HON. MISS JUSTICE PHILLIPS JA THE HON. MRS JUSTICE McINTOSH JA (Ag)

IN THE COURT OF APPEAL

CRIMINAL LAW - Murder - Prejudicial evidence - Identification evidence - Excessive sentence

Robert Fletcher and Miss Tamika Harris for the applicant

Miss Natalie Ebanks for the Crown

MORRISON JA

1 This is an application for leave to appeal against conviction and sentence for the offence of murder in the Home Circuit Court, after a trial before Beckford J and a jury, on 2 April 2009. The applicant was sentenced to imprisonment for life and the court specified that the applicant should serve a period of 35 years before becoming eligible for parole. The application was considered and refused by a single judge of this court on 25 September 2009 and it has accordingly been renewed by the applicant before the court itself.

2 The applicant was indicted for the murder of Glenda Simpson, who was killed at her home at 11 July Road, August Town in the parish of St Andrew on 13 November 2005. The case for the prosecution was based primarily on the evidence of the deceased's sister, Miss Sunji Marrett, who shared house with the deceased, another sister and her niece at 11 July Road. One side of the house faces the August Town Police Station and the August Town Primary School, which is also on July Road, is in close proximity to the premises.

3 At some time after 6:00 p.m. on the day of the murder, a Sunday, Miss Marrett was in her bedroom at home with her two sisters and a niece when she saw the deceased walk through the room on her way to the kitchen, using a connecting door between the room and the kitchen. She overheard the deceased speaking to their Auntie Jennifer, who was outside in the yard, and then she heard the deceased ask, "Who dat under mi window?" Miss Marrett then went to the window in her room, which was a single window with wooden louvres, from which she had a view of the outside door to the kitchen and through which she saw two men standing outside, close to the kitchen door. She was able to see the men from the light in the kitchen, which projected outwards about 10 to 12 feet through the open kitchen door, as well as by the floodlights at the gate to the police station and also at the gate of the school, which projected in the direction of her house. She recognised these men as persons known to her before as Kifari and Richie.

4 Miss Marrett then saw the deceased trying to close the kitchen door, which was open to the yard, by pulling it in from the top of the door, but Kifari grabbed the door and swung it open and away from her. She realised at this point that he was armed with a gun, which he then pointed at the deceased and started firing at her, causing her to fall backwards. Immediately after this, Miss Marrett heard Kifari say, "Long time yuh fi dead gal". Both men then moved away in the direction of the nearby school. At this point, Miss Marrett, who had been observing all that had happened from her position at the window in her bedroom, moved towards the connecting door separating her room from the kitchen. Richie turned back in the direction of the house and fired some more shots, shattering a glass window, before continuing in the direction of the school, accompanied by Kifari. Miss Marrett then saw the deceased bleeding from her upper body and heard her say that Kifari and Richie had shot her. The deceased was also crying out for help, saying, "Cody, Jackson, Glenda...Jacko, come help mi, a Glenda". The reference to Jacko, Miss Marrett told the court, was to a police officer by the name of Jackson who was stationed at the August Town Police Station. In due course, the police arrived at the premises and the deceased was taken to the University Hospital of the West Indies, where she succumbed to the multiple gunshot wounds which she had received.

5 Miss Marrett had known the man she referred to as Kifari for two years before this incident. She also knew him as Machel Gouldbourne and in court she identified the applicant as that person. When asked where she knew him from, she said that he would pass her house from time to time ("maybe every other day") and she and he "would talk sometimes". They had also exchanged telephone numbers and would talk over the telephone as well, sometimes three times per week, as a result of which she knew his voice (which had "a rough, roughish tone"). In fact, Miss Marrett told the court, the applicant had been trying to have her become his girlfriend. Although they continued to speak to each other in this vein, her evidence was that "I never say yes or no". She had last seen him about a week before the incident. Asked by Crown counsel in examination in chief whether there was a reason for her not having said yes or no to the applicant's romantic entreaties, her reply was "I didn't want to tell him no, I was threatened by him", drawing an immediate protest from the applicant's counsel that no such evidence had been foreshadowed in Miss Marrett's police statements and that its "prejudicial value...far outweighs the probative value...and my friend is well aware of that". Despite counsel's intervention, with which the learned judge appeared to be somewhat sympathetic, the moment passed without a ruling and the examination in chief continued. However, when the applicant's counsel returned to the point in cross examination, Miss Marrett clarified her earlier answer by saying that what she had really meant to convey was not that the applicant had threatened her, but that she "was scared of him".

6 Miss Marrett's evidence was that when she first saw the applicant outside the kitchen door he was ahead of Richie, facing her, and he was dressed in a black shirt and black pants and his hair was low cut at that time. When she saw him pointing his gun at the deceased, there was nothing obstructing her view of his left side and she was able to see him from her position at her bedroom window, which was higher than where the applicant was at the time. Her estimate was that she had the men in view for "around three minutes" and that the applicant had been facing her for "probably half of that".

7 Miss Marrett was also asked in examination in chief whether she knew if the deceased "would visit the August Town Police Station", to which her answer was that she did in fact do so "very often". When pressed to say how often that was, her answer was that the deceased visited the station every day "more than once per day" and that she had in fact done so earlier in the evening of 13 November 2005. The applicant's counsel again protested, pointing out to the judge that that evidence did not appear anywhere on any statement given by or deposition taken from the witness. Again, there was no explicit ruling on the admissibility of this evidence, the judge merely indicating to Crown counsel that he should "Pass that and go on to the next one". When she was challenged on this evidence in cross examination, counsel pointing out that she was saying this for the first time when she was in the witness box, Miss Marrett insisted that the deceased "was always at the police station, as I said every day", prompting Crown counsel to ask her in re-examination whether she had ever been asked about the deceased's visit to the police station on 13 November 2005 before, to which she answered that she had not.

8 It emerged from Miss Marrett's examination in chief that she had in fact given three statements to the police in connection with the investigation of this matter. In due course she explained the differences, in particular between the first and the second statements, on the ground that she had been in fear of her life when she gave the first statement and so had not been truthful in it, but that she had given the second statement in order to say what she had really seen on 13 November 2005, that is, to speak the truth about the identity of the person who murdered her sister. In cross examination, she would amplify this explanation by saying that after she had given the first statement (on 15 November 2005) she had spoken to her sisters and, when she told them what she had "really seen", they had encouraged her to come forward and speak the truth, which is how she came to give the second statement on 17 December 2005. The third statement had been given in July of the following year, apparently at the suggestion of the Resident Magistrate who conducted the preliminary enquiry, in order to clarify some issues relating to measurements and lighting arising from the earlier statements.

9 In addition to Miss Marrett, the prosecution called the doctor who conducted the post mortem examination on the deceased's body, the deceased's aunt, who identified the body to the doctor, and Detective Sergeant Paul...