R v Simms

• Jurisdiction: Jamaica
• Judge: Carey, J.A.
• Judgment Date: 24 September 1990
• Neutral Citation: JM 1990 CA 74
• Docket Number: No. 220 of 1989
• Date: 24 September 1990
• Court: Court of Appeal (Jamaica)

Court of Appeal

Carey, J.A.; Wright, J.A.; and Morgan, J.A.

No. 220 of 1989

Regina

and

Simms

Appearances:

Delroy Chuck & Miss Helen Birch for the applicant

Bryan Sykes & Robert Brown fore the Crown

Criminal Practice and Procedure - Application for leave to appeal — Murder — Applicant's defence was alibi — Whether the trail judge's summing up was inadequate in that he failed to meet the standard laid down in decisions by the Privy Council in R v. Reid & Ors — Finding of the Court that the trail judge did not fall into error and his summing up could not be faulted — Application was refused.

Carey, J.A.

1 On the 16 ^th November, 1988, after a trail on the 10 ^th, 11 ^th and 14 ^th days of November, this applicant was convicted for the murder of one Michael Demercado. Sentence of death was duly imposed on him.

2 The short facts in the case may be stated as follows:

3 In the early morning of April 12, 1987, the house of one Miss Carmen Hanson was invaded by three armed men. They identified themselves as “Junglists,” that is, that there were habituÉs of Concrete Jungle which is the popular name for Arnett Gardens one of the conurbations in the parish of St. Andrew. During their occupation of this lady's house, they demanded money, the proceeds of a dance which the gunmen must have thought was organized by Miss Hanson. They threatened to kill her son and she herself was brutally assaulted by these intruders. She begged them to spare her son's life and in the event she handed over some $750.00 but that did not appease their greed because they persisted in their demands for money; their threats continued and they did not abate their search for more money.

4 In the course of all this trauma, the victim who had come onto the premises called out to Miss Hanson; he used her pet name “Miss Polly”. When the intruders heard the hail, they went out and there were confronted by Michael Demercado and another man, Owen Wiggan who had accompanied the victim thither. The victim was shot by one of the intruders who was identified as being this applicant.

5 The visual identification evidence of this applicant came from two of the prosecution witnesses namely, Owen Wiggan and another man called Tyrone Wiggan who lived with Miss Hanson in that home and who all during the robbery was inside the house in another room. It was from that vantage place that he said he was able to identify the applicant whose pseudonym is “Pretty Bush”. Both Miss Hanson and Tyrone Wiggan gave evidence before the jury that all three men were masked. Nevertheless Tyrone Wiggan said that he was able to identify the applicant really because he had a slight hunch in his back. Curiously, he said that the man had a big mouth and a broad nose. It is not quite clear how he could see a big...