Russell Samms v R
| Jurisdiction | Jamaica |
| Judge | Brown Beckford JA (AG) |
| Judgment Date | 26 November 2021 |
| Neutral Citation | JM 2021 CA 130 |
| Docket Number | SUPREME COURT CRIMINAL APPEAL NO 40/2016 |
| Year | 2021 |
| Court | Court of Appeal (Jamaica) |
[2021] JMCA Crim 46
IN THE COURT OF APPEAL
The Hon Mr Justice F Williams JA
The Hon Miss Justice Straw JA
The Hon Mrs Justice Brown Beckford JA (AG)
SUPREME COURT CRIMINAL APPEAL NO 40/2016
Ms Jacqueline Cummings for the appellant
Mrs Lenster Lewis-Meade for the Crown
Ricardo Dove, a 12-year-old child, was killed as he lay in his bed sleeping. On 19 February 2016, the appellant, Russell Samms, was convicted for his murder after a trial by a judge sitting with a jury in the Westmoreland Circuit Court. He was sentenced on 16 April 2016 to life imprisonment with the stipulation that he serves 25 years before being eligible for parole. He applied for leave to appeal his conviction and sentence on the grounds of “misidentity” by the witness, unfair trial, lack of evidence and miscarriage of justice. His application was considered by a single judge of this court who granted leave to appeal his conviction and sentence.
At the commencement of the hearing before us, leave was granted to the appellant to abandon the original grounds of appeal dated 20 April 2016 and to argue eight supplemental grounds of appeal as follows:
“Supplemental Grounds of Appeal
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a) The discrepancies and inconsistencies in the prosecution case were so numerous and such [sic] serious in nature that the jury ought not to have convicted the Appellant for this offence.
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b) The sole eyewitness in giving evidence uttered words prejudicial to the Appellant and the Trial Judge failed to take steps to advise the jury to disregard those comments.
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c) The Learned Trial Judge in her summation to the jury misquoted some of the evidence and unnecessarily advised the jury to speculate on the evidence.
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d) The Learned Trial Judge erred when she explained the discrepancies between the eye-witness's evidence and the police were not serious enough to affect the credibility of the prosecution's case.
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e) The trial of the Appellant was seriously prejudiced by the missing scenes of crime compac[t] disc taken by the police forensic expert on the night of the incident that could have assisted the Appellant in the defence of this matter and the negligence in(sic) the police and prosecution in the handling of it and failure to produce it at the trial.
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f) The Appellant's attorney representation was insufficient as he did not conduct the trial with the skill [and] competence required and he failed to use certain evidence disclosed to him to assist the Appellant in his defence. He also failed to call evidence to support the Appellant's good character.
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g) The Trial Judge erred when she suggested to the jury that the absence of evidence of a flashlight or floodlight or means of light as it invited the jury to speculate and come to wrong conclusion.”
Although no supplemental ground of appeal in relation to sentence was identified, it was placed in the written submissions and counsel requested and was granted permission to argue as supplemental ground that the sentence is harsh and excessive having regard to all the circumstances of the case.
The Crown's case is that Mr Robert Dove, who was the main witness for the prosecution, lived in a two-bedroom house made of plywood with board around the windows. He resided with his baby-mother and three sons, including Ricardo Dove (also called “Mention”). Ricardo was 12 years old. On 7 May 2012, they all retired to bed. Robert's wife, his youngest son and himself were in one room and the other two children in another room.
He was awakened by an explosion which sounded as if it was coming from inside the house. He got up and headed towards the room where Ricardo and his other son were sleeping. On his way he heard another explosion. He called out for Mention. He heard him give a “flowy sound” as if in a deep sleep. When he got to the room, Mention was still on the bed lying on his stomach. He shook him but got no response. He turned him over onto his back and observed blood in his eye, and coming from his nose and teeth. He removed his other son from the room and went back to his room.
In his room, he looked out of the glass window. He heard three shots, then another
two which broke the glass in the window and tore the curtain. He looked through the part of the curtain that was torn and saw a man stepping backwards out of his yard with a black gun in his hand. He was able to see, as outside was lit by a 100-watt electric bulb attached to the outside of the house as well as by moonshine.
He recognised the man to be the appellant whom he knew as ‘Zazza’ and whom he had known for over 25 years. Zazza had previously lived in the same community and he had seen him earlier that day at about 3:30 in the afternoon, dressed then in the same clothes as he was in his yard.
The defence made a submission at the close of the Crown's case that the appellant not be called upon to answer, as the evidence of identification was unreliable being no more than a fleeting glance made in difficult circumstances. The submission was not upheld and the appellant was called upon to answer. The appellant gave an unsworn statement from the dock. His defence was one of alibi. He stated that at approximately 4:30 pm, he walked to his girlfriend's house where he spent a couple of hours with her and in the company of her cousins and some friends. He left there and headed home. She kept him company on the phone until he arrived home at about 8:00 in the night. He was able to stay that long on the phone as his phone plan allowed for unlimited talk and text. He did not leave his house that night. He denied killing anyone and stated that he did not own a gun.
We mean no disrespect to the erudition of counsel when we summarise the appellant's supplemental grounds of appeal into five heads which will be dealt with in the order stated.
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1. Conflicts in the evidence
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2. Incompetence of counsel
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3. Missing evidence
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4. Prejudicial evidence
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5. Errors in summation
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6. Sentence
It was submitted that the case was riddled with discrepancies and inconsistencies which undermined the reliability of the identification evidence and, as such, the matter should have been removed from the jury's consideration under the ‘guard rail’ principle. Ms Cummings, on behalf of the appellant, relied on the well-known authority of R v Galbraith [1981] 1 WLR 1039. She identified the following discrepancies and inconsistencies:
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i. The lack of forensic evidence and the evidence that blood was seen in the yard on the scene;
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ii. The difference between what the witness said about the lighting and the ability to see that night and what the police said;
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iii. The issue of how the witness was able to see the assailant and the circumstances of the viewing of the assailant;
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iv. The lack of lighting on the scene and in the circumstances that would have made identification of anyone difficult;
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v. When the witness gave his statement to the police and if he read it, or was it read over to him and that it was dated with two different dates;
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vi. The witness said he observed the assailant for five to six minutes and then later said it was for 20 seconds; and
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vii. There were blood stains outside of the house. If the deceased was killed in his bed and the police arrived on the scene and the deceased was seen still lying on his bed how did blood stains happen to be on the outside of the house.
It was also submitted that the learned trial judge erred when she explained that the discrepancies between the eyewitnesses' evidence and the police were not serious enough to affect the credibility of the prosecution's case.
Mrs Lewis-Meade, for the Crown, submitted that the case was properly left for the jury's consideration having regard to the fulsome guidance given by the learned trial judge on how to identify and treat with inconsistencies and discrepancies. The learned trial judge also directed the jury on how to treat with the issues of identification and credibility, which were the main issues arising on the evidence. Moreover, the learned trial judge identified specific conflicts in the witnesses' evidence and how to treat with them in light of the criticism made by defence counsel which they were entitled to accept.
In respect of the blood stains, counsel submitted that this was not an issue which was raised at trial as the investigating officer was not challenged in cross examination on this issue. The main issues at the trial were credibility and identification and not the absence of forensic evidence. On the issue of the varying dates on the statement, it was submitted that the jury was again properly directed on how to treat with this conflict and as the tribunal of fact would have to assess the evidence in light of the directions given by the learned trial judge.
Counsel for the Crown submitted finally that the learned trial judge gave thorough directions on identification, over several pages of the transcript. She dealt with reliability and weaknesses in the identification evidence and the credibility and reliability of the eyewitness. She also gave proper directions in keeping with R v Turnbull [1977] QB 224 (‘the Turnbull Guidelines’).
The law is clear that it is “the jury's role to decide whether the presence of inconsistencies discredits the witness and whether reliance ought to be placed on his evidence. A judge may, however, withdraw a case from a jury if the evidence is so manifestly unreliable that a jury properly directed is incapable of rendering a verdict of guilt without irrationality” (see para [10] of Andrew Stewart v R [2015] JMCA Crim 4).
In deciding on whether the case should be withdrawn from the...
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