R v Masters (Ronald), Parker (David)
| Jurisdiction | Jamaica |
| Judge | SMITH, J.A: |
| Judgment Date | 20 December 2004 |
| Neutral Citation | JM 2004 CA 52 |
| Judgment citation (vLex) | [2004] 12 JJC 2001 |
| Court | Court of Appeal (Jamaica) |
| Date | 20 December 2004 |
CRIMINAL LAW - Murder - Alibi defence - Refusal of trial judge to allow defence counsel to visit locus in quo - Identification evidence
On the 14 th October, 2002, the applicants were convicted in the Home Circuit Court in Kingston before Mrs. M. McIntosh J, and a jury of the murder of Patrick Lewis. Their applications for leave to appeal were refused by a judge in Chambers. They have now renewed their applications before the Court. The case for the prosecution depended on the evidence of the sole eyewitness Ainsley Terrelonge, a mechanic.
Terrelonge otherwise called "Jolly Good Man" gave evidence that on the 31 st July, 2001 about 9:30 p.m. he was sitting on a wall by the Public Works building on the Bull Bay main road. He was waiting for his friend the deceased, Patrick Lewis also known as "Pops" and "Rapper". While sitting on the wall he heard someone say "Wha me and yuh and de dread have?" He recognized the voice to be that of Patrick. He jumped off the wall and crept like a quadruped alongside the wall in the direction of the voice. When he got to the end of the wall he lay on his belly. He testified that in that position he saw both applicants confronting the deceased. The applicant Masters whom he knew before as "Musky" had a gun in hand. The applicant Parker whom he knew before as "Bungles" had a cutlass-like knife. He said Bungles took hold of Pops (the deceased) and told him "long time yu and di dread fi dead yu know sey a should a kill uno long time". Shortly thereafter he heard two explosions. He ran in the direction from which he came. According to Mr. Terrelonge this incident took place on premises situated off the St. Thomas main road belonging to the National Water Commission ("NWC"). These premises are bordered on one side by a Gypsum Factory and on the other by property owned by the Public Works Department ("PWD") . There is a roadway to the NWC premises. The shooting took place along this roadway at the entrance to the pumphouse. The area he said was well lit by electric lights which were in the vicinity. One was on the PWD compound, one a street light on the main road and one on the NWC premises. He testified that the light that was on the PWD compound was about 25ft from where "Pops" was shot. Those on the Gypsum Factory and on the main road were about 25ft and 30 ft away respectively. He was at the end of the PWD wall which was about 25ft from where Pops was shot and killed. He testified that he knew Musty (the applicant Masters) for about 20 years before the killing. He knew where he lived and used to see him every day. He told the court that on the fateful night he saw the applicant Master's face for about 10 minutes. He gave the Court a description of the clothes that Masters wore that night.
He knew the applicant Parker for about eight years before. He also knew where he lived and worked and used to see him every day. He described the clothes Parker had on that night. In particular he said Parker had on a shirt with a hood which was drawn over his head. However, his face was not covered and he saw his face for about ten minutes.
Mr. Terrelonge testified that he saw both applicants after the incident but before he made a report to the police. He made the report about two days after he saw them. When asked why he did not report the matter immediately he replied "I just have to go home and meditate what is the best solution, what problem I have to get into. I just have to think about it. I was just thinking about." On the 21 st August 2001, he attended identification parades and identified both applicants. He identified photographs of the scene and of the body of the deceased at the locus in quo.
On the 16 th August 2001, Dr. Prasad Kadiyana, a consultant, pathologist, conducted a post mortem examination of the body of the deceased. The body was identified by Sarah Lewis the mother of the deceased. The doctor testified that he saw three gunshot wounds on the body. The first was an entrance wound on the left side of the face below the eye. The bullet exited on the right side of the face over the right ear. There was no gun powder deposition. The second was on the left lower occipital region of the head without gun powder deposition. The bullet exited at the right temporo occipital region of the head. Wound number three was an entrance gunshot wound on the top of the left shoulder also without powder deposition. On dissection a slightly deformed half copper jacketed bullet was removed from the muscle section of the shoulder joint. In the doctor's opinion the cause of death was the gunshot wound to the head.
On the 11 th of August, 2001, Constable McKoy saw the applicant Masters at a place called Jamaica Gates at the round about in Harbour View. He informed Masters that he was wanted for questioning in respect of a murder committed in the Harbour View area. He took Masters into custody. Two days later Constable McKoy also took the applicant Parker into custody in respect of the said murder.
Detective Corporal Patrick Muir, then of the Elletson Road Police Station testified that on August 1, 2001 about 6:00 a.m. he went to a location along the St. Thomas main road which is the same as the Harbour View main road or the Bull Bay main road. There he saw the dead body of a man. The body was on the driveway leading to the NWC sewage plant. On his instructions Constable Marnar took photographs of the body and the surrounding area. Onlookers identified the body as that of Patrick Lewis. Following investigation warrants were issued for the arrest of the applicants in the names of "Musty Masters" and "Bungles" or "Maya". On the 11th August 2001, Masters was taken to the Elletson Road Police Station. Detective Muir said he told Masters that he was a suspect in the murder of Patrick Lewis. Masters replied: " Mi hear bout it, mi nuh kill no man".
On the 13 th August "Bungles" was taken to the police station. He was also told that he was a suspect in the murder. His reply was: "Dis a frame ting officer". They were placed in custody to face identification parade because Mr. Terrelonge had referred to them by their aliases.
On the 17 th August about 2:30 p.m. Detective Muir visited the crime scene with Mr. Terrelonge. There Mr. Terrelonge he said pointed out certain things to him. On the 20 th August at about 9:30 p.m. Detective Muir returned to the scene. He testified that the spot where he had seen the body of the deceased was illuminated by fluorescent lights in three locations - PWD compound, the NWC sewage plant and the main road. He subsequently arrested the applicants for the murder of Patrick Lewis. When cautioned Masters said "mi nuh kill nuh man" and Parker said "mi nuh know nothing".
The Defence of Ronald Masters
Masters gave an unsworn statement from the dock and called two witnesses – one in support of his alibi defence. The gist of the applicant's statement is that at the material time of the murder for which he was charged, he was living with his mother, because his house in Harbour View was destroyed by fire. He said he did not know anything about the murder. Mrs. Veronica Masters the mother of the applicant Masters, gave her address as 2B Cunningham Avenue, Kingston 6. She told the jury that in June 2001 her son came to live with her because his house in Harbour View was burnt down. She testified that on the 31 st of July 2001 after her son had performed certain chores they watched cable television. She said that they were so engaged from about 6:00 p.m. to minutes after 10:00 p.m. when her son retired to his room. Her son did not leave her house that night: "because I was alone at home and my legs were giving me problem so he was there to help me". The following day her son, a cousin and herself went to Bath, St. Thomas.
The second witness was Mr. Frank Hines, a supervisor at Crimex Security Company and an ex-corporal of the Jamaica Constabulary Force. On the 10 th October 2002, he told the judge and jury that on the 9 th October, 2002 (that is the day before) he went to the entrance to the NWC's property on St. Thomas Road. He made two visits on the same day -at about 12:30 p.m. and 9:35 p.m. Mr. Williams, Counsel for the applicant, Masters, showed the witness photographs of the scene (exhibits 1 and 2) and sought to elicit from the witness details as to where the deceased body was in relation to the lighting in the area. The objection of counsel for the crown to these questions v/as upheld by the learned judge. Attempts by Mr. Equiano, counsel for the applicant Parker, to have the witness describe the locus as he saw it on the 9th October, 2002 were also successfully challenged by the Crown.
The applicant Parker gave sworn evidence and called one witness. His defence was also an alibi...
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