R v Brown (Gavaska), Kevin Brown and Troy Matthews

• Jurisdiction: Jamaica
• Judge: SMITH. J.A. (Actg.)
• Judgment Date: 06 April 2001
• Neutral Citation: JM 2001 CA 10
• Judgment citation (vLex): [2001] 4 JJC 0614
• Court: Court of Appeal (Jamaica)
• Date: 06 April 2001

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR. JUSTICE FORTE, P THE HON. MR. JUSTICE WALKER, J.A THE HON. MR. JUSTICE SMITH J.A. (Ag.)

R.

vs.

Gavaska Brown

Kevin Brown

Troy Matthews

Dennis Daly Q.C., for Troy Matthews

Miss Nancy Anderson for Kevin Brown

Miss Janet Nosworthy for Gavaska Brown

Bryan Sykes Senior Deputy Director of Public Prosecutions and Miss Tanya Lobban for the Crown

CRIMINAL LAW - Murder - Visual identification evidence

SMITH. J.A. (Actg.)

1 On the 6 ^th May 1999, in the Circuit Court Division of the Gun Court the appellants were convicted of the murder of Ms. Carol Adams, and each sentenced to life imprisonment.

2 In the early morning of the 21 ^st day of April, 1997 gunmen invaded the home of Mr. Roger Brown and his girlfriend, the deceased Carol Adams, at 3 Charles Street in the parish of Kingston. Mr. Roger Brown and the deceased occupied the front room of the house. At about 1:10 a.m. he and the deceased were in bed when he heard a bang on the door. The witness Brown stood on the bed and looked through a side window. He saw a man whom he recognised as the appellants', Gavaska Brown, otherwise Gavin, coming from the back of the premises. He said the appellant Brown went to the front of the premises and stood by the front wall looking into the street. The witness Roger Brown said he saw the appellant Gavaska Brown with a gun in his hand. The latter then "turned from looking at the street and looked up at the window as if he was looking at me" the witness said in his evidence.

3 He saw another man "coming down, screeching down" (bending down low). This man took the deceased's washstand and placed it under the window through which the witness Brown was looking. Mr. Brown recognised this man as "Ninja" - the appellant Kevin Brown.

4 Roger Brown then took up his machette and went to the front window where the deceased was. He looked through a hole in the window and saw a third person standing on a step at the gate. This third man he recognised as the appellant Troy Matthews otherwise called "Dicey". A stone was thrown through the side window followed by shots through the side window. The deceased went under a bed. The front door was kicked open. The witness Roger Brown started chopping with his machette. By this time shots were being fired through both the window and the door. Mr. Roger Brown was shot in the leg. Adams was fatally shot.

5 At the trial, the main issue was whether the appellants were correctly identified by Mr. Roger Brown, the only eyewitness. Mr. Brown's evidence was uncorroborated. His evidence was that by reason of his being injured in the same incident he was hospitalised for about seven weeks. He testified that he knew all three appellants for many years before the incident. They were all friends and he had been drinking with Gavaska Brown and Troy Matthews either the Friday or the Saturday before. It is his evidence also that he did not give the names of the appellants to the police until some time after he had been discharged from the hospital.

6 The appellants, Gavaska Brown and Kevin Brown were arrested on warrants issued on the 30 ^th June 1997. The warrant for Troy Matthews was issued earlier on the 24 ^th April 1997. The arresting officer Sgt. Masters testified that the witness Roger Brown gave him the names of the appellants while in the hospital.

7 After the incident the witness next saw Gavaska Brown and Troy Matthews at the Gun Court in Kingston. He pointed out Kevin Brown at the Central Police Station. The trial judge rejected no-case submissions by counsel for the appellants.

8 The appellants gave unsworn statements from the dock saying they knew nothing about the case and were innocent. The appellant Troy Matthews called one Sandra Ranger as an alibi witness.

9 Several grounds were filed and argued by counsel on behalf of the appellants.

10 Troy Matthews

11 Mr. Daly, Q.C. for the appellant Troy Matthews, advances three main grounds in support of the appeal. His first argument is that the quality of the identification evidence was so poor that the judge ought to have stopped the case at the no case submission stage there being no further evidence to implicate the appellant. Having left the case to the jury the trial judge failed to direct them adequately, or at all, on the effect that certain discrepancies might have on the identification evidence.

12 His second argument is that the judge failed to direct the jury correctly in relation to the defence of alibi. Mr. Daly's third point is that the judge in directing the jury on common design failed to relate his directions to the facts of the case.

13 The identification issue

14 As regards the quality of the identification evidence Mr. Daly made a number of submissions:

• (1) That the uncorroborated evidence of the only eyewitness is that he only had a "speck of time" to observe the person he claims to be the appellant whilst peeping through a hole in the window. This is a classic case of "fleeting glance" and the judge should have upheld the no case submission.

• (2) That the lighting was unsatisfactory. (This factor is common to the submissions made on behalf of all three appellants and will be dealt with later.)

• (3) That as regards the discrepancy between the eyewitness and Sgt. Masters as to when the latter was informed of the names, the learned trial judge failed to direct the jury that the witness' credibility would be in question if what the police, Sgt. Masters said is true and that the witness' reliability and/or credibility would be in question if what the witness said is true. Even when the jury intimated that they were concerned as to "the time that the warrants were issued" the judge failed to assist.

• (4) That the learned trial judge failed to direct the jury in respect of the possible effect on the issue of identification of the discrepancy between the evidence and written statement of Det. Masters as to whether or not he had issued a warrant for the arrest of a man called 'Spiderman'.

15 Mr Sykes, for the Crown in a concise manner, submits that when the evidence of the eyewitness is examined closely it is clear that the witness was alert and was on the look-out after he heard the "bang". He urges the court to take the view that in the context of the narrative of the witness "speck of time" or "nick of time" means "at that time". Thus he contends that the witness was saying that "at that time" when he saw the appellant a stone was thrown through the window.

16 We have looked long and hard at this issue and have been persuaded that the unsupported identifying evidence is weak. In relation to the appellant Matthews the witness was asked:

"Q. Did you see whether he had anything at all?

A. Well in that speck of a time then they throw a stone through the window

Q. Which window, sir?

A. That was the side window the one which I was at first, then shots started firing"

17 Earlier in his testimony the witness had testified that he looked through the front window and saw "another person" standing on a step at the gate. He recognised this person as the appellant Troy Matthews. The other important parts of his evidence are as follows:

Q. Would you say for how long you saw his face?

A. Well, as I have said before, Ninja and Dicey, these two faces just happen in the nick of time because after that things started happening you know.

Q. O.K. you saw his face in the nick of time, how have you been able to say that it is Dicey you saw that night at the gate? How are you able to say that?

A. We were face to face actually

Q. Anything else?

A. That is when the shots start to fire.

Q. So, O.K. I am asking you, you say it happened in the nick of time, so how were you able to say it is Dicey, and you have said you were face to face?

A. I have known Dicey all the time."

18 One gets the distinct impression that the prosecutor was not satisfied with the state of the identifying evidence.

19 Under cross-examination his evidence continues:

Q. When you first saw the man you say is Troy, (Dicey) that morning you had been peeping through your keyhole?

A. Keyhole?

Q. The little hole that you called a peep-hole. When you first saw him that morning was that early morning. Is that correct?

A. Yes.

Q. That was after you had seen shadows? A. Yes after I had seen the other two

Q. And after you heard the stoning through the window. Was it after you had heard the stoning through the window?

A. Just as I saw him was when the stone came through the window."

20 The above colloquy suggests that the witness' opportunity to properly observe the person at the gate was frustrated by the stoning of the house.

21 Another important part of his evidence is the following:

Q. So when you are looking through the peephole you are looking through one eye at the accused, the one inch peephole you are using one eye?

A. It is just a small hole. I said it is one inch in circumference.

Q. One eye you used. If it is just a small hole. You had used your two eyes? Did you use one eye or two eyes?

A. With my eyes.

Q. The hole is still there today?

A. I am not sure ...

22 It may be appropriate at this point to state that on the day of the incident photographs were taken of the house and in particular of the window through which the witness said he looked and saw the appellant Matthews. We were not able to discern any hole in the window. During cross-examination the witness was shown the photographs and the following dialogue ensues:

Q. Are you able to show us the hole? The peep hole?

A. Actually in this photograph I cannot see it.

23 Thus the witness was not able to show the jury the hole through which he said he saw the appellant. The following excerpt from his re-examination indicates that the witness was not sure whether he looked through a hole in the...