Kemar Effs v R
| Jurisdiction | Jamaica |
| Judge | P Williams JA |
| Judgment Date | 04 February 2022 |
| Neutral Citation | JM 2022 CA 14 |
| Docket Number | SUPREME COURT CRIMINAL APPEAL NO 94/2017 |
| Court | Court of Appeal (Jamaica) |
[2022] JMCA Crim 9
IN THE COURT OF APPEAL
THE HON Miss Justice P Williams JA
THE HON Mrs Justice Foster-Pusey JA
THE HON Mrs Justice Dunbar-Green JA
SUPREME COURT CRIMINAL APPEAL NO 94/2017
Miss Nancy Anderson for the applicant
Miss Natalie Malcolm for the Crown
Mr Lawrence Smith (otherwise called ‘Bingy’) was shot in the neck on 23 March 2013. He succumbed to his injuries sometime between that date and 18 June 2013. Mr Kemar Effs (‘the applicant’) was arrested and charged with his murder. He was tried before Stamp J (‘the learned trial judge’) and a jury in the Manchester Circuit Court. After his subsequent conviction, he was sentenced to life imprisonment at hard labour with eligibility for parole after 27 years.
Being aggrieved by that decision, he sought leave to appeal his conviction and sentence. However, after consideration by a single judge of this court, his application was refused. That application was renewed before us and heard on 25 October 2021. At that hearing, we considered eight supplemental grounds of appeal and the submissions advanced in relation thereto. We found no merit on those grounds of appeal, and so we made the following orders:
“1) The application for leave to appeal conviction and sentence is refused.
2) The conviction and sentence are affirmed.
3) The sentence is reckoned as having commenced on 3 November 2017.”
The promised reasons for that decision are stated below.
At about 8:00 pm on 23 March 2013, Mrs Charmaine Anderson-Smith (‘Mrs Anderson-Smith’) was behind the counter of her shop located at 36 West Road, Mandeville, in the parish of Manchester. Also present at the shop were her husband, Mr Bing Smith (‘Mr Smith’), who was seated outside the shop, and her cousin, Bingy, who was seated on a chair inside the shop “over the other side of the counter” where “people come in to order”.
Two men, who Mrs Anderson-Smith did not know before, came inside the shop. She described one of the two men who entered the shop as being slim, tall and dark. She subsequently identified this man as the applicant. The other man she described as short, stout, thicker than the applicant and dark (‘the second man’). She was able to see both men as there was sufficient lighting inside and outside of the shop. She was in close proximity to them and had multiple opportunities to see them as nothing was obstructing her view of their faces.
The applicant asked Mrs Anderson-Smith whether she sold “grabba” (tobacco). She sold him some grabba and he gave her $50.00. At that time he was within touching distance from her. She took payment for the grabba and placed the applicant's change on the counter. The second man who had accompanied the applicant to the shop, took the grabba from the applicant and threw it down on the counter. The applicant then asked Mrs Anderson-Smith whether she sold “red rose grabba” to which she responded in the negative. The applicant then retrieved the grabba and left the shop with the second man.
Shortly thereafter, Mr Smith entered the shop with the applicant behind him. The applicant said, “Robbery, nobody move”, with a gun in his hand. The applicant then pushed Mr Smith in a corner, hit him in his stomach with his hand and “pop off the chain wah him have on and say ‘Gimme dis bwoy’”. The other man went over to Bingy and they began having a tussle as he tried to access Bingy's pocket and Bingy said, “No bwoy, you naw go inna mi pocket, you nuh”. He threw off the second man's hand and said, “You nah go inna mi pocket eh nuh bwoy”. During the tussle, the backs of both men were to the wall near the light switch, the light went out and then it went back on in a “[q]uick second, quick-quick time”. Mrs Anderson-Smith stooped down behind the counter, intending to hide but one of the men said, “Weh the gal deh? Weh di gal deh?” She stood up and placed both her hands in the air.
The tussle between Bingy and the second man continued. The applicant then walked over to Bingy. While the applicant was walking towards Bingy, Mrs Anderson-Smith took up a bottle intending to throw it at the applicant, however, the applicant turned to her, pointed the gun at her and said, “Hey gal, you nuh hear say fi put you hand inna the air”. She dropped the bottle and once again placed her hands in the air. The applicant then turned to Bingy and said, “Hey bwoy a violate you a violate” and started to hit Bingy with the gun in his face. Mrs Anderson-Smith said to Bingy, “Just cool and mek them tek weh dem want and gwaan”. Bingy replied, “You a idiot man, yuh nuh si seh no shot nuh inna di gun”. The applicant then held the gun to Bingy's neck and fired a shot. Bingy fell and Mrs Anderson-Smith saw smoke. Both the applicant and the second man ran out of the shop.
The police were summoned and Bingy was taken to the hospital. He was hospitalised for some time at the Kingston Public Hospital.
Detective Corporal Keo Thompson, a forensic crime scene investigator visited the scene 11:00 pm, on the night of the incident, and after making certain observations, proceeded to take photographs, some of which were admitted into evidence.
On 21 May 2013, acting on information, Detective Corporal Dwayne Card, the investigating officer, visited the Mandeville Police Station lock-up where he saw and spoke to the applicant. A visual identification parade was held on 5 June 2013. Mrs Anderson-Smith and her husband, Mr Smith, attended the identification parade. However, only Mrs Anderson-Smith was able to make a positive identification. She denied suggestions that police officers had taken the applicant to her in the CIB office before the parade was conducted and told her that it was he who had been in the shop.
The applicant was thereafter charged with robbery with aggravation, wounding with intent and illegal possession of firearm. However, Bingy subsequently died sometime between 23 May and 18 June 2013. Dr Prasad Kadiyala, consultant forensic pathologist, indicated that his cause of death was “[s]epsis due to paraplegia, due to gunshot wound to the neck”. The applicant was therefore charged with murder. When cautioned for that offence he said, “Boy, mi salt eeh man”.
The applicant called no witnesses but gave an unsworn statement in his defence. He denied any knowledge of or involvement in Bingy's murder. He indicated that he was invited to the police station for questioning. Upon that visit, he was placed in a cell. He stated that “Detective Chapel Reid” had asked Mrs Anderson-Smith whether she knew him and she said no. Detective Chapel Reid repeated the question to Mrs Anderson-Smith, told her the applicant's name, and identified him as the person who committed the shooting at her yard. He was later taken to a location by the police at “Brooks Park Road”, removed from the car and told to run. When he refused to do so, he was returned to the car and, thereafter, to the police station. After being told by Detective Corporal Card that he was pointed out in the identification parade, he responded that he did not know anything.
He was ultimately convicted and sentenced as indicated at para. [1] above.
In his application for leave to appeal his conviction and sentence, permission was sought and granted (with no objection from the Crown) to abandon the original grounds of appeal that had been filed and to argue eight supplemental grounds of appeal instead. Those grounds of appeal are as follows:
“GROUND ONE
The trial judge erred in law by failing to give adequate, proper and appropriate directions to the jury in relation to the visual identification evidence of a sole eye witness, pursuant to the principles enunciated in R v Turnbull [1977] 2 QB 224 thus denying the Applicant a fair trial.
GROUND TWO
The Learned Trial Judge erred in failing to direct the jury on the lack of supporting evidence such as (1) no fingerprints, (2) no search for a gun or a chain, (3) no search for a second man and (4) no evidence by the second eyewitness as to a description or the failure to point out anyone at the [identification] parade.
GROUND THREE
The Trial Judge erred in failing to direct the jury that the identification parade should not have been held as the description of the applicant was slim and inadequate and bore no resemblance to the applicant and thus there was no explanation as to why the applicant should be in an [identification] parade, resulting in miscarriage of justice.
GROUND FOUR
The Learned Trial Judge failed to direct the jury on the Applicant's right to have a lawyer or a friend present at the [identification] parade and thus the Applicant was denied his right to a fair trial.
GROUND FIVE
The learned trial judge misstated the Applicant's defence at [pages] 270–271 and at page 309 (lines 1–3) by suggesting that it was two fold [sic] and this was a misdirection operating to the prejudice of the Applicant and denying him a fair trial.
GROUND SIX
The Learned Trial Judge erred in his summation by constantly referring to the Applicant as ‘the accused’, never referring to him by name therefore failing to treat him equally under the law and failing to direct/demonstrate to the jury that he was presumed innocent until the prosecution had proved guilt beyond a reasonable doubt.
GROUND SEVEN
The delay in the hearing of the trial and this appeal are breaches of the Applicant's Constitutional right to a fair trial within a reasonable time – section 16(1) of the Charter of Fundamental Rights and Freedoms, Chapter III of the Constitution [of Jamaica].
GROUND [EIGHT]
The Learned Trial Judge erred in sentencing the Applicant by misstating that the offence was murder in the course or furtherance of a robbery, and therefore the sentence is manifestly excessive.”
These grounds raised issues for our...
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