Kevin Peterkin v R
| Jurisdiction | Jamaica |
| Judge | Edwards JA |
| Judgment Date | 28 January 2022 |
| Neutral Citation | JM 2022 CA 11 |
| Docket Number | SUPREME COURT CRIMINAL APPEAL NO 54/2018 |
| Court | Court of Appeal (Jamaica) |
[2022] JMCA Crim 5
IN THE COURT OF APPEAL
THE HON Mr Justice F Williams JA
THE HON Miss Justice Edwards JA
THE HON Mrs Justice Harris JA
SUPREME COURT CRIMINAL APPEAL NO 54/2018
Lord Anthony Gifford QC, Vernon Daley and Ms Maria Brady instructed by Gifford, Thompson & Shields for the applicant
Adley Duncan and Roneiph Lawrence for the Crown
On 21 May 2018, Kevin Peterkin (‘the applicant’) was tried and convicted by a jury in the Circuit Court for the parish of Saint Ann, before Shelly-Williams J (‘the learned judge’), for the murder of Sasha Edwards. On 25 May 2018, he was sentenced by the learned judge to life imprisonment at hard labour, with a stipulation that he serve 25 years before becoming eligible for parole. On 4 June 2018, he filed notice of application for leave to appeal against conviction and sentence. On 4 February 2020, the application was heard and refused by a single judge of this court. This is his renewed application before this court.
At the trial, the case for the prosecution was that, on the morning of 22 June 2011, the applicant deliberately stabbed Sasha Edwards, who was his girlfriend, in her neck, at her home in Milford, Saint Ann, causing her death. The account from the prosecution witnesses, in summary, was that Sasha was at home that morning getting ready for work. She went to the river to bathe as there was some problem with the water supply. Shortly after her return to the house, her mother, Mrs Esmie Lobban-McDougal (‘Mrs McDougal’), who was in her yard next door, heard Sasha cry out, “Mommy mi dead”. Mrs McDougal ran to Sasha's house, but all the doors and windows were locked. She shouted, “Open the door!”, but got no response. Finally, after she threatened to break down the door, the door opened, and the applicant came out. His hands were “full of blood”. He pushed past Mrs McDougal whilst muttering some curse words.
Mrs McDougal entered the house and saw Sasha lying on the ground in a pool of blood. Sasha had a hole in her throat and was making a gurgling sound like she was choking. Mrs McDougal tried to stop the bleeding by putting her hand on the hole in Sasha's neck, but blood started coming through Sasha's teeth. Mrs McDougal removed her hand, ran outside and lost consciousness. Neighbours took Sasha out of the house and carried her to the hospital, where she was pronounced dead.
The evidence of the police, who arrived on the scene after Sasha had been taken away to the hospital, was that two knives were found on the floor in the room where Sasha was injured, and both, according to the forensic experts, had human blood on them. The police also observed an overturned clothes basket. The police were unable to say how many persons had entered the room after the incident or whether the scene had been disturbed before their arrival there.
Ms Eugene McCarthy, Mrs McDougal's mother-in-law, who was also in Mrs McDougal's yard that morning, had also heard Sasha's cry. She gave evidence that she entered Sasha's house immediately after Mrs McDougal and saw Sasha on the ground bleeding. She also saw the two knives on the floor.
The post-mortem examination showed that Sasha had received three injuries during the incident. The fatal injury, however, was a wound to the lower right side of Sasha's neck measuring 3 cm long, 1 cm wide, and 10 cm deep, and was described as shaped like an egg. The other injuries consisted of an abrasion scratch to the upper right side of the neck, and a cut injury to the lateral side of the left arm, measuring 9 cm long. That latter injury was described, by the pathologist who examined Sasha's body, as a possible defensive injury.
There were no eyewitnesses as to how Sasha's injuries were inflicted. Neither Mrs McDougal nor Ms McCarthy had heard any disturbance in the house before hearing Sasha cry out. However, Mrs McDougal insisted, under cross-examination, that if there had been a fuss between Sasha and the applicant, she would have heard it. The distance between where she was in the yard and Sasha's house, which was a small one-bedroom wooden structure originally built as a shop and measuring 10 feet by 10 feet, was just a fence away. At trial, it was agreed by the parties that that distance was about 15 to 17 feet.
Sasha and the applicant had at one point in their relationship lived together in Sasha's room in her parents' house. Mrs McDougal said that the relationship between the applicant and Sasha was good at first, but then it “stopped being good”. It started to get “a little miserable” and “fussy” because the applicant kept having relationships with her nieces. She said that the applicant and Sasha would argue because of this, and he had started to “put his hand on her”. She recounted an incident that occurred when the applicant lived in her house with Sasha, where she saw the applicant stick Sasha in her eyes with his fingers.
The prosecution's case depended, in no small measure, on the evidence of Mrs McDougal that she had heard no “fuss” coming from Sasha's house that morning; the conduct of the applicant after Sasha was injured; and the words he was alleged to have said to the police when he reported the incident at the police station. The evidence from the prosecution's witnesses was that the applicant did not help Sasha after she was injured, but had left the scene, taking the time to put on his slippers first, and then pushing past her mother. He went to the Ocho Rios Police Station and told Constable Vick-Roy Mowatt that he had had an argument with his girlfriend and had “used a knife to stab her in the neck area”. Constable Mowatt immediately placed the applicant in a holding cell and informed the sub-officer on duty. He had not known the applicant before and had not heard about the incident prior to the applicant going to the station. At trial, Constable Mowatt admitted that he had not written down what he alleged the applicant had said to him, nor did he tell it to the investigating officer.
The applicant gave sworn evidence at the trial. He admitted that he was in the room with Sasha when she was injured but denied that he had intentionally stabbed her. He said Sasha had started an argument with him because she was “mad” with him for staying out all night. She accused him of spending the night with “that dutty gal”, referring to her cousin Melissa, with whom he was admittedly having sexual relations. She took up a knife, and whilst stabbing the counter with the knife, listed three reasons why she would not kill him that morning. She then left the room and went to the river to bathe. She returned shortly thereafter, became enraged to see him ‘relaxing’ on the bed and watching a ‘dvd’. She said to him, “Watch him a relax, watch him a bloodclath relax”. She then walked over to him, took a knife from the breast area of her towel and stabbed at him. He grabbed her hand that held the knife, and they started to wrestle. He then picked up a knife from the countertop. The two wrestled and fell to the ground. He only realized something had happened when he heard her say, “Mummy mi dead” and saw blood running out on the ground.
Thereafter, he heard banging on the door and shouting that he must open the door. He was frightened and did not know what to do. He put on his slippers and opened the front door. Mrs McDougal started coming into the house. He said to her, “Move man, you see all bloodclath you”, and moved her out the way. He then went straight to the Ocho Rios Police Station and reported to Constable Mowatt that he and his girlfriend had had a dispute and “it look like she get a cut”. He said he told the officer he did not know where the cut was but that he had seen blood coming from “dem place deh” (the applicant indicated to the court with his hands where on the body he meant). He was immediately placed in a holding cell.
He said he did not deliberately stab Sasha, and only took up the knife to defend himself because Sasha was strong and bullied him sometimes. He denied that he had told Constable Mowatt that he had had an argument with his girlfriend and used a knife to stab her in her neck area. He admitted that he did not try to help Sasha after she was injured, and that he had stopped to put on slippers before he ran from the house. He said he did so because he had panicked when he saw the blood. He did not realise that Sasha had gotten a life-threatening injury. He admitted that he had received no injuries from the incident.
Although the applicant agreed to the suggestion that he had not told Constable Mowatt that Sasha had attacked him, he said this was so because he was not asked what had happened. He insisted, however, that he had told Constable Mowatt that they had had a dispute. Thereafter, he said, his attorney had advised him to remain silent.
The applicant sought and was granted leave to argue eight amended supplemental grounds of appeal, filed 5 February 2021. These grounds will be dealt with under the subject areas in which they fall, that is, inferences (grounds 1 to 5), directions on self-defence and accident (ground 5A), improper cross-examination (ground 6), and sentence (ground 7).
Counsel for the applicant, Lord Gifford QC, contended that the learned judge failed to “give any or any adequate or clear direction on the drawing of inferences” to the members of the jury, where the case for the prosecution depended on the inferences to be drawn from several pieces of evidence, there being no eyewitness to the fatal injury. Queen's Counsel contended that the learned judge misdirected the jury by using the example of the spilling of a “glass of orange juice”, to explain to the jury how to draw inferences, where that example was inappropriate and likely to...
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