Paul Murphy v R

• Jurisdiction: Jamaica
• Court: Court of Appeal (Jamaica)
• Judge: Brooks JA,Harris JA
• Judgment Date: 31 July 2013
• Docket Number: SUPREME COURT CRIMINAL APPEAL NO 94/2009,SUPREME COURT CRIMINAL APPEAL NO 212/2006
• Date: 31 July 2013

Ralston Baker

and

R

[2013] JMCA Crim 32

Before:

The Hon Mrs Justice Harris JA

The Hon Miss Justice Phillips JA

The Hon Mr Justice Brooks JA

SUPREME COURT CRIMINAL APPEAL NO 212/2006

JAMAICA

IN THE COURT OF APPEAL

CRIMINAL LAW - Murder - Fingerprint report - Whether the non-disclosure of the fingerprint report by the Crown had the effect of excluding a vital piece of information from the defence - Whether trial unfair

Gladstone Wilson for the applicant Mrs Natalie Ebanks-Miller for the Crown

Brooks JA

1 Ms Lydia Dennis and her tenant, Miss Carol Blair, shared a relationship whereby Miss Blair never left the premises, which they shared, although in separate sections, without telling Ms Dennis where she was going. It therefore caused Ms Dennis concern when, on Tuesday, 26 August 2003, Miss Blair's live-in paramour, the applicant, Mr Ralston Baker, informed Ms Dennis that Miss Blair had gone ‘to town to get her sister to go to the country because their mother is sick’. Ms Dennis had last seen Miss Blair on the afternoon of 25 August 2003. The premises are at Mountain View Avenue in the parish of Saint Andrew.

2 Two other unusual developments occurred between 26 and 27 August 2003. Firstly, Ms Dennis noticed that a woman, whom Mr Baker identified as his mother, came to the house during the morning of 26 August. Ms Dennis saw when he gave the mother a number of parcels from inside the section of the house that he shared with Miss Blair. The mother put them in a motor vehicle and went away in that vehicle. Ms Dennis did not see Miss Blair all of that day.

3 The second thing is that, on 27 August, Ms Dennis smelled a foul odour in the house. She attempted to get rid of the odour by using air freshener. When the odour returned within 20 minutes, Ms Dennis sought the assistance of the police. She went to a police vehicle that was stationed in her community and got the officers to come to her house. Mr Baker, who was leaving the house when the police arrived, ran away when one of the police officers called to him. The officer chased him but he made good his escape.

4 The police eventually got into the house and found Miss Blair's dead, decomposing body stuffed into a cardboard barrel. Wires were wrapped around her neck. A subsequent post-mortem examination revealed that she had died from asphixia secondary to ligature strangulation.

5 The police scenes of crime unit was summoned to the premises and the persons attached to that unit processed the scene. Checks revealed that there was no sign of any forced entry to the premises and the room ‘was neatly put together’ (page 70 of the transcript). The processing involved dusting the barrel for fingerprints.

6 Mr Baker was eventually taken into custody on 26 September 2003 after, once again, attempting to elude the police. He also gave a false name and particulars when he was apprehended by the police.

7 Those, among other circumstances, comprised part of the evidence led by the prosecution at Mr Baker's trial for the offence of murder. His defence was that he had nothing to do with Miss Blair's demise. On his account, there were persons who were in the Mountain View area who were threatening to harm both Miss Blair and himself, referring to them as ‘informers’. He said that he had resolved to leave the area and that he pleaded with Miss Blair to leave with him, but she refused.

8 The jury who heard the evidence, convicted Mr Baker on 21 November 2006. On 24 November 2006, he was sentenced to imprisonment for life at hard labour, with the condition that he should not be eligible for parole until he had served 20 years imprisonment.

9 Mr Baker applied for permission to appeal against his conviction but a single judge of this court considered his application and refused permission. Mr Baker has renewed his application before us. His counsel, Mr Wilson, although he filed two supplemental grounds of appeal, in substitution for those originally filed by Mr Baker, argued only one of those grounds. The other ground, it seems, was based on a misconception, due to a defect in the copy of the transcript with which Mr Wilson was provided. The ground of appeal argued was:

‘That the non-disclosure of the fingerprint report by the Crown had the effect of excluding a vital piece of information from the Defence and thus contributed to an unfair trial of the Applicant.’

It is that ground of appeal that will now be assessed.

Ground of appeal

10 Mr Wilson, in addressing the ground of appeal, pointed out that the prosecution had failed to produce any information concerning the results of the fingerprinting exercise which was conducted at Miss Blair's house. The relevant portion of the evidence was adduced during the cross-examination of the investigating officer, Detective Sergeant Richard Hylton. It is recorded at pages 166-167 of the transcript:

‘Q. And did you get back reports on all those checking for latent fingerprints, signs of breaking in, you had got reports from all of the personnel that you instructed to do those tasks?

A. I got reports from the person who did the physical search of the building and the latent impressions.

HIS LORDSHIP: That was the person who did what?

THE WITNESS: The physical checking of the scene to see whether or not there was any break-in and the person who did the dusting for latent fingerprints impressions.

Q. And you got reports from these persons?

HIS LORDSHIP: Just one minute.

MISS JOBSON: I am sorry.

HIS LORDSHIP: Yes?

Q. So you are saying you got a report from the person who did the fingerprinting?

A. Yes, ma'am.

Q. You submitted a written report?

A. No, ma'am.

Q. Were you there when they were dusting the place for fingerprints?

A. No, ma'am.’

The other relevant portions of Detective Sergeant Hylton's evidence are at pages 171, 172 and 173 of the transcript. At page 171 the evidence is as follows:

‘Q. Did you ever submit, or have submitted a report on the, ahm, results of your, ahm fingerprinting.

A. No, ma'am.’

At pages 172-173 the transcript states:

Q. …[sic] when you had prepared a warrant for this accused man had you gotten the results from the fingerprint dusting?

A. From the very day I was informed of the findings by the person.

Q. You have no records of this, no written record of this result, the findings?

HIS LORDSHIP: That is what he told you, Miss Jobson, that he never submitted any written records.

MISS JOBSON: So he never received a written record?

HIS LORDSHIP: Did you receive any written report?

THE WITNESS: No, I did not receive a written report.’ (Emphasis supplied)

11 The thrust of Mr Wilson's written submissions was that the failure of the prosecution to adhere to the requirement of full disclosure of all relevant material in its possession, resulted in unfair prejudice to Mr Baker's defence. According to Mr Wilson:

‘The non-disclosure of a very important forensic test did not afford [Mr Baker the opportunity] to utilise the results to his advantage.’

That situation, Mr Wilson submitted, ‘would have [had] the effect of impeaching the Crown's case as to the circumstances of death and [Mr Baker's] possible involvement within close contact of the victim as alleged by the Prosecution’. On his submission, neither ‘the Prosecution nor the learned trial judge sought to preserve the fairness properly due to [Mr Baker] at his trial’. He cited a number of cases in support of his submissions, including the recent ones of Harry Daley v R [2013] JMCA Crim 14 and Mardio McKoy v R [2010] JMCA Crim 27.

12 The cases cited by learned counsel are helpful in ascertaining the principles guiding the assessment of this ground. In Mardio McKoy v R, the failure by the police to pursue and secure the results of a test for fingerprints, was highlighted by this court. In addition to the failure to produce the results of the fingerprinting exercise, the prosecution also failed to provide a statement that had been taken from a police officer during the investigation. The court placed the failure to produce the report in context. Phillips JA said, in part, at paragraph [32] of the judgment:

‘It was prudent and incumbent on the prosecution to have made every effort to ensure that the results were provided and disclosed to the defence and produced to the court. In this case, there has been no explanation for the absence of the results. In fact, the evidence discloses that the police showed no interest in even seeking to obtain the results. The absence of the results in light of the very vague description of the assailants given to the police, under very difficult circumstances with no information as to how the applicant was taken into custody, all together provide reasonable grounds for concluding that the applicant was not given a fair trial and the convictions and sentences must be quashed .We have also observed that the learned trial judge made no finding whatsoever with regard to the failure to disclose the statement of Detective Corporal Blake and or the failure to obtain and disclose the results of the fingerprinting exercise.’ (Emphasis supplied)

13 Earlier in paragraph [ 32], Phillips JA emphasised the duty placed on the prosecution:

‘With regard to the results of the fingerprinting exercise, it is this court's view that the failure to pursue these results had the possible effect of serious prejudice to the defence. The results of the exercise could have had the effect of entirely exonerating the applicant. It was the duty of the prosecution to have secured the evidence, bearing in mind that it was the evidence of the complainant that the applicant was driving the motor vehicle as it left the scene and the vehicle was discovered very soon after the incident . The police in participating in the investigation were obviously of the view that obtaining and producing the fingerprint...