Pasmore Millings v R
| Jurisdiction | Jamaica |
| Judge | Brooks P |
| Judgment Date | 19 February 2021 |
| Neutral Citation | JM 2021 CA 18 |
| Docket Number | SUPREME COURT CRIMINAL APPEAL NOS 100 & 101/2012 |
| Court | Court of Appeal (Jamaica) |
[2021] JMCA Crim 6
IN THE COURT OF APPEAL
THE HON Mr Justice Brooks P
THE HON Mrs Justice Sinclair-Haynes JA
THE HON Mrs Justice Foster-Pusey JA
SUPREME COURT CRIMINAL APPEAL NOS 100 & 101/2012
Robert Fletcher for the applicant Millings
Miss Nancy Anderson for the applicant Ennis
Miss Kathy Pyke and Ms Deborah Bryan for the Crown
On Wednesday, 7 November 2007, Mr Taiwo McKenzie and his girlfriend Miss Janelle Whyte, went missing. Their respective relatives, who could not make telephone or any other contact with them, reported the disappearance to the police the following day. On 9 November 2007, the couple's dead bodies were found in bushes at Mount Salus, in the parish of Saint Andrew. Their throats had been slashed. It was good police work, the use of technology and the assistance of an accomplice that allowed the police to put together the case that the prosecution meticulously presented against the applicants, Messrs Pasmore Millings and Andre Ennis, who, on 20 June 2012, were convicted of the murders.
The applicants' convictions resulted from a trial in the Home Circuit Court presided over by Hibbert J (the trial judge), sitting with a jury. On 17 September 2012, the trial judge, in respect of each count of murder, sentenced both applicants to imprisonment for life. He ordered that they should each serve, before becoming eligible for parole, 50 years' imprisonment at hard labour in respect of Miss Whyte's death, and 40 years in respect of Mr McKenzie's death.
Both applicants have filed applications for leave to appeal from the convictions and sentences. A single judge of this court refused the applicants' respective applications to appeal against their convictions and sentences. The applicants have both renewed their applications before the court, and learned counsel, on their behalf, have advanced closely reasoned grounds of appeal, which highlighted the issues of:
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1. the adequacy of the trial judge's summation in respect of accomplice evidence;
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2. the trial judge's directions in respect of circumstantial evidence;
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3. the admission of evidence said to have been irregularly obtained;
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4. the delay in the hearing of the trial and of the appeal;
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5. the trial judge's summation on the issue of mere presence; and
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6. the appropriateness of the sentences.
Mr Fletcher, on behalf of Mr Millings, filed, but later abandoned, a ground dealing with the issue of the trial judge's directions on the issue of good character. Learned counsel properly conceded that the ground had no merit.
Learned counsel also framed a supplemental ground that “the verdict is unreasonable having regard to the evidence”.
The main witness for the prosecution was the accomplice, Mr George Cooper. He testified that on 6 November 2007, at about 6:00 pm, he was the pillion passenger on a motorcycle that Mr Ennis was riding, when it collided with a car that Mr McKenzie was driving. Mr Cooper's ankle was injured and the motorcycle was damaged in the crash. Mr McKenzie said, at the time, that he would pay the medical expenses and the repair bill. They waited at the spot until someone, identified as Mr Millings, came to secure the motorcycle. Mr McKenzie then transported Mr Cooper, Mr Ennis and Ms Whyte, who was one of Mr McKenzie's two passengers, to the University Hospital of the West Indies, where Mr Cooper was treated and released.
The police spoke to the parties while they were at the hospital. During that discussion and the examination of documents for the vehicles, it was discovered that the motorcycle was not registered for use on the public roadway. At that point, Mr McKenzie said that he would not pay for the cost of its repair. He maintained, however, that he would pay for Mr Cooper's medication. Mr Ennis was unhappy with Mr McKenzie's position, and the parties parted company on that note.
The following day, Mr Ennis contacted Mr Cooper and got him to arrange for Mr McKenzie to meet Mr Cooper at a particular location to deliver the required medication. It was, however, a ruse, and Mr Cooper said that Mr Millings forced him at gunpoint to play his part in luring Mr McKenzie to the spot. Mr Ennis also took another man (the other man) with him to the spot. Unfortunately for her, Miss Whyte accompanied Mr McKenzie to the location.
When Mr McKenzie and Miss Whyte arrived at the location, Messrs Ennis and Millings commandeered Mr McKenzie's vehicle. Messrs Ennis and Cooper went on the front seats and the other four, including the other man, were on the rear seat. Mr Ennis drove to a “hilly part of Havendale” (page 111 of the transcript). At that location, Mr McKenzie was given a telephone to make calls to secure money to pay for the repairs to the motorcycle.
Thereafter, Mr Millings, Mr Ennis and the other man tied up and gagged both Mr McKenzie and Miss Whyte, put them back in the car, and Mr Ennis drove everyone “up more in the hills” (pages 114–115 of the transcript). At the new location, Mr McKenzie was taken out of the car and the exercise with the telephone was repeated. By then it was afternoon, and Messrs Ennis and Millings, and the other man became frustrated and angry that their demands for the repair of the motorcycle were not being met. Mr Millings then turned his attention to Miss Whyte. He took her ATM card and demanded the password for the card, which she told him. He wrote it down on a piece of tape and stuck it onto the card. Shortly afterward, Mr Millings said “Dis nah go no weh and it gone too far a better we finish them and done” (page 120 of the transcript).
Messrs Ennis and Millings then led Mr McKenzie along a track leading into bushes. Mr Ennis was carrying a “tall shiny object resembling a knife” (page 122 of the transcript). At that time, Miss Whyte was sitting on the rear seat of the car along with the other man. A few minutes later Messrs Ennis and Mr Millings returned without Mr McKenzie. Mr Ennis still had the ‘knife’, but then it appeared bloody. The pair took Ms Whyte from the car and went with her along the same track into the bushes. After a few minutes, the two men returned together, without Miss Whyte. This time, however, Mr Millings had the ‘knife’. They used some clothes from the car to wipe blood from their hands and the ‘knife’. Mr Millings also took off his undershirt and used it in the clean-up exercise.
Messrs Ennis, Millings, Cooper and the other man then left the location and went to an ATM at a petrol station in Havendale, where Mr Ennis got Mr Cooper to withdraw some money using Miss Whyte's ATM card. Mr Ennis accompanied Mr Cooper into the ATM's cubicle. An attempt was made to withdraw money from another ATM, but it was unsuccessful. The other man went his own way, and Mr Cooper went home.
On the day following that incident, Mr Ennis took Mr Cooper to another ATM and had him withdraw more money using Miss Whyte's ATM card. Mr Cooper was then apprehensive of the frequent contact with Messrs Ennis and Millings. He left his home, and, on Friday, 9 November 2007, went to stay at his father's home. On Sunday, 11 November 2007, in response to information that Mr Cooper had received, he, accompanied by his father, went to the Half-Way-Tree police station and was detained.
Between 8 and 11 November 2007, the police were busy. Having received a report that Mr McKenzie and Miss Whyte were missing, police investigations led to the detention of Mr Ennis and an alarming revelation by Mr Millings. The distressing content of the latter was confirmed when the bodies of the two young people were found. The police investigators were also assisted by video footage from the first ATM cubicle, at which Mr Cooper used Miss Whyte's ATM card. The footage showed Mr Cooper and another man, who, Mr Cooper testified, is Mr Ennis.
Mr Cooper pleaded guilty to the offences of conspiracy to kidnap and conspiracy to rob. On 25 February 2011, he was sentenced for those offences and thereafter, provided a statement to the police. That statement was the basis for his testimony in the case against the applicants.
Both applicants gave unsworn statements in which they denied any involvement in the killings. Mr Ennis stated that he did not go to Mount Salus, and did not go to an ATM. Mr Millings said that was not involved in any accident. He also denied picking up any bike. He further said that he did not go in any car, or have any dealings with Mr Cooper. The first time he saw Mr Cooper, he said, was at the Half-Way-Tree Court.
Character witnesses, two for Mr Ennis, and one for Mr Millings, testified to their respective good characters.
Miss Anderson, on behalf of Mr Ennis, and Mr Fletcher, both argued that the trial judge's summation in respect of the accomplice evidence was inadequate and denied the applicants a fair trial. Mr Fletcher formulated the relevant ground, thus:
“Given the nature, circumstances and issues which attended the evidence of the accomplice/witness, the directions by the learned trial judge concerning the treatment of an accomplice by the jury was inadequate. This inadequacy denied the applicant a fair trial[.]”
Miss Anderson framed the ground, which she argued, more pointedly:
“The Learned Trial Judge failed to give the jury a proper direction on the danger of convicting on the uncorroborated evidence of an accomplice and failed to properly point out the lack of corroboration of the witness Cooper's evidence, resulting in the Applicant's conviction being unsafe and thus denying the Applicant a fair trial.”
She, however, as part of her own presentation to the court, adopted Mr Fletcher's submissions in respect of the issue.
Mr Fletcher argued that whereas the trial judge...
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