R v Alexander

• Jurisdiction: Jamaica
• Court: Court of Appeal (Jamaica)
• Judge: Luckhoo, P.
• Judgment Date: 23 September 1974
• Neutral Citation: JM 1974 CA 61
• Docket Number: Supreme Court Criminal Appeal No. 31 of 1974
• Date: 23 September 1974

Court of Appeal

Luckhoo, P.(Ag); Swaby, J.A.; Zacca, J.A.(Ag)

Supreme Court Criminal Appeal No. 31 of 1974

R.

and

Alexander

L. A. Marcus for the applicant.

B. Macaulay, Q.C. and T.G. Usher for the Crown.

Criminal Law - Appeal against conviction — Murder.

1 Luckhoo, P. (Ag.): This is an application for leave to appeal against conviction and sentence of death for murder on an indictment tried in the Home Circuit Court before Smith, C.J, and a jury. The case for the prosecution was to the effect that on October 23, 1972, the deceased Nathan Grant was carrying on a wholesale and supermarket business at premises situate at the corner of Lindene Drive and Olympic Way in Olympic Gardens in the parish of St. Andrew, the wholesale section of the business being housed at No. 6 Lindene Drive and the Supermarket section on Olympic Way. At about 8 a.m. on that day two men were seen to come on foot along Olympic Way and go into the wholesale section of the deceased's business premises (hereinafter referred to as the wholesale section). As soon as they did so the deceased was heard to shout “Lord Jesus Christ” and simultaneously the sound of four gunshots was heard to come from within the wholesale section. Thereupon, a grey Valiant motor car was seen to come from off Olympic Way into Lindene Drive from a direction opposite to that from which the two men had come. The car stopped outside the wholesale section. The applicant was seen to come from the back seat of the car and quickly enter the wholesale section. He was carrying a travelling bag. Two men remained in the car. Then the applicant and the two race who had gone into the wholesale section immediately before the four shots rang out were seen to come out of the wholesale section in Indian file. The applicant was carrying the black travelling bag which he had taken into the wholesale section. The applicant and these two men entered the car which was then driven off along Lindene Drive. John Meggiah who resided in a house on the other side of Lindene Drive directly opposite the wholesale section said that he observed these happenings and that after the car had driven off he and a friend one Patrick Wickham ran into the wholesale section. There he saw the deceased lying in a caged area with a hole in his side and another in the forehead. He thereupon made a report to the police at Hunts Bay Police Station. On November 10, 1972 at an identification parade held at Bunts Bay Police Station he pointed out the applicant as the person he saw enter the wholesale section and later come out with the black travelling bag. He said that he had known the applicant for some three months before the incident in question took place on October 23, 1972. At about 10 a.m. on October 23, 1972 Det. Const. Moore went to the deceased's wholesale premises at Lindene Drive where he saw the dead body of the deceased lying in the caged area. The cage was comprised of board at the bottom and mesh at the top. There were three holes in the mesh wire. The deceased's body was removed to the Kingston Public Hospital.

2 On October 2'7, 19'72, Dr. Dawson a registered medical practitioner performed a post mortem on the deceased's body. The injuries he found indicated that the deceased had been shot three times - twice in the chest and once in the left thigh and in addition had received lacerated wounds to the middle of the forehead and to the left of the left eyebrow as well as an incised wound to the left temple. Death was due to shock and haemorrhage resulting from the Gunshot wounds to the chest.

3 On October 31, 1972 Det. Cpl. of Police Bevan Simpson stationed at Hunts Bay Police Station was on patrol duty along Mahoe Drive in St. Andrew when he saw the applicant riding a Honda motor cycle. He stopped the applicant and told him that he had received information that he killed Nathan Grant. He cautioned the applicant and the applicant said “A no me shoot him, a Big shoot him.” Sgt. Simpson then asked the applicant whose motor cycle he was riding and the applicant said “A my motor cycle. Big give me two hundred dollars and me buy it from Miss Chin son Tony.” The applicant and the motor cycle were taken by Sgt. Simpson by police car to Hunts Bay Police Station. On the way there the car was driven to Three Miles where the applicant pointed out a shop to Sgt. Simpson. At Hunts Bay Police Station the applicant was confronted with Miss Chin's son Tony who handed over $200 to Sgt. Simpson. On the same day Det. Const. Moore at Hunts Bay Police Station cautioned the applicant after telling him that he had information that he killed Nathan Grant. According to Const. Moore the applicant said “Me only go in the car, sir, me never shoot him.” On November 10, 1973, the applicant was charged for murder and robbery.

4 The case for the prosecution in short was that the applicant and others planned to rob the deceased by force of arms and arranged that the two men who entered the wholesale section should hold up the deceased with guns, the applicant and the others remaining in a motor car a short distance away ready to come to the deceased's premises upon hearing the sound of gunfire proceeding from those premises that in pursuance of that plan the deceased was shot and killed and that the applicant thereupon proceeded to those premises by car with the black travelling bag to collect the spoils of the planned robbery. In his defence the applicant denied all knowledge of the incident and said that he was not in the area when the deceased met his death. He denied the statements attributed to him by Sgt. Simpson and Const. Moore.

5 Patrick Wickham testified at the instance of the defence to the effect that he was in the company of John Meggiah and one Regs on the morning of October 2. 3, 1972, when he saw two men whom he did not know before enter the deceased premises. At that time he and his companions were at the corner of Olympic Way and Lindene Gardens. He heard Grant's voice calling out and then the sound of one shot. Thereupon he and Meggiah ran to premises in Olympic Way facing onto Lindene Drive and both stood behind a fence. Regs ran away down the road. There was the sound of three more shots being discharged. About a minute later a white car came up Olympic Way with three men in it. The car turned on to Lindene Drive and stopped at the gate of the wholesale section. Three doors of the car were opened but no one came out of the car. The two men who had gone into the wholesale section just before the shots were fired then came out of the wholesale section. They were carrying paper bags which they threw into the car before themselves entering through the back door of the car. The car was then driven away. Wickham said he attended an identification parade on November 10, 1974 at Hunts Bay Police Station but did not pick out anyone. In cross-examination Wickham admitted that he had given a statement to Sgt. Simpson which Sgt. Simpson reduced into writing. He admitted signing the statement but he denied that he told Sgt. Simpson that “When the car stopped by the entrance to the wholesale a man came out of the car.” Wickham's testimony had been adduced to contradict Meggiah's testimony that he had seen a man — identified by Meggiah as the applicant - come out of the car and go into the wholesale section. On application by the Crown Attorney the learned trial judge permitted evidence in rebuttal to be given in respect of Wckham's denial that he told Sgt. Simpson that “When car stopped by the entrance to the wholesale a man came out of the car.” It was the part of the case for the defence that not only did Meggiah not see anyone leave the car and enter the grocery but also that he was in no position to identify any person who might have left the car and enter the wholesale section because there was an insufficient period of time for him to identify such person.

6 Having regard to the directions given the jury by the learned Chief Justice, in returning a verdict of murder the jury must clearly have accepted and acted upon the testimony of Meggiah that he did see the applicant come out of the car and enter the wholesale section and further must have inferred from the circumstances that the applicant was a party to a plan to rob the deceased, the robbery to be carried out by armed men whose discharge of their firearms would serve as a signal to bring him and other participants in the plan to collect the spoils of their crime.

7 It was submitted that in the first place there was no evidence that the killing of the deceased was occasioned as a result of any plan to rob the deceased because there was no evidence that any money or goods were taken from the deceased's premises. While it is true that no actual loss of money or goods was proved it was a reasonable inference from the circumstances of the case and if believed by the jury, the evidence of Sgt. Simpson and Const. Moore as to what they said the accused told them after being informed that they had information that he had killed Grant that the deceased was shot in the course of a plan to rob him, indeed in the course of a robbery. It was next submitted that the evidence of identification of the applicant by Meggiah was extremely weak as Meggiah did not have a reasonable opportunity from the position in which he was to identify anyone entering the wholesale section from where he said the car had stopped. Further it was urged that in the light of the conflicting testimony given by Meggiah and Wickham as to whether anyone did get out of the car a doubt should have been raised in the minds of...