R v Sewell (Dave)

• Jurisdiction: Jamaica
• Judge: PANTON, J.A.(Ag.):
• Judgment Date: 30 July 1999
• Neutral Citation: JM 1999 CA 54
• Judgment citation (vLex): [1999] 7 JJC 3003
• Court: Court of Appeal (Jamaica)
• Date: 30 July 1999

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR. JUSTICE RATTRAY, P THE HON. MR. JUSTICE FORTE, J.A THE HON. MR. JUSTICE PANTON, J.A. (Ag.)

R

v

Dave Sewell

Terrence Williams

Lloyd Hibbert, Q.C. Evan Brown

CRIMINAL LAW - Murder - Death sentence - Informal identification parade - Prejudicial evidence - Failed parade directions

PANTON, J.A.(Ag.):

1 On April 6, 1998, the applicant was convicted in the Home Circuit Court for the offence of murder, and sentenced by Mrs. Justice Norma McIntosh, (acting) to suffer death in the manner authorised by law. This is an application for leave to appeal against that conviction.

2 The events that led to the trial of the applicant occurred on June 11, 1993, between 9:15 a.m. and 9:35 a.m. approximately. The deceased Errol Cann, a businessman of Spanish Town, St. Catherine was sitting in the left front seat of a motor car driven by Dorothy Shim, an employee of the deceased, along Martin Street, Spanish Town. Sitting in the back of the car was a female clerk who had a bag with over half million dollars. They were making their way to a bank.

3 Miss Shim saw a boy struggling with a cart in the middle of the road. She stopped the car. A man appeared on the road in front of the car pointing a gun in the direction of the car. Several men appeared behind the car as well as on its left side, that is, the side on which the deceased was seated. One of the men to the left had a long gun. According to David Morris, the most important witness in the case, the applicant was the man with the long gun. The applicant had taken it from a shopping bag which also had flowers in it. The applicant, according to Mr. Morris said to the deceased "P....hole, a long time you fi dead". He then fired at the deceased and ran. Blood was then seen coming from the mouth of the deceased who told Miss Shim that he had been shot in the heart and mouth. The official cause of death was a shotgun wound to the chest. The deceased had twelve pellet wounds scattered over the upper and middle interior chest, damaging the heart and left lung.

4 The applicant ran from the scene while an accomplice with gun in hand, pushed the upper part of his body into the car which by then was speeding. Eventually he fell from the car. It appears that during this period of violent activity the money in the possession of the clerk was stolen as it was missing by the time Miss Shim had driven the car to the hospital, a few minutes away.

5 David Morris, an apprentice welder who is called Cougar, and who was seventeen years old at the time of the trial, was the only witness to implicate the applicant in respect of this murder. He said that the applicant was a friend with whom he "partly" grew up in St. Catherine and who was called "Dave 18". On the night before the murder, he (Morris) said he was kidnapped by a friend named Toushan and taken to the new nursery where he remained overnight. The next morning, the applicant visited the nursery, spoke to another man named German, then left in a car. The witness (Morris) went into a van in which there was a handcart. The van was driven to Martin Street. It stopped at a palm tree. He came out; the van drove off, leaving the handcart. He was instructed by German to shove the handcart down a little more. He obeyed. German then told him to leave. He pretended that he was leaving, but went back to the palm tree instead. There he hid himself with a view to observing what was in store, as he did not know what the plan entailed. After the shooting, he left the area and went to Caymnas Park where he remained for a week. The next time that he saw the applicant was when he pointed him out in a cell at the Central Police Station.

6 The circumstances of the identification are interesting. The prosecution alleged that the applicant sought to avoid being pointed out on a formal identification parade by arranging with one Christopher Baker, a prisoner, to stand in his stead. The prosecution further alleged that in the presence of the applicant and Baker, Sgt. Hopeton Watkis who conducted the formal parade told Inspector Grant, the investigating officer, that Baker had gone on the parade in place of the applicant; whereupon Baker remarked to the applicant, "I told you it wouldn't work". In this regard the defence offered for the jury's consideration the evidence of Seymour Stewart, Attorney-at-law, who said that he watched the proceedings relating to the formal identification parade, and that the prosecution's contention was false as the applicant was very much on the parade on July 27, 1993 when the witness David Morris failed to identify him. He further said that both the applicant and Baker were on the parade, and that the applicant changed clothes with Baker. Clearly, on this issue, the jury had to decide whom to believe — David Morris, the seventeen year old apprentice welder or Seymour Stewart, the sixty nine year old with forty two years at the Bar. They chose the former.

7 When quizzed as to the reason for holding a formal identification parade, Inspector Grant said that the applicant had an alias and the police were merely trying to be sure that the person with the alias was the "said person" that the witness was "speaking about". Inspector Grant arrested the applicant on August 19, 1993.

8 The applicant, in his defence, made an unsworn statement which is a regular feature of criminal trials in Jamaica. He declared that he was "totally innocent of this terrible murder". He did not know Morris and he never grew up with him as he (the applicant) was "a big man" aged thirty two years. He said he had no previous conviction and at the time of the incident he was engaged in work at a construction site at Naggo's Head Hellshire. He had worked from minutes to eight o'clock in the morning until noon and had heard the sad news of Cann's death on the radio just before he had his lunch in the site canteen. He said that he had been on the identification parade on July 27, but had not been pointed out.

9 GROUNDS OF APPEAL

10 The applicant was given leave to argue amended grounds of appeal that were filed on March 9, 1999. These are they:

"Ground 1 — Informal Parade — Directions

The learned trial judge failed to properly direct the jury on the issues and considerations concerning the informal identification parade.

Ground II — Prejudicial Evidence Improperly Admitted

The learned trial judge wrongly admitted evidence of:

• (1) an Identification Parade Form;

• (2) comments made by a prisoner in the suspect's presence;

• (3) Investigating Officer saying whether witness Morris knew suspect Sewell before.

Ground III — Surprise Evidence by Crown

The applicant was denied a fair trial by the Crown's adducing evidence that he had at a previous trial admitted to being called by the very alias claimed by the witness Morris.

Ground IV — Failed parade Directions

The learned trial judge's directions on the failed parade and its related 'scam' were confusing, misleading and overstated."

11 It will be readily seen that with the exception of ground three, the grounds of appeal are in respect of the informal parade that was held in the applicant's cell. It is therefore appropriate to deal with grounds one, two and four in that order and then ground three.

12 GROUND 1

13 Mr. Williams, on behalf of the applicant, complained that the informal parade was unfair because of the following:

• (1) only four other men were on the parade;

• (2) there was no evidence as to any similarity in age, height, general appearance and position in life; and

• (3) the suspect was on top of a bunk along with another man.

14 He made particular reference to regulation 7–13 (iii) of the regulations published on July 29, 1939, in the Jamaica Gazette Extraordinary. To appreciate fully...