Leonard Lindsay & Tyrone Findlay v R
| Jurisdiction | Jamaica |
| Judge | Sinclair-Haynes JA |
| Judgment Date | 02 December 2020 |
| Neutral Citation | JM 2020 CA 150 |
| Court | Court of Appeal (Jamaica) |
| Docket Number | SUPREME COURT CRIMINAL APPEAL NOS 94 & 95/2014 |
| Date | 02 December 2020 |
[2020] JMCA Crim 51
IN THE COURT OF APPEAL
THE HON Mr Justice Morrison P
THE HON Mrs Justice Sinclair-Haynes JA
THE HON Miss Justice P Williams JA
SUPREME COURT CRIMINAL APPEAL NOS 94 & 95/2014
Debayo Adedipe for the appellant Leonard Lindsay
Norman Godfrey instructed by Brown, Godfrey and Morgan for the appellant Tyrone Findlay
Miss Cheryl-Lee Bolton for the Crown
The appellants, Messrs Leonard Lindsay and Tyrone Findlay, were tried and convicted in the Manchester Circuit Court between 19 and 21 November 2014 by M Gayle J and a jury, for the murder of Tony Richards. Both were serving as Detective Constables in the Jamaica Constabulary Force at the time of the offence. They were sentenced on 21 November 2014 to 25 years' imprisonment at hard labour with the requirement to serve 12 years before being eligible for parole.
Aggrieved by their convictions and sentences, notice and grounds of appeal were filed on the appellants' behalf. On 26 November 2014, the following grounds of appeal were filed on behalf of Mr Findlay.
“(a) The verdict is unreasonable and cannot be supported by the evidence.
(b) The Learned Trial Judge erred in law when he failed to uphold the No Case Submission made on behalf of the Appellant as regards:
(i) The failure of the Prosecution to Negative Self Defence.
(ii) The credit of the sole eye witness being destroyed in cross-examination.”
He later sought and was granted leave to argue the following additional grounds of appeal.
“(c) The Learned Trial Judge failed to adequately direct the jury as to the application of the law on self-defence to the evidence and thereby deprived the Appellant of a fair trial.
(d) The Learned Trial Judge failed to leave to the jury the statutory defence available to the police officers acting in the course of their duties pursuant to section 13 of the Constabulary Force Act and section 14(2) of the Constitution (predating the 2011 amendment of the Charter of Rights).
(e) The Learned Trial Judge failed to direct or sufficiently direct the jury on the issue of common enterprise in light of the fact that the Appellant and his colleague were obeying a lawful order and pursuing a lawful assignment given by his superior officer.
(f) The Learned Trial Judge failed to direct the jury that where there are admitted inconsistencies, they may only be resolved through the mouth of the witness and left unresolved no positive finding against the Appellant may be made upon them.”
On 27 February 2017, the following grounds of appeal were filed on behalf of Mr Lindsay:
“i. The learned trial judge erred in law when he refused to uphold the no case submission made on behalf of the appellant, Leonard Lindsay.
ii. The learned trial Judge erred in law in that he failed to give adequate directions to the jury on self defence especially having regard to the circumstances in which the Appellant was dispatched to the beach and the recovery by the police of a gun and a knife (on the crown' s own case).
iii. The learned trial Judge erred in law in that he failed to give adequate directions on joint enterprise/ common design.
iv. The learned trial Judge erred in law in that he failed to direct the jury that they ought to assess the case against Leonard Lindsay separately.
v. The verdict against the appellant Leonard Lindsay is perverse/not supported by the evidence particularly because on the evidence he was present at the scene pursuant to an official assignment, he did not do or say anything to the deceased, and his actions were focused on the other complainant at the scene.”
We heard the matter on 16 and 17 November 2017. On the latter date, we allowed the appeal, quashed the convictions, set aside the sentences and entered judgments and verdicts of acquittal. We promised to provide the reasons for our decision and this is a fulfilment of our promise. We apologise for the delay in providing our reasons.
Roshane Dixon was the sole eyewitness. It was Mr Dixon's evidence that on 1 January 2010, at about 7:30 pm, he and his cousin, Odane Johnson (“Odane”), left their place of work at the Little Ochi Restaurant in Alligator Pond, Manchester, where he was employed as a chef. They were dressed in the company's uniform, black pants and a white shirt which exhibited the restaurant's logo.
As they both walked along the beach in the Alligator Pond area, he observed Tony Richards (“the deceased”), o/c lawyer, whom he knew as a mason, with several men “shubbing” (hauling) a boat onto the shore. It was his evidence that he had known the deceased all his life.
The boat was onshore when he and Odane reached it. The deceased stopped pushing the boat and spoke with him and Odane. Whilst speaking with the deceased, the other men who were pushing the boat left. Castro (the owner of the boat), Mr Dixon, Odane and the deceased remained. They spoke for a while and eventually Castro and Odane left and he and the deceased remained in conversation.
During his conversation with the deceased, two men walked past them. He described one as tall and slim and the other as short with a little “built”. The men walked a distance of about three chains, then turned and headed towards them. At approximately six feet distance from them, the men shouted: “Police freeze!” Both men were armed with guns but were dressed as civilians.
At that juncture, Mr Dixon sat on the bow or point of the boat, and the deceased stood beside him at approximately less than an arm's length away. The men having identified themselves as police officers, searched him and the deceased. During the search, their arms were held up.
A knife was found on him and the “short” police officer (Mr Lindsay) asked him the reason he had the knife. He explained that he was a chef and it was used to peel the vegetables at his job. He further explained that it was kept in a plastic shield in his pocket, because he took it to work with him daily. He also indicated to Mr Lindsay that he was wearing his work shirt.
He and the deceased were instructed by the appellants to empty their pockets. In compliance, Mr Dixon removed two cellular phones from his pocket and held them in his hand. The appellants enquired if they had money. He told them he had none and the deceased told them that he had $800.00, which he gave to the “tall” police officer (Mr Findlay).
After handing over the money, the deceased attempted to put his hands in the air but Mr Findlay instructed him to “put them down” and he complied. Mr Findlay, notwithstanding fired three shots at the deceased, who consequently fell on his back.
Referring to Mr Dixon, Mr Findlay instructed Mr Lindsay, to “bun him, bun him”. At that juncture, Mr Lindsay pointed his gun at Mr Dixon, who was not standing straight and ordered him to “stand up straight”. In compliance, he “slightly straightened” and Mr Lindsay fired two shots. He fell on his “belly” with the two phones in his hands and pretended to be dead. He was shot in his right arm and abdomen.
Whilst on the ground, Mr Dixon heard one of the appellants speaking on a cellular phone. Approximately three to five minutes later, he heard the men discussing whether to leave the cellular phones in his hands or put them into his pocket. He then felt the cellular phones being removed from his hands and one placed into his pocket. Thereafter, he felt a knife being placed into his right hand. He remained motionless because he did not want the appellants to realize that he was alive.
Whilst pretending to be dead, he heard voices he recognized. One voice was that of Annette Hamilton who was crying and expressing that he was dead. Miss Hamilton stooped and he spoke to her. Shortly afterwards, he turned onto his back and a police officer spoke to him. He and the deceased were taken to the Mandeville Hospital. He subsequently attended the deceased's funeral and saw his body interred.
Under cross-examination, Mr Dixon denied having had a knife in his hand. He was adamant that the deceased was not in possession of a gun and he did not attack or threaten anyone. He further explained that there was no reason for him to rob anyone because he “worked”.
Superintendent Rigabie (Deputy Superintendent at the time of the incident) testified that he was in charge of operations in the Manchester Division at the material time. A “twenty-man detail” was assigned to cover festivities at Alligator Pond. The appellants as part of the “detail” were attired in plain clothes and assigned to “roving patrol” within the zone.
Consequent on a report of a robbery, he summoned the appellants and briefed them that two young men were robbed by four men on the beach of two cellular phones and $700.00. One of the young men showed them an injury on his side which he sustained during the robbery. Superintendent Rigabie described that injury as a circular bloodshot mark consistent with the nozzle of a gun.
At approximately 8:30 pm, he assigned the appellants to the beach to search for two of four robbers who the young men said remained there. Approximately five minutes after, he received a call from Mr Findlay which caused him to immediately visit the Alligator Pond area. Upon his arrival he was handed a Taurus pistol bearing serial number TB75163 and a magazine with five 9mm rounds of ammunition. He was also shown two persons lying motionless beside a boat. An open blade knife was on the ground beside Mr Dixon. The Taurus pistol, magazine and bullets were given to Detective Corporal Morgan at the Mandeville CIB office.
Under cross-examination, Superintendent Rigabie testified that he briefed the appellants of the risk involved and he feared for their lives, because one robber was...
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