R v Myrie (Kenneth)

• Jurisdiction: Jamaica
• Judge: HARRISON, J.A:
• Judgment Date: 20 December 2004
• Neutral Citation: JM 2004 CA 53
• Judgment citation (vLex): [2004] 12 JJC 2027
• Court: Court of Appeal (Jamaica)
• Date: 20 December 2004

IN THE COURT OF APPEAL

BEFORE:

THE HON MR JUSTICE DOWNER, J.A THE HON MR JUSTICE HARRISON, J.A THE HON MR JUSTICE WALKER, J.A

R

V

KENNETH MYRIE

Charles Williams for the appellant

Lambert Johnson for the Crown

CRIMINAL LAW - Murder - Capital - Inadequate summing-up on circumstantial evidence - Unfair comments by judge - No case submission

HARRISON, J.A:

1 This is an application for leave to appeal from the conviction of the applicant on October 4, 2001, at the Home Circuit Court in the parish of Kingston of the capital murder of Albert McIntyre on February 2, 1996.

2 Having heard the arguments in this case, we treated the application for leave to appeal as the appeal. We dismissed the appeal and affirmed the conviction and sentence. These are our reasons in writing.

3 The relevant facts are that on February 2, 1996, between 5 – 6:00 p.m. the deceased, a taxi driver, was travelling in his motor car with his son Garth along Oakland Road in Kingston. Garth's car had developed some trouble and he was being transported by the deceased. The appellant and another man signalled the deceased to stop and they entered the motor car along Oakland Road. The deceased continued driving. The deceased eventually dropped off his son and drove off with the appellant and the other man in the car. Thereafter, the deceased was found to be missing.

4 At about 7:00 to 7:30 p.m. Detective Constable Thompson and Constable Bucknor, whilst at the Cross Roads Police Station, received certain information and spoke to Inspector Boyd. At 9:00 p.m. they left the police station in an unmarked police car and went to the intersection of Chisholm Avenue and Waltham Park Road, in the vicinity of a telephone booth.

5 At about 9:30 p.m. the police officers saw the appellant and another man in the vicinity of the said intersection enter a blue Cortina motor car. The police officers followed the Cortina motor car with the appellant and others to the intersection of Molynes Road and Brentford Avenue, close to the Trap Club. The appellant came out of the Cortina motor car, took a key from his pocket and both went into the white Toyota motor car of the deceased which was then parked near to the said club. The appellant started the engine of the car. The police officers then took them both from the car and searched them. One of the police officers, Def. Bucknor, took from a sheath in the appellant's waist a dagger with a tiger's head, exhibit 17, on the blade and handle of which was a film of blood. The other man also had a dagger in his waist. Det. Bucknor also took a wallet from the appellant's pocket, and took the key from the car.

6 A "smudge" of blood was found on the front section of the deceased's car near to the windshield.

7 On Sunday the 4 ^th day of February, 1996, the deceased's body was found in a quarry at Tredegar Park in the parish of St Catherine with eight stab wounds to the left chest.

8 Dr Royston Clifford, forensic pathologist, performed a post-mortem examination on the body of the deceased Albert McIntyre identified by his brother Alphanso and found eight stab wounds to the left anterior chest to a depth of 7 cm, all penetrating the left lung. Two of the wounds penetrated the heart. He said that a sharp instrument such as exhibit 17 could have caused those injuries, noting that its blade was 6" long, and varying to 1" width at its widest point. Dr Clifford also took a sample of the deceased's blood which he handed to Det. Rodgers who took it to Dr Yvonne Cruickshank, a forensic analyst. Dr Cruickshank examined the said sample and found it to be group B blood. In Jamaica, she said, using the research data in relation to the ABO system of classification of blood, the group most common is group O. Group A comprises 36% of the population and group B is represented by 4%.

9 Dr Cruickshank also said that the blood found near the windscreen of the Toyota Corolla was group B and the blood on the handle and blade of the knife, exhibit 17, was also group B. A pair of white jeans pants being worn by the appellant had human blood on the front and back of if but Dr Cruickshank was unable to group it, because of the denim material. It also had brown and earth marks and green stains thereon, the latter being consistent with contact with green vegetation. In addition, she stated that one foot of the pair of Adidas shoes being worn by the appellant had blood on it, which on examination was also of group B classification.

10 Prosecution witness Garth McIntyre, the son of the deceased testified that he saw the appellant's face at first when he was standing on the sidewalk on Oakland Road and stopped the deceased's motor car and came to the deceased's side of the motor car and asked the deceased to wait a while and went into a yard. The witness was then sitting in the front passenger's seat and he moved to the back seat. It was then "after 5:00 p.m. going to 6:00 p.m." and it was "still bright." The appellant returned and stood outside and Garth the witness was able to see the appellant's face "... for about ... up to a minute". Another man joined the appellant and the witness observed their faces whilst they stood talking. They thereafter moved to the front of the car. Both the appellant and the other man then came into the motor car. The appellant was sitting in the front passenger seat and the witness was then able to see the side of the appellant's face. They all drove in the deceased's car for a period of about fifteen minutes to the spot where his, (the witness') car had broken down. There the witness left the said car. The deceased drove off with the appellant and the other man.

11 On February 19, 1996, seventeen days after, the appellant was identified by the witness Garth McIntyre, at an identification parade conducted by one Sgt. McIntosh at the Half Way Tree Police Station, as the person who had stopped the deceased's car on Oakland Road with the other man and whom he (the witness) left in the said car, along with the deceased.

12 The additional evidence which linked the appellant to the deceased was the wallet which was taken from the pocket of the appellant by the police. The wallet was identified by the witness Garth McIntyre as that of the deceased which he would carry in his pocket. He also identified therein pieces of paper with his father's handwriting, and business cards of his father's taxi, which read:

"G & H Taxi Service Number Four."

13 Also in the said wallet were some photographs, two of which the appellant admitted were...