Graeme Bennett v R
| Jurisdiction | Jamaica |
| Judge | McINTOSH JA |
| Judgment Date | 01 April 2011 |
| Neutral Citation | JM 2011 CA 22 |
| Judgment citation (vLex) | [2011] 4 JJC 0107 |
| Date | 01 April 2011 |
| Court | Court of Appeal (Jamaica) |
| Docket Number | SUPREME COURT CRIMINAL APPEAL NO 8/2008 |
JAMAICA
IN THE COURT OF APPEAL
THE HON. MRS JUSTICE HARRIS JA
THE HON. MR JUSTICE DUKHARAN JA
THE HON. MRS JUSTICE McINTOSH JA
CRIMINAL LAW - Murder - Unfair trial - Unreasonable verdict
The applicant herein was convicted for the offence of murder in the Circuit Court for the parish of Trelawny, on 19 December 2007 and was sentenced that same day to life imprisonment without the possibility of parole until he had served 23 years. He then filed an application for leave to appeal against his conviction and sentence, complaining that his trial was unfair and that the verdict was unreasonable, having regard to the evidence adduced. However, his application did not find favour with the single judge of appeal before whom it first came, resulting in its renewal before this court.
The scene of this murder was a Petcom Service Station in Albert Town, Trelawny, known as Virgo's Petcom and the deceased, Anthony Hewitt, was an employee there. At about 7:50 pm on 9 November 2006, as the service station was about to be closed, tragedy struck. Another employee, Neriesha Laing, described the surrounding circumstances which led to Mr Hewitt's death. As she stood on the outside of the station talking to a fellow employee, she saw a person who appeared to her to be male, approaching the second of the station's two pumps, where the deceased and yet another employee were standing. The approaching man wore a mask and he held on to the deceased, taking him inside the building. The employee who was with the deceased ran and so did Miss Laing who said that as she ran she heard an explosion. She hid in nearby premises and after about 15 minutes she returned to the service station and saw the deceased lying face down on the roadside, motionless. He appeared to her to be dead and indeed she subsequently attended his funeral.
The link between that incident and the applicant was provided by Delroy Thorpe who for 16 months up to November 2006 was a prisoner at the Ulster Spring Police Station lock-up, awaiting the disposal of a charge of larceny of a motor vehicle which he faced. It was his evidence that while he was at Ulster Spring lock-up, two men were brought there, one of whom he came to learn was called Corro, and the other was the applicant. The latter was brought to the lock-up about the day after Corro's arrival. Mr Thorpe said he heard the applicant speak the following words to Corro, ‘Everything oonu do oonu call up man name to police.’ Corro responded saying, ‘Ah police dem name, a ginnal dem name. Dem will tell lie pon you. Dem wi say you say, me say and tell me say you say.’ Mr Thorpe said Corro went on to say, ‘Dem will tell me say a you do it and then tell you say a me do it if throw out the case.’ He said Corro and the applicant began to quarrel so he took the applicant to the cell which he occupied and they sat down. He had cigarettes and he offered one to the applicant. Then, said Mr Thorpe, they started to talk and ‘him tell me what happen’.
The narrative suffered many interruptions but the learned trial judge summarized it well in this way:
‘He told me that there was a gas station by Stettin. So he call his friend and say he is going to eat a food. He told me that when he went up there, he told his friend to stay across the road and watch and see if police a come. He told me he walk to the side of the building and go into the gas station and then he saw a lady (sic) came out and throw some water. He turn to me and say he was going to hold on to the lady but he did not know if she had the money. He said he looked across and saw a youth at the pump and then he put on a mask over his head and went across to the youth at the pump and jook the youth and tek him upstairs. So he turn to the youth and asked him where the money. He said the youth turn to him and say “Come mek mi show yu the money.” He said after he went in there a lady run out, so they began to wrestle, both of them. He told me the guy was strong and nearly (sic) overpower him so he had to give him one shot. He said the guy was trying to take the mask off his head when they were wrestling. He told me after he was wrestling the guy was stronger than him so he gave him a next shot, by the pump. He told me that he run across the road to his friend and said “See deh, the man dead, me no get nutten and you no get nothing. Because when me jook the man you should come upstairs come help me tek the money.” He said he then went away and (sic) leave the scene.’
Mr Thorpe said the applicant named Corro as the friend to whom he referred.
About two days later, on 20 November 2006, Mr Thorpe said he spoke to Inspector Simms who was the officer in charge of the station and the inspector gave him certain instructions. Then, on a subsequent date, he gave a statement to Detective Sergeant Wayne Jacobs who was the investigating officer in the murder case as well as the arresting officer in his case. At first he said that he had not yet been sentenced for the charge he faced when he gave the statement, but, he later recalled that he had given the statement on 11 December 2006 and was sentenced on 6 December 2006 to a term of 12 months imprisonment. He had given the statement willingly, he said, and was offered nothing in return.
In cross-examination he agreed that his relationship with Detective Sergeant Jacobs was not good prior to giving that statement and that the sergeant had been ‘giving him a fight’, resisting all efforts to have him bailed during his 16 month stay at the lock-up. Further, he said, he started having problems in the cells after the applicant and Corro came there and was beaten up by other cell mates who accused him of being an informer. He also had problems with Corro, he said, and was accused of “taking up” for the applicant. At first, he denied the suggestion that he had become friends with Detective Sergeant Jacobs after giving the statement, but accepted that there had been a change in their relationship only when his evidence at the preliminary inquiry was put to him. He also denied that the reason he told Detective Sergeant Jacobs that the applicant had made those admissions to him was that he (Mr Thorpe) was trying to get back at Corro and because he and his former enemy. Detective Sergeant Jacobs, had become friends.
In November of 2006 Detective Sergeant Jacobs, was the sub officer in charge of criminal investigations for Southern Trelawny, which included Ulster Spring. He testified that some time after 8:00 pm, on 9 November 2006, he received a report in response to which he went to Virgo's Petcom Service Station in Albert Town, Trelawny. There he saw the body of Anthony Hewitt, who had been known to him, lying face down in front of the service station with two wounds to the left side of the body. Thereafter, Detective Sergeant Jacobs said he conducted investigations into the matter during the course of which he spoke to the applicant, enquiring of his whereabouts on the night of the murder. Detective Sergeant Jacobs said the applicant told him that he was ‘same place where you pass me the night … a deh me did deh.’ (This would seem to be the basis of the learned trial judge's treatment of the defence as an alibi defence as the applicant in his unsworn statement did not speak to his whereabouts on 9 November 2006). Indeed, at about 9:30 to 9:45 pm on 9 November 2006, (notably after the time of the killing), the sergeant said he had seen the applicant in Freeman's Hall District, which is a district adjoining Albert Town, and he was about a five minute walk from Virgo's Petcom Service Station. After their conversation and because he had received certain information, Detective Sergeant Jacobs said he arrested the applicant on suspicion of murder.
It was undoubtedly based on what the witness Delroy Thorpe said the applicant told him that the prosecution asked Detective Sergeant Jacobs about the district called Stettin. The sergeant said it was a district almost adjoining Albert Town. There is no gas station in Stettin, he said, but Virgo's Petcom Service Station is just outside of Albert Town, almost in the Stettin area.
Detective Sergeant Jacobs said he received information from Inspector Simms on 11 December 2006 and he went to the Ulster Spring Police Station where he saw and spoke to Delroy Thorpe, recording a statement from him on that same day. Then, on 17 December 2006, he went to the cells at the said station and, after pointing out the offence of murder and relating the particulars of the offence to the applicant, the sergeant said he charged him with the murder of Anthony Hewitt.
In cross-examination Detective Sergeant Jacobs said that he and Mr Thorpe were not on the best of terms when he arrested him for larceny of a motor vehicle and Mr Thorpe had been openly hostile to him. However, Mr Thorpe started speaking to him after his statement was recorded. The sergeant went on to say that although he was aware of problems Mr Thorpe was having in the cells with Corro, he did nothing to assist him in that regard.
The final witness for the prosecution was Dr Murari Sarangi, the pathologist who conducted a post mortem examination on the body of the deceased on 13 November...
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