Harold Berbick and Kenton Gordon v R

• Jurisdiction: Jamaica
• Judge: Morrison JA
• Judgment Date: 07 March 2014
• Neutral Citation: JM 2014 CA 27
• Court: Court of Appeal (Jamaica)
• Docket Number: SUPREME COURT CRIMINAL APPEAL NOS 2 & 3/2008
• Date: 07 March 2014

[2014] JMCA Crim 9

JAMAICA

IN THE COURT OF APPEAL

Before:

The Hon Mr Justice Morrison JA

The Hon Mr Justice Dukharan JA

The Hon Miss Justice Phillips JA

SUPREME COURT CRIMINAL APPEAL NOS 2 & 3/2008

Harold Berbick

Kenton Gordon

and

R

Dr Randolph Williams for Harold Berbick

Keith Bishop and Raoul Lindo for Kenton Gordon

Miss Sanchia Burrell for the Crown

CRIMINAL LAW - Murder - Whether trial judge incorrectly admitted into evidence statements made by appellants - Whether the statements admitted were incriminating - Whether the appellants were denied a good character direction - Whether the sentence was manifestly excessive

Morrison JA

Introduction

1 In his time, Mr Trevor Berbick (“the deceased”) was a famous and internationally known boxer. In his retirement, having earned a total of five heavyweight championship belts over the course of his career, he returned to Jamaica to live at Ranch Hill, Norwich, in the parish of Portland. Shortly after 6:00 am on 28 October 2006, he was found dead on the steps of the chapel of the Church of God in Norwich.

2 Mr Harold Berbick, the deceased's nephew, and Mr Kenton Gordon (also known as “Sheldon”) were jointly charged with murdering him. For easy reference, we will refer to them individually as “Mr Berbick” and “Mr Gordon”, and collectively as “the applicants”.

3 Both applicants entered pleas of not guilty and, on 26 November 2007, their trial commenced before McDonald J and a jury in the Circuit Court for the parish of Portland. On 20 December 2007, the jury returned verdicts of guilty of murder against Mr Berbick and guilty of manslaughter against Mr Gordon. They were sentenced on 11 January 2008, when Mr Berbick was sentenced to imprisonment for life, the court stipulating that he should serve a minimum of 20 years before becoming eligible for parole; and Mr Gordon was sentenced to 14 years' imprisonment at hard labour.

4 On 10 September 2010, both applicants' applications for leave to appeal against their convictions and sentences were refused by a single judge of this court. These are therefore their renewed applications to the court itself.

The issues on appeal

5 The case for the prosecution against both applicants depended to a significant extent on statements allegedly made by them to the police, in the case of Mr Berbick, during the course of a question and answer session conducted in the presence of an attorney-at-law on 30 October 2006; and, in the case of Mr Gordon, in a statement under caution given by him on 31 October 2006. The primary issue on appeal in respect of both applicants is whether the learned judge's decision to admit these statements into evidence was correct (“the admissibility issue”).

6 Mr Berbick contends further that (a) he was deprived of the benefit of a good character direction and a chance of an acquittal by the failure of his counsel to put his character in issue at the trial (“the good character issue”); and (b) the learned trial judge misdirected the jury on the question of the requisite intention for the offence of murder (“the misdirection issue”).

7 Additionally, both applicants contend that the sentences imposed by the trial judge were manifestly excessive in the circumstances (“the sentence issue”).

The prosecution's case

8 Miss Christine Davis, an employee at McCarthy's Bar in Norwich, Portland, testified that, at minutes to midnight on Friday, 27 October 2006, the deceased entered the bar. After exchanging words briefly with her, the deceased sat at the bar watching television, something he had done in the past. After about an hour, he left the bar. Under cross-examination, she said that the deceased ‘was looking very pail [sic]…as if he was sick or something like that’. She had never seen the deceased drink heavily and, whenever he came to the bar while she was there, he always behaved ‘very well’.

9 Mr Shawn Bishop was at the material time a resident of Ranch Hill, Norwich District. He was a “sound selector” and he operated a sound system known as “World Beat”. Both applicants were previously known to him, Mr Berbick for around six years and Mr Gordon for around a year and a half. He was accustomed to seeing both of them on a daily basis around Norwich. The deceased was also known to him as a resident of Norwich.

10 On the evening of 27 October 2006, Mr Bishop was engaged in playing the sound system at a party at Miss Dorraine's bar in Norwich. The deceased was at the party, as were the applicants, though not all at the same time. Mr Berbick in fact played a role in providing music for the party, as his laptop was in use playing some music videos. Mr Bishop remained at the party from 7:00 pm that evening to 1:00 am the following morning (although he did take a break at some point in between to go home and freshen up). He finally stopped playing music at about 1:00 am, he packed up the sound system and left for home. At around this time, he saw the deceased across the road ‘going down to the other bar’.

11 At some point between 1:30 and 2:00 am, while on his way home on foot along the main road, Mr Bishop heard a voice call out from the yard of the Church of God, ‘Say, way you a deal wid.’ He stopped and looked in the direction of the church yard. The area was illuminated by a light in front of the deceased's verandah. Mr Bishop then saw Mr Berbick standing in the church yard. Mr Berbick was shirtless, but was wearing the same pair of shorts that he had been wearing the evening before and Mr Bishop was able to see his face from a distance of about 9–10 yards away. Mr Bishop also saw Mr Gordon standing just behind Mr Berbick in the church yard. He too was shirtless. In answer to Mr Berbick's question, Mr Bishop said that he was going home and continued on his way.

12 Mr Canute Lambert, who was a deacon of the Church of God in Norwich, had for many years been accustomed to having an early-morning prayer meeting in the chapel of the church every Saturday. The church and the house in which the deceased lived are in close proximity to each other. Mr Lambert, who was 84 years old at the time of the trial, had known the deceased from birth. On the morning of Saturday 28 October 2006, he arrived at the church on foot at a little after 6 o'clock. From the bottom of the steps leading up to the chapel, Mr Lambert saw an object, which he at first took to be a black garbage bag, at the top of the steps. But when he went up the steps and got closer to this object, he realised that it was not a bag. He saw what appeared to be blood on the steps and the object ‘looked like a human being’. Asked if he was able to recognise this human being, his response was, ‘…it resemble [the deceased] body to me’.

13 Later that morning, after speaking with his mother at about 7:00 o'clock, Mr Bishop got up and took a walk down the road, back to the church yard. There, in ‘actually the same place [the applicants] were standing the night I left them’, he saw the body of the deceased lying on the steps of the church. Later still the same morning, after returning to his house and venturing out again, Mr Bishop encountered the applicants ‘up by the Top Norwhich [sic]’. This time, Mr Berbick was wearing a shirt and the same pair of shorts that he had been wearing the evening before. He had an army jacket in his hand and a knapsack on his back and he was shaking.

14 When he was cross-examined by counsel for Mr Berbick, Mr Bishop accepted a suggestion that Mr Berbick had confided to him in the past that ‘him have to walk through bushes to avoid [the deceased] in the nights’, and that he was afraid of the deceased. He also agreed that, despite the light of which he had spoken, the area in which he had seen the applicants in the church yard was dark, though, he insisted, not ‘all that dark’. But he accepted that what he had told the police in his statement was, ‘I left them standing in the dark.’

15 At about 7:30 on the morning of 28 October 2006, Constable Keneata Cornwall, a constable of police attached to the Port Antonio Scenes of Crime Office, was dispatched to Ranch Hill, Norwich District. When he arrived on the scene at around 8:00 am, a body lying in a pool of what appeared to be blood was pointed out to him in the yard of the Norwich Church of God. Constable Cornwall was able to identify the body as that of the deceased, who he knew before. He observed several wounds to the back of the deceased's head and he collected pieces of what appeared to be bone beneath the deceased's head. These were placed in an envelope, which was sealed and labelled, as were samples of the substance resembling blood which were also taken from the deceased. In the end, nothing turned on this material, as no expert evidence was tendered in relation to it at the trial.

16 On 6 November 2006, Mrs Elaine Berbick Dryer, the sister of the deceased, formally identified his body to Dr David Crawford, who conducted the post mortem examination on that day. Dr Crawford's examination revealed that the deceased had sustained several head injuries. In the doctor's opinion, the cause of death was massive brain damage and haemorrhage due to a compounded depressed left parietal skull fracture, involving a hard, blunt object, such as an iron bar, delivered with excessive force. Dr Crawford's estimate was that death would have resulted in not more than half an hour from the time of infliction of the injuries which he observed.

17 Mr Berbick was taken into custody and taken to the Port Antonio Police Station at around 11 o'clock in the morning of 28 October 2006. In the afternoon of 30 October 2006, he was taken to the office of Superintendent Kelsor Small at the police Area Two Headquarters, Pompano Bay, St Mary, for questioning. In addition to Superintendent Small, the police officers present were Detective Inspector Patrick Callum, Detective Sergeant Kenneth Bailey and...