Kevol Brown v R
| Jurisdiction | Jamaica |
| Judge | Straw JA |
| Judgment Date | 22 January 2021 |
| Neutral Citation | JM 2021 CA 8 |
| Docket Number | SUPREME COURT CRIMINAL APPEAL NOS 65 & 66/2011 |
| Court | Court of Appeal (Jamaica) |
[2021] JMCA Crim 2
IN THE COURT OF APPEAL
THE HON Miss Justice P Williams JA
THE HON Miss Justice Straw JA
THE HON Mr Justice Fraser JA
SUPREME COURT CRIMINAL APPEAL NOS 65 & 66/2011
Mrs Valerie Neita-Robertson QC for the applicants
Jeremy Taylor QC and Nicholas Edmond for the Crown
These proceedings are concerned with two renewed applications for leave to appeal convictions and sentences brought by Messrs Kevol Brown and Shanovan Brown (“the applicants”). Where it is necessary to refer to the applicants individually, they will be referred to by their first names. This is merely for convenience, no discourtesy is intended.
On 22 July 2011, the applicants (who are brothers) were convicted of murder after a trial before McDonald-Bishop J (as she then was) sitting with a jury in the Home Circuit Court. On 28 July 2011, the applicants were sentenced to imprisonment for life. Kevol was ordered to serve 18 years before becoming eligible for parole, while Shanovan was ordered to serve 20 years before becoming eligible for parole. On 8 August 2011, the applicants filed applications seeking permission to appeal against their respective convictions and sentences. Their separate applications were considered by a single judge of this court. The grounds in each application were identical and were as follows: (i) “misidentify” by the witness, (ii) lack of evidence, (iii) unfair trial, and (iv) miscarriage of justice. The single judge found no merit in these grounds and refused leave to appeal against conviction. Further, the single judge regarded the sentences to be in line with previous sentences imposed and also refused leave to appeal against sentence. The applicants' respective sentences were deemed to have commenced on 28 July 2011.
The applicants renewed their applications for leave before the court, as they are so entitled to do.
On 20 October 2020, when the renewed applications for leave to appeal came before the court for hearing, learned counsel for the applicants, Mrs Valerie Neita-Robertson QC, sought and obtained permission to abandon the original grounds of appeal and to argue, instead, four supplemental grounds of appeal. These supplemental grounds were:
“ GROUND 1
That the Learned Trial Judge erred in admitting into evidence in their entirety the witnesses' [sic] Police Statement, her Deposition and the Transcript of her evidence in the first trial. This offended the rule against self-corroboration, was therefore a material irregularity and denied the [applicants] a fair trial.
GROUND 2
The Learned Trial Judge failed to direct the jury adequately or at all on the issue of sublime duress of imprisonment on the witness, which saw her serving a sentence of three months for lying to the police; which imprisonment could have caused her in the first trial to conform to her police statement. This is especially important since there is no evidence as to what matter in her police statement she had lied about.
GROUND 3
The evidence of threats to the witness was so prejudicial to the Applicants that in spite of the warning of the Learned Trial Judge, the prejudice could not be cured.
GROUND 4
The sentence of both [applicants] is excessive in all the circumstances.”
The Crown's case against the applicants depended primarily on a statement, a deposition taken at the preliminary enquiry commenced into this matter against the applicants and the transcript of testimony from a previous trial (which was aborted), all of which were taken from Miss Tashena Bell (“Ms Bell”). At the time of this trial, Ms Bell could not be found and as such, she did not give evidence. These documents were all tendered into evidence pursuant to section 31D(d) of the Evidence Act after a voir dire (trial within a trial) was held by the court.
The statement and evidence as contained in the transcript above-mentioned, were essentially consistent in the narrative, except for some inconsistencies that will be later highlighted. The transcript revealed that, on 12 January 2008, Ms Bell and her boyfriend, Mr Kerron Dunbar (“the deceased”) were in bed at his house in Race Course, Falmouth in the parish of Trelawny. On the said day, at or about 6:45 am, Ms Bell heard a loud noise coming from outside, by the gate to the premises. The deceased got out of bed, took up a pair of shorts, and went toward the front door of the room that they were in; that door led directly outside. Before the deceased got to the door, it burst open and three men entered through the doorway. She saw two men in front and the other behind them. The two men in front opened fire with guns on the deceased. He ran and exited the room through a rear door, which also led outside.
The three attackers exited through the front door, the same one which they entered from, and Ms Bell heard footsteps as if persons were running. She went outside and saw the deceased lying in the grass in the yard. He was bleeding from his chest area. Ms Bell went over to him and he hugged her and tried to speak. At this time, she heard further explosions coming from the direction of the road. She called for help. Persons eventually came and the deceased was taken to the hospital.
Ms Bell recognised the two attackers who were in front. She knew them before as Kevol (who she also knew as Jubbie) and Copper. She also knew their father, whom she called “Jah B”. At the time of the attack, Copper had on a cream coloured hoodie jacket, with the hood up. He had a shine short gun. Kevol o/c Jubbie also had on a hoodie. She identified in court Shanovan as Copper and Kevol as Jubbie.
Another witness, Miss Doreen McLeish (“Ms McLeish”), gave evidence as to the events of that morning. She testified that she was at her home in Race Course, which was about a chain away from where the deceased lived. Her brother also lived in the same yard as the deceased. That morning, she heard a bang and a number of gunshots thereafter. She saw Copper, whom she knew before, walking along the road. Her evidence was that he had on a cream coloured hoodie and a shine short gun in his hand. He fired a number of shots from that weapon while he was on the road. She also saw Jubbie, whom she knew before. He too had a gun. It was broad daylight. Ms McLeish called the police. She then went by her brother's yard and in that yard, she saw the deceased bleeding and being cradled by Ms Bell. Ms McLeish identified both applicants in court, Shanovan as Copper and Kevol as Jubbie.
The deceased succumbed to his injuries. The forensic pathologist, Dr Morandi Sarangi, who gave evidence at the trial, stated that the cause of death was hemorrhagic shock consequent upon wounds to the deceased's abdomen and chest, with injuries to a number of major organs accompanied by blood loss due to gunshot injuries.
Both applicants turned themselves in to the police, because they were told that the police wanted to see them in relation to the killing of the deceased. The applicants were arrested and charged. No identification parade was held.
At the preliminary enquiry, Ms Bell contradicted the account that she had given in her statement to the police. She deposed that she did not see who had entered the room and shot the deceased. She deposed also that she had told some lies to the police because she was panicking. However, when she subsequently testified at the aborted trial, she admitted to lying at the preliminary enquiry. She explained that she had done so as a result of fear due to threats. She said that she had been imprisoned for telling those lies and insisted that she was speaking the truth at the trial.
Both applicants gave unsworn statements denying all involvement in the shooting. They relied on the defence of alibi and asserted that they had been at Newton Street at the time of the incident. Kevol specified that he had been at his girlfriend's home. He also stated that he knew the deceased as they had gone to school together. He claimed that they had never had any contention in the past so he bore no malice against the deceased. Shanovan stated that the police had killed two men in relation to the deceased's murder and that he had read about it in the newspaper.
The applicants' contention was that, on the hearing of the Crown's application to admit into evidence the police statement, the deposition (taken at the preliminary enquiry) and the transcript of the aborted first trial (hereinafter collectively referred to as “the disputed documents”), the learned judge wrongfully exercised her discretion to admit all of them. In the interests of justice and in order to ensure a fair trial, the learned judge ought to have excluded one or the other of the disputed documents on two bases; (i) the rule against self-corroboration and (ii) the unfairness to the applicants.
Alternatively, it was submitted that, if the disputed documents were admitted in evidence, this could only properly have been done by editing the documents and only leaving for the jury's consideration relevant material, including the inconsistencies and contradictions.
Queen's Counsel, Mrs Neita-Robertson, indicated that no issue was being taken with the satisfaction of the requirements of section 31D of the Evidence Act. The gravamen of the complaint was that the admission of the disputed documents in their entirety created a consistent narrative of the events of the morning of 12 January 2008. She contended that section 31D of the...
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