R v Gordon (Everton) and Holder (Paul)

• Jurisdiction: Jamaica
• Judge: HARRISON, J.A:
• Judgment Date: 12 June 2003
• Neutral Citation: JM 2003 CA 28
• Judgment citation (vLex): [2003] 6 JJC 1202
• Court: Court of Appeal (Jamaica)
• Date: 12 June 2003

IN THE COURT OF APPEAL

BEFORE:

THE HON MR. JUSTICE BINGHAM, J.A THE HON MR. JUSTICE HARRISON, J.A THE HON MR. JUSTICE SMITH, J.A

REGINA

V

EVERTON GORDON

PAUL HOLDER

Alonzo Manning for Everton Gordon

Patrick Atkinson for Paul Holder

Herbert McKenzie and Christine Morris for Crown

CRIMINAL LAW - Murder - Whether appellant denied a fair hearing - Constitution of Jamaica, s. 20 - Identification evidence - Credibility/Reasonable doubt of guilt - Common design

HARRISON, J.A:

1 Both applicants were convicted in the Circuit Court for the parish of Trelawny on June 16, 1998 for the murder of Webster Thompson on March 9, 1997. Each applicant was sentenced to a term of life imprisonment at hard labour and it was ordered that they be ineligible for parole before the period of twenty years in the case of Gordon and fifteen years in the case of Holder, had passed.

2 The facts are that on Saturday March 8, 1997, several persons were attending a "singing" at the home of Astley Hall at Windsor Castle in the parish of Trelawny. At about 1:30 a.m. the Sunday morning the witness Steadman Williams was spoken to by one Esau Cunningham, and as a result he ran to the back of the kitchen which was itself behind Hall's house. He saw the deceased Webster Thompson, his brother, lying on his back on the ground, as if he was dead. The applicant Everton Gordon was sitting on the deceased's legs stabbing him with a knife while the applicant Paul Holder was holding the deceased backwards. The witness Williams took up a stick and hit the applicant Gordon in his side. The applicant Holder let go of the deceased's head and ran, but the applicant Gordon continued "working on" the deceased. The witness Williams hit the applicant "a might blow" in his head. The applicant Gordon then jumped off, and with a knife in his hand stabbed at the witness Williams who ran to the front of the kitchen. The applicant Gordon followed and said "Boobus (referring to the witness Williams) whe you lick me for". The applicant Gordon flung a bottle at Williams and then stabbed at him with the knife. Williams ran into Hall's house and remained there. About one hour after, he went to one Smith's yard to the back of Hall's kitchen and saw the body of the deceased, on the ground. The witness had known each applicant for about twenty years. Both were at the "singing" the night and the applicant Holder had been "tracking" the songs from the hymn book.

3 The area was well lit. There were electric wires, attached to which were lighted bulbs in sockets. One bulb was in the area of the verandah of the house, the second bulb was in the booth where the singing was being held and the third bulb was at the kitchen. Another prosecution witness Rupert Smith who was also at the singing saw one Cunningham and the applicant Gordon go to the back of the kitchen. Afterwards, the applicant Gordon emerged and said:

"Whe Boobus, I want to kill him, come lick me in me head".

4 The witness had already seen Steadman Williams run into Hall's house. Smith also indicated where the light bulbs were placed, but said that around the back of the kitchen was dark.

5 Dr Semiv Giwa performed the post mortem examination on the body of Webster Thompson on March 20, 1997. He observed, externally:

• (1) an extensive laceration to the left front of the chest between the 7 ^th and 8 ^th ribs;

• (2) a 2 cm by 1 cm laceration to the left armpit between the 3 ^rd and the 4 ^th ribs;

• (3) a 2 cm by ½ cm laceration also to the left armpit.

6 Internally, there was a laceration 8 cm by 3 cm of the left chest wall exposing the subcutaneous tissues and clots. The left lung was extensively bruised with haemorrhage and congestion and there were two penetrating wounds of the heart in the right ventricle. The cause of death was extensive intrathoracic haemorrhage from the stab wounds to the heart. A knife could have caused those injuries. A sample of the deceased's blood was collected and handed by the doctor to Det. Sgt. Calbert Bowen, the investigating officer present.

7 Det. Sgt. Bowen received a report on March 9, 1997 at about 5:00 a.m. and went to Astley Hall's home at Windsor. Steadman Williams, Astley Hall, Rupert Smith and Esau Cunningham, made reports to him. He saw the body of the deceased lying in Smith's yard which is behind Hall's, with wounds to the chest and armpit. In an area behind the kitchen in Hall's premises, he saw blood on the ground and on some leaves, and found a blue and white cap and two grey buttons. The kitchen was 8 ft from the house, there was a shed about 30 ft from the house and there were electric wires with bulb sockets attached, in the area of the shed, at the right side of the kitchen and at the verandah. Remains of broken bulbs were in the sockets at the kitchen and verandah. He went to the house of the applicant, Holder, at Sherwood Content and saw there a wash pan with "bloody water" Det. Sgt. Erro1 Williams had gone to the said house and the applicant Holder's mother took from the wash pan a water soaked blue and grey long sleeved shirt which she gave to him, who in turn gave it to the witness Bowen. The latter, having observed that there were three buttons missing from the said shirt, returned to the scene behind the kitchen in Hall's yard where he searched and found a third grey button, all three of which matched the buttons remaining on the shirt.

8 On March 10, 1997 Det. Sgt Bowen arrested the applicant Holder who after caution said:

"Me never have notting to do with the man."

Shown the shirt, the applicant Holder admitted that it was his and that he was wearing it at the scene at Hall's house. The witness took from the applicant Holder a pair of black trousers he was then wearing. On July 13, 1997 he arrested the applicant Gordon. He sent to the Government Analyst at the Forensic Laboratory, the said shirt and trousers, the leaves with blood, the trousers, the cap and samples of blood taken from the deceased and the applicant Holder.

Miss Sharon Brydson, Government Analyst, received and analyzed the articles. She found that the sample of blood taken from the deceased was group 'B' classification. The blood sample taken from the applicant Holder was group '0' classification. The blue and grey shirt of the applicant Holder, had blood of group '0' on several areas and also group 'B' blood on two areas. The buttons were similar to each other and similar to the buttons remaining on the shirt. On the dried leaves the analyst found human blood of group 'B' classification. She also found group '0' human blood on the black trousers.

The applicant Gordon in an unsworn statement in his defence, said that he was at Hall's premises on the said night of the singing. The applicant Holder was also there "tracking" the songs. Later he was at the right side of the kitchen talking to Esau Cunningham, from whom he had taken Fifty Dollars and who had in return taken back from him Gordon, more than the Fifty Dollars. About four men, including the witness Williams and his son, came to the back of the house where they were. It was dark but he could see them. One of them hit him on his shoulder. He was also hit in his mouth and in his head. He was knocked out. When he regained his senses, all the persons in the yard except one man, had gone. He complained to Astley Hall about having been hit down and started to leave when stones were thrown at him from the bushes. One caught him on his foot. He walked home. Later he was told about the death of the deceased, but he knew nothing of it.

The applicant Holder also gave an unsworn statement. He admitted being at Hall's premises on the said night "tracking" the songs. He saw Cunningham and the applicant Gordon having a dispute. At the singing he heard a loud noise and started walking away. Stones were flung and he and others ran. He denied being behind the kitchen on that night and denied holding anyone.

On the 2 ^nd day of the trial, Mr. R.A. Salmon counsel for the applicant Gordon, advised the Court that the applicant did not wish him to represent him any longer, having lost confidence in his ability to defend him. The applicant confirmed this to the Court, stated that he would defend himself and that he was prepared to do so. The Court afforded him an opportunity of a half hour adjournment to read the depositions and the trial continued.

Both counsel Mr. Alonzo Manning for the applicant Gordon and Mr. Patrick Atkinson for the applicant Holder, argued several grounds of appeal.

Mr. Atkinson on behalf of Holder opened his arguments with ground six. The essence of this ground is that the applicant was denied a fair hearing within a reasonable time as guaranteed by section 20(1) of the Constitution of Jamaica, in that the prosecution caused a delay of eleven months between the holding of the preliminary examination and the trial. The effect of this delay was that a witness Esau Cunningham who gave evidence at the preliminary examination died prior to the trial. The jury was and thereby deprived of the opportunity to hear his oral testimony before them and consequently the applicant Holder was denied the opportunity of a possible acquittal.

Mr. Atkinson submitted that the deposition of the witness Cunningham revealed that there was an earlier incident at a shop between the applicant Gordon and Cunningham concerning money, followed by a further dispute between them in the area of the kitchen. When the stabbing took place, he submitted the applicant Holder, far from holding the head of the deceased, he was not at the scene of the stabbing.

Section 20(1) inter alia, of the Constitution, reads:

• " 20.-(1) Whenever any person is charged with a criminal offence he shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.

• (2) Any court or other...