R v Campbell

• Jurisdiction: Jamaica
• Court: Court of Appeal (Jamaica)
• Judge: Watkins, J.A.
• Judgment Date: 28 September 1977
• Neutral Citation: JM 1977 CA 31
• Docket Number: Criminal Appeal No. 112 of 1976
• Date: 28 September 1977

Court of Appeal

Watkins, J.A.; Henry, J.A.

Criminal Appeal No. 112 of 1976

R.

and

Campbell

Appearances:

Mr. B. Macaulay Q.C., and Mr. K. St. Bernard for the applicant

Mr. J.S. Kerr Q.C., Director of Public Prosecutions and Mr. G. Andrade for the crown

Criminal Law - Appeal vs conviction (Murder)

Watkins, J.A.

1 This is an application for leave to appeal from a conviction for murder recorded in the Home Circuit Court on June 17, 1976 before Robotham J. and a jury. At the end of six days of arguments the court took time for considerations and on May 27, 1977 the court by a majority refused the application. This is the dissenting judgment.

2 The victim Richard Mills died at his home No. 46 Woodhaven Avenue, St. Andrew on May 18, 1974. With his wife Celeste Mills, a lady, reputed for her beauty, who bore him a son named Ian, Richard carried on the business of a restaurateur at 7 Constant Spring Road in the same parish. The applicant was a policeman. Attached to Traffic Headquarters his duties seemed less arduous than those of other policemen. Mondays through Fridays his hours of work were from 8 a.m. to 5.30 p.m. On Saturdays he ceased work at 12.30 p.m. and he did not work on Sundays at all. These circumstances facilitated his engagement in the evenings by Mr. and Mrs. Mills to carry on their behalf the business of the restaurant, where he had been accustomed for some time to have his evening meals. On occasions the applicant drove the family van, carried Ian to schools and visited the family home at 46 Woodhaven Avenue. In course of time a close relationship developed between the applicant and Mrs. Mills, apparently sufficiently close indeed to attract the displeasure of Mr. Mills who began, but later discontinued, divorce proceedings in which the applicant was, or was to be, named. In February 1974 the applicant and Mrs. Mills, having left the latter's home early one Saturday afternoon, did not return until early the succeeding Sunday morning. Mr. Mills expressed his disgust and ordered the applicant to leave his home. He stood his ground however, supported by Mrs. Mills, and it was only upon the arrival of the Police and upon their insistence that the applicant reluctantly took his leave. For his part the applicant quite openly expressed to Mr. Mills his resolve to have Celeste (that is Mrs. Mills) “for your (Mr. Mill's) time is up now.” From that time the applicant never returned to the matrimonial home.

3 In the evening of May 18, 1974 Mrs. Mitchell who lived at 44 Woodhaven Avenue, and a close friend and neighbour of the Mills, had a party for one of her young daughters and Ian, Mr. and Mrs. Mills together with Ivy Fraser their domestic helper attended. Mrs. Mills did not long remain. She left the party at about 6.30 and in fact she never returned home until about 2.30 to 3 a.m. of the following Sunday morning. The rest of the family returned to No. 46 at 9.30 a.m. They entered by the open front door, the rest of the house having been already locked up by Ivy much earlier that evening, and the all sat down to watch television. Mr. Mills, a bottle of peps-cola close at hand, reclined in his favourite chair, the back of which stood upon an open glass sliding door from which entrance was gained into an adjoining storeroom in which was kept among other items a meat-cutter to which was attached a length of electric cord. At 9.45 Ivy and Ian retired to their respective rooms leaving Mr. Mills still watching television, the front door also still open. Three-quarters of an hour later Ivy heard Mr. Mills scream, a. somewhat faint sound of her name upon his lips. Quickly she put on her dressing gown and went to the living room. The television set was still in operation but Mr. Mills was not there. She turned on the light in his bedroom and there on the floor she saw the prostrate body of her employer. He made response neither when she called his name nor when she enquired what had happened to him. Fearful, Ivy returned to her bedroom, locked herself in as securely as she could, and standing on her bed and looking through her bedroom window she called out to her neighbour Mrs. Mitchell and asked her to come for something had happened to Mr. Mills. Mrs. Mitchell responded promptly to her entreaties, and it is around her testimony as to what she said that she saw when she went over to No. 46 that the whole case against the applicant revolves. Dr. Marsh testified that the deceased had died from asphyxiation by garroting with an instrument like the cord on the meat cutter.

4 Mrs. Mitchell's testimony –

5 Mrs. Mitchell's testimony Mrs. Mitchell was a nurse of many years standing. Her husband was the manager of a bank in Montego Bay and as for some time before the date of this incident there was no telephone in their home, it was Mrs. Mitchell's practice to make and receive calls on the telephone of her neighbour Mrs. Mills. On one of these trips to the Hills' home Mrs. Mills introduced the applicant to her and thereafter and up to the date charged Mrs. Mitchell said that she saw the applicant no less than fifty times at No. 46. The defence categorically denied this. Having been summoned on this particular night by Ivy, Mrs. Mitchell said that she hurried to her car porte which overlooked Ivy's bedroom. From that position she learned from Ivy that something was amiss with Mr. Mills. She returned to her house, put on her dressing gown and equipping herself with flashlight and smelling salts scaled the dividing wall between the two homes, crossed the lawn at No. 46 and made her way to the front of their premises. From the critical point onwards the accounts of Ivy and Mrs. Mitchell differ. Mrs. Mitchell's account is that as she got on the verandah step she saw the applicant with Mr. Mills reclining on his back in his hands. She spoke to him. The applicant, she said, continued to carry Mr. Mills down to an Escort car that was parked in the drive way, the left-hand already open. The applicant dumped Mr. Mills in the car, closed the door and faced her, for she had followed him down to the car. The applicant took off the dark gloves he was wearing and addressed her thus “You are Mrs. Mitchell,” She replied “Yes, I am Mrs. Mitchell, but I am here because Ivy the helper called me saying that Mr. Mills is sick and I am a nurse.” The applicant left her there, went back to the house, and then returned to the right hand side of the car. He fiddled with the keys for the car for some time unable apparently to find the right one. Mrs. Mitchell's offer to help was refused. She then said to him “Does Mrs. Mills know that Mr. Mills is sick” and he replied “No, she is at work” Mrs. Mitchell then enquired “Where is Ivy” whereupon the applicant replied “she is inside there in her room.” Mrs. Mitchell then expressed a wish to look at Mr. Mills and the applicant replied “No, you might not like what you will see because he is vomiting.” Mrs. Mitchell turned her flashed on the body of Mr. Mills and saw that whilst his buttock rested on the left bucket seat his torso was rather wedged between that seat and the one on the right side. She neither saw nor smelled vomit. The applicant volunteered “I am taking him to the hospital but trying to find the keys is the other thing.” Significantly enough when eventually the Police came and examined the car they did find a key in the switch but it was not the right one. At his request Mrs. Mitchell opened wide the driving gate, left the applicant by the car, and was glad to return to her home where she locked herself in. On her way back she again stopped at her car porte and spoke with Ivy. She did not however tell Ivy that she had just seen. Mrs. Mitchell called her husband on the telephone. Mr. Clarence Walker, Attorney-at-law, cousin of Mr. Mills and friend of Mrs. Mitchell arrived about one hour later, that is between 12.30 and 1 p.m. He apparently had learned of the incident through Mr. Mitchell. Mrs. Mitchell admitted him to her bedroom and there she told him all that she had seen. Shortly thereafter Constable Fuller arrived and she said that she also told Fuller what she had seen. Between 2.30 and 3 a.m. Mrs. Mills arrived. She made three or four telephone calls, calling hospitals enquiring for her husband. During all these happenings there was light in the television room. It shone on to the verandah through windows without constructing curtains. There was a red bulb in the car porte at No. 46 hanging over a disabled van parked there. Bright lights shone from the eaves of Mrs. Mitchell's home onto the lawn of No. 46 and at the entrance to No. 46 there was a street light brightly glowing.

6 If Mrs. Mitchell had been the only witness called as to the facts by the prosecutions the verdict of guilty returned by the jury, one may confidently say, would have been virtually unassailable. As it was, however, the prosecution called two other witnesses to facts whose testimony in the one instance created serious internal conflicts in the case for the crown and in both instances brought the conduct of Mrs. Mitchell under scrutiny and questioned the veracity of her story.

7 The testimony of Ivy Fraser -

8 So far as relevant Ivy Fraser said that having come out to her car porte in response to her call Mrs. Mitchell “went back quickly in her house and then she ran out back and come over the wall.” From her room she heard Mrs. Mitchell around the front to hang to her and asking her to come out the room and in cross-examination the following exchanges took place.

Q: “Now, when Mrs. Mitchell got to the front of your house, she called to you?

A: Yes; she say where I am.

Q: Hotel on; she called to you. You said she said where are you?

A: Yes.

Q: And you answered?

A: I said I am in my room.

Q: And …?

A: And then she said she is round the front.

Q: She said she was in the front:

A: Because I ask her where were you and ….

Q: And she said she was in...