R v Daley et Al

• Jurisdiction: Jamaica
• Court: Court of Appeal (Jamaica)
• Judge: Patterson, J.A.
• Judgment Date: 23 October 1995
• Neutral Citation: JM 1995 CA 50
• Docket Number: Criminal Appeal No. 121 of 1994
• Date: 23 October 1995

Court of Appeal

Carey, Gordon and Patterson, JJ.A

Criminal Appeal No. 121 of 1994

R.

and

Daley et al

Appearances:

Bert Samuels and Anthony Williams for the applicant

Bert Samuels for the applicant

Deborah Martin for Crown

Criminal Practice and Procedure — Directions to jury on identification — Capital murder — Sentence of death was imposed — No-case submission — Defence was alibi — Whether the trial judge directed the jury adequately on the issue of identification — Finding that the trial judge was careful in leaving all issue of fact for the decision of the jury and he gave them correct directions on the law applicable in the circumstances — Directions to the jury on identification were precise — Applications for leave to appeal against conviction were refused.

Patterson, J.A.

1 On the 7th November, 1994, both Dalton Daley and Milton Montique (“the applicants”) were convicted in the Home Circuit Court on all three counts of an indictment which charged them with the capital murder of Delores Campbell and Juliet Martin on the 19th March, 1992, and Andrew Blake on 7th April, 1992, committed in the course or furtherance of an act of terrorism. The applicants were sentenced to death and they now apply for leave to appeal against their convictions.

2 All three deceased lived at 9 Blount Street in Denham Town where there are a number of high-rise buildings. Juliet Martin occupied an adjoining apartment to that of Delores Campbell and her son Andrew Blake on the ground floor of one of the four-storey buildings, known as Block 6 or Building 6. One George Brown occupied an apartment on the floor above. A flight of stairs leads from the ground floor to the floors above. Hyacinth Sterling, the mother of the deceased Juliet Martin, occupied a front room on the second floor of a two-storey building on Upper Oxford Street. That room had a window which overlooked Upper Oxford Street. A gully separated her building on Upper Oxford Street from Blount Street, but it seems that it was easily traversed by means of a bridge.

3 Hyacinth Sterling testified that at about 9:30 p.m. on the 18th March, 1992, she looked through her window and saw the applicants and three other men standing in a circle on Upper Oxford Street. She knew the applicants by alias names, Daley as “Daney” and Montique as “Pepsi”. She also knew a third man as “Berger”, but she did not know the other two men. She was able to recognise the applicants by the light which shone on them from a street light some six yards off. The applicant Montique had a gun in his hand loading it, and she saw when he put it in his pocket. The applicant Daley was standing beside him then, and all five men stood talking for some time. They then walked by the side of her building towards the gully and went across towards Blount Street. About five minutes later, she heard the sound of gunshots coming from the direction of Blount Street area. The next day she went to the Kingston Public Hospital where she saw the dead bodies of her daughter Juliet Martin and of Delores Campbell. She had known both applicants for about three years prior to that night and during that time she had seen them quite often. The applicant Montique had at one time lived as man and wife with her sister. On the 27th April, 1992, she pointed out the applicant Daley on an identification parade.

4 She was cross-examined at length and she said that she mentioned four names in her statement to Inspector Rowe of the Denham Town Police Station and not three, but when confronted with her statement she admitted that it was only the names “Daney”, “Pepsi” and “Clive Berger” that was mentioned. She explained that she ascertained the names of the other two men subsequently, and informed Inspector Rowe. She first reported her daughter's death to Constable Amin at the Hannah Town Police Station, but he told her he did not believe her. She could not recall if she had also told him the names of those she saw with guns and that he said he did not believe her story.

5 George Brown it was who gave evidence of what transpired at 9 Blount Street that night. He said that at about 9:30 p.m. on the 18th March, 1992, he was lying in bed, looking out through a window into a yard between his building and another four-storey building on the same premises. The yard was well lighted by the light from open doors and windows in both buildings which faced it, and by a “floodlight” in the yard itself. He saw five men coming from behind the other building towards his building. They were facing him as they approached his building, and he recognised three of them, the two applicants and “Clive”. He went from his room unto the steps outside, and watched persons running in alarm and saying, “Man a come”. The applicants and “Clive Berger” ran “under the building” that he was in, meaning that they ran to the ground floor of the building. The deceased Andrew Blake was one of those persons in the yard who fled when the men approached. The applicant Daley fired a shot at him and he ran into the “house” of the deceased Juliet Martin and the door was closed behind him. The applicant Daley kicked the door, pushed his hand inside the house and fired three shots. He then fired shots at the door of the room where the deceased Delores Campbell and Andrew Blake lived. “Clive” was then a short distance away from the applicant Daley, bending down and looking out with a gun in his hand. The applicant Montique was at that time engaged in kicking in the door of the deceased Delores Campbell and firing shots at it. Shortly after, the applicants and “Clive” ran from the building towards the gully at the back of the other building, joined by the other two men.

6 George Brown said he observed all that took place while stooping behind a flower pot on the steps outside his room and looking down to the ground floor, at times through the railings of the stairs. He did not wish to be seen by the men. He ventured downstairs after the shooting when the men had left. People on the building were shouting. He saw the deceased Juliet Martin run from her house holding her chest, and she fell to the ground in the yard. Her chest was in a bloody condition. Inside the room he saw the deceased Andrew Blake. His shirt was bloody all over. The deceased Delores Campbell was lying inside her room entirely covered in blood. The police arrived shortly afterwards.

7 Brown said he was able to see and recognise the applicants since he had known them before that night and the floodlight focussed under the building. He knew both applicants for about two years prior to the incident, and would see them in the area of Blount Street almost daily, the last time being the very morning prior to the incident. He saw the face of Daley as he ran at Andrew Blake and fired and when Daley ran under the building. When he looked “over” he saw from Daley's head “right down to his foot” frontways; Daley was facing him. He subsequently pointed out Daley on an identification parade. He was asked, “How did you make out Pepsi (Montique) as he stamp off the door? How did you make him out?” and the transcript of his evidence (at page 88) reads as follows:

“A: The way him walk.

Q: What about his walk?

A: About his walk?

Q: What about his walk mek you say is Pepsi?

A: Like you see a man there and you know the way how him walk. Him don't have no funny walking or nothing. You can make him out backway like if mi coming from down the road him can say is me that through how the way mi walk all the while; and him have a brown complexion.

HIS LORDSHIP: Just a minute.

Q: You say you saw him stamping off the door?

A: Yes.

Q: When you say him stamping off the door, what part of him you see why you say it was Pepsi?

A: I see him fully that time when him stamping off the door. I see him fully.

Q: From frontway or sideway or backway, sir?

A: Backways.

Q: And what part of him did you see when you said you saw him fully?

A: Him turn around like this and when him come out now — when him come out like this now, reverse. (Witness indicates)

Q: Where was he coming out from?

A: Him kick the door like this. When him kick the door like this and fire the shot him reverse from the door.

HIS LORDSHIP: Just a minute.

Q: And when he reverse from the door, what part of him could you see?

A: When he reverse from the door I can see him face to face. He can't see me but I can see him.”

8 He was not able to say just how long he saw Montique face to face; “him just come out and I see him face, and then him move that way … it was so quick … him just come out and go that way. As mi see him face like this, him just go that way.” The entire incident did not last a long time.

9 When cross-examined by counsel for Daley, the witness Brown said he did not know the other two men, he only saw them when they were coming and he did not think he would be able to recognise them should he see them again. It was suggested to him that he did not see Daley that night, and his reply was, “So why I am telling a lie on him? … When the incident happen I see him.” A further suggestion and the reply is quite revealing. The transcript (pages 131 & 132) reads:

“Q: I am suggesting to you further that Daney, as you call him, don't know you at all; that you have never seen him before that. [emphasis supplied]

A: I see him though.

Q: Never even speak to you either.

A: Me and him never hold any argument, but I always pass him.”

10 Both applicants made unsworn statements from the dock. They did not call any evidence. Daley said he lived at 5 Upper Oxford Street and that he worked at “Shims”. His defence was, “I am innocent on this case”, and that he knew nothing about it. Montique said he too knew nothing about the murders. He lived at 8 Mulgrave Avenue, but he had gone to Hannah Town to see his brother. “He suppose to phone wi other brother who reside in Canada that night” [emphasis supplied]. He said they...