R v Clarke (Kenneth), Donovan Starrad and Hopeton Robinson

• Jurisdiction: Jamaica
• Judge: RATTRAY, P
• Judgment Date: 30 July 1999
• Neutral Citation: JM 1999 CA 51
• Judgment citation (vLex): [1999] 7 JJC 3012
• Court: Court of Appeal (Jamaica)
• Date: 30 July 1999

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR. JUSTICE RATTRAY, P THE HON. MR. JUSTICE HARRISON, J.A THE HON. MR. JUSTICE PANTON, J.A. (Ag.)

R.

V.

KENNETH CLARKEw

DONOVAN STARRAD

HOPETON ROBINSON

Dennis Daly, Q.C.

C. Dennis Morrison, Q.C.

Elham Bogle

Lloyd Hibbert, Q.C. & Sonya Wint-Blair

CRIMINAL LAW - Murder - Visual identification - Misdirection to jury

RATTRAY, P

1 On the 24th February, 1996 David Darby, a cable operator was shot to death whilst engaged in making a cable installation to a house in Roehampton Circle in the parish of Saint Andrew. The evidence as given by Edgar Gayle, a cable technician employed to Mr. Darby was that at about 5.00 p.m. he was present at Roehampton Circle with two other employees, Mark Johnson and David Brown assisting in the installation. Mr. Darby was on a ladder by a post in front of the house in respect of which the installation was being made. A van driven by Mr. Brown was parked behind Mr. Darby's van. Two men passed him and went to Mr. Brown's van and spoke to Mr. Brown. Mr. Darby came off the ladder and walked towards the front door of his van. The two men pulled guns and pointed at Mr. Darby. The witness heard explosions. Mr. Darby fell on his face with blood coming from his head.

2 At an identification parade held on the 28th of March, the witness pointed out the applicant Robinson as one of the men he had seen at Roehampton Circle and who had shot Mr. Darby.

3 The indictment charged the applicants jointly with capital murder. It is alleged that the murder was "pursuant to an arrangement whereby money passed from a person unknown to the said Kenneth Clarke, Donovan Starrad and Hopeton Robinson as a consideration for causing or assisting in causing the death of the said David Darby." It was what is commonly referred to as a "contract murder".

4 The prosecution relied heavily on the evidence of one Kirk Rose, a cousin of the applicant Kenneth Clarke o/c "Paul Clarke" or "Rumporridge". He testified that on the 24th of February, 1996 he was at his aunt's yard at Myrie Avenue where he was living when his cousin Kenneth Clarke told him that he had somewhere important to go and asked him to come along with him. While there the applicant Donovan Starrad whom he knew as "Danny" drove up in a motor car and had some discussion with Clarke. The latter identified him to Danny as his cousin from the country. Danny said to let him come along with them. Danny drove to a place known as the Chinese Cemetery on Waltham Park Road. The two applicants went inside the cemetery. They later came out with the third applicant Hopeton Robinson o/c "Flipper". Both Danny and Flipper had guns. They travelled to a bar on the Waltham Park Road where they had drinks. They drove into a residential area where they saw some men running wires on a cable line. Danny said: "See the boy deh." The cable truck was parked beside a pink gate. The other three men came out of the car and walked down the road in the direction where the cable men were working. The witness was left behind in the car. He heard about six explosions sounding like gunshots. The three applicants came running towards the car and came into the car. Danny told him to make haste and drive the car. He drove the car with the other three men as passengers to a gas station where Danny took over the driving. They then drove further to a bar. From the bar the three men drove off leaving the witness. He walked to his home. Later on, he saw the applicant Clarke, who said to him: "... that I am not to take Danny and Flipper simple. They are serious man dem." He also said that "He just kill the cable man."

5 Next morning Clarke asked him to go somewhere with him to collect something. Both of them rode a bicycle to a "Chiney man" where videos and T.Vs are fixed at Waltham Park Road by a gas station. Clarke, and a Chinese man hug-up and went in into a glassy place. Clarke returned and told him he was going to buy him something. He took him to town where he bought him a jeans pants and shirt. Clarke told him he would give him some money but never did. On the way to town Clarke told him that he is going to collect the money he got to kill the cable man, and that the amount was $90,000.00. He also told him that the money was to be divided between himself and Flipper, that is the applicant Robinson, and Danny that is the applicant Starrad and that they were each to receive $30,000.00. The witness showed the police the street on which the shooting took place and was told it was Roehampton Drive. He further took the police to where the applicants Clarke and Robinson were hiding. Clarke took them to where the applicant Starrad was hiding.

6 A witness named Owen Clarke gave evidence that he was the owner of the car which Starrad was driving. He had arranged that Starrad should pay him $1000.00 per day for using the car as a taxi.

7 The police took cautioned statements from both Donovan Starrad and Kenneth Clarke which they wrote down in the form of questions and answers. With respect to Clarke Det. Inspt. Errol Grant administered sixty-nine (69) questions. When Clarke was asked "Who then shot Mr. Darby?" His answer was "Me and Hopeton shot him sir." Clarke's answers to the questions posed, corroborated in material particulars the evidence given by the witness Kirk Rose in respect of Clarke's involvement. It disclosed that he was paid the sum of $90,000.00 to kill Mr. Darby by an "Indian man who owns a bicycle shop on Waltham Park Road in front of Mangoose Town and in the cable business too."

8 Although Clarke's statement implicated both Starrad and Robinson, the jury were clearly warned that the contents of the statement were not evidence against the other persons charged. The statement was only properly admissible as evidence against Clarke.

9 Counsel for the applicant Clarke has taken issue with the adequacy of the trial judge's summing-up to the jury in respect of the question and answer 'cautioned statement taken from Clarke by the investigating police officers. It was suggested to the police officers Inspector Errol Grant who wrote down the statement and Senior Superintendent Osbourne Dyer who witnessed it, that Clarke was beaten by the police and the signing of the statement was achieved through the application of force and duress. This also was stated by Clarke in his unsworn statement from the dock given in his defence.

10 How did the trial judge deal with the applicant's Clarke's statement to the police? He posed two questions for the jury's determination. Firstly, it was their duty to decide whether or not the applicant made the statement, and secondly, if they were sure that the applicant made the statement, they would then consider whether or not what was said in those answers given by the applicant to the questions were true. The trial judge then continued:

"In determining that, you should take into consideration all the circumstances having regard to the allegations by the defendants of threats, of beating, of inducement, of their teeth being knocked out, and you must say whether you find any, or all of the statements made or may have been. If, for whatever reason, you are not sure whether the statements were made, or were true, then you must disregard them. If, on the other hand, you are sure both that they were made and that they were true, you may rely on them even if they were or may have been made as a result of oppression or improper circumstances."

11 He further continued:

"You must consider the whole of the statement in deciding where the truth lies. You may feel that the incriminating parts are likely to be true; you may feel that there is less weight to be attached to the excuses or explanations, they are there not made on oath, have not been repeated on oath and have not been tested by cross-examination."

12 He was careful in pointing out:

"It is only what an accused person says against himself that you can rely on. What he says against another accused is no evidence against that other accused."

13 Mr. Dennis Daly, Q.C. for the applicant Clarke has submitted that while it was for the jury to accept or reject the truth of the statement, the question of beating and duress was crucial in their determination and the judge should have so indicated to the jury. Further, he maintained that the trial judge erred in inviting the jury to accept less than a standard of certainty when he told them that they "may rely on them even if they were or may have been made as a result of oppression or improper circumstances."

14 The summing up in relation to this area of direction must be looked on as a whole. The trial judge had to determine the admissibility of the question and answer statement. He had to be satisfied that the statement was voluntary. He directed the jury on the proper standard to be applied with respect to the acceptance of this evidence that is (1) if they were sure that the statements were made by the appellant and (2) that the answers given were true.

15 The acceptance by the jury of the content of the statement depended upon the above criteria. If those criteria were not satisfied the trial judge directed the jury that they must disregard the content of the statements. If they were satisfied the jury could rely on the statement:

"... even if they were or may have been made as a result of oppression or improper circumstances."

16 Counsel therefore was not correct when he submitted that the jury was being invited to accept a standard of proof less than that of certainty.

17 In order to convict the applicant Clarke of...