Richard Crawford v R
| Jurisdiction | Jamaica |
| Judge | Morrison JA |
| Judgment Date | 30 March 2012 |
| Neutral Citation | [2012] JMCA Crim 14 |
| Docket Number | SUPREME COURT CRIMINAL APPEAL NO 68/2009 |
| Court | Court of Appeal (Jamaica) |
| Date | 30 March 2012 |
[2012] JMCA Crim 14
JAMAICA
IN THE COURT OF APPEAL
The Hon Mr Justice Morrison JA
The Hon Mr Justice Dukharan JA
The Hon Mrs Justice Mcintosh JA
SUPREME COURT CRIMINAL APPEAL NO 68/2009
Ravil Golding for the applicant
Mrs Tracy-Ann Johnson and Miss Christine Johnson for the Crown
CRIMINAL LAW - Murder - Identification evidence - Witness credibiity - Whether jury was adequately assisted on the inconsistencies in evidence - Whether sentence manifestly excessive
The applicant seeks leave to appeal against his conviction and sentence for the offence of murder in the Home Circuit Court on 20 May 2009. He was sentenced to imprisonment for life and the learned trial judge, Beckford J, stipulated that he should serve 35 years before becoming eligible for parole.
The application for leave to appeal was initially considered on paperon 29 September 2009 by a single judge of this court, who refused leave on the ground that the trial judge had dealt adequately with the issues of identification and credibility which arose in the case. The applicant has now, as he is entitled to do, renewed his application before the court itself.
The facts of the case as they emerged at the trial can be shortly stated. The deceased is Mr Ainsworth Charlton, also known as ‘Preckle’. He was shot and killed on 10 October 2004 at a dwelling house on Acacia Avenue in the parish of St Andrew and the applicant's conviction for his murder was based on the evidence of a single eyewitness, Miss Melrose Copeland.
Miss Copeland testified that at about 8:30 on the night in question the deceased, who was her very good friend, was visiting with her at her home at Acacia Avenue. She left the house, accompanied by the deceased, to summon a taxi to take her mother and her daughter, who were also visiting, to their home. When she returned with the taxi to collect them, the deceased walking behind her while talking to her, she saw two men in her yard, standing right beside the verandah, at a distance pointed out by her in court and estimated to be about 14 feet. She was able to see the men from a light on her verandah which, she said, focused into the yard close to where the men were standing. Further illumination was provided by a street light at the gate to the premises about 20 feet away from the verandah. The two men then approached her from the verandah and stepped across the gate, at a distance of about 2 feet from her while she and the deceased stood there talking still. The deceased then announced that he too and the deceased stood there talking still. The deceased then announced that he too was going home and turned towards the house, when Miss Copeland saw the two men, who were now on either side of her, “dip in dem waist” and “go up on” the deceased as he went on to the verandah. And then, she said, “I hear pure shot start fire, and I hide and looking at them”. From where she took refuge beside the taxi, she continued to observe the two men and after the shots had subsided she saw them, at this point from a distance of about 23 feet, “jump on two bicycles and ride away”. Afterwards, she observed the bleeding body of the deceased lying on the ground and he appeared to be dead. The subsequent post mortem examination revealed that the deceased had succumbed to multiple gunshot wounds to his body (a total of eight in all).
Miss Copeland identified the applicant, who was known to her as ‘Red Rat’, as one of the two men and the other as a man known to her as ‘Lussan’. Her evidence was that she had had the applicant under observation for about “ 10 or 20 minutes”while he was standing by the verandah in her yard, though she agreed in cross-examination that “the whole thing happened very quickly” and that she had spent most of the time hiding to avoid being shot herself. She nevertheless insisted that the applicant and Lussan were the men who had shot the deceased in her yard on the evening in question. Asked how long she had known the applicant before the day of the murder, Miss Copeland's answer was that “I don't really know him, I only see him, a long time”; that is, she said, “about two years”. She would usually see him every day on Friendship Lane, which was very close to Acacia Avenue, and she had last seen him face to face on the Friday before the incident, though she did not speak to him. She knew that the applicant had a child living in the area and that the child's mother's name was ‘Bev’ (the mother's name, but not the child, was disputed by the defence). In cross-examination, it was put to Miss Copeland, who agreed, that at the preliminary enquiry she had said that she had first started seeing ‘Red Rat’“earlier in 2004”. But at the trial she nevertheless maintained that she knew the applicant before 2004, and when it was suggested to her that maybe she did not know him at all, her answer was an emphatic, “Mi know him, mi know him.”
Miss Copeland did not make a report to the police immediately after the killing because, she told the court, she was afraid. But on 26 May 2005, some seven months later, after the applicant had been picked up in a police operation in the area, Miss Copeland received a telephone call from Detective Sergeant Leighton Bucknor, as a result of which she went, firstly, to the Stadium Police Station, where she gave a statement, and then to the Half-Way-Tree Police Station. There, she saw and pointed out the applicant, who was then in police custody, as ‘Red Rat’, one of the two persons who had shot and killed the deceased on 10 October 2004.
Sergeant Bucknor's evidence was that on 26 May 2005 he was a member of a team of policemen and military personnel conducting a raid on the Friendship Lane area of Kingston. Several men were taken into custody during the raid. As Corporal Bucknor escorted a group of about three of them to a waiting military truck, a lady came up to him, said something and then pointed out one of these men to him. As it turned out, according to the officer's testimony, this lady was Miss Copeland and the man she had pointed out was the applicant. The applicant identified himself to Sergeant Bucknor as “Richard Crawford otherwise called ‘Red Rat’”. Both Miss Copeland and the applicant were then taken by Sergeant Bucknor to the Stadium Police Station and handed over to other police officers there.
When he was cross examined, Sergeant Bucknor categorically denied having made contact with Miss Copeland by telephone before or on 26 May 2005; having spoken to her on that day at the Half-Way-Tree Police Station; or having seen her point out the applicant at the station on that day. He maintained that Miss Copeland had in fact pointed out the applicant to him on Friendship Lane in the circumstances he had already described. In response to a suggestion put to him, Sergeant Bucknor accepted that he had said in his police statement that, in the presence and hearing of the applicant, Miss Copeland had said to him that “…this man known to me as Red Rat and another man known as Bomb Blast shot and killed [the deceased]”. However, in cross-examination, he insisted that that was an error on his part, as Miss Copeland had not mentioned the name ‘Bomb Blast’ to him at all.
Giving sworn evidence in his defence, the applicant denied any involvement in the deceased's murder and set up an alibi, which was that at the material time he had been at his aunt's home on Friendship Lane assisting her with her cooking. He was not called ‘Red Rat’ and he did not tell Sergeant Bucknor that he was known by that name. He did not know Acacia Road and the first time he had ever seen Miss Copeland was at the Resident Magistrate's Court in Half-Way-Tree. He was, he said, being framed by Miss Copeland and Sergeant Bucknor.
The learned trial judge then summed up the case to the jury, after which the jury returned a verdict of guilty and sentence was passed on the applicant in the manner already indicated.
Mr Golding initially sought leave to argue three supplemental grounds of appeal as follows:
“1. The Learned Trial Judge did not adequately assist the jury in identifying the major discrepancies and inconsistencies contained in the evidence of the witnesses and how to deal with them thus resulting in the Applicant not receiving a fair trial.
2. The Learned Trial Judge fell into error when she directed the jury thus: “So, I can't tell you what inference you must draw. Where the evidence is capable of two interpretations I leave the two interpretations to you and you look over the whole picture and decide which one you are going to take.”…The Learned Trial Judge was thereby implying that the jury was obliged to accept one of her interpretations.
3. The sentence of life imposed on the Appellant with the recommendation that he should spend thirty-five (35) years before being eligible for parole was manifestly excessive having regard to the fact that the Appellant had at the time of sentence spent four years already in custody.”
On his feet, Mr Golding added a fourth ground, which he formulated in this way:
“The learned trial judge fell into error when she failed to direct the jury that, in the circumstances of this case an identification parade was necessary and that the absence of such a parade deprived the applicant of the advantage of an inconclusive parade.”
Leave having been granted as prayed in respect of all four supplemental grounds,Mr Golding made an omnibus submission, embracing grounds one and two and the added ground four. He referred us to the conflict between the evidence of Miss Copeland, who said that the applicant had been known before by her for two years as ‘Red Rat’, and the applicant, who denied that he was known by that name and also denied that he and the witness were previously known to each...
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