Ryan McLean Richard Gordon v R Christopher Counsel

• Jurisdiction: Jamaica
• Judge: Dunbar-Green JA (AG)
• Judgment Date: 21 May 2021
• Neutral Citation: [2021] JMCA Crim 21
• Docket Number: SUPREME COURT CRIMINAL APPEAL NOS 42, 43 & 81/2018
• Year: 2021
• Court: Court of Appeal (Jamaica)

Ryan McLean

Richard Gordon

Christopher Counsel

and

R

BEFORE:

THE HON Mrs Justice McDonald-Bishop JA

THE HON Miss Justice Simmons JA

THE HON Mrs Justice Dunbar-Green JA (AG)

SUPREME COURT CRIMINAL APPEAL NOS 42, 43 & 81/2018

IN THE COURT OF APPEAL

Ms Melrose G Reid instructed by Melrose G Reid & Associates for the applicants Ryan Mr McLean and Richard Gordon and the appellant Christopher Counsel

Orrett Brown for the Crown

Dunbar-Green JA (AG)

Introduction

1 On 22 March 2018, Mr Ryan McLean, also known as “Twin” and Mr Richard Gordon, also known as “Belly”, (‘the applicants’) were jointly convicted by a jury in the Saint Thomas Circuit Court for the murder of Mr Rojay Turner (‘the deceased’), otherwise called “Jay Jay”, who was killed on 11 October 2015. Mr Christopher Counsel (‘the appellant’), also known as “Cody”, who was also jointly charged for the murder, entered a change of plea to guilty on 12 March 2018, before the prosecution closed its case.

2 They were sentenced on 2 May 2018 by Beswick J. Messrs McLean and Gordon were each sentenced to life imprisonment with the stipulation that Mr McLean was ineligible for parole before serving at least 21 years and Mr Gordon was ineligible for parole before serving at least 18 years. In light of his change of plea, Mr Counsel was sentenced to 18 years' imprisonment with the stipulation that he should serve at least 10 years before he was eligible for parole.

3 All three men applied to this court for leave to appeal against their convictions and sentences. On 8 January 2020, a single judge refused the applications of Messrs McLean and Gordon on the basis that the trial judge's summation was adequate and the sentences imposed were within the normal range for such cases. Mr Counsel was granted leave to appeal against conviction and sentence. This was based on his allegation that he had received poor legal representation and was “forced to sign a plea bargain paper”. It was also determined that, although the sentence imposed may have been reasonable, the full panel was required to review it, on account of an apparent discrepancy in relation to the discount which had been applied because of the guilty plea. However, during the hearing of this appeal, with the leave of the court, the appellant abandoned his appeal against sentence.

4 Messrs McLean and Gordon renewed their applications before us for leave to appeal conviction and sentence. These applications were considered together with Mr Counsel's appeal and, on 10 December 2020, we made the following orders:

• “1. The applications of Ryan McLean and Richard Gordon for leave to appeal conviction and sentence are refused.

• 2. The sentence of each applicant is to be reckoned as having commenced on 2 May 2018.

• 3. The appeal of Christopher Counsel is dismissed.

• 4. Conviction and sentence of Christopher Counsel are affirmed.

• 5. Sentence is to be reckoned as having commenced on 2 May 2018.”

5 We indicated then that our reasons would follow. We now provide such reasons. The applicants and appellant will be referred to individually by name.

The facts

6 At about 8:30 on the morning of Sunday, 11 October 2015, Mr Robert Williams, otherwise called “Dadda” and Mr Christopher McKen, otherwise called “Chrissy”, were having a conversation with the deceased along Friendship Pen Lane in the parish of Saint Thomas when they were accosted by the applicants and the appellant, who were armed with knives. Mr Williams fled and was chased by Mr McLean whom he eluded. Mr Gordon, Mr Counsel and subsequently Mr McLean, attacked the deceased, stabbing him multiple times after which they fled the scene. The medical evidence was that the deceased succumbed to haemorrhage from multiple stab wounds to the chest, likely caused by a single blade knife.

The trial

7 Mr McKen testified that he was an eyewitness to the stabbing incident and had an unobstructed view of the applicants and the appellant. On the fateful morning, as he stood smoking weed with Mr Williams and the deceased, the applicants and the appellant approached. His back was turned to their direction so his attention was drawn to them by the deceased's instruction to him to “go fi a lass” and Williams' direction, “go fi a knife no dog”. As he looked around, he saw the applicants and the appellant with three long knives. Mr McLean chased Mr Williams and stabbed at him while Messrs Gordon and Counsel stabbed at the deceased. Mr Counsel “lean up” the deceased onto a red van which was at his (Mr McKen's) gate and started stabbing him. Mr Gordon joined in and “start to cut and stab him to”. Mr McLean, who had abandoned his chase of Mr Williams, returned and joined in stabbing the deceased. They eventually ran off in the direction of the river. Mr Williams went in hot pursuit of them and he, Mr McKen, went to assist the deceased.

8 Mr McKen gave evidence that when he first saw the applicants and the appellant, it was daytime and the sun was out. He was able to see them clearly as nothing was blocking their faces. They were some 3 feet away and side by side at that point. He then withdrew himself from the place of attack and stood closer to his gate, and from that distance of 15 to 20 feet, he witnessed the attack which lasted for about three minutes. He saw Mr Counsel's face throughout the incident and Mr Gordon's initially, for a minute, but also observed him throughout the stabbing incident. He saw Mr McLean's face for a minute then again when he returned from chasing Mr Williams and while he was stabbing the deceased.

9 Mr Williams' evidence corroborated Mr McKen's account, in part. It was similar up to the point of him being chased by Mr McLean. He testified to seeing the applicants and the appellant as they approached the location at which he, Mr McKen and the deceased were standing. He was within touching distance of Mr Mclean, who “chucked” him. He responded in like manner and Mr Mclean chased him with a knife. He had not seen the stabbing of the deceased because by then he had taken refuge inside a nearby house.

10 Mr Williams also testified that he had seen Mr McLean the night prior to the stabbing, at a close distance, for about half an hour and with the aid of streetlights. That was an encounter with Messrs McLean and Gordon, while they were in the presence of the deceased. At that time, both Mr Williams and the deceased impressed upon Mr Gordon that he needed to warn Mr Counsel about creating “war” with them over a woman. Mr Gordon, in turn, threatened to kill them.

11 The learned trial judge permitted the applicants and the appellant to be identified by witnesses whilst they were in the dock. This was objected to by counsel but the objection was not upheld. Mr McKen identified all three men in the dock. Messrs Mclean and Gordon were also pointed out in court by Mr Williams. However, at that time, Mr Counsel, who had changed his plea to guilty, was no longer in court.

12 Defence counsel objected to Mr Mclean being pointed out in the dock on the basis that there had been no indication, prior to trial, as to how he might be distinguished from his twin brother. Apparently, the information on how the men were able to distinguish between the twins was revealed during the trial and had not been recorded in their statements to the police. Defence counsel also contended that the witnesses did not know Mr McLean and had mistaken him for his twin brother who was responsible for the crime and had since died.

13 It was accepted by Messrs McKen and Williams that Mr Mclean was an identical twin but they both testified that they were able to distinguish him from his twin brother. They described Mr McLean as having a bigger build and the twin as having a scar on his face and walked with a limp. Mr McKen also testified that he had known Mr McLean for seven months prior to the incident and had seen him earlier in the same month when Mr McLean visited his aunt and mother in his (Mr McKen's) yard. Below, is part of the exchange between Crown Counsel and Mr McKen in relation to Mr McKen's previous knowledge of Mr McLean:

“Q So you also said that you saw Twin?

A Yes, Sir

Q Why you call him Twin?

A Because him have a next brother, a [sic] identical. Him have a next identical twin.

Q You say him have a next identical twin?

A Yes, Sir.

Q And you say is this Twin you see?

A Yes, Sir.

Q How you able to say is this twin you see?

A The next twin him more slimmer. Him walk and limp an him have cut in a him face a him ever…

Q Slowly. So the next twin more slimmer. Walk and limp an have cut in him face?

A Yes, Sir.

Q Have you ever spoken to this twin before?

A Yes, Sir.” (pages 129 -130 of the transcript)

14 For his part, Mr Williams testified that he had helped to care for Mr McLean's twin brother when he received a gunshot injury to the belly and had been friends with Mr Mclean, who was a daily visitor to his yard. He had known Mr Mclean and his twin since childhood and, as they got older, he and Mr Mclean would smoke and drink together. He acknowledged that Mr McLean went away for 15 years but maintained that he knew him well enough to distinguish him from his brother. He said he knew Mr McLean's face well and described it as “clean and smooth”.

15 Mr McKen gave evidence that he knew Messrs Counsel and Gordon well, prior to the incident. He knew Mr Counsel from an adjoining community and also knew his girlfriend. He would see Mr Counsel habitually at the girlfriend's gate, once or twice per week, and on occasion for the “whole day”. He had seen him at the market and in the week prior to the stabbing incident. He knew Mr Gordon as a vendor and saw him once per week, at times. He would “ketch mango fi him” and received money. He had also known Mr Gordon's baby mother.

16 Mr Williams testified that he had known Mr Gordon for some nine years prior to the incident. He had introduced Mr Gordon to his (Mr Gordon's)...