Ian Gordon v R

• Jurisdiction: Jamaica
• Judge: Brooks JA
• Judgment Date: 16 March 2012
• Neutral Citation: [2012] JMCA Crim 11
• Docket Number: SUPREME COURT CRIMINAL APPEAL NO 195/2003
• Court: Court of Appeal (Jamaica)
• Date: 16 March 2012

Ian Gordon

and

R

[2012] JMCA Crim 11

Before:

The Hon Mrs Justice Harris P (Ag)

The Hon Mr Justice Brooks JA

The Hon Mr Justice Hibbert JA (Ag)

SUPREME COURT CRIMINAL APPEAL NO 195/2003

JAMAICA

IN THE COURT OF APPEAL

CRIMINAL LAW - Murder - Sentence to death - Sentence subsequently commuted to life imprisonment - Visual identification evidence - Circumstantial evidence

Brooks JA

1 On 29 August 2000 at about 4:00 am, three men entered premises 21 Tavern Drive in the parish of Saint Andrew. They fired several shots through the front and both sides of a small wooden house located at those premises and then left. Two men, Garfield Gordon and Vincent Raffington, who were inside the house at the time, were shot. Both eventually died from their injuries.

2 At about 10:30 that very morning, Mr Ian Gordon, the appellant herein, was taken into custody for the offences. Forensic tests of swabs, taken of his hands that morning, revealed that he had gunshot residue on his hands. The following day, 30August 2000, he was pointed out, on an identification parade, as one of the gunmen, who had fired the shots at the ill-fated house. He was arrested and charged for the killings. Despite the swift action of the police in apprehending and charging the applicant, three years were to pass before he would be tried.

3 On 6 October 2003, he was convicted on an indictment which charged him with those killings. On 8 October 2003, he was sentenced to suffer death for the offences. A re-sentencing exercise, which was done on 23 August 2005, resulted in a similar sentence. On 23 July 2009 the sentence was commuted to imprisonment for life by the Governor General in exercise of the prerogative of mercy. The exercise was spurred by the length of time that had elapsed since the date of conviction.

4 The appellant was granted leave to appeal against the convictions. Original grounds filed by him were abandoned. Before us, learned counsel, Mr Hines, with the permission of the court, argued two supplementary grounds of appeal:

‘1. [The] learned trial Judge erred in that he failed to treat adequately in his directions on [sic] the crucial issue of [visual] identification i.e. the direct evidence in this case.

2. The learned trial Judge erred in that he failed to treat adequately with the circumstantial evidence offered in support of the direct evidence i.e. the existence of elevated levels of gunshot residue on his hands.’

These will be dealt with in turn.

Ground One: Failure of the learned trial judge to give adequate directions on visual identification.

5 The essence of Mr Hines' submission was that the sole eyewitness to the shooting, Mr Peter Miller had only had a fleeting glance of the gunmen. Learned counsel submitted that the learned trial judge, was obliged to, yet failed to bring to the attention of the jury, the effect of this and other weaknesses in the visual identification evidence. As a result, Mr Hines submitted, the summation was fatally flawed and the conviction must be quashed.

The opportunity for viewing

6 The evidence in respect of Mr Miller's sighting of the gunmen was that he was sitting on a stone at 21 Tavern Drive when he was alerted by the barking of a dog. He looked and saw three men step over the back fence of the premises and, as they were walking in his direction, he could see their faces. He recognised two of them as persons whom he had known before. One was the appellant. He noticed that all three men had firearms in their hands. He ran. The men fired shots. He went some distance away and stopped. From an elevated vantage point, he saw the gunmen fire shots into the house where Mr Gordon and Mr Raffington were.

7 The circumstances of the sighting were explained in evidence by Mr Miller. He said that he had known the appellant for over 20 years. He had seen him about three hours earlier that morning, outside nearby premises. When the gunmen had entered No 21 Tavern Drive there were electric lights burning outside of four of the five buildings on those premises. These lights illuminated the premises. The men were‘about a chain and a little bit’ away, when he first saw them. He ‘gave a watchful eye on them stepping over the fence’. They were a chain away from him when he ran. He observed them as they fired shots at the house and he saw them some minutes later, as they walked along Tavern Drive away from No 21.

8 The elements of the identification, on which Mr Hines focussed in his submissions, are set out below.

Fleeting glance

9 The first of these elements is that of the time period of the observation. The time that Mr Miller said that he saw the men for, before he ran, was demonstrated at the trial. It was estimated at ‘about three seconds’. At paragraph 7 of his written submissions, Mr Hines argued:

‘…Seeing the accused for a fleeting glance even in recognition cases is what it is [;] a mere glimpse, a flash [;] a very short time — he the Judge does not have to use special language — he does not have to list weaknesses. It is the inherent nature of the fleeting glance — which makes it prone to mistake, and why it is singled out inTurnbull [ (1976) 63 Cr App R 132; [1976] 3 All ER 549 ]’

10 Learned counsel argued that the learned trial judge failed to bring the significance of this short sighting to the attention of the jury. Mr Hines accepted that the learned trial judge was not obliged to use any specific form of words, nor did he have to use the word ‘weakness’ in reference to any deficiency in the identification evidence. Learned counsel submitted, however, that it was the significance of thedeficiency that the learned trial judge ought to have communicated to the jury and this, counsel argued, he failed to do.

11 Mr Hines also submitted that the learned trial judge invaded the province of the jury when he sought to suggest to the jury that the demonstration given by Miller, as to the viewing time, seemed to indicate a period longer than three seconds. On Mr Hines' submission, this statement by the learned trial judge was not only wrong but exacerbated the judge's failure to point out the short period as a weakness in the identification evidence.

Witness smoking ganja

12 The next element on which Mr Hines focussed was the acuity of the witness. Learned counsel submitted that the learned trial judge failed to tell the jury directly, that Mr Miller's observation was made in less than ideal conditions. On learned counsel's submission, the learned trial judge ought to have told the jury that the fact that Mr Miller had been smoking ganja at the location, for a number of hours leading up to the sighting, could have affected his acuity and could have led to his making a mistake. According to Mr Hines, the direction need not be based on science, but ‘it must show that a person who is smoking ganja is more likely to make a mistake’.

13 Learned counsel pointed out that this aspect of the evidence had not escaped the learned trial judge's attention. He argued that the learned trial judge had promised to give the jury a specific caution on the issue but never did. The learned trial judge said at page 298 of the transcript:

‘…remember that Mr Miller, on his own terms was there from 10 o'clock smoking ganja and cigarettes and what [defence counsel] Mr. Mitchell, has said, is saying in fact if he is there from 10 o'clock puffing away on a — I think he said — he said something like a “ganja challis”— he said puffing on a “ganja challis” from that time, you know by 4 o'clock, what do you expect. That is what Mr Michell is saying. What do you make of the comment of Crown Counsel? What Crown counsel said is that, let's face it, when he saw them coming over the wall, if he was in that state that defence counsel was talking, could he see any of the faces and say look at these men. He never did anything like that, he told you he turned and he left, he ran. So, that you see, you look at the evidence, this part of it is important. I will give you a caution on this part of the evidence .’ (Emphasis supplied)

The admixture of races

14 As a further complaint about the summation of the learned trial judge on the issue of identification, learned counsel submitted that the learned trial judge erred when he failed to inform the jury in words to convey the concept ‘that in Jamaica because of the admixture of races more than one person may bear a marked resemblance and also that at the time of identification (a mere three seconds) combined with the smoking of ganja and fright from the sight of the three men and what they were about to do could lead to a mistake and you identifying someone you think you know’.

Analysis

15 Subject to what will be said below about alibi, we have observed, from our reading of the transcript, that the learned trial judge did give an adequateTurnbull direction to the jury. He told the jury of the likelihood of mistakes being made, even by an honest witness and he brought to their attention the initial suggestion, by the defence, that Mr Miller was mistaken, and a later suggestion that he was lying, with malicious intent.

16 The learned trial judge not only told the jury of the dangers inherent in visual identification but brought to their attention the need to apply the concept to the circumstances of the instant case. In addressing the matter of the time for which Mr Miller said he observed the men, the learned trial judge said:

‘You, however, examine carefully the circumstances in which the identification was made, how long the person, he says was the accused was under observation. That's one of the key things you look at. How long did Mr Miller have the opportunity to look at the man, the men rather, coming over the fence, how long . At what distance, the length of time, the distance. What he said the length of time was, there was a notation in this court about that, but, I must tell you as a matter of...