Orlando Lamont v R
| Jurisdiction | Jamaica |
| Judge | Straw JA |
| Judgment Date | 10 November 2017 |
| Neutral Citation | JM 2017 CA 67 |
| Docket Number | SUPREME COURT CRIMINAL APPEAL NO 74/2014 |
| Court | Court of Appeal (Jamaica) |
| Date | 10 November 2017 |
[2017] JMCA Crim 36
IN THE COURT OF APPEAL
THE HON Mr Justice Morrison P
THE HON Mrs Justice McDonald-Bishop JA
THE HON Miss Justice Straw JA (AG)
SUPREME COURT CRIMINAL APPEAL NO 74/2014
Patrick Peterkin for the appellant
Jeremy Taylor and Miss Donnette Henriques for the Crown
Criminal appeal - Manslaughter — Appeal against conviction — Whether the judge erred in failing to give a good character direction — Whether the judge erred in not giving the jury expert directions — Whether the judge erred in not leaving self defence to the jury — Whether the judge failed to properly assess contradictions in the eyewitness' evidence — Whether the judge erred in not upholding the no-case submission — R v. Aziz [1996] AC 41 — Brown v. The State of Trinidad and Tobago [2012] UKPC 2 — Whyte and others v. R [2017] JMCA Crim 13 — Fowler v. R [2010] JMCA Crim 51 — Beckford v. R [1987] 3 All ER 425 — The State v. Mootoosammy and Budhoo (1974) 22 WIR 83 — Reid v. The Queen [1980] AC 343.
Straw JA (AG)
The appellant was convicted on 14 July 2014 of the offence of manslaughter before G Brown J (the judge) and a jury by a majority verdict, after a retrial that commenced on 7 July 2014, in the Home Circuit Court. Subsequently, he was sentenced to five years' imprisonment at hard labour on 25 July 2014. The appellant applied for leave to appeal against his conviction and sentence and this application was considered by a single judge of this court on 15 May 2017. The single judge granted leave to appeal against the conviction but refused leave to appeal against sentence as in his view, “no reasonable challenge can be mounted against the sentence in this case”.
We heard this appeal against the appellant's conviction for the offence of manslaughter on 25 September 2017 and on 13 October 2017 we gave our decision and made orders in the following terms:
“The appeal is allowed. The conviction is quashed and sentence set aside. Judgment and verdict of acquittal are entered.”
We promised then the reasons for our decision and this is a fulfilment of that promise.
The appellant was initially tried and acquitted for the offence of murder of Mr Everton Parchment. However, the jury were unable to return a verdict for the offence of manslaughter. Consequently, a retrial was ordered, from which the issues on this appeal emanate.
During the course of the retrial, the prosecution called nine witnesses in support of its case while the appellant made an unsworn statement from the dock and called one character witness. In an effort to highlight aspects of the evidence which are important for the ventilation of this appeal, reference will be made to the evidence adduced by several of the witnesses.
Mr Kevin Clarke gave an eye witness account of the incident. He testified that on 3 April 2010, sometime after 10:00 pm, he and two other passengers were travelling home to Arnett Gardens in a red Toyota Fielder motor car which was being driven by Mr Parchment. He stated that he was seated in the front left passenger seat and that while approaching the intersection of Maxfield Avenue and Spanish Town Road, he saw a human object standing in the road. He was aided by the car lights to see this person. He further gave evidence that upon reaching about 20 feet from the object, he realised that it was a policeman clothed in dark coloured denim, wearing a helmet and carrying a long gun.
He stated that he then said to Mr Parchment, “‘Ever’ a police, soh wi can stop” (page 22, line 10). It was his evidence that the motor car decelerated and came to a complete stop about 9 to 12 feet from where the policeman was standing. He also maintained that the vehicle did not impact anything. He testified that he then saw the policeman standing in front of the vehicle with a long gun pointed at the motor car. About three seconds later, he heard an explosion. It was thereafter discovered that Mr Parchment had been shot. Mr Parchment later succumbed to his injuries at the Kingston Public Hospital.
The witness testified that after the incident he noticed a single hole to the centre of the windscreen of the motor car.
During cross examination, Mr Clarke denied the suggestions of counsel that the motor car had hit the policeman or that its manoeuvring had caused the tires to screech. While agreeing that he had directed the deceased to turn on the ‘high beam’ light of the car, he disagreed that the vehicle had being driving without the headlights turned on or at a fast speed.
Detective Constable Michael Carnegie gave evidence that he was a police officer stationed at the Denham Town Police Station and that on the day of the incident he had issued an M16 rifle bearing serial number 8000393 and 60 rounds of ammunition contained in two magazines to the appellant.
Corporal Dorman Whyte testified that on 3 April 2010, he was stationed at the Denham Town Police Station when he, along with Constable Orlando Lamont, the appellant, and Constable Jervis Jones were dispatched on mobile patrol. He identified the appellant sitting in the dock as Constable Orlando Lamont. He further deponed that at about 10:20 pm, they were conducting a stop and search operation of a Toyota Hiace bus on Spanish Town Road in the vicinity of Tewari Crescent. He stated that he was observing the operation while Constable Jones conducted the search of the passengers and Constable Lamont provided cover. He then heard an explosion that sounded like gunshots and observed Constable Lamont and a red motor car in the road. He was then informed by Constable Lamont that someone had been shot. He observed a man in the driver's seat of the red motor car bleeding from his neck.
He also gave evidence that the police training dictated that weapons are to be kept on ‘safety’ unless there was a perceived threat of danger and that rounds are to be removed from the breach and placed back in the magazine when proceeding from one duty to another. He further stated that the nozzle of a gun should point to the ground or upward when being carried. In cross-examination, the witness agreed that it was acceptable to carry the M16 cradled against the chest. He also agreed that the safety feature on the gun could possibly be affected by the gun brushing against the ‘paraphernalia’ on the police vest. He also gave evidence that while at the hospital with the injured man, Constable Lamont spoke to feeling pain in the region of his foot.
Dr S N Prasad Kadiyala, the pathologist, gave evidence that on 7 April 2010, he had conducted a post mortem examination on the body of Mr Parchment at the Spanish Town Hospital Morgue. He observed an inverted ‘V’ shaped sutured wound on the left lower anterior neck, extensive soft tissue haemorrhage and blood in the chest cavity. The cause of death was determined to be haemorrhage and shock due to the gunshot wound to the neck.
Detective Sergeant Michael Frazer testified that he was stationed at the Denham Town Police Station on supervisory duty on the evening in question. Upon being informed of the incident, he proceeded to Spanish Town Road in the vicinity of Tewari Crescent where he observed a red Toyota Fielder motor car parked on Spanish Town Road. He observed that the front windscreen was shattered by what appeared to be a gunshot hole.
He also stated that later that evening, he observed the appellant at the Denham Town Police Station walking with a limp and having a white bandage wrapped around his left knee. He deponed further that the appellant handed him a medical certificate and an M16 rifle bearing serial number 8000393, with two magazines, each containing 30 and 29, 5.56 cartridges respectively.
He testified that when he returned to the scene of the incident on 4 April 2010, he observed a drag mark in the vicinity where the red Toyota Fielder motor car had stopped. He estimated that drag mark to be about 20 feet.
Retired Superintendent Porteous testified that on 16 April 2010, he conducted ballistic tests on a 5.6 Colt M16 A2 rifle bearing serial number 8000393. It was his evidence that his examination revealed that the firearm was in a fairly good condition with no malfunctions and was capable of discharging bullets.
Miss Orphia Hepburn testified that she was a back seat passenger in the red Toyota Fielder motor car driven by the deceased. She also averred that it was the deceased who had said that he had seen something in the road to which Mr Clarke had responded by saying that the deceased should turn on the ‘high beam’ light, which the deceased did. She testified that the car then suddenly braked and she pitched forward.
During cross examination, Miss Hepburn agreed with counsel for the appellant that it was Mr Clarke who had stated that he had seen something in the road, to which the deceased had responded that he had not seen anything. She further testified that she had observed that the person in the road had a long gun pointed towards the motor car and then she heard an explosion. It is her evidence that the vehicle had stopped 19 to 20 feet from the person in the road.
The appellant made an unsworn statement from the dock. He stated that on 3 April 2010, he was a police officer stationed at the Denham Town Police Station and dispatched on mobile patrol duties in the Spanish Town Road area. He stated that prior to being deployed in that area, he was briefed about the need for caution in certain volatile areas as there were reported threats of violence; that men heavily armed with high powered weapons were seen in the areas of Maxfield Avenue, Rose Town and Arnett Gardens. He stated that he was clad in a blue denim uniform, marked police vest and a ballistic helmet and that he had been assigned an M16 rifle which he had loaded with one magazine. A...
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