Kenrick Dawkins v R

• Jurisdiction: Jamaica
• Judge: Brooks JA
• Judgment Date: 09 October 2015
• Neutral Citation: JM 2015 CA 101,[2015] JMCA Crim 23
• Docket Number: SUPREME COURT CRIMINAL APPEAL NO 97/2012
• Court: Court of Appeal (Jamaica)
• Date: 09 October 2015

[2015] JMCA Crim 23

JAMAICA

IN THE COURT OF APPEAL

Before:

The Hon Mr Justice Panton P

The Hon Miss Justice Phillips JA

The Hon Mr Justice Brooks JA

SUPREME COURT CRIMINAL APPEAL NO 97/2012

Kenrick Dawkins

and

R

Oswest Senior-Smith and Miss Ayana Royes instructed by Oswest Senior-Smith and Company for the applicant

Miss Keisha Prince for the Crown

CRIMINAL LAW - Illegal possession of firearm - Wounding with intent - Defence of alibi

Brooks JA

1 On 22 August 2012, the applicant, Mr Kenrick Dawkins, was convicted in the High Court Division of the Gun Court, being held in the parish of Saint Ann for the offences of illegal possession of a firearm and wounding with intent to cause grievous bodily harm. He was sentenced, on 30 August 2012, to 10 years imprisonment in respect of the illegal possession and 12 years imprisonment in respect of the wounding.

2 Mr Dawkins' application for permission to appeal against the convictions and sentences were considered by a single judge of this court, who refused his application. He has renewed his application before the full court. As part of his submissions in support of the renewed application, Mr Senior-Smith argued on Mr Dawkins' behalf that the prosecution's evidence, regarding an identification parade said to have been held in respect of Mr Dawkins, and the learned trial judge's treatment of the matter of the identification parade rendered the conviction unsafe. Learned counsel also submitted that the directions that the learned trial judge gave himself in respect of the defence of alibi were inadequate and that as a result the defence was not properly considered. In the circumstances, Mr Senior-Smith argued, the convictions should be quashed and the sentences set aside.

3 Because of the view that we have taken of the application, only a brief summary of the respective cases of the Crown and Mr Dawkins will be outlined.

The Crown's case

4 It was alleged that on 4 December 2011 at about 12:30 am, the virtual complainant, Mr E (hereinafter also called the complainant), was at his restaurant in Ocho Rios, Saint Ann with his girlfriend and business partner Miss J when a man carrying a gun came into the premises. The man was wearing a handkerchief covering the bottom half of his face. On seeing him, Miss J ran outside of the premises by way of the rear doorway and shut the door behind her, leaving the complainant and the gunman inside the restaurant. She and an employee braced the door to prevent the man from following her.

5 The gunman then pointed the gun at the complainant's face and demanded money. A struggle ensued between the gunman and the complainant during which the gunman pointed the gun at the complainant's abdomen and shot him to his left side causing a wound that bled. During the struggle, the handkerchief being worn by the gunman fell from his face and the complainant recognised the gunman as a person whom he knew before. After the shot was fired, the gunman ran out of the restaurant and escaped.

6 The matter was reported to the police. About two months later, the complainant saw the assailant in Ocho Rios and informed the police of his whereabouts.

7 The complainant testified that he later attended an identification parade at which he pointed out Mr Dawkins to be the assailant. The prosecution did not, however, adduce any evidence from any police officer as to the conduct of an identification parade in which Mr Dawkins was the suspect. The prosecutor informed the learned trial judge that he would not call the relevant officer as a witness.

The case for the defence

8 Mr Dawkins, in his defence, gave an unsworn statement in which he denied committing the offences for which he was charged and raised the defence of alibi. He said that at the time of the commission of the offence he was at his home in Shaw Park, Ocho Rios. He said that he was told of the incident by his girlfriend. He said that people who knew him knew that he would not have committed such an offence.

9 He called two witnesses in support of his defence. They each testified that they saw someone other than Mr Dawkins running away from the scene of the shooting.

The decision in the court below

10 At the close of the trial, the learned trial judge pointedly addressed a number of issues in his summation and recognized at the outset what the defences were. This is demonstrated at page 138 at lines 14–20 of the transcript where he said:

“The defence is simple one, I was not there, it was not me, and secondly, that it was someone else so the defence which is run is of two modes. One is an alibi in respect to [sic] the evidence of the accused himself and identification in respect to [sic] the two witnesses called by the accused.”

11 Having identified these defences and after making findings of fact as to the credibility of the witnesses, the learned trial judge accepted the evidence of the complainant as to the identity of the assailant.

Grounds of appeal

12 Mr Senior-Smith argued, with leave, four supplemental grounds of appeal in support of this application:

• 1) The directions on the central issue of identification were insufficient and deficient, which divested Mr Dawkins of a fair trial.

• 2) The learned trial judge inadvertently misquoted the evidence thereby occasioning prejudice to Mr Dawkins.

• 3) The learned trial judge's directions on Mr Dawkins' defence of alibi were inadequate and amounted to a non-direction resulting in inevitable prejudice to Mr Dawkins.

• 4) Mr Dawkins' defence was denigrated by a course of inductive reasoning by the learned trial judge.

Analysis

11 Mr Senior-Smith argued each of those grounds with vigour. This analysis will, however, only be concerned with two of the issues raised. The first is the evidence concerning the identification parade and its consequences in the trial. The second is the alibi evidence. These issues will be considered separately.

a. The identification parade

12 Two elements of the treatment of the evidence concerning the identification parade are significant. The first concerns the evidence which the prosecution sought to adduce about the parade. Mr E testified, in his evidence in chief, that he attended an identification parade and pointed out Mr Dawkins. It was, however, during cross-examination that Ms J testified that she also attended an identification parade and pointed out Mr Dawkins.

13 The prosecutor not only did not seek to adduce any evidence through Ms J as to the holding of an identification parade, but also decided not to call the police officer who was in charge of the conduct of the parade. He seemed to have considered the police officer to be a “formal witness”. The prosecutor informed the trial judge that he had informed defence counsel of the intention not to call the police officer and that the defence counsel had “no difficulty” (page 76 of the transcript).

14 It must be said that the prosecutor was in error in considering the police officer who conducted the identification parade, to be a “formal witness”. The tribunal of fact, whether it be a jury or a judge sitting alone, must be convinced of the fairness of any identification parade on which an accused person was placed. The police officer who has conduct of the parade is an important witness in that regard. The failure to call the police officer in this case, was not a minor slip. It may be said, however, that the omission may have been ameliorated by the fact that defence counsel who appeared for Mr Dawkins at the trial, had also represented Mr Dawkins at the time that the parade was conducted. He had no objection to the prosecutor's decision not to call the relevant police officer.

15 The second significant element is the learned trial judge's treatment of the evidence concerning the identification parade. During a submission that there was no case to answer, the learned trial judge proposed, and defence counsel accepted that it was appropriate to treat the identification by Ms J, as a dock identification. The transcript, at page 77 records their exchange thus:

“HIS LORDSHIP: Instead of taking the first witness let's dispose of the second witness. We dispose of the second witness in that the evidence you have in respect of the second witness is basically a dock identification, yes.

[DEFENCE COUNSEL]: Yes, M'Lord.

HIS LORDSHIP: So we only concentrate on [Mr J], all right.”

[DEFENCE COUNSEL]: Grateful M'Lord….’

16 The learned trial judge found that there was a case to answer. Despite his earlier indication concerning Ms J's identification, the learned trial judge, in his summation, seemed to have used a different approach to that identification. Page 153 of the transcript reports him as saying:

“…and although it has not been explored, [Ms J] did say that she identified him on an identification parade when asked by Defence Attorney.”

The learned trial judge also said (at page 155 of the transcript):

“[Ms J], she also pointed him out on an identification parade.”

17 Miss Prince for the Crown submitted that nothing flowed from the learned trial judge's reference at page 153 to Ms J's testimony. Learned counsel submitted that Mr Senior-Smith was asking this court to speculate as to what had occurred at the identification parade. She submitted that the identification parade forms (which were not tendered into evidence) confirmed that both Mr E and Ms J had pointed out Mr Dawkins at the respective parades at which they were the witnesses.

18 Miss Prince is, with respect, not on good ground with this submission. She has not addressed the main point of complaint, which is the radical shift in position by the learned trial judge. This was a serious lapse by him. We are confident that it was a lapse and not as a result of any sinister motivation. Nonetheless, having lulled defence counsel into the view that Ms J's testimony...