Phipps (Donald) v R

• Jurisdiction: Jamaica
• Judge: MORRISON JA:
• Judgment Date: 30 July 2010
• Neutral Citation: JM 2010 CA 116
• Judgment citation (vLex): [2010] 7 JJC 3006
• Court: Court of Appeal (Jamaica)
• Date: 30 July 2010

[2010] JMCA Crim 48

IN THE COURT OF APPEAL

BEFORE:

THE HON MR JUSTICE PANTON P THE HON MR JUSTICE HARRISON JA THE HON MR JUSTICE MORRISON JA

DONALD PHIPPS

v

R

Frank Phipps QC and Miss Kathryn Phipps for the applicant

Jeremy Taylor and Vaughn Smith for the Crown

Curtis Cochrane, Director of State Proceedings, for the Attorney General

CRIMINAL LAW - Murder - Unreasonable verdict - Unfair trial - Inadmissible evidence

MORRISON JA

1 Introduction

2 [1] Shortly after 4:00 on the morning of 15 April 2005, Constable Gavaskar Adams received instructions to proceed to a location in Western Kingston. He was accompanied by two other police officers on duty and they travelled in a police vehicle, driven by him, to a point close to the intersection of Beeston Street and Rose Lane. There, he came upon a large fire burning in an open lot of land on Rose Lane. Alighting from the vehicle, Constable Adams observed a heap of motor vehicle tyres on fire in the open lot and what appeared to be human bodies partially covered by the tyres. In due course, after the fire was extinguished by a team of officers from the Trench Town Fire Station, the human remains were identified as the bodies of Mr Rodney Farquharson ("Rodney") and Mr Daten Williams ("Scotch Brite").

3 [2] The applicant was originally charged jointly with Mr Garfield Williams with the double murder, but on 23 March 2006, at the end of the case for the prosecution, Mr Williams was discharged upon a concession by the Crown that there was no evidence against him.

4 [3] On 12 April 2006, after a 30 day trial before Marsh J and a jury, the applicant was found guilty of two counts of murder. On 30 May 2006, he was sentenced to concurrent terms of imprisonment for life on each count and the court ordered that he should serve a period of not less than 30 years before becoming eligible for parole.

5 The case for the prosecution

6 [4] The case for the prosecution was based in part on direct and in part on circumstantial evidence. A total of 35 witnesses gave evidence on behalf of the Crown, including expert witnesses who spoke to the results of forensic enquiries undertaken as part of the wide ranging police investigation of the murders, as well as to some arcane aspects of cellular telephony. Even by way of summary, therefore, it is necessary to recount much of this evidence in some detail. The history of the matter divides itself naturally into the events of the late evening of 14 April 2005 and the early morning of 15 April 2005, the commencement of the police investigation and the subsequent progress of the investigation.

7 Bayshore Park, Harbour View, 14 – 15 April 2005

8 [5] Up to the time of his death, Rodney lived with his girlfriend, Miss Christine Cruickshank and their two daughters at Bayshore Park, Harbour View, in the parish of St Andrew. They had known each other for four years and Miss Cruickshank was at that time heavily pregnant with their third child. Rodney was a businessman, engaged in the mining of sand for the cement company and block making, in addition to which he owned trucks and trailer heads. He had also at one time owned a wholesale store in the Matthews Lane area of downtown Kingston.

9 [6] At some point shortly before 10:00 p.m. on the evening of 14 April 2005, while he was at home with his family watching television, Rodney received a call on his cellular telephone. He was a customer of Digicel and his telephone number was 362 1048. Upon receiving this call, he immediately went to the bathroom and got dressed in jeans and a yellow 'Tommy' T-shirt and left the house, Miss Cruickshank said, at "Some minutes to 10:00". Miss Cruickshank said further that he left driving a car which belonged to a friend of his called "Tanny" and he was accompanied by their next door neighbour, known to her only as 'Scotch Brite', but who would later be identified to be Mr Daten Williams.

10 [7] At about 3:00 a.m. the following morning, Miss Cruickshank became aware that Rodney had not returned home and twice tried calling him on his cellular phone, but on both occasions got only a recorded voice mail message. She went back to bed and when she awoke about three hours later, there were a number of persons, friends of Rodney, outside on a balcony of her house. Among the group of friends were Mr Conrod Williams (known as "Tanny"), in whose car Rodney and "Scotch Brite" had left the night before. Miss Cruickshank never saw either Rodney or Scotch Brite again.

11 [8] As it turned out, the car which Rodney borrowed from Tanny actually belonged to a Miss Ann-Marie Hutchinson. However, "Tanny", who was her driver, was allowed to keep the car overnight. He was also Rodney's cousin and next door neighbour and had on previous occasions loaned him the car, as he confirmed doing again on the evening of 14 April 2005 at some time between 9:30 and 10:00 p.m. He would not see the car (a grayish blue Toyota Corolla) again until nearly a month later (on 13 May 2005) when he was asked by Miss Hutchinson to accompany her to the Elletson Road Police Station, where he identified it as the car which he had loaned to Rodney on the night of 14 April 2005.

12 [9] Mr Kelroy Rashford ("Kelroy"), another of Rodney's friends, lived within walking distance of Rodney's home in Bayshore Park. He had known Rodney from they were children growing up in the district of Haughton in St Elizabeth. At about 12 midnight on 14 April 2005, apparently prompted by a visit from two other acquaintances, Kelroy used his cellular phone (368 1497) to call Rodney on his cellular phone (the number of which Kelroy could not recall, though he did say that it was a Digicel phone). Kelroy identified the person who answered Rodney's phone as the applicant, who was previously known to him as 'Zeeks' or 'father Zeeks'.

13 [10] The applicant had been known to him, Kelroy told the court, for some 14 years before. He had met him from the time when he (Kelroy) used to sell peanuts on Chancery Lane in downtown Kingston, having previously heard of him from Rodney, who "was on the lane at the same time". He was accustomed to seeing the applicant sometimes "five times for the day, or like two times for the day". He would also see him from time to time at night, as he was a regular attendant at the applicant's "Cool Tuesday" parties "what him always keep round by Matthews Lane".

14 [11] While Kelroy was unable to recall having spoken with the applicant at one of these parties, they had often spoken to each other between 1991 and 2005. Before 14 April 2005, he had never spoken to the applicant on the telephone, but he knew his voice from having heard him speak into the microphone, sometimes twice per night (that is, between 2:00 a.m. and 7:00 a.m.) during the Cool Tuesday parties, for perhaps three or five minutes each time, depending on whether "the party nice". In addition, Kelroy testified that he had a compact disc recording which he had purchased at Cool Tuesday (he had had two, but one had been broken), on which the voice of the applicant could be also heard, and he would play this recording from time to time at his home, as well as in his car when moving around. As a result of all this, Kelroy said, he knew and was able to recognise the applicant's voice.

15 [12] Kelroy told the court that after the applicant answered his call to Rodney's number on the night of 14 April 2005, saying "Hello, who is this", he heard the voices of Rodney and others in the background saying "is Kelroy". The applicant then told Kelroy that he had something to say to him, and went on to say, in Kelroy's words, "we have Rodney down here, now, because him violate...and we not going to see him back again...If we do see him, him a go pick out him fingernail them, or him toenail them, or piece of him...Unno nah go see him back again". Kelroy then heard the applicant say (apparently to Rodney) that he should speak to Kelroy, and Rodney responded, addressing himself directly to Kelroy, "Delly, a Father Zeeks yuh a talk to". At that point, Kelroy testified, the applicant took back the phone from Rodney and started speaking directly to him, finally saying "All right, you know what, I want you and Tim come down here now". When asked by Kelroy, "for what occasion?", the applicant's response was that he did not have to know. After an interval, Kelroy then heard Rodney address him directly again, saying "Kelroy, I want you and Tim feh come Downtown right now...unno do, mek haste and come and unno make haste...before the road get busy". He then heard the applicant say, apparently to Rodney, "A weh yuh a do? A police yuh a tell him feh call?". "Same time", Kelroy's evidence continued, "me hear Rodney voice change...Like a lick him get, the impression that he gave to me...Him voice sounded loud, like him crying...Like them — like him, you could hear him get a lick". He then heard Rodney crying and saying "Delly, jus duh what him seh. Yuh feh duh what Father Zeeks tell yuh feh duh. Get Tim and yuh and him come on".

16 [13] Kelroy's evidence was that while this entire conversation was taking place, he had had his phone on "speaker", so that everyone in the group by now gathered at his home could have heard what was being said. He then decided to go to Mr Oliver Clue's house, also in Harbour View. Accompanying him was Mr Oneil Patrick, also known as Joe, who actually lived at the house shared by Rodney and Miss Cruickshank. Mr Clue, who also gave evidence for the prosecution, described himself as "a Politician, Councillor and also a Farmer". He was at the time a Councillor for the Harbour View Division and a representative of the People's National Party ("PNP"). He had been a Councillor since 2003 and before that had been the Member of Parliament, also as a member of the PNP, for the East Rural St Andrew constituency from 1992 to 2002. He knew Rodney and shared a good...