Reid (Michael) and Brown (Steve) v R
| Jurisdiction | Jamaica |
| Judge | BINGHAM. J.A: |
| Judgment Date | 31 July 2001 |
| Neutral Citation | JM 2001 CA 49 |
| Judgment citation (vLex) | [2001] 7 JJC 3101 |
| Court | Court of Appeal (Jamaica) |
| Date | 31 July 2001 |
CRIMINAL LAW - Murder - Cautioned statement - Duress - Common design
On October 17 1998, in the Home Circuit Court, Kingston, the applicants were convicted of the non-capital murder of Winston O'Connor committed on 17 th July 1991, in the parish of Saint Catherine. They were each sentenced to imprisonment for life. The learned trial judge also ordered that they should not become eligible for parole before serving a period of seventeen years.
Their applications for leave to appeal having been considered and refused by the single judge, this application was renewed before us. Having heard the submissions of counsel we refused the applications, affirmed the convictions and sentences and ordered that the sentences were to commence from 17 th January 1999. We promised then to put our reasons into writing and this we now do.
The Facts
In the early morning of Saturday, 6 th July 1991, the deceased Winston O'Connor, along with his wife and children were asleep in their dwelling house at Russell Pen, Treadways, Linstead, St. Catherine. Mrs O'Connor awoke about 2:00 a.m. and saw the deceased in the act of closing the door between the bedroom and the living room. After doing so, he was then seen in the act of closing the door between the children's bedroom and the living room. She then observed a man standing in the children's room with a flashlight shining towards her bedroom. She also noticed that her husband (the deceased) was now struggling with two other men. She then heard several explosions and saw her husband fall to the floor. A man dressed in a frock and holding a gun in his hand then grabbed her gold chain from off her neck. He demanded money. She attempted to escape but another man held a knife at her neck and also demanded money from her. She gave him some money that was in her husband's attache' case. The men then left the premises. Apart from her chain and the money, the men also removed a Gold Star radio, a tape deck amplifier and a video from the home. She also missed her husband's watch and his wallet. Given the prevailing circumstances, and the sudden nature of the encounter, Mrs O'Connor was unable to identify any of the intruders.
Her husband who lay mortally wounded suffering from gunshot injuries was rushed to the Linstead Public Hospital, and then later transferred to the Kingston Public Hospital. Efforts to save his life were not successful and he succumbed to his injuries on 17 th July 1991.
Following the incident on July 6 and later that day the Linstead Police visited the premises and made certain observations and commenced investigations into offences of shooting with intent, burglary and robbery with aggravation. Then following the death of Mr O'Connor on the 17 th July, the investigations were elevated for enquiries into an offence of Murder.
On 23 rd July 1991, a post mortem examination was performed on the body of Winston O'Connor by Dr Memory Stennett. The body identified to the doctor by Mrs Sharon O'Connor. Dr Stennett testified that on an external examination of the body, she found a surgical opening in the wind pipe which was made by a surgeon in an attempt to save the life of the deceased. On further examination she found three gunshot wounds. The first was on the front of the neck. It was five centimetres below the thyroid cartilage. This wound measured one centimetre in diameter. The second wound was to the back of the neck, eight centimetres below the occipital area. This wound was partially healed and 0.3 centimetre in diameter and irregular in shape. The third wound was just below the left kneecap, one centimetre in diameter and circular.
On dissection of the body she saw a swelling of the brain. Pus had collected in an area beneath the covering of the brain. On dissection of the neck there was injury to the soft tissues with a fracture to the fifth cervical vertebrae or backbone. The spinal cord in this area was necrotic, that is consisted of dead tissues. There was a five centimetres abscess behind the upper oesophagus. The bronchial tubes were red in appearance. Both lungs showed signs of bronchopneumonia. On examination of the extremities there was a ten centimetres area of haemorrhage in the soft tissues in the inner aspect of the left thigh located sixteen centimetres above the knee and a bullet was identified just below the skin. In the doctor's opinion, death was due to a bullet wound to the neck complicated by multiple sites of infection.
On 4 th August 1991, a party of policemen headed by Superintendent Lester Howell, acting on information went to Middlesex district in Saint Ann. They went first to the home of the applicant Michael Reid, who they knew before. He was seen in a bedroom to the rear of the premises lying on a bed. He was informed of the purpose of the visit by the police. He was seen with a gold chain. When questioned as to where he got the chain from he said that:
"it was over four years now that he have dis chain."
Before making the enquiry of Reid about the chain, he had been asked what his name was. To this he replied that it was Everton Mattis. On closer examination, the chain was seen to have attached to it, a gold ring which was broken. The chain matched the description of that taken from the neck of Mrs O'Connor on the night of the incident at her home.
On 6 th September 1991, Mrs O'Connor acting on a report went to the Linstead Police Station. There she identified the gold chain as hers in the presence of the applicant Michael Reid. When the chain was identified, Reid denied taking it from the O'Connor's house. He said that he had the chain for four years.
One Alburn Angus testified that the applicant Steve Brown was his nephew and also goes by the name "pusie." He also said that he knew the other applicant, Michael Reid who is called "Mike." He recalled seeing Reid on a Sunday night sometime in July 1991. Reid came to his home sometime around 1:00 o'clock in the morning. He had a radio with him. He asked Reid "where he had got the radio from?" He said that "his uncle had given it to him." He also asked Reid "where he had been the night before?" He did not answer him. Reid left the house the following day leaving the radio behind. Mrs O'Connor on her visit to the Linstead Police Station also identified the radio as the one missing from her house.
The learned trial judge in her summation gave clear directions to the jury on the law relating to recent possession. This doctrine was relied on by the Crown, in an attempt to link some articles, which were treated as property stolen from the O'Connor's home at the time of the murder, with the articles taken from Mr Angus' residence and the gold chain found in the possession of the applicant Reid. The manner in which the learned judge approached her task on this aspect of the evidence will be considered later on in this judgment.
Later on 4 th August 1991, while in the parish of Saint Ann, Superintendent Howell saw another police party with the applicant Steve Brown. He told Brown of the report of the murder of Mr O'Connor and that he was involved. Brown denied having any knowledge of it.
On 8 th August 1991, accompanied by Detective Inspector Smith, Superintendent Howell proceeded to the Linstead Police Station where he sent for Steve Brown. He cautioned him and told him that he had further information that he was present at the scene of the crime. Brown began to relate a story to him as to how the offence was committed and with whom he had gone. He then asked Brown as to whether he wished to have what he told him put into writing in the form of a statement and Brown said, "yes." He further enquired from Brown as to whether he wanted a relative or a friend to be present. Brown then said, "he did not want them to know what had happened." He was also asked whether he wished an attorney to be present and Brown said "no." He was further asked whether "he wanted to write the statement or he wanted someone to write it for him." He asked Superintendent Howell to write it as he could not write. Following the statutory caution and the request for the statement to be written (which was signed by Brown and witnessed by Inspector Smith), Brown then dictated a statement which was taken down in writing by Superintendent Howell. When he was finished, the statement was read back to Brown who signed it as true and correct and it was witnessed by Inspector Smith.
The evidence of Superintendent Howell as to the circumstances of the taking of the statement from Brown was...
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