Omar Blake v R

• Jurisdiction: Jamaica
• Court: Court of Appeal (Jamaica)
• Judge: Dunbar Green JA
• Judgment Date: 08 July 2024
• Neutral Citation: JM 2024 CA 089
• Docket Number: SUPREME COURT CRIMINAL APPEAL NOS 30, 31 & 33/2011

Omar Blake

Omar Dunkley

Jason Coley

and

R

[2024] JMCA Crim 28

Before:

THE HON Mr Justice F Williams JA

THE HON Mrs Justice Dunbar Green JA

THE HON Mrs Justice G Fraser JA (AG)

SUPREME COURT CRIMINAL APPEAL NOS 30, 31 & 33/2011

IN THE COURT OF APPEAL

Criminal Law — Whether no-case submissions should have been upheld

Criminal law — Challenge to adequacy of judge's directions on issues of conflicts in the evidence and common design

Criminal law — Summing up – Whether misdirection on previous inconsistent statements – Effect — Whether judge failed to identify specific weaknesses in the identification evidence – Impact on safety of the convictions

Criminal law — Sentencing – Whether sentence manifestly excessive – Sentencing judge not considering starting point, aggravating and mitigating factors or pre-sentence remand – approach of appellate court

Mrs Valerie Neita-Robertson KC for the 1 ^st applicant Omar Blake Robert Fletcher for the 2 ^nd applicant Omar Dunkley

Anthony Williams for the 3 ^rd applicant

Jason Coley Ms Donnette Henriques for the Crown

Dunbar Green JA

Introduction

1 On 11 April 2011, the applicants, Messrs Omar Blake (‘Blood’), Omar Dunkley (‘Cootie Pang’/ ‘Cooty Pang’/ ‘Andre Palmer’) and Jason Coley (‘Tick Tack’/ ‘Tick Tock’/ ‘Rasta J’) were convicted by a jury, and sentenced, on 15 April 2011, for the murder of Michael Curtis (‘Java’/'the deceased’) on 20 July 2004, in the parish of Saint Andrew. The learned trial judge sentenced each applicant to 25 years' imprisonment at hard labour.

2 A single judge of this court refused leave to appeal conviction and sentence. However, the applicants renewed their applications before us.

The prosecution's case

3 The prosecution's case was that the deceased was shot and killed by the applicants at the home of the deceased's girlfriend, Pam, in the Reserve Road/August Town Road area of Saint Andrew, pursuant to a joint enterprise.

The main witnesses for the prosecution

4 The prosecution's principal witness, Mr Richard Simpson, claimed to have been an eyewitness to events, leading up to and subsequent to the killing, which implicated the applicants in the killing. There was no direct evidence of the killing.

5 In summary, Mr Simpson gave evidence that, sometime in the evening of 20 July 2004, the applicants were among a group of men, numbering between five and eight, sitting on the “banking”/ “banking side” in the community. The “banking” was described as a concrete structure in the open lot, close to where the deceased resided with his mother, Ms Audrey Williams (‘Ms Williams’), and the neighbouring houses of Pam and Mr Simpson.

6 Sometime in the afternoon, the applicant, Omar Blake, left the group and went to Ms Williams' yard, and in the presence of Ms Williams and others, declared, “A long time him nuh mek a Duppy. A long time we nuh moan”. After that declaration, he re-joined the group of men on the “banking” and, in a loud voice, said, “A long time him want kill a boy and run way”. The men, including Mr Blake, then started to whisper among themselves.

7 Shortly after, the deceased arrived home. He went across the lane to Pam's gate, and Mr Simpson heard Mr Blake questioning him as follows: “Hey Bwoy, how you a look pon mi so?” The deceased replied, “Who a look pan you? You see, who a look pon you, you see me a look pon you, man?” Mr Blake questioned further, “Hey Bwoy, a who you a chat to?” The deceased did not answer and made his way into Pam's yard.

8 Mr Blake re-focused his attention on the group of men, and said, “Come on, get up…Come, let's go, we ready”. The three applicants then “move[d] fast” into Pam's yard. Three others, ‘Papa’, ‘Demar’, and Carey Dennis, also jumped the fence into Pam's yard.

9 Mr Simpson then heard gunshots coming from the yard, and, soon after, saw Messrs Blake, Dunkley, and three other men running from Pam's yard. Both applicants had guns in their hands. Whilst they were running away, Mr Blake was heard asking the other men in the group, “Weh you kill the brown youth fah?”

10 There was further evidence from Mr Simpson that he had encountered some members of the group of men earlier in the day, at which time Mr Blake told him to get off the road because he did not want to kill him.

11 Ms Williams corroborated the evidence of Mr Simpson that Mr Blake had made a declaration of violent intent, in her presence, shortly before the killing. She, however, recalled a different context and slightly different words being used.

Challenge to the prosecution's case

12 Mr Simpson was cross-examined about several material omissions from his first witness statement to the police, on the basis of previous inconsistent statements in his deposition, taken at the preliminary enquiry, and about other inconsistencies and discrepancies in relation to his evidence. Other witnesses, including Ms Williams, were also cross-examined about previous inconsistent statements and discrepancies. These aspects of the evidence will be referred to as the context necessitates.

The defence

13 In their defence, the applicants made unsworn statements in which they unequivocally denied being present at the scene of the killing, and having any involvement in the killing. Mr Coley stated that he was vending at the University of the West Indies and had only heard of the incident on the 7:00 o'clock news.

14 The applicants contended that Mr Simpson was lying or had been mistaken as to the identity of the persons he saw entering and leaving Pam's yard. They did not dispute being previously known to Mr Simpson.

The verdict and sentence

15 After the summation, the jury retired for two hours and 40 minutes, and returned a unanimous verdict against Messrs Blake and Dunkley and a divided verdict of 11 to one, against Mr Coley.

The appeal

16 At the hearing of the application for leave to appeal, on 15 November 2021, counsel for the applicants were permitted to abandon the original grounds of appeal, and argue, instead, the supplemental grounds set out below. They were also granted an extension of time within which to file skeleton arguments.

Omar Blake

17 The supplemental grounds of appeal for Mr Blake were:

“ Ground 1

The Learned Trial Judge failed to assist the jury to analyse the effects of the contradictions/discrepancies, inconsistencies and previous inconsistent statements of the Applicant/Appellant [sic] and failed to leave for the jury in a clear and adequate way all the possible interpretations for their consideration. In the circumstances, Omar Blake was denied an adequate consideration of his case and was thereby deprived of a fair trial.

Ground 2

The Learned Trial Judge failed to deal with the issue of Common Design adequately or fairly in relation to the purported statement of the Applicant/Appellant. That the matter was left to the jury as an afterthought and consequently would not have impressed the jury as a matter of any moment.

Ground 3

That the Learned Trial Judge misdirected the jury in respect of the unsworn statement of the Applicant/Appellant when she said that it was not evidence. That this misdirection deprived the Applicant/Appellant of a fair consideration of his defence.

Ground 4

The Learned Trial Judge erred in her directions and/or comments to the jury in regard to prejudicial evidence against the accused men. The comments and the possible interpretations she left to the jury denied the accused of a fair trial, individually and collectively.

Ground 5

That the sentence is manifestly excessive.”

Omar Dunkley

18 The supplemental grounds advanced on behalf of Mr Dunkley were:

“ GROUND ONE

The learned trial judge erred in not accepting the no-case submission made on behalf of the applicant Dunkley.

GROUND TWO

The learned trial judge's treatment of the inconsistencies/ contradictions in the case against Omar Dunkley in particular was wholly inadequate. The inadequate treatment denied him a fair trial and a real chance of acquittal.

GROUND THREE

The learned judge failed to deal adequately with the unique issue of the weakness in the identification evidence against the applicant. This failure denied him a fair consideration of his case and a real chance of acquittal.

GROUND FOUR

The fundamental principle that a trial judge ought to direct a summation so that the jury is able to consider the case against each separately was not sufficiently or rigorously applied. The failure denied the applicant a fair consideration of his case and a real chance of acquittal.

GROUND FIVE

The learned Trial judge misquoted evidence in a way which prejudiced the applicant by making it appear that he was part of alleged words showing violent intent ascribed to one of the other applicants.

GROUND SIX

The sentence is manifestly excessive.”

Jason Coley

19 The supplemental grounds advanced on behalf of Mr Coley were:

“GROUND 1

The Learned Trial Judge erred in Law by rejecting the no-case submission made for and on behalf of the applicant. This resulted in a miscarriage of Justice by denying the applicant a chance of acquittal and deprived him of a fair trial.

GROUND TWO

The learned judge failed to assist the jury to analyse the effects of the contradictions/discrepancies, inconsistencies and previous inconsistent statements of the applicant and failed to leave for the jury in a clear and adequate way all the possible interpretations for their consideration. In the circumstances, Jason Coley was denied an adequate consideration of his case and was thereby deprived of a fair trial.

GROUND THREE

The Learned Trial Judge misdirected the jury as to the legal effect of an unsworn statement and the way it should be treated in law when she said it was not evidence. The misdirection deprived the applicant of a fair consideration of his defence.

GROUND FOUR

The verdict is unreasonable and cannot be supported having regard to the weight of the...