Morris Cargill v R

• Jurisdiction: Jamaica
• Judge: Brooks JA
• Judgment Date: 19 February 2016
• Neutral Citation: JM 2016 CA 17
• Docket Number: SUPREME COURT CRIMINAL APPEAL NO 89/2012
• Court: Court of Appeal (Jamaica)
• Date: 19 February 2016

Between

Morris Cargill

and

R

[2016] JMCA Crim 6

Before

The Hon Miss Justice Phillips JA

The Hon Mr Justice Brooks JA

The Hon Mrs Justice Sinclair-Haynes JA AG)

SUPREME COURT CRIMINAL APPEAL NO 89/2012

JAMAICA

IN THE COURT OF APPEAL

Ms Jacqueline Cummings for the applicant

Mrs Sharon Milwood-Moore for the Crown

Brooks JA

1 On 3 May 2009, Mr Ijah Young was chased, shot and killed by a lone gunman in an area in the parish of Saint Andrew, known as Back Bush. In July 2012, Mr Morris Cargill was convicted of murder arising from that death. His defence at the trial was one of alibi. He testified that he was elsewhere, at work, at the time of the killing. He did not, however, call any witness to support his alibi.

2 In this application for leave to appeal he sought permission to adduce, as fresh evidence, the testimony of Mr Dunstan Baker. Mr Baker's testimony was in support of Mr Cargill's alibi. The basis of the application to adduce the fresh evidence is that Mr Baker was not available at the time of the trial, but that his testimony could cast doubt on the prosecution's case against Mr Cargill.

3 This court considered Mr Cargill's application to adduce the fresh evidence and decided that, as the proposed testimony was possibly capable of belief, the court would hear Mr Baker's testimony in order to assist it in deciding on Mr Cargill's application for permission to appeal. The court heard Mr Baker's testimony and ruled, by a majority, that his evidence was plainly capable of belief. The next question for the court is what effect that fresh evidence should have in the circumstances. This question has to be considered in addition to any other concerns that could call the validity of the conviction into question. Before examining those issues, however, an outline of the evidence adduced at the trial and a summary of Mr Baker's testimony before this court would be helpful.

The evidence at trial

4 The sole eyewitness for the prosecution at the trial was Mr Rudolph Wildman. He testified that he was a motor vehicle mechanic. At the time of the killing, he lived and had his garage at No 8A Bygrave Avenue. Bygrave Avenue is a road running from Mountain View Avenue to Back Bush. Mr Wildman testified that on 3 May 2009, at about 11:00 am, he was at his home, working on a motor vehicle when he heard explosions sounding like gunshots. He looked out to the roadway and saw Mr Cargill, whom he knew before as ‘Myra’ or ‘Chinie’, chasing Ijah Young. Both were running along Bygrave Avenue. Mr Cargill was armed with a gun and was firing shots at Mr Young, who, at times, is referred to in the transcript as ‘Ijay’.

5 Mr Wildman said he went out by his gate and he saw Mr Young stop and ask Mr Cargill, ‘Rastaman [Mr Cargill is of the Rastafarian faith, and wears his hair in dreadlocks], a whey mi do yuh?’ Mr Cargill's response, according to Mr Wildman, was to fire another shot, which hit Mr Young. Mr Wildman testified that the shot ‘lift [Mr Young's] shirt’. Mr Young ran off again but didn't get far. He fell at the entrance to Back Bush. Mr Wildman said Mr Cargill then went and stood over Mr Young, ‘and fire “bout four [shots] pon him ah ground”’.

6 Mr Wildman's testimony was severely tested in cross-examination. There were at least three areas in which it would have caused the jury to pause in assessing his credibility. The first was an inconsistency as to whether he was able to see where Mr Young fell and received the final shots. The second was a discrepancy between his testimony and that of the police officers, who came on the scene after the shooting. It concerned the clothing that Mr Young was wearing at the time of his death. The third concerned the weather. The police officers stated that it was a rainy day. So did Mr Cargill. Mr Wildman, however, said that ‘it wasn't raining, it was a clear day’.

7 Three police officers gave evidence. Two of them visited the scene and saw Mr Young's body on the ground. The third conducted an identification parade in which Mr Cargill was the suspect and was pointed out as Mr Young's killer.

8 Dr Prasad Kadiyala conducted the post mortem examination on Mr Young's body. He found that four bullets penetrated the body. From the entrance wounds and the trajectory of the respective bullets, Dr Prasad, concluded, that for three of the four shots, the assailant fired from behind Mr Young, although two of those three were more from Mr Young's right side. The fourth injury, which was to the face, could have been inflicted from any direction as the head, being mobile, could have been in any position in relation to the attacker.

9 Mr Cargill testified that he was at work at the time of the incident. He was doing construction work by Excelsior High School, which is along Mountain View Avenue. He lived at No 11 Bygrave Avenue at the time, but had gone to work at about 7:00 that morning and was at that worksite until early afternoon. He said that his job that day, at the Excelsior site, was to move dirt that had been thrown from upstairs a building at the worksite, and to place it in a heap so that it could be taken away. He also ‘cast a little manhole’.

10 At about 1:00 in the afternoon, said Mr Cargill, he went directly to another construction site, ‘up by Digicel complex…at the top of Mountain View’. This was on the instruction of his employer. His job at the Digicel site was to dig out a foundation for a building. He remained at that second site until after 3:00 pm. Rain interrupted the work and he left the site and went home.

11 When he got home, he said, he saw a lot of police and soldiers. He, however, made no enquiries as to the reason for their presence. He said that it was after he was taken into custody in August 2009 that he learnt about a shooting having taken place on Bygrave Avenue. He said that he did not know anyone named Ijah Young.

12 He accepted that he knew Mr Wildman personally and knew that Mr Wildman lived right opposite where he lived. He, however, only knew him as ‘Toot’. Mr Cargill had spoken to Mr Wildman when he, Mr Cargill, first moved to Bygrave Avenue. In fact, it was Mr Wildman who had transported his things to Bygrave Avenue. They had since had a disagreement but, by the ‘mercy of God, it don't get major’. He said, however, that they ‘never have live good, but [tried to do so]’. He testified that between the day of the shooting and the day when he was arrested he saw Mr Wildman every day.

13 Mr Baker testified that he is a building contractor and that he lived at No 100 Mountain View Avenue. He was a character witness for Mr Cargill after Mr Cargill was convicted and before he was sentenced. He said, at the sentencing hearing, that he found Mr Cargill to be a good worker and always employed him on his work sites. He said that in 2009, Mr Cargill was employed to him at a site in which he was ‘doing something for Digicel’.

Mr Baker's testimony in this court

14 Mr Baker's explanation for not having given testimony at Mr Cargill's trial was that he had been out of the island at the time that Mr Cargill was arrested and that he wasn't sure whom he should contact concerning assisting Mr Cargill. It is important to note that the application to adduce fresh evidence from Mr Baker came at a time subsequent to the death of the prosecution's sole eyewitness, Mr Wildman.

15 In his testimony before this court, Mr Baker said that Mr Cargill worked at the construction site at Excelsior High School. They were both at the Excelsior worksite on Sunday, 3 May 2009. He said that he first saw Mr Cargill at about 8:00 that morning. They were working on the site continuously and at about 11:30 or thereabouts he heard ‘some explosions further down the road’. At that time Mr Cargill was still on the site Excelsior. ‘He was still working with the carpenter putting up the decking, cause [sic] it is a big decking’.

16 Mr Baker testified that at about 1:00 pm he sent Mr Cargill to a worksite at the corner of Fairway Avenue and Lady Musgrave Road, where he, Mr Baker, had a contract to ‘set up a scrimmage football field on a parcel of land owned by Digicel’. Not long after sending Mr Cargill away, Mr Baker said that he called off the work at Excelsior and went to the Fairway Avenue site, where he saw Mr Cargill at about 1:30 pm. They all left that site together at about 3:00 that afternoon.

The grounds of appeal

17 Ms Cummings, on behalf of Mr Cargill, argued, with the permission of the court, the following supplementary grounds of appeal:

• ‘1. The Learned Trial judge failed to make sufficient reference to and point out the weaknesses, contradictions and inconsistency [sic] in the case for the prosecution given in the evidence of the sole prosecution alleged witness of the incident.

• 2. The verdict is unreasonable and inconsistent with the evidence given by the sole prosecution alleged witness of the incident.

• 3. The Trial Judge erred when he failed to place the same emphasis on the Applicant's evidence of alibi as he placed on the testimony of the sole prosecution alleged witness of the incident.

• 4. The trial was unfair to the Applicant as several damning and prejudicial statements were made against him by the sole prosecution alleged witness of the incident that it would have influenced the jury adversely to the Applicant in addition to how this witness was taken to court.

• 5. The identification parade held for the applicant was unfair as limited other persons with dread lock [sic] hairstyle were in the line-up which would be prejudicial to his identification by the prosecution witness.

• 6. The Learned Trial Judge should have left provocation to the jury as the sole prosecution alleged witness of the incident made reference to evidence which could have suggested it and there was no evidence of malice.

• 7. Having regard to the fresh evidence...