Greaves (Omar), Larmond (Paul), Hanse (Maurice), Peterkin (Troy)
| Jurisdiction | Jamaica |
| Judge | HARRISON J.A. (Ag.) |
| Judgment Date | 30 July 2004 |
| Judgment citation (vLex) | [2004] 7 JJC 3004 |
| Court | Court of Appeal (Jamaica) |
| Date | 30 July 2004 |
CRIMINAL LAW - Murder - Identification evidence - Caution warning - Character direction
On the 20 th June 2002, the appellants Omar Grieves, Paul Larmond, Maurice Hanse and Troy Peterkin were convicted at the Circuit Court Division of the Gun Court on an indictment charging them jointly for the murder of Lancelot Todd committed on the 30 th December 1996. They were each sentenced to imprisonment for life and ordered to serve 16 years, 18 years, 20 years, and 16 years, respectively, before becoming eligible for parole. We granted leave to appeal and treated the hearing of the applications as the hearing of the appeals.
The case for the prosecution was that during the day between 2:30 p. m and 3:00 p. m on the 30 th December 1996, the deceased was shot and killed in the vicinity of Barry Street, Kingston not too far away from the Gold Street Police Station.
The deceased man's brother, Andrew Todd, testified that he was standing at the corner of Higholborn Street and Barry Street when the deceased stopped, spoke to him and continued on his way. He then saw six men, all armed with firearms coming from Foster Lane. Maurice Hanse, otherwise called "Gummy", who was one of the men ran towards the deceased and fired one shot from a MACK 11 submachine gun hitting the deceased in the region of the back of his head. The other men opened fire at the deceased as he was falling after which they all ran off. The deceased fell to the ground and, according to Andrew Todd, in a "split second" he ran up to where Lancelot lay, turned him over, looked at him and then ran off to summon his mother.
Todd said he also recognized the appellants, Paul Larmond otherwise called "Buddy Roy", Troy Peterkin otherwise called "Dubba" and Omar Grieves otherwise called "Silly Bread" as the men who fired at the deceased. He had known all four appellants for a number of years. He also recognized Dwayne Larmond among the gunmen, but that man was not charged.
Detective Sgt. Reynolds who was at the Gold Street Police Station at the material time said he heard explosions and after they ceased, he "cautiously" came out of the station. He saw the deceased struggling on the ground and saw three men who were running towards the deceased fire shots at him, where he lay. Reynolds then fired a shot at the men whom he recognized as Omar Grieves, Troy Peterkin and Maurice Hanse. They fired back in his direction and ran up Foster Lane. He then hurried to the intersection of Foster Lane and Barry Street where he saw the said men returning to Foster Lane in a "tip-toed position". They fired at him again and ran back up Foster Lane.
Sgt. Douglas assisted Detective Sgt. Reynolds with the deceased who wits taken to the University Hospital where he was pronounced dead.
After leaving the funeral parlour, Sgt. Reynolds began investigations into a case of murder. He visited the scene of the shooting and spoke with a Constable Powell who handed over four spent shells and a bullet to him. Sgt. Reynolds went to the Central Police Station and whilst there, Detective Sgt. Christie gave him a statement that was recorded from Andrew Todd. Warrants of arrest were prepared for the appellants. Two of the warrants were executed on Grieves and Larmond at the Central Police Station Lock-up on the 31 th December 1996. Sgt. Reynolds said he told them that the warrants were in respect of the murder of Lancelot Todd committed at Barry Street on the 30 th December 1996. Each was cautioned separately and Grieves said, "a Gummy and Bush cause dem thing ya fi happen". Larmond made no statement after he was cautioned. On the 12 th January 1997, Sgt. Reynolds saw and spoke to the appellant Peterkin at Central Police Station lock-up. He read the warrant to him and arrested him. When cautioned Peterkin made no statement. Finally, on the 31 st March 1997 the appellant Hanse was also arrested and charged for the murder of Lancelot Todd. He was cautioned after arrest and he said, "A Silly Bread dem run dung the man near the station an say fi mek sure him dead. Mi never de deh".
The Crown's case was challenged by extensive cross-examination of Andrew Todd and Sgt. Reynolds on their evidence of identification. The defence put forward, however, in each of the appellants' cases was are alibi. Each made an un-sworn statement from the dock denying that he was on the scene on the day of the incident.
Petrona Bennett testified on behalf of the appellant Grieves. She said she was on the scene and saw a lone gunman who is known to her as "Hitman" fire a handgun, hitting the deceased in the back of his neck. The deceased fell to the ground and "Hitman" ran across the road. She went to the deceased, turned him over, lifted his shirt and, realizing that he was still alive, called out for someone to get the deceased's mother. She further testified that it was whilst she was walking away from the deceased that she saw Andrew Todd running towards where the deceased lay.
It was also part of the defence of Grieves and Peterkin that a deal was struck between Andrew Todd and the police whereby certain charges laid against Todd were dropped in order for him to testify against the appellants.
Grieves and Hanse further alleged that the murder charge was brought against them because Sgt. Reynolds had malicious feelings towards them.
Several grounds of appeal were filed and argued by Counsel on behalf of the appellants.
Omar Grieves
Mrs. Nelta-Robertson, for the appellant Omar Grieves, advanced five supplementary grounds in support of his appeal. She argued firstly, that the learned trial judge failed to adequately identify, examine and analyze the several issues relating to identification. In particular, she submitted that the learned trial judge failed:
-
(1) to point out specific areas of weakness and how to assess the effect of those weaknesses; and
-
(2) to identify the inconsistencies and discrepancies in the identification evidence.
Secondly, she argued that the witness Todd was a witness with an interest to serve but the learned trial judge failed to warn the jury of the dangers of relying on his evidence. Thirdly, she argued that the learned trial judge failed to direct the jury on the effect of Todd's bad character and its impact on his credit.
The identification issue
The Crown's case rested entirely on evidence of visual identification. So it was important that tie learned trial judge should warn the jury of:
-
1. The special need for caution;
-
2. The need to examine closely the circumstances of the identification; and
-
3. The need to bear in mind, any specific weaknesses in the identification evidence.
Mrs. Neita-Robertson in the course of her submissions agrees that the lear ned trial judge had quite properly directed the jury that the Crown's case rested on the issue of identification. She also agrees that the trial judge did warn the jury of the special need for caution, and that they should examine the circumstances of the identification in relation to distance, lighting, the time for observation and whether the men were previously known to the witnesses. She contends, however, that the trial judge failed to remind the jury of specific weaknesses in the identification evidence and to analyze the effect of those weaknesses. We were referred to the cases of R v Keane (1977) 65 Cr. App. R 247 C. A; R. v Fergus (Ivan) (1994) 98 Cr. App. R 313 and R v Bentley [1991] Cr. L. R. 620 C. A.
In Keane (supra) Scarman L.J, at page 248 stated inter alia, as follows:
"... It would be wrong to interpret or apply Turnbull ( supra ) inflexibly. It imposes no rigid pattern, establishes no catechism, which a judge in his summing-up must answer if a verdict of guilty is to stand. But it does formulate a basic principle and sound practice. The principle is the special need for caution when the issue turns on evidence of visual identification: the practice has to be a careful summing-up, which not only contains a warning but also exposes to the jury the weaknesses and dangers of identifcation evidence both in general and in the circumstances of the particular case.
Unfortunately the summing-up in this case falls short of the requirements of sound practice. The warning is muffled and confused: the weaknesses in the evidence are not fully exposed."
In Fergus (supra) it was held inter alia:
That, (1) "had the specific weaknesses been properly analyzed, the judge would have been bound to withdraw the case from the jury and although counsel for the appellant at trial had failed to invite the judge to do so, the judge was still, in the absence of such a submission, under a duty to invite submissions if it was his view that the identification evidence was poor and unsupported, and withdraw the case from the jury, if appropriate".
In this case visual identification was a live issue so one needs to examine the quality of that evidence. Mrs. Neita-Robertson submitted that despite the learned trial judge's directions on visual identification, she ought to have analyzed this evidence for the jury in order for them to assess the effect of specific weaknesses on the evidence given by Todd. She argued that Dwayne Larmond was someone Todd had known for a period of four or five years before the incident, and since Todd testified...
To continue reading
Request your trial