Huey Gowdie v R
| Jurisdiction | Jamaica |
| Judge | P Williams JA |
| Judgment Date | 04 May 2018 |
| Neutral Citation | JM 2018 CA 67 |
| Docket Number | SUPREME COURT CRIMINAL APPEAL NO 63/2016 |
| Court | Court of Appeal (Jamaica) |
[2018] JMCA Crim 18
IN THE COURT OF APPEAL
THE HON Mr Justice Brooks JA
THE HON Mr Justice F Williams JA
THE HON Miss Justice P Williams JA
SUPREME COURT CRIMINAL APPEAL NO 63/2016
Delano Harrison QC instructed by K Churchill Neita and Company for the applicant
Miss Natallie Malcolm for the Crown
On 12 July 2012, in the hills of Saint Andrew, Mr Huey Gowdie, the applicant, shot Mr Shango Jackson, the deceased, three times. Mr Jackson died as a result of one of those gunshot wounds. The applicant was subsequently charged for murder. His trial took place in the Home Circuit Court before Evan Brown J and a jury over several days commencing on 30 May 2016. On 13 June 2016, the applicant was convicted for manslaughter. On 22 July 2016, he was sentenced to 10 years imprisonment at hard labour.
Consequently, the applicant applied for leave to appeal his conviction and sentence. A single judge of this court refused his application. Having had his application refused, the applicant has renewed his application before us, as is his right.
In July 2012, the applicant and the deceased lived at the same premises at 50 Shenstone Drive, Beverly Hills in the parish of Saint Andrew. There are two houses on the property. The deceased, his girlfriend and their family along with his brother, Mr Kwame Jackson, resided in the house to the front of the property. The applicant lived in the house to the rear with his girlfriend and her family. The applicant's girlfriend, Mrs Annette Carrington-Jackson, happened to be the ex-wife of the deceased.
Mr Kwame Jackson testified that on 12 July 2012, sometime between 6:00 pm and 6:10 pm, he was in his bedroom on the top floor of the house he shared with the deceased when he heard voices outside. He looked out and saw Mrs Carrington-Jackson and her daughter Lori-Ann Grant. He heard his brother's voice coming from the parking area to the front of that house. It sounded to him as if they were arguing.
He heard a vehicle engine start and he then saw Mrs Carrington-Jackson and Lori-Ann enter Mrs Carrington-Jackson's vehicle, a Toyota Vitz and they proceeded to drive down the driveway. Mr Jackson went to another section of the balcony where he saw his brother exiting his vehicle, a Toyota Tacoma, which was now parked at the bottom of the driveway. This was the single driveway that provided entrance and exit to the premises.
Mrs Carrington-Jackson stopped her vehicle about 3 to 4 feet away from the Toyota Tacoma. Mr Jackson saw his brother proceed to walk up the driveway towards his house. At that point, a third vehicle, a Mitsubishi Pajero, pulled up behind the Toyota Tacoma. At this time, the Toyota Tacoma could neither be moved forward or backwards. The Mitsubishi Pajero could not enter the premises neither could Mrs Carrington-Jackson exit in her vehicle.
The applicant was the driver of the Mitsubishi Pajero. Mr Jackson saw him exit this vehicle and walk up the driveway. He saw the applicant pull a firearm from his waist and moved quickly to get closer to the deceased. The applicant crossed between the Toyota Tacoma and the Toyota Vitz and approached the deceased from behind.
Mr Jackson next saw when the applicant “stomped” the deceased in the lower back. The deceased turned to face the applicant and appeared as though he was throwing a punch at the applicant. The punch did not make contact. Mr Jackson watched as the applicant took a step or two back, away from the deceased and raised the firearm which he had up to then been holding downwards in his right hand.
The deceased was turning away from the applicant and his left side was now facing the applicant who fired the gun in the direction of the deceased's legs. Mr Jackson saw his brother turn to his left and face the applicant again who then raised the gun once more and fired in the direction of the deceased's midsection. The deceased looked at his arms and his legs then turned his back to the applicant and proceeded up the drive. He took a few steps away from the applicant who stepped towards him and stomped him in his back a second time.
The deceased turn to his left and as he turned, the applicant raised his gun in the direction of the upper region of the deceased's body. The applicant fired a third time. The deceased screamed and fell to the ground.
Mr Jackson described how he immediately rushed to where his bother had fallen. As he rushed to his brother, he passed Mrs Carrington-Jackson walking up the driveway. He asked her, “what is happening and why did this have to happen”. She responded, “[h]e attacked him”.
Upon reaching his brother, he observed a small amount of blood on his shirt. He turned to the applicant, who was standing nearby and asked, “Why? Why did it have to come to this?”. The applicant did not respond. Mr Jackson asked him, “Where did you shoot Shango?”. This time the applicant responded, “I don't know”.
Mr Jackson got assistance and took his brother to the hospital. Subsequently, he was shown his brother's dead body.
Under cross-examination, Mr Jackson testified that his brother weighed over 200 pounds but would not agree that he was 6 feet 4 inches tall. He however agreed that his brother was big. He accepted that he and his brother has had several fights. However, when he was asked about fights his brother may have had with several persons, he denied knowledge of those incidents. He was also questioned about abusive incidents between his brother and Mrs Carrington-Jackson. Mr Jackson maintained that there were altercations, the specifics of which he did not know since he had never seen anything himself.
Only one other witness for the Crown purported to speak about what had transpired there that evening. He was Errol Dunkley. He however had testified that he was speaking to Mr Kwame Jackson at the time the first shot as heard. He then heard a second gunshot after which he heard the deceased call out his name. Mr Dunkley explained how he immediately ran off in the direction from which he had heard the deceased calling him. He then heard a third gunshot.
Mr Dunkley said after the first gunshot, he didn't know what became of Mr Jackson. However, by the time he ran to the front of the house, after the third shot was fired, he saw Mr Jackson also running to the front of the house. The two of them then ran down to the driveway where the deceased had fallen. He ran past Mrs Carrington-Jackson. He noted the positioning of the vehicles which he described as “Annette car like was like at the front, Shango van in the middle” and the applicant's “van was at the back”.
Mr Dunkley described how both he and Mr Jackson shook the deceased. He testified that he heard Mr Jackson asking the applicant where he had shot the deceased. He heard the applicant respond that he didn't know. Mr Dunkley was the one who assisted Mr Jackson to place the deceased in the back of the Toyota Tacoma and travelled to the hospital with them. He acknowledged that he had seen the applicant with a gun in his hand whereas the deceased did not have anything in his.
Mr Dunkley was also cross-examined about various acts of violence allegedly committed by the deceased. He denied knowledge of any of them.
There were two other civilian witnesses called by the Crown. The first, Miss Francine Bingham, was the common-law spouse of the deceased who identified his body for the purpose of a post-mortem examination. The second was Dr Pradeep Rohan Ruwanpura who performed that examination.
Dr Ruwanpura testified that the post-mortem examination revealed that the deceased had received three gunshot wounds in total to his body. The wounds were to the outer aspect of his left shoulder, upper outer aspect of his left thigh and the upper outer aspect of his left lower leg in the area of his calf. Death which would have been immediate was due to haemopneumothorax and aortic laceration caused from the damage done to internal organs from the bullet that had penetrated the body from the entry wound on the left shoulder.
Three police officers testified as to the various roles they played in the investigations in this matter. Corporal Alesa Brown, who at the time of the incident was a Police Constable, was one of the first officers who arrived on the scene. She had been dispatched there as a result of a report which had been made to the police control. She saw and spoke with the applicant who admitted doing the shooting. She cautioned him and collected his firearm from him. She escorted him to the Matilda's Corner Police Station where he was handed over to the station officer and the firearm handed over to Detective Sergeant Dewayne Jonas, who was a Detective Corporal of Police at the time.
Detective Corporal Milton Henry was the forensic crime scene investigator who visited the scene that afternoon. He took photographs of the scene, some of which were admitted into evidence and used when Mr Jackson was testifying to point out the areas of the premises of which Mr Jackson spoke. Detective Corporal Henry also photographed the body of the deceased and the pictures of the wounds to the leg and calf of the deceased were also admitted into evidence.
Detective Sergeant Dewayne Jonas, who described himself as the initial investigator, upon receiving the firearm and initial report from Corporal Brown, testified that he spoke to the applicant. He cautioned the applicant and asked him why he shot the deceased. He said the applicant replied, “boss, him was blocking [my] drive way”. Detective Sergeant Jonas testified that the applicant further stated: “I asked [the deceased] to remove his car, an argument developed and he was advancing towards me because he is bigger in built. I had to brandish my firearm, my licensed firearm and shoot him to protect myself”. Detective Sergeant...
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