Patrick Thompson v R
| Jurisdiction | Jamaica |
| Judge | Sinclair-Haynes JA |
| Judgment Date | 11 November 2022 |
| Neutral Citation | [2022] JMCA Crim 55 |
| Docket Number | SUPREME COURT CRIMINAL APPEAL NO 27/2016 |
| Court | Court of Appeal (Jamaica) |
| Year | 2022 |
JM 2022 CA 111
[2022] JMCA Crim 55
THE HON Mr Justice Brooks P
THE HON Mrs Justice Sinclair-Haynes JA
THE HON Mrs Justice G Fraser JA (AG)
SUPREME COURT CRIMINAL APPEAL NO 27/2016
IN THE COURT OF APPEAL
Leroy Equiano for the applicant
Mrs Sharon Milwood Moore, Ms Alexia McDonald and Ms Tashell Powell for the Crown
On 11 March 2016, Mr Patrick Thompson (‘the applicant’) was convicted in the Home Circuit Court for the murder of Constantine McKenzie. He was sentenced by Straw J (as she then was) to life imprisonment with the stipulation that he serves a period of 24 years before eligibility for parole. Aggrieved by the learned judge's decision, he applied for leave to appeal.
His application for leave to appeal was refused by a single judge of this court and his renewed application before this court, for leave to appeal both his conviction and sentence, suffered the same fate.
The pertinent facts of the instant case are that whilst the deceased, Mr McKenzie was being transported to the hospital by police officers, he allegedly uttered words identifying his assailant to be “Stamma”, in the hearing of the sole police officer who was seated with him in the open back of the service vehicle (a pickup). None of the officers seated in the front heard. He, unfortunately, succumbed to his injuries upon arrival. who were seated in the back of the service vehicle with him.
At the trial of the matter, the Crown's attempt to have the witness state what was allegedly told to him by the deceased, was objected to by defence counsel, Mr Clive Mullings, on the ground that its admission into evidence offended the hearsay rule. The learned judge consequently heard submissions from both Mr Mullings and Crown Counsel. Having heard those submissions, the learned judge overruled Mr Mullings' objection.
Mr Thompson's complaints in this application concerned the learned judge's treatment of the sufficiency and credibility of the Crown witnesses' evidence, particularly the:
He contends that his conviction was a miscarriage of justice because he has been convicted of a crime of which he is entirely ignorant.
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a) identification evidence;
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b) unfairness of the trial in light of the police officer's evidence; and
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c) conflicting testimonies.
On 15 June 2022, in refusing the applicant's renewed application for leave to appeal, we ordered as follows:
We promised that our written reasons would follow. This is a fulfilment of that promise.
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i. The application for leave to appeal is refused.
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ii. The sentence shall be reckoned as having commenced on 11 March 2016.
It was Sergeant Linton's evidence that he was stationed at the Duhaney Park Police Station and he had been in the police force for 20 years. In April of 2010 he was stationed at the Hunts Bay Police Station.
On the morning of 7 April 2010 at approximately 11:15, attired in his uniform, he was on mobile patrol duty in the Hunts Bay police area with other police officers in a marked service vehicle. Whilst travelling along Olympic Way, upon arriving in the vicinity of Olympic Way and Tower Avenue, he observed a group of citizens, “beckoning to the service vehicle”. The vehicle stopped near the citizens. There the citizens brought:
“… a man of Rastafarian decent [sic] He had dreadlocks … towards the vehicle, he had what appeared to be … gunshot wounds to the upper body, which bled.”
The man was placed on the floor of the open back of the pickup. He was “bleeding and he looked faintish”. He was “groaning” and there were “slight movements of the foot”. He was taken to the Kingston Public Hospital (‘KPH’). Anticipating that the witness was about to repeat what the deceased told him whilst en route to the hospital. Crown Counsel suspended her examination of the witness.
The learned judge heard submissions from counsel in the absence of the witness and the jury regarding the direction in which the sergeant's evidence was headed. At that juncture, Crown Counsel applied to rely on the res gestae principle. Relying on the principles enunciated in the case of R v Donald Joseph Andrews [1987] AC 281(‘ Andrews’), the learned judge granted the Crown's application and admitted the statement into evidence and the officer continued as follows:
“Whilst on my way to the hospital, I heard the man continuing moaning and in so doing, I tried to talk to him… I asked him what happened to him … He said ‘a Stamma shot mi.’… I then ask [sic] him who is ‘Stamma’ and he replied ‘Charm boy’… I tried keep talking to him but his voice went low. During this time, we arrived at the hospital and he was handed over and admitted… In serious condition… I returned to the vicinity of the incident there I saw and spoke to Detective Corporal Daye of MIT.”
It was also his evidence that upon his arrival at the intersection of Tower Avenue and Olympic Way, bloodstains were seen. The area was deemed a crime scene and was cordoned off with yellow tape. The deceased's funeral programme was shown to Sergeant Linton who identified the photograph thereon as that of the man whom he had assisted to the hospital on 7 April 2010.
Under cross examination, the officer's attention was drawn to his evidence at the preliminary enquiry at Half Way Tree Court in which there was no mention by the deceased of “Charm boy”. The officer however insisted that he did. He also testified that he was the only officer in the back of the vehicle with the deceased and the only officer who heard what the deceased said. The other two officers, he said, were seated at the front of the pickup service vehicle.
Miss Josephs, the mother of the deceased, testified. The salient portion of her testimony was that in April of 2010 she resided in Olympic Gardens with her children, including the deceased who lived in the same yard but in another house. The deceased, earned his living by doing “cement work”, selling cigarettes, ‘Rizzla’ and weed at the corner of Olympic and Tower Avenue and wherever he worked.
Her son died on Tuesday 7 April 2010 and was buried on 2 May 2010 in Thompson Town, Clarendon. She last saw him alive at approximately 9:00 am on the day he died. Whilst on a bus headed to the country later that morning, a telephone call from her daughter-in-law caused her to visit the KPH. On her arrival at the KPH, she spoke with the nurses and security officers and was directed to the morgue where she saw her son's body. On 21 April 2010, an autopsy was conducted on his body.
Miss Josephs' evidence was that she knew “Charm”. They had lived in the same community for “about a ten years or five years or suh”. She identified “'Stamma” (Patrick Thompson) by pointing to him as one of Charm's children who lived with her (Charm) and whom she had known before 7 April 2010. She told the court that the applicant was called “Stamma” because:
“…when him talk, him word hard fi come out him mouth, that is why them call him “Stamma” “whenever him talk him tek long fi bring out the words.”
It was also her evidence that whenever she called him by that name, he responded.
The applicant, she testified, had been known to her for about 20 to 30 years and he was someone with whom she spoke. She also knew the all-age school he attended and that “He use to sell DVD, the shows… on Tower Avenue”. They both sold, “side by side” (which is interpreted as, beside each other) at Olympic Way and asked each other to assist with making change for customers. Her deceased son and the applicant were known to each other and were friends. She also knew the applicant's aunts, uncles and cousins. They all lived in the Olympic Gardens community.
She had seen the applicant on the Thursday and Friday nights before her son's death, but was unable to recall if he had been selling at the time. She has, however, not seen “Charm” and her children, including the applicant, in the community since the death of her son. That observation was first made the day after his death.
Under cross examination she was reminded of her testimony at the Half Way Tree court in March 2012 that she had last seen “Stamma” about two months before her son's death. In re-examination she testified that: “I did see him the two times, Saturday, Friday and the month before. I am not lying. Mi and him use to sell out on the piazza.” She insisted that she saw the applicant on both occasions.
Ms Clarese McKenzie testified that she resided in Deeside, Linstead and was the mother of Patrick Thompson Senior and the grandmother of the applicant, Patrick Thompson Junior.
Ms McKenzie confirmed that the applicant was called “Stamma” and the reason he was so called was that he stutters when he speaks. It was her evidence that the applicant once resided with her in the country but he later, after the death of his father, went to live with his mother, “Charm Ogle”, in Kingston.
One morning in April 2010, she saw the applicant (whom she identified as her grandson) in Deeside with his mother. She ran and hugged him and saw a “mark in his face. One mark, one cut like”. She enquired of him as to the cause of the mark and he told her that he was handling some old things on a truck and he slipped over. He told her that he was “among some old things on a truck, like zinc and so piece cut him”.
It was also her evidence that she saw him every day because he ate at her house and she gave him money. The applicant, she told the court, caught fish which he gave her with wood with which she cooked.
She recalled that in June 2010 whilst she was carrying out her goat, she saw “some police operation”. Police jeeps were coming from a lane called Programme Lane where her grandson and his father's...
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