Palmer v R

• Jurisdiction: Jamaica
• Court: Court of Appeal (Jamaica)
• Judge: Phillips, J.A.
• Judgment Date: 02 December 2011
• Neutral Citation: JM 2011 CA 119
• Docket Number: Criminal Appeal No. 160 of 2002
• Date: 02 December 2011

Court of Appeal

Panton, P.; Morrison, J.A.; Phillips, J.A.

Criminal Appeal No. 160 of 2002

Palmer

and

R

Appearances:

Robert Fletcher for the appellant.

Mrs Ann-Marie Feutardo-Richards and Mrs Paula-Roseanne Archer-Hall for the Crown.

Criminal practice and procedure - Whether prima facie case had been made out by prosecution — Whether adequate direction had been given by trial judge on issue of alibi — Conviction and sentence affirmed — Appeal dismissed.

Phillips, J.A.

1 The appellant was convicted on 25 July 2002 in the High Court Division of the Gun Court for the parish of Clarendon, before James, J. and a jury, for the murder of Levi Knight o/c Buck. He was sentenced to life imprisonment and the court directed that he should serve a sentence of 15 years before he would be eligible for parole.

2 The appellant filed an application for leave to appeal against his sentence and conviction on 2 August 2002, and on 14 October 2003 he was granted leave to appeal by a single judge of appeal. The single judge queried whether a prima facie case had been made out by the prosecution, and if so, whether adequate directions had been given by the learned trial judge on the issue of alibi.

BACKGROUND FACTS

THE CASE FOR THE PROSECUTION

3 Miss Salomie. Benjamin, with whom the deceased was living at the time of his death, testified that on 17 February 1999, at 6:00 p.m. she went to a club in Sheep Pen Hill in the parish of Clarendon to join the deceased. She remained there with him until 9:15 p.m. when they left the club together, walking on the main road, in the direction of her home. Just before leaving the club, she said, she saw “a car drove up and turn, right at the club”, and when they reached “below the streetlight in the dark, we see two men coming up, in front of us, They were on foot when me saw them.” Later she said that, “they come and hold up the two of us one time.” “Hold we up in we stomach here.” She said that her assailant wore a white T-shirt, and he had “a shine something like a gun.” “A shine something when him hold me up in my chest point on me.” She said that he held onto her with one hand while the other man held Buck. He told the other man who held Buck to “lick him in him bumbo claat face.” After which he turned to Buck and started hustling him, with the other hand. While her assailant was holding her and hitting Buck, she said, “mi scared out of mi blouse. I take off mi blouse over mi head and leave it inna him hand.” She said that she ran away leaving Buck with the men, and while making her escape she heard explosions behind her, which sounded like gunshots. She said she ran back to the club and the owner took her to the Rock River Police Station, where she made a report. She did not see Buck until she saw him lying on his back in the bushes, the following morning, and he appeared to be dead. She did not see him alive again. It was obvious that her evidence was of no assistance in identifying Buck's assailants. She was not able to see the men clearly. The area was dark. The value of her evidence, it appeared, was to pinpoint a possible date and time of the shooting. In fact the main witness for the prosecution was Miss Tanique Oxford, who had in the past been an intimate friend of the deceased and at the time of his murder, the intimate friend of Wayne Palmer, the other accused.

4 Miss Oxford gave evidence that she had been friends with Buck in 1999, but had also ceased being his girlfriend in 1999. She said that she knew both accused, Wayne Palmer as “Samuda”, from January 1999 and the appellant as “Bracey”, from February 1999. Miss Oxford testified that on 23 January 1999, she met Samuda at the “Go - Go” club in Sheep Pen Hill and it appears that she started an almost immediate intimate relationship with him. She told the court that she left the club that night in a white “deportee” with Samuda, “Baldhead” a woman at whose home she lived at the time, “Bunny”, “Priest” and “Butty” heading towards Baldhead's house. Samuda was driving. On the way she saw Buck on the road walking towards his house. As Miss Oxford tells it, Samuda, after having been told something by Baldhead reversed the car to where Buck was and said to him, Buck, “yuh see dis woman, mi don't want you box har again.” “Dis woman” to whom reference was being made was Miss Oxford, and she said she turned to them and said, “Oonu stop oonu foolishness because him don't box mi.” Miss Oxford said that when the car was being driven away, “Butty” who had a gun in his hand, placed his hand out through the window and fired a shot. She told the court that she turned to Samuda and said “Let mi out because oonu ah go kill the man fi nutten.” But Samuda's response was that he could not let her out because, if he did, “Buck” was going to beat her up. She testified further that she saw Samuda several times between that night in January and the night of 17 February 1999, as he used to visit her at “Baldhead's” house. She also said that she had not seen “Buck” since that night of 23 January 1999.

5 On 17 February 1999, the night that “Buck” was killed, Miss Oxford saw the appellant, (“Bracey”) for the first time. She said that while asleep at “Baldhead's” house, she was awakened by “Samuda”, the appellant and “Twelve Finger.” “Samuda” told her that she had to come with him. She resisted at first, but he insisted and eventually she went with him, taking her two year old child with her. She sat in the middle in the back of the car flanked by Tamika Kerr, a friend of hers; “Priest' and “Twelve Finger.” They went to “Longsville”, a housing estate where “Samuda” lived. Samuda drove, while the appellant was sitting in the front passenger seat.

6 It was while in the car, Miss Oxford said, that the appellant known to her only as “Bracey” turned towards her and said “We kill a man.” She said that “Samuda” turned to the appellant and said, “Stop you noise and nuh tell rum nothing.” She said that she turned to him and said, “unnu let me go for unnu going kill me too.” She said that the appellant kept talking, saying that he wasn't sure if the man was dead, but he knew for sure they had shot him. “Samuda” again cautioned the appellant by saying, “yuh nuh hear say you nuh fih tell her anything? Is mi man.”

7 Upon reaching Longsville, Miss Oxford said that she saw the appellant place a black handled shine gun, that she had seen him with in the car on the way from “baldhead's” house to Longsville, under a mattress in “Samuda's” house. “Twelve Finger” also had a gun in the car. She did not know who was shot until she got to the house in Longsville. She said that the appellant said that the man who was shot “is a man name “Buck.” She stayed at Longsville for a few days until she saw the appellant run from the premises leaving his baby, so she also left her child there. She returned the following day, collected her child, went to Old Harbour to visit her aunt and, then to Kitson Town to visit her grandmother. She eventually returned to May Pen with her sister and went to the police station where she gave a statement. She told the court that at that time on 17 February 1999, she was “Samuda's” girlfriend and that she had not seen “Buck” since that night.

8 In cross-examination, counsel for the accused men focused firstly on the fact that Miss Oxford had indicated that she could not read, that she had been detained at the May Pen Police Station in the guard room, then taken in a police car, where she sat alone in the rear seat to the station at Four Paths. She returned to May Pen where, in the presence of approximately four police officers, she was asked several questions and her responses were taken down as her “statement”, on 3 March 1999. She said that she did not attend on the police station to give a statement voluntarily. She was detained along with her friend Tamika, and at the time she was detained she knew that “Samuda” and the appellant had been apprehended by the police. She was questioned for over six hours, during which time the “statement” was obtained. She was crying and worried about her child. She was thereafter taken to the Four Paths Police Station at midnight, locked in a cell and later released from custody at 6:00 a.m.

9 Miss Oxford was challenged that in her statement to the police she had stated that “sometime in late April, I was one night sleeping at “Baldhead's” house and “Samuda” come and shake me and wake me up.” At first she told the court that she did not remember saying that, then she said that she did and finally said that it was a mistake. She was also challenged that in her statement she said, “the night when they came to the house I saw “Priest” and “Twelve Finger” with guns.” She agreed with counsel that she had said so, but she did not qualify this statement as a mistake or attempt to amend it to bring it in line with her evidence in chief.

10 She was further to admit that in the statement to the police, she said that it was “Samuda” who said the words, “we shot a man.” She explained to me court that she had in fact told the police that “Samuda” had said the words but she had made a mistake as the words were uttered by the appellant. She said the statement which was read back to her was true and no amendments were made to it despite the fact that the words “we shoot a man” were attributed to “Samuda” as she was “worried and scared.” The defence, as would be expected, made much of the “mistake.” Counsel for the accused emphasized that she was meeting the appellant for the first time and so the possibility of making a mistake between her then boyfriend, “Samuda” and a man she had just met was almost impossible. However she did say in her statement to the police and maintained it to be correct when she gave evidence in court, that “Samuda” also said, “we shot a man and then he ran.” She insisted though, in response to a suggestion that she was not in any car...