Mark Russell v R
| Jurisdiction | Jamaica |
| Judge | Brooks P |
| Judgment Date | 15 October 2021 |
| Neutral Citation | JM 2021 CA 111 |
| Docket Number | SUPREME COURT CRIMINAL APPEAL NO 82/2017 |
| Court | Court of Appeal (Jamaica) |
[2021] JMCA Crim 34
IN THE COURT OF APPEAL
THE HON Mr Justice Brooks P
THE HON Miss Justice Edwards JA
THE HON Mrs Justice Brown Beckford JA (AG)
SUPREME COURT CRIMINAL APPEAL NO 82/2017
John Clarke for the appellant
Miss Latoya Bernard and Miss Devine White for the Crown
The appellant, Mr Mark Russell, was convicted on 21 July 2017, in the Home Circuit Court for the offence of murder. On 31 July 2017, he was sentenced to life imprisonment and ordered to serve 24 years before becoming eligible for parole. He has appealed against his conviction and sentence. The bases of the appeal include, improper evidence being tendered before the jury, improper directions to the jury about the evidence of accomplices and improper handling of the jury's indication that they had not reached a majority verdict.
The prosecution's case at the trial revealed a brutal, heartless killing that is totally unworthy of people who have sworn to serve, protect and reassure the public. According to three Jamaica Defence Force (‘JDF’) soldiers, who were the prosecution's eyewitnesses, two police officers, who were on mobile patrol with them on 27 July 2007, in their presence, shot and killed a helpless Mr Ravin Thompson at the side of the road, at Darling Street in the parish of Kingston. This was done while the patrol unit was en route to take Mr Thompson to the hospital for treatment for a gunshot wound that he had earlier received at the hands of members of that same patrol unit.
There was no dispute at the trial that Mr Russell, then Constable Russell, was one of the two police officers in that patrol unit. Mr Russell, however, categorically denied that he was present when Mr Thompson was first shot and injured, or present at the time of any shooting incident along the route to the hospital. Mr Russell asserted that the patrol was travelling in two JDF vehicles, and that on two separate occasions, the vehicle that he was in arrived at the relevant spot after he had heard explosions. He said that on the first occasion when his vehicle arrived at Alexander Road, in the parish of Saint Andrew, Mr Thompson was already lying on the ground, having previously been shot. Mr Russell further stated that on the way to the hospital with Mr Thompson, the two vehicles got separated and that when he next saw the other vehicle, in which Mr Thompson was, it was parked along Darling Street. At that time, the JDF soldiers were standing to the left of the vehicle and Mr Thompson was crouched over in it, with one of his legs hanging out.
The credibility of the witnesses, therefore, played a critical role in the decision that the jury had to make. According to Mr Clarke, counsel for Mr Russell, the conduct of the trial skewed the case against Mr Russell and rendered the trial unfair.
At least one of the grounds of appeal requires some further details of the prosecution's case at the trial, as to the circumstances of Mr Thompson's death. One of the soldiers, Corporal Dwayne Salmon, testified that the patrol went to Alexander Road, in the parish of Saint Andrew. They were acting on information that a man there had a firearm. On arrival at the location, he saw a man fitting the description that had been given to the patrol unit. As Corporal Salmon approached him, the man pulled a shiny gun and pointed it at the Corporal, who fired at the man. The man ran into a yard. Corporal Salmon entered the yard and saw a different man lying on the ground just inside the yard. That man had been standing outside the yard when the patrol approached. Inside the yard, a shiny gun was retrieved but the other man, who had that weapon, had made good his escape.
Corporal Salmon said that he went back to the vehicle, in which he had come. There he saw that the man who had been lying on the ground, was now in that vehicle. The man, who has been identified as Mr Thompson, was injured. The patrol headed for the hospital with Mr Thompson. Corporal Salmon testified that shortly after leaving Alexander Road, he heard a woman in the vehicle crying. Mr Russell, who was now in that vehicle, called for the vehicle to be stopped. When it had come to a halt, said Corporal Salmon, Mr Russell put the woman out, and the vehicle was driven off, leaving her there.
The woman was Andrea Thompson. She is Mr Thompson's aunt. Importantly, she said that while she was on the vehicle, Mr Thompson told her that he would be alright and that she should not cry. She said she is not sure who dragged her off the vehicle, but one of the soldiers, using expletives, had told her to shut up. She had to make her own way to the hospital.
Corporal Salmon said that when the patrol reached Darling Street, Mr Russell again called for the vehicle to be stopped. At that location, Corporal Salmon said, Mr Thompson had blood on his chest but his chest was moving. Corporal Salmon said that after both vehicles had stopped, Mr Russell and the other police officer, Constable Lee, conferred with each other. After doing so, they put an M16 firearm in Mr Thompson's hand and fired it. The two police officers then put Mr Thompson on the sidewalk and Constable Lee fired at him three times, but apparently one shot missed. The two police officers then put Mr Thompson back in the vehicle and the patrol continued to the hospital, where, on arrival, Mr Thompson was pronounced dead.
The two other soldiers in the patrol gave evidence along the same lines as Corporal Salmon. One of them, Lance Corporal Shadrach Fuller, testified that, at Darling Street, before the two policemen fabricated the scenario, he heard Constable Lee say, during a telephone call, “Boss, wi find di gun but a di wrong man get shot, suh wi a guh done him”. He said that after that call, he heard Constable Lee say to Mr Russell, “Come mek wi deal with it”.
At the hospital, the process of investigating Mr Thompson's death commenced. The scenes of crime personnel swabbed the hands of the relevant individuals and took relevant photographs, including photographs of the vehicle. The police officers surrendered their weapons to the investigators, but the soldiers refused to do so. The soldiers said that they made their reports through the relevant chain of command, according to the JDF's protocol.
Dr Prasad Kadiyala performed the post mortem examination on Mr Thompson. He testified that he found four gunshot wounds to Mr Thompson's body, one to the face with a downward trajectory, one to the chin with an upward trajectory, one to the chest and one to the right forearm. Dr Kadiyala said that Mr Thompson would have survived 15–45 minutes if he had only had the injury to the chest. Dr Kadiyala testified that the amount of blood that he saw in Mr Thompson's chest cavity would have taken 15 minutes to accumulate there. Critically, he said that the injury to the head would have been 15–30 minutes after the injury to the chest. Also of critical importance, when Miss Thompson's testimony is considered, is Dr Kadiyala's testimony that Mr Thompson would not have been able to speak after receiving the gunshot injury to the chin, which went inside the skull upwards backwards and to the right. The doctor opined that Mr Thompson would have died instantly (or within two minutes) from that injury to the chin.
The prosecution accepted that Mr Russell was not at Alexander Road when Mr Thompson was first shot. The main issues joined between the prosecution and the defence, at trial, were whether Mr Russell was:
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a. in the vehicle in which Mr Thompson was being transported to the hospital;
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b. the person who removed Miss Thompson from that vehicle;
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c. present when Mr Thompson was said to have been shot at Darling Street; and
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d. involved in concocting a scenario to suggest that Mr Thompson was shot by the patrol in response to shots fired by Mr Thompson.
Mr Clarke argued five grounds of appeal on behalf of Mr Russell. The formulation in his written submissions varied somewhat from that in the document headed “Supplemental Grounds of Appeal”. Counsel indicated a preference to the ones in the written submissions. Accordingly, the ones in the written submissions will be the ones to which this judgment will refer.
“ Ground 1: the majority verdict
The learned trial judge erred in failing to give adequate or sufficient directions in relation to how the jury should seek to arrive at a majority verdict. The inadequate or insufficient directions ensures [sic] the resultant conviction is unsafe.”
“ Ground 2
The jury heard prejudicial evidence.
a. The process and factual circumstances behind the extradition of Mark Russell to ensure his presence in Jamaica for the trial of the material offence before the court
b. The role of the US Marshall and the Bureau of Special Investigation in the extradition of Mark Russell
c. The fact that Mark Russell was placed in custody at the Gun Court Remand Centre
d. The US Marshall turned up at Mark Russell's house in the [United States] and took him into custody where he remained until (and even after) extradited to Jamaica.”
“ Ground 3
The learned trial judge failed to give the jury the appropriate directions as regards the prejudicial evidence referenced in the foregoing ground.”
“ Ground 4
The learned trial judge erred in failing to give the adequate and sufficient accomplice/ interest to serve direction in all the circumstances of this case.”
“ Ground 5
The sentence passed by the learned trial judge was not appropriate in all the circumstances of the case. The sentence passed warrants the court exercising its statutory power under section 13(3) of the Judicature (Appellate Jurisdiction) Act to pass an appropriate sentence.”
Mr Clarke first argued grounds 2 and 3 together. He then argued ground 4, and finally, ground 1. He relied on his written...
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