R v Lobban

• Jurisdiction: Jamaica
• Court: Court of Appeal (Jamaica)
• Judge: Carey, J.A.,Forte, J.A.,Morgan, J.A.
• Judgment Date: 04 June 1990
• Neutral Citation: JM 1990 CA 47
• Docket Number: No. 148 of 1988
• Date: 04 June 1990

Court of Appeal

Carey, J.A.; Forte, J.A.; Morgan, J.A.

No. 148 of 1988

Regina

and

Lobban

Appearances:

R.L. Williams for applicant

Kent Pantry for Crown

Criminal Practice and Procedure - Application for leave to appeal conviction — Murder — Applicant's defence was an alibi — Identification evidence — Caution statement was made to the police by the applicant's co-accused — Whether the trail judge erred when he refused the application that the caution statement of the accused be edited — Whether the inadmissible statement was highly prejudicial to the appellant and went to the root of the case — Whether in the circumstances, notwithstanding the trail judge's direction in the summing up, there a danger that the jury was influenced by the inadmissible evidence in arriving at their verdict — Finding of the court that where one co-accused makes statements implicating his co-accused there was no rule requiring a trail judge to edit such a statement — The duty of the trail judge was to impress upon the jury that the statement which implicated the co-accused was to be disregarded — Trail judge discharged his responsibility correctly and with the utmost fairness — Application refused.

JUDGEMENT OF THE COURT:

1 We now give our reasons for refusing this application for leave to appeal. On 17th June 1988 after a trial which began on 13th June, in the Home Circuit Court before Patterson J and a jury, the applicant was convicted on an indictment charging the murder of three persons on 11th September, 1987. Count one alleged the murder of Wilton Brown; count two related to Winston McIntosh which is the real name of Peter Tosh, the internationally known “Reggae” singer; count three was in connection with the death of Free I Jasi Ani Kabakajirai, the Rastafarian nomenclature of Jeff Dixon, a well-known broadcaster and disc-jockey.

2 The prosecution led evidence that at about 7:30 p.m. on the 11th September Peter Tosh, his common-law wife Marlene Brown and their visitors Michael Robinson, Wilton Brown and Santa Davis were enjoying a quiet evening in the privacy of their living room at their home Plymouth Avenue, Barbican in St. Andrew. One of the guests let in the applicant whom he knew before and two other men who had arrived with the applicant. Their interest was not to watch the television programme by satellite in which the other visitors were engaged. These intruders brandished guns. Householders and visitors alike were peremptorily ordered to lay face downward on the floor. The command was “belly it,'' hardly English or Jamaican English, but menacing and strikingly clear in its purport. The applicant as leader demanded money and they were told by Tosh and indeed by his wife Marlene Brown that they had none. But this was incomprehensible because Tosh had just returned from a tour abroad with United States currency. Nor did the applicant take kindly to Marlene Brown's explanation for this regrettable state of affairs. She advised that the applicant's brother had visited earlier in the week and had been given money. He expressed the view that she was wholly to blame for Peter Tosh's financial incapacity to maintain “we”, meaning presumably anyone who came by and asked. Her continual explanation appeared to irritate and anger the applicant who then turned his attention to Tosh himself demanding to know whether he had given his wife so much authority over them, that he threatened to kick him.

3 These proceedings were interrupted by a knock.

4 Thereafter, Free I Jasi Ani Kabakajirai also known as Jeff Dixon and his wife were ushered into the room and ordered to lay face downwards on the floor. Mr. Dixon was unwilling to comply despite the menace of guns and jabs from the gun of one of the intruders. Eventually he responded to the advice of Marlene Brown. Thereafter persons in the room were robbed of jewellery and one of the men, having found a machete somewhere in the house used it to beat Marlene Brown. She was forced to the ground and shot, she said, in her head, the bullet fortunately for her, only grazing her skull. She was thus able to be alive to recount these events.

5 After this first shot, there was a barrage of shots. All the men must have fired. Everyone lying on the floor was shot, three of them fatally each or whom formed the basis of a count in the indictment.

6 Another witness who lived to tell the tale was Michael Robinson. He too was well acquainted with the applicant. The widow of Jeff Dixon did not know the applicant before and it does not appear that she was invited to attend an identification parade. None of the witnesses to the incident were acquainted with the other two gunmen.

7 The defence was an alibi. The applicant, unusually in this jurisdiction, gave evidence on oath and called a witness in support. He acknowledged that he knew both witnesses on whose eye-witness account the prosecution relied and asserted that both were actuated by feelings of ill-will towards him. In the case of Marlene Brown he related a discussion between himself, Peter Tosh and the witness in which she referred to him as a “f…… liar and news carrier for Peter Tosh. It seemed that the witnesses' brother while driving Peter Tosh's car, had been involved in a motor vehicle accident and the applicant had brought this to the attention of Peter Tosh. He also explained in the course of his evidence that although the relationship between himself and this witness cooled, he nevertheless continued to visit and eat what she prepared.

8 With regard to the other...