Linval Aird v R

• Jurisdiction: Jamaica
• Court: Court of Appeal (Jamaica)
• Judge: ‘Edwards, J.A.’
• Judgment Date: 25 July 2025
• Neutral Citation: JM 2025 CA 54
• Year: 2025
• Docket Number: 65/2017

Linval Aird

and

R

Edwards, J.A.; Foster-Pusey, J.A.; Dunbar-Green, J.A.;

65/2017

Court of Appeal

Appearances:

Mrs. Melrose Reid for the appellant.

Mrs. Kelly-Ann Murdoch for the Crown.

INTRODUCTION AND BACKGROUND

‘Edwards, J.A.’

1 On 29 June 2017, the appellant, Mr. Linval Aird, who at the relevant time, was a member of the Jamaica Constabulary Force (JCF), was convicted of the murder of 17-year-old Shanakay Clarke (the deceased), in the Westmoreland Circuit Court, before Gayle, J. (the learned judge), sitting with a jury. On 18 July 2017, he was sentenced by the learned judge to life imprisonment, without the possibility of parole before serving 20 years' imprisonment.

2 There were no eyewitnesses to the murder, and the prosecution's case was based entirely on circumstantial evidence. The prosecution's case at trial was that the circumstantial evidence proved that, on the night of 11 April 2010, on Great George Street, Westmoreland, the appellant was in his car with the deceased, who was his girlfriend, when they had a disagreement and he shot her to death.

3 The post-mortem report revealed that the deceased had sustained four penetrating gunshot wounds and that she died from haemorrhagic shock consequent upon gunshot wounds to the chest and abdomen.

4 It was undisputed that the appellant had fired his service weapon that night. The ballistics evidence revealed that several of the expended bullets, bullet fragments and spent casings recovered from the scene (inside and outside of the car) came from the appellant's assigned firearm. The ballistics evidence, however, also revealed that there were expended bullets, fragments and spent casings recovered from the scene that came from another gun that the prosecution failed to link to the appellant. This second gun, and who had fired it, were not accounted for by the prosecution. The evidence also showed that the appellant's vehicle, in which he and the deceased sat at the material time, had several bullet holes to its exterior. Human blood was also found in the car.

5 Sometime after the shooting, the appellant gave a written statement to the police. In that statement, he asserted that, at the material time, he and the deceased were sitting in his car when a lone gunman appeared and fired upon the vehicle. He said he returned gunfire to repel the attack, and when the shooting stopped, he discovered that the deceased had been shot. He immediately took her to the Savanna-La-Mar General Public Hospital, where she was later pronounced dead. This account in the statement was consistent with the evidence given by several of the police witnesses of what they said the appellant had told them on the night of the incident. The appellant did not suffer any injuries in the incident.

6 On 29 May 2010, whilst inside the Criminal Investigative Branch office (‘CIB’) of the JCF in Savanna-La-Mar, in the presence of Detective Sergeant (‘Det Sgt’) Etham Miller, the investigating officer, the appellant pointed out a man to Det Sgt Michael Moore, as the man who had shot up his car on the night of 11 April 2010. This man, who was later identified as Andre Campbell, was then arrested and charged with the murder of the deceased and placed before the Savanna-La-Mar Resident Magistrate's Court (as it was then called). At some point during those proceedings, a nolle prosequi was entered against Andre Campbell by the Director of Public Prosecutions, following a ruling that the appellant should be charged with the murder. The appellant was subsequently arrested and charged with the murder of the deceased.

7 At the appellant's trial, the prosecution led evidence from a witness, Mr. Johnson, who said he had been walking along Great George Street at the material time, when he saw a man and a woman who appeared to him to be fighting. He saw the couple re-enter the car and surmised that they had been “playing”. Shortly thereafter, he heard what sounded like gunshots and ran away. He did not see who was firing, and he did not see the faces of the appellant and the deceased in order to be able to identify them. Mr. Johnson also testified that, immediately after the shooting, a man rode up to him on a bicycle, and that man laughed and said something to him whilst riding past him. He identified this man as someone he knew by the name of “Glasses”. This man was not located and questioned by the police. The police did not ascertain whether Andre Campbell was also called “Glasses.”

8 At the end of the prosecution's case, trial counsel made a no-case submission on behalf of the appellant, which was unsuccessful. The appellant gave an unsworn statement from the dock in which he denied deliberately shooting the deceased, whilst also raising the defence of self-defence in line with what he had said in his statement to the police.

9 Having been convicted, the appellant filed his appeal against conviction and sentence. On 20 December 2023, we heard the appeal, and having considered the submissions and arguments by counsel on both sides, we made the following orders:

• “1. The appeal is allowed.

• 2. The conviction is quashed.

• 3. The sentence is set aside.

• 4. Judgment and verdict of acquittal is entered.”

We promised then to give reasons in writing for making those orders, and we do so now.

GROUNDS OF APPEAL

10 At the hearing of the appeal, permission was sought and granted for the appellant to abandon the original grounds of appeal filed, and to rely on the following grounds filed along with the submissions on 29 November 2022:

“GROUND 1 – The learned Trial Judge (LTJ) failed to see the Lurking doubt in the case, and to realise that the evidence did not meet the threshold of the criminal standard and failed to point out the “lurking doubt” to the jury, resulting in the jury wrongfully convicting the [appellant].

GROUND 2 – The LTJ erred in not upholding the No-case submission.

GROUND 3 – The LTJ failed to adequately address the potent issue of Self-defence, and when he did, he paid lip service and tainted it with his comments, which created doubts in the minds of the jury that self-defence did not exist.

GROUND 4 – The LTJ erred in not giving the jury the Causation warning.

GROUND 5 – The LTJ failed to show the jury that the Circumstantial evidence did not fit together so as to establish the guilty [sic] of the [appellant].

GROUND 6 – The LTJ misdirected the jury on the Forensic evidence by not having effectively or legally dealt with the forensic evidence

GROUND 7 – The LTJ Mismanaged the trial by allowing the Crown to call four additional [sic] in defiance of the Law on disclosure.

GROUND 8 – The LTJ Was biased in his summation, causing the jury to side with him and come to a verdict of guilty.

GROUND 9 – The Learned Trial Judge (LTJ) Entered into the arena, resulting in an unfair and biased summation

GROUND 10 – The LTJ derided the Good Character of the [appellant] instead of giving a good character direction.

SENTENCING – The LSJ erred in the principles of sentencing” (Emphasis as in original)

11 During the course of the appeal hearing, ground seven was abandoned by counsel for the appellant, and the sentencing ground was reformulated with the permission of the court. The reformulated ground was filed by the appellant with further submissions on 19 December 2023, as follows:

“Ground 11 – SENTENCE

• (1) In the circumstances, the sentence of Life imprisonment with 20 years before parole is manifestly excessive…

• (2) The Learned Trial Judge (LTJ) failed to give consideration and credit for the Pre-Trial delay of almost seven years before the Appellant's case was heard and determined.”

12 However, in light of the orders we made quashing the conviction, there is no need to discuss ground 11 with regard to sentencing.

ISSUES

13 The grounds of appeal raised the following issues:

• 1. Whether the “lurking doubt principle” forms part of the law in this jurisdiction; (ground 1);

• 2. whether there was sufficient evidence before the court for the matter to be left to the jury (ground 2);

• 3. whether the learned judge failed to adequately and fairly address the issue of self-defence in his directions to the jury, and undermined the appellant's defence by being biased in his summation (grounds 3 and 8);

• 4. whether the learned judge erred in failing to give a direction on causation (ground 4);

• 5. whether the learned judge erred in his direction to the jury on the circumstantial evidence (ground 5);

• 6. whether the learned judge failed to effectively direct the jury on the forensic evidence (ground 6);

• 7. whether the learned judge descended into the arena, resulting in an unfair and biased summation (ground 9); and

• 8. whether the learned judge failed to give a good character direction and derided the good character of the appellant (ground 10).

ISSUE 1-WHETHER THE “LURKING DOUBT PRINCIPLE” FORMS PART OF THE LAW IN THIS JURISDICTION (GROUND 1)

A. SUBMISSIONS

14 Counsel for the appellant, Mrs. Melrose Reid, relied on the “lurking doubt” principle set out in the case of R v. Cooper [1969] 1 All E.R. 32, which, she said, empowered the court to quash the conviction in those circumstances. Mrs. Reid submitted that there was no evidence in the case which pointed conclusively to who may have killed the deceased. Counsel maintained that, at the end of the prosecution's case, only a “lurking doubt” remained, which meant that the evidence fell below the requisite standard to link the appellant to the killing of the deceased and to support a conviction. In that regard, she submitted that there was no evidence — factual, forensic, circumstantial or otherwise — that pointed in the direction of the appellant, which she said, left only speculation that the appellant had committed the crime. The prosecution, she argued, failed to put the “pieces of the puzzle” together for the jury, and the learned judge failed to accept that there...