Neville Barnes v R
| Jurisdiction | Jamaica |
| Judge | F Williams JA |
| Judgment Date | 22 March 2019 |
| Neutral Citation | JM 2019 CA 50 |
| Date | 22 March 2019 |
| Court | Court of Appeal (Jamaica) |
[2019] JMCA Crim 12
SUPREME COURT CRIMINAL APPEAL NO 103/2012
The Hon Mr Justice Brooks JA
The Hon Mrs Justice McDonald-Bishop JA
The Hon Mr Justice F Williams JA
Donald Gittens for the applicant
Jeremy Taylor and Mrs Venice Blackstock-Murray for the Crown
Criminal Law - Burglary — Larceny — Rape — Indecent assault — Appeal against conviction — Evidence — Identification — Whether trial judge erred in directing the jury on the procedural fairness of the identification parade — Whether trial judge failed to properly direct the jury on how to deal with voice identification evidence — Whether evidence failed to support the conviction — Appeal against sentence — Whether sentence of 40 years' imprisonment at hard labour was manifestly excessive.
The applicant, Neville Barnes, by this application, has sought permission to appeal against his convictions for the offences of burglary and larceny, rape and indecent assault, and the sentence of 40 years' imprisonment at hard labour imposed on him for the offence of rape. At the conclusion of the hearing of the application, we had reserved our decision in order to consider the submissions of learned counsel on both sides.
The applicant was tried in the Home Circuit Court between 17 and 26 September 2012 and on 2 October 2012, before Cole-Smith J and a jury. By a unanimous verdict, the jury found the applicant guilty of all three counts on the indictment. He was sentenced to 10, 40 and three years' imprisonment at hard labour, for the offences of burglary, rape and indecent assault respectively, with the stipulation that the sentences were to run concurrently.
At the applicant's trial, the virtual complainant testified that she had been awakened by a man entering her bedroom some time between the night of 20 June 2005 and the morning of 21 June 2005. She testified that, when the man, who she says was the applicant, had entered her bedroom, the lights in the house were turned off but that her bedside lamp was turned on. She was able to observe that the man was wearing a pair of navy blue cotton causal shorts, with no shirt, and that he had a pair of briefs drawn “half across his face”. She also testified that, during the incident, he took her from her bedroom to the kitchen. She further testified that there were two outside lights which were on and which shone into the house, and that while she and the applicant were in the kitchen, the applicant had turned on the kitchen light. She testified that during the encounter, which had lasted for about three hours, the applicant had sexual intercourse with her without her consent three times, indecently assaulted her and stole $3,000.00 from her.
The virtual complainant further gave evidence that she had attended an identification parade on 4 August 2005, at the Half-Way-Tree Police Station, where she identified the applicant as the man who had broken into and entered her dwelling house on the night in question and there assaulted and robbed her.
She stated that at one point during her ordeal, the applicant had instructed her to sit on a couch facing him in the study of the house. She gave evidence that there was an outside veranda light shining into the house. She stated that at that time there was nothing on his face. She was, in these circumstances, able to see parts of him. She described him to the trial court as being “lean, more on the small part”. She also testified that he was about 5' 10” tall and of dark complexion. She stated that, while he was raping her, she observed that his hands, chest and torso were very hairy. She also described the hair on his head as being low cut and said that he looked to be about 40 years old.
The virtual complainant also testified that, during the incident, the applicant spoke to her several times and she replied. From this she had been able to identify him by voice on the identification parade. She stated that there was a slight gruffness to his voice and that he did not pronounce the initial ‘h’ sound in words beginning with that letter. She stated that that clearly stood out in her memory when he had asked her “how many siblings do you have?”, dropping off the “h” sound in “how” and “have”.
The virtual complainant also gave evidence that she was menstruating at the time of the incident and that she had informed the applicant of this fact. She stated that, after the incident, a sanitary napkin and tampon, which she had been wearing on the night of the incident, were submitted to the rape unit for deoxyribonucleic acid (DNA) analysis to be conducted. She testified that she also submitted for DNA analysis the pyjama shorts and blouse that she had been wearing on the night in question. All these items were given to the police officer to whom she made a report of the incident.
She testified that, after the incident, she noticed that a piece of the protective grille at one of the windows of the house had been sawn off and that there were foot and hand prints on the wall leading to her parents' bathroom.
She gave evidence that at the identification parade she had requested four of the nine men on the parade to remove their shirts (the men standing under numbers nine, eight, three and two). She stated that there was a protest from the men and that she then requested that they all hold out their hands. She stated that the men complied with that request. It was her evidence that she then asked that the men standing under numbers two and nine say “how many siblings do you have?” She stated that she had already decided whom to identify before she asked both men to repeat the question. She further gave evidence that she then asked those two men to take off their shirts. There was a protest from the attorney-at-law in attendance but the men complied with the request. She then identified the man standing under number 9 to be the man who had committed the offences against her on the night in question. In court, the applicant was identified to be the man who had been standing under number 9.
The prosecution sought to rely on the results of the analysis of the DNA evidence. The samples that formed the basis of this evidence were recovered from a pair of underpants and from buccal swabs alleged to have been obtained from the applicant, along with items belonging to the virtual complainant. The expert evidence on the DNA analysis came primarily from three forensic analysts: Miss Sherron Brydson, Mr Compton Beecher and Dr Wayne McLaughlin.
Miss Brydson gave evidence that she is a government analyst attached to the Forensic Science Laboratory and that she had worked as an analyst there since 1992. She testified that she conducted autosomal STR (short tandem repeat) testing on samples from items contained in several sealed envelopes received from the police. She tested the samples for the presence of blood and semen. The contents of the envelopes were as follows: (i) envelope “A” - a sanitary napkin and a sanitary-napkin wrapper; (ii) envelope “B” - a yellow and grey pyjama blouse; a pair of plaid pyjama shorts and a white tampon; (iii) envelope “C” -buccal swabs taken from the virtual complainant; (iv) envelope “D” - vaginal swabs taken from the virtual complainant; (v) envelope “E” - a pair of underpants alleged to have been taken from the applicant; and (vi) envelope “F”- which contained buccal swabs said to have been obtained from the applicant (both “E” and “F” received some time after she had received the other items).
She explained that DNA is the basic unit or ingredient of an individual. She went on to explain that it is composed of two strands, one from each parent. She testified (at page 219, lines 2–4 of the transcript) that: “[a]n individual's DNA is unique to that individual unless that person is an identical twin or triplet”. She went on to explain where DNA is found and to also explain some of the technical terms and features of DNA analysis - such as “markers” or “loci” and stated that, at the time of testing for this case, the Forensic Science Laboratory used eight markers in testing for the presence of DNA. Also explained was the process involved in DNA testing. The eight markers are referred to as a “profile”.
This expert witness, from her records, indicated to the court that the virtual complainant's buccal swabs were used as a control sample. Further, from her analysis, she did not detect any blood or semen on the pyjama shorts, but found that there was a mixture of semen and human blood on the pyjama blouse. She did not detect any semen on the tampon, but found a mixture of human blood and semen on the sanitary napkin. She testified that there had been no blood or semen present on the wrapper for the sanitary napkin, neither was semen detected on the vaginal smears made from the vaginal swabs. She had found neither blood nor semen on the pair of underpants taken from the applicant.
She further testified that the tampon, vaginal swab and buccal swab provided a full profile, matching the sample taken from the virtual complainant, and that a partial profile was found on the sanitary napkin and on the pyjama blouse. She testified that these partial profiles originated from at least two individuals, and that the virtual complainant and the applicant shared components or alleles identified in these two partial profiles. She also gave evidence indicating that she had found a mixed profile on each of the following items: (i) the pyjama blouse and (ii) the sanitary napkin. (A mixed profile occurs where at least two sources of DNA are obtained from the particular item analysed). She noted that those samples shared most of the components of the profile obtained from the virtual complainant and some components of the profile obtained from the...
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