Lawrence (Oneil), James (Carl)
| Jurisdiction | Jamaica |
| Judge | COOKE. JA: |
| Judgment Date | 30 July 2004 |
| Neutral Citation | JM 2004 CA 27 |
| Judgment citation (vLex) | [2004] 7 JJC 3015 |
| Court | Court of Appeal (Jamaica) |
| Date | 30 July 2004 |
CRIMINAL LAW - Murder - Non-capital - Identification - Unfair trial - Insufficient evidence
The appellants Carl James and Oneil Lawrence were on the 28 th March, 2003 convicted in the Home Circuit Court for tha non-capital murder of Ian McGilvie on the 17 th January, 2002. Each was sentenced to a term of life imprisonment and was to serve a period of 30 years before becoming eligible for parole. This judgment will deal firstly with the application for leave to appeal on behalf of Lawrence. In respect of this the original grounds were abandoned, and leave given to argue five (5) supplementary grounds. The application was granted and the hearing treated as that of an appeal.
Mud Town is an informal settlement to which entrance is gained from the Gordon Town Road in St. Andrew and at the relevant time through the gateway of the Vocational Development Training Institute. The deceased Ian McGilvie operated a modest hardware shop in Mud Town. At about 6:30 p.m. on the 17 th January, 2002. Calvin Grant, a brother of the deceased, was at his home in an area in Mud Town designated as Highlight View. He heard gunshot explosions, he hurried to the zinc fence which was to the front of his house and positioned himself so that he could see. He saw James corning through the door of his brother's shop with a gun in his hand. There is a dirt road leading from the Training Institute to where the hardware shop is situated. There is a track off this dirt road which has to be traversed to enter Grant's premises. This track was to the left of the roadway entering Mud Town. After seeing James (who he knew as Buju) he ran across the dirt road. Parked there was a motor car. He stooped behind this car and he saw a person who he named as "Snakey" emerge from his brother's shop followed by Lawrence. Both had guns The three men ran off into the hill Grant immediately went to the hardware shop. There he saw his deceased's brother's body.
The deceased had received 8 gunshot injuries on the following areas of the body:
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(i) the left back of the head;
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(ii) lower left back of the head;
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(iii) through the chin;
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(iv) left lateral neck;
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(v) lateral aspect of the left shoulder;
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(vi) front of right elbow;
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(vii) right lower front chest; and
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(viii) the abdominal cavity.
Having seen his murdered brother, Grant forthwith went to the Papine Police Station and by approximately 7:00 pm made a report to Detective Constable Paul Edwards. They both returned to Mud Town.
Grant was the sole witness upon whom the prosecution relied. His credibility was the determinant factor in the jury arriving at its verdict. Grant was unlettered. As the learned trial judge told the jury he compensated for his want of verbal facility by demonstrations (which this court has not seen but the jury had).
Grant testified that he knew James for some sixteen years from he was "a little boy." He knew where he lived, with one Paulette and their two children. Grant saw James on a daily basis in Mud Town. On the evening of the 17 th January, 2002, James wore the hairstyle of a "rasta". Lawrence, he knew for some two years, since according to him, the former had left Jacks Hill to live in Mud town with his girlfriend "Wingy". Grant was accustomed to seeing Lawrence approximately 4 days per week. He had seen James and Lawrence together with "Snakey" at about mid-day on the very day of the murder. He was present when those three men were in conversation with the deceased. In their evidence both appellants said they were hailing acquaintances of Grant.
In respect of the lighting in the area of the hardware shop, Grant said there was a "a flood light" to the front of his brother's shop. Across the dirt road (the width of which allowed two cars to pass each other) there was a street light. There was also another street light some twenty feet away from the shop. Detective Constable Edwards in his evidence supported, the description of the lighting conditions given by Grant.
Grant said he saw the face of James both when he (Grant) was on Wis premises and when he stooped behind the car. He estimated one minute as the total time during which he saw James' face. As to Lawrence he saw his face only from behind the car and the estimate of time was some five seconds.
As already noted, Grant relied heavily on demonstrations. By one such demonstration it was estimated that from his premises to the hardware shop the distance was approximately fifty feet. When the measuring criterion was posed in terms of a cricket pitch, he said, the distance was not more than one cricket pitch. The officer Edwards estimated that the distance from behind the parked car to the shop was "23/24 yards". It will be recalled that the evidence of Grant was that this car was parked across the road from his premises. The defence contended that the distance from Grant's home to his brother's shop was considerably more than that given by the prosecution witness. Based on a statement given by Grant warrants for the arrest of James, Lawrence and "Snakey" were prepared and in due course, but for "Snakey", duly executed.
Both appellants denied involvement in the murder. Lawrence in his evidence said he was not in Mud Town at that time. James said he was, but he was at his business place where, in Jamaican parlance, he operated a "cookshop". He was there when a customer told him of the incident. Bertram Cunningham gave evidence on behalf of Lawrence -the,* essence of which was that at the relevant time he saw three men leaving the hardware shop and these men were all fully masked. Lawrence was not one of these masked men.
The defence of both appellants challenged the lighting conditions as portrayed by Grant and officer Edwards. However, although counsel for James suggested to Grant that he was the author of a fabrication, the focus of both appellants at the trial was that because of the physical configuration of the dirt road and the presence of protruding light poles it would have been impossible for Grant to discern what he said he saw. Oral evidence to that effect was tendered by the defence.
The defence contended that the dirt road leading to the hardware shop from Grant's premises had "a corner", or "swing", or "bend" of such a proportion that would have prevented Grant from having any view of his brother's shop. Grant denied that the configuration of the dirt road was such that precluded a clear vision. Grant admitted that the road was not entirely straight but said that his capacity to see was unimpaired. The officer Edwards claimed that from he entered through the gateway of the Vocational Development Training Institute he could see the shop. On the night in question he went with Grant to where Grant was positioned at the various times and his view of the front of the shop from both positions was clear. Edwards admitted there was "a slight curve" but this was not in anyway a handicap to a clear view.
The complaint in ground 1 is as follows:
"1. The learned trial judge erred in law in restricting Defence Counsel at the trial in the questions which he was permitted to ask in relation to a photograph. Defence Counsel sought to put the photograph to the witness Calvin Grant in order to show that the scene of the crime could not be seen from the place where the witness was located. By her restrictions on Counsel's questions he was prevented from developing this issue effectively before the jury, and thereby a miscarriage of justice occurred."
Although it is somewhat lengthy, it is necessary to reproduce that portion of the transcript in its entirety which deals with the aspect of the case, in order to determine if there is merit in this complaint. It is...
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