R v Vassell (Courtney)

• Jurisdiction: Jamaica
• Judge: FORTE, P:
• Judgment Date: 31 July 2001
• Neutral Citation: JM 2001 CA 48
• Judgment citation (vLex): [2001] 7 JJC 3112
• Court: Court of Appeal (Jamaica)
• Date: 31 July 2001

R.

V.

COURTNEY VASSELL

BEFORE:

THE HON. MR. JUSTICE FORTE, P THE HON. MR. JUSTICE WALKER, J.A THE HON. MR. JUSTICE LANGRIN, J.A

SUPREME COURT CRIMINAL APPEAL NO: 108/98

IN THE COURT OF APPEAL

CRIMINAL LAW - Murder - Circumstantial evidence - Appeal against conviction and sentence

Oswest Senior-Smith

Brian Sykes with Rochelle Cameron

FORTE, P:

1 The appellant was convicted in the St. Ann Circuit Court on the 21 ^st October 1998 for the murder of Rudolph Welsh committed on either the 22 ^nd or 232 ^rd September 1996. He was sentenced to life imprisonment, and an order made that he should not become eligible for parole until he has served a period of eighteen years imprisonment. Having heard arguments, over a period of two days, on the 62 ^th June 2001, we granted leave to appeal, treated the hearing of the application as the hearing of the appeal, dismissed the appeal, and affirmed the conviction and sentence. We now put in writing, our reasons for so doing.

2 The murder took place on the premises of Nembhard's Trucking in Salem in the parish of St. Ann. The deceased worked on those premises as a watchman. Mr. Sydney McKenzie, a mechanic, worked with that business enterprise and had been doing so on and off for a period of five to eight years up to the time of trial. In keeping with his custom, Mr. McKenzie arrived at those premises at 6:30 a.m. on the 23 ^rd September 1996. The deceased, Rudolph Welsh, otherwise call "Dada" was accustomed to meeting Mr. McKenzie at the gate to let him into the premises, but on this morning he was absent. Mr. McKenzie knocked loudly on the "metal sheeting gate" but there was no response. He washed his vehicle and knocked again, without success. He cleaned the inside of the van, and knocked again. On this occasion, the appellant who is also employed to Nembhard's Trucking comes to the gate. The gate was closed. Mr. McKenzie asks him for "Dada" and the appellant said "Dada" was in his room. Mr. McKenzie then proceeds to the room of the deceased, and discovers the door and louvre window closed. He knocks, and not getting a response he "prised up" the louvre window. Looking through the window, he sees "Dada." He was partly on the bed. His feet and his head were on the ground. McKenzie calls to the appellant saying "How you inside here and mek di man dead inside here, and you know him sick with asthma." The appellant ignored him, and continued on his way. Mr. McKenzie went to Mr. Noris Nembhard, his boss, and made a report to him. Mr. Nembhard returned with him to the premises. Mr. Nembhard, on seeing the appellant asked him "What happen? Where were you?" The appellant replied that he was sleeping in the truck, and that when he came in on Sunday night he saw "Dada" sitting on a stool at the doorway and he talked to him and turned off and left to the truck.

3 Later that day, Mr. Oliver Dyer, a tractor driver employed to Nembhard's Trucking, arrives on the scene, and after discussion with his colleagues he went to the rear of the building where there is a "soakaway" pit. The water in the pit was discoloured black, as it is a receptacle for the waste water from the washing of the trucks. Mr. Dyer, using a long piece of iron pipe, "fished" in the pit and took therefrom a pair of blue jeans partly burnt with belt, and a shirt. He handed over these items to the police. Those items were identified by Mr. McKenzie and Mr. Dyer as belonging to the appellant. He had last been seen wearing them on the Friday before the Monday morning when Mr. Welsh was found dead.

4 Sgt. Henry received a report that same morning and went to the premises, where in the room he saw the dead body of the deceased. There were puncture wounds to the chest, wounds to the face and a large wound to the left side of the head. There was blood in the room. There was a truck on the premises. Sgt. Henry on making observations in the truck saw what appeared to be blood on the seat - "just one spot" about three inches long and about half an inch wide. Before this the Sergeant had spoken to the appellant, asking him where he was on the previous night. The appellant replied that he had slept in the truck. On seeing the blood on the seat, he asked the appellant how blood came to be on the seat. The appellant replied "a mi teeth when deh bleed." Later that day Sgt. Henry returned to the area and in an open lot in front of Nembhard's Trucking, he found an ice-pick.

5 On the 24 ^th of September, both McKenzie and Dyer attended the Run-a-way Bay Police Station, and in the presence of the appellant identified the pants, the shirt, belt and the ice-pick as belonging to the appellant. When the articles of clothing were identified by McKenzie the appellant admitted that they were his. On identification of the ice-pick, the appellant said "Mi Trelawny." Mr. McKenzie gave evidence that he had seen when the appellant was making the ice-pick. McKenzie who is called Trelawny, testified that the appellant used some electrical welding wire in making the ice-pick. He also made the handle. When Dyer identified the articles, the appellant said "a fi mi the pants and shirt but mi nuh know the rest a things dem."

6 Dr Cruickshank, Director of the Government Police Forensic Laboratory visited the scene on the 24 ^th September. She testified that the room of the deceased appeared to have been washed but blood was present in brown drops and spray (tiny droplets) on the northern wall approximately eight centimeters from the floor. On subsequent analysis, the expert found that the blood in the room was in the Group O classification. In the same truck referred to by the police officer, Dr. Cruickshank found what she described as a pale brown stain on the driver's seat which on analysis proved to be human blood; but in her opinion, this blood could not have same from a bleeding tooth as it was a very small drop of blood, and if it had come from a human tooth she would have expected to see a mixture of saliva, and there was none. A sample of...