R v Rohan Vidal and Kevin Thompson
| Jurisdiction | Jamaica |
| Judge | K. HARRISON, J.A : |
| Judgment Date | 25 May 2005 |
| Neutral Citation | JM 2005 CA 23 |
| Judgment citation (vLex) | [2005] 5 JJC 2505 |
| Court | Court of Appeal (Jamaica) |
| Date | 25 May 2005 |
CRIMINAL LAW - Murder - Non-capital
On the 28 th November, 2001 after a trial by jury presided over by Mrs McCalla, X, in the Home Circuit Court, the appellants Rohan Vidal and Kevin Thompson were both convicted of murder. Following their convictions, each was sentenced to a term of life imprisonment and was to serve a period of 21 years before becoming eligible for parole.
On 7th December, 2004 we dismissed their appeals, affirmed the convictions and sentences and ordered that the sentences should commence as of February 28, 2002. We promised then to put the reasons for our decision in writing at a later date and now do so.
The case for the prosecution
On the 9 th day of May, 1997 Sylvia Notice and the deceased Dexton Taylor, who is called "Fidel", among other persons were standing on a verandah underneath the A3 building complex in Majestic Gardens. The main entrance for this building leads from the roadway but there are three other ways of gaining access to the building.
Whilst Notice was talking, she heard a voice say: "Don't move". She looked in the direction of the road and saw three men coming from the roadway towards the verandah. She was able to see these men because "it was bright day". One of the three men had what appeared to be a mask covering his head so she was unable to say whom that person was. However, she recognized the other two men. They were persons she knew as "Jah Tan" and "Ugly". Ail three persons had guns in their hands pointing at the group of persons who were standing on the verandah.
Two other men came from a section that Notice described as the bottom entrance. She saw the faces of these two men and recognized both of them. They were the appellants, "Meshack"(Rohan Vidal) and "Prince" (Kevin Thompson). Each of them held a gun in his hand. Prince then pointed the gun in the direction of "Fidel" and said:
"Joe Pile", si the bwoy Fidel deh".
The five armed men surrounded Notice, "Fidel" and the other persons on the verandah and the masked man said:
"Oonu deal with him".
After the masked man spoke, Notice said there was an explosion. She further testified that after the explosion, Prince stepped forward, pointed the gun at "Fidel" and she heard another gun shot explosion. Fidel fell to the ground and Sylvia Notice who was terrified, ran directly from the verandah to Hunt's Bay Police Station where she made a report to the police.
"Fidel" died as a result of the gunshot injuries he received and warrants of arrest were prepared for the arrest of both appellants.
On the 13 th June 1997, Sylvia Notice went to Hunts Bay Police Station where she pointed out both appellants to the police. The warrants were executed then. Vidal upon being pointed out said:
"A hope oonu can come a court."
Prince made no statement.
The case for Rohan Vidal
Vidal gave evidence on his own behalf. His defence was one of an alibi. He claimed to have been at his mother's home at the time of the incident. He admitted that he lived in Majestic Gardens and that he knows Kevin Thompson. He denied however, that he was in his company along with other men when "Fidel" was shot. He also denied that he spoke the words:
"Si deh the bwoy Fidel deh".
He agreed that after he was pointed out by Notice at the station he said:
"A hope oonu can come a court".
He said he spoke these words because he knew that he was innocent.
The case for Kevin Thompson
The appellant Thompson made an un-sworn statement from the dock. He said that on the 9 th May 1997, he was talking to Sylvia Barrett in Majestic Gardens when he heard two gunshot explosions coming from a building. Two men then ran from the building with guns in their hands. A crowd gathered and he heard someone mention that "Fidel" was shot. He saw when "Fidel" was placed in a motor vehicle and taken away, and then he went home.
On the 13 th June 1997, the police took him into custody at the Hunt's Bay Police Station. He denied that he was present when the shooting took place or that he took part in any shooting on the 9 th of May.
Thompson called Sylvia Barrett as a witness and she testified that they were together on the 9 th May. She said four men armed with guns walked pass them. Shortly after they passed, two other men ran into a building and she heard gunshot explosions. After the explosions ceased she heard someone shouted that Fidel was shot.
The Grounds of Appeal
The appeal in respect of Rohan Vidal
Mr. Williams abandoned the original grounds of appeal in respect of this appellant and was granted leave to argue the under-mentioned supplemental grounds:
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1. The learned trial judge erred in law in not withdrawing the case from the jury upon the submission of no case by Counsel for the 2 nd Appellant at the end of the Crown's case which ipso facto resulted in a substantial miscarriage of justice.
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2. The verdict is unreasonable and cannot be supported having regard to the weight of the evidence.
Both grounds were dealt with together. Mr. Williams contended that the learned trial judge did not deal adequately with the issues concerning discrepancies, inconsistencies and visual identification. We will now turn our attention to these issues and deal with them.
The discrepancy and inconsistency issues
Mr, Williams argued that there is a significant number of discrepancies and inconsistencies in the evidence presented by the prosecution. Under cross-examination Notice said:
"1. Five men who were armed entered a building. Three came from one direction and two from another direction. In her written statement to the police however, she stated that all five men were seen walking on a sidewalk coming towards her. ...
3. Jah Tan was one of the three men referred to above. Under cross-examination she said he is "tail and dark" but in her written statement she describes him as one who is of "clear complexion".
4. She was standing "underneath" the A3 building when the deceased was shot. This evidence conflicted however, with her written...
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