Ryan Palmer and Ricardo Dewar v R

• Jurisdiction: Jamaica
• Judge: Phillips JA,Brooks JA
• Judgment Date: 13 June 2014
• Neutral Citation: JM 2014 CA 57
• Court: Court of Appeal (Jamaica)
• Docket Number: CRIMINAL APPEAL NOS 112/2010 and 40/2011
• Date: 13 June 2014

[2014] JMCA Crim 27

JAMAICA

IN THE COURT OF APPEAL SUPREME COURT

Before:

The Hon Miss Justice Phillips JA

The Hon Mr Justice Brooks JA

The Hon Ms Justice Lawrence-Beswick JA (Ag)

CRIMINAL APPEAL NOS 112/2010 and 40/2011

Ryan Palmer

Ricardo Dewar

and

R

Ms Jacqueline Cummings for the applicant Ryan Palmer

Delano Harrison QC for the applicant Ricardo Dewar

Miss Sascha-Marie Smith for the Crown

CRIMINAL LAW - Robbery - Incorrect identification by witness - Lack of evidence - Unfair trial - Miscarriage of justice

Phillips JA

1 I have read, in draft, the judgment of my brother Brooks JA. I agree with his reasoning and conclusion and have nothing to add.

Brooks JA

2 On 15 May 2009 at about 5:00 pm, three men, Messrs Garfield Lowver, Lorenzo Burke and Orville Duncan were in an office at Mr Lowver's business place, at Bog Walk, in the parish of Saint Catherine, arranging pay packages for Mr Lowver's employees. Their work was interrupted when two men, one wearing a ski-mask and brandishing a gun, entered the office. The man without the mask started ‘grabbing up’ the money from the table at which Mr Lowver and the others were working. The intruders were, however, not going to have an easy time in their mission. Mr Duncan held on to the man who was taking the money and they started to wrestle. Mr Lowver grappled the man with the gun. Mr Burke ran out of the office and armed himself with a stone, which he used to hit the man without the mask, who had, by then, freed himself from Mr Duncan's grasp and was running away. That man made good his escape. He, however, managed to take $50,000.00 of the money with him.

3 Meanwhile, Mr Duncan had joined in Mr Lowver's struggle with the masked man, who was dressed in black. The struggle had taken them outside of the office. During that struggle Mr Lowver managed to remove the mask and take the firearm from the miscreant. Mr Lowver was momentarily distracted, however, and the culprit wrested himself free and fled. He also escaped, but was obliged to leave the gun behind.

4 On the prosecution's case, their freedom was short-lived. This is because both had been recognised by their victims, as people who were known to them before. Within minutes, the police, having received a report of the robbery, saw them together in a nearby community and chased them. The officers caught one. He was, again just minutes later, identified by Mr Lowver as being one of the robbers, specifically the one who had been armed with the gun. He is the applicant Mr Ryan Palmer.

5 Two months later, Mr Burke pointed out the other man, the applicant Mr Ricardo Dewar, on an identification parade. He had known him for two years before the day of the robbery and, during that time, would see him daily.

6 At their trial before Marsh J in the High Court Division of the Gun Court, both men denied involvement with the robbery. Mr Palmer said that he was at home when the police came there and took him to the police station, where they beat him and then detained him. He said that, when asked, he told the police that he had known both Mr Burke and Mr Lowver before.

7 Both applicants were convicted on 21 October 2010 for the offences of illegal possession of firearm and robbery with aggravation. They were each sentenced on 22 October 2010 to 10 years and 12 years imprisonment for the respective offences. Mr Palmer was also convicted for the offence of illegal possession of ammunition, with which the firearm, taken by Mr Lowver, had been loaded. He was sentenced to three years imprisonment for that offence.

8 When their applications came on before this court, Mr Harrison QC candidly acknowledged that Mr Burke's identification of Mr Dewar was ‘ample and quite compelling’. Learned Queen's Counsel submitted that the convictions and sentences in respect of Mr Dewar were unassailable. We completely agree.

9 Ms Cummings, appearing for Mr Palmer, argued that the same could not be said of his conviction. She submitted that Mr Lowver's claimed prior knowledge of Mr Palmer was tenuous and his opportunity to see his attacker was beset with difficulty. She argued that the learned trial judge, Marsh J, was therefore wrong in finding that the prosecution had discharged its burden of proof in respect of the identity of the masked robber.

The grounds of appeal

10 Ms Cummings argued four grounds of appeal that Mr Palmer had filed with his application for leave to appeal. They are:

• ‘(a) Misidentify [sic] by the Witness : — that the prosecution witnesses wrongfully identified me as the person or among any persons, who committed the alleged crime.

• (b) Lack of Evidence : — that the prosecution failed to put forwards [sic] any material, or scientific, evidence to link me to the alleged crime.

• (c) Unfair Trial : — that the Court failed to recognized [sic] that I was wrongfully arrested for no apparent justificable [sic] reason and was charge [sic] for a crime I knew nothing about.

• (d) Miscarriage of Justice : — that the prosecution failed to recognized [sic] the fact that I had nothing to do with the alleged crime for which I wrongfully convicted of [sic].’ (Emphasis as in original)

These issues will be considered individually.

Identification by Mr Lowver

11 Ms Cummings relied, as did defence counsel at the trial, on the principle stated in R v Turnbull [1976] 3 WLR 445 and [1976] 3 All ER 549, that where the quality of the identification evidence is poor, such as when it is as a result of a fleeting glance or a longer observation in difficult circumstances, the trial judge should withdraw the case from the tribunal of fact. Ms Cummings submitted that the evidence revealed that Mr Lowver's observation, unsupported by any other evidence, was not only a fleeting glance, but was one made in difficult circumstances. She argued that Mr Palmer, therefore, ought not to have been convicted.

12 Learned counsel pointed out the following difficulties with the prosecution's case against Mr Palmer. She referred to Mr Lowver's evidence in this regard, and pointed out that he said that he had seen the attacker's face for two to five seconds. This observation was made during the time that there was still a struggle going on, at least between Mr Duncan and the robber. Ms Cummings also pointed out that the prosecution did not adduce any evidence of the lighting conditions at the time of the observation of the robber's face. Although it was 5:00 pm, she said, it was not identified whether the mask was removed inside the office or outside and there was no evidence as to the lighting inside the office at the time.

13 Ms Cummings submitted that other evidence also cast doubt on Mr Lowver's purported identification of Mr Palmer. She pointed out that when Mr Lowver made his report at the police station, he did not, at that time, identify the person who had robbed him. Although he claimed to have known the names of Mr Palmer's family members, including his mother ‘Peaches’, he did not tell the police any of those details. He did not give any indication that he knew that robber before. Instead, according to Sergeant Sebert Nelson, who had received the complaint of the robbery, Mr Lowver gave the police the name of ‘Ricardo Dewar o/c [otherwise called] “Ricky” of Pineapple Settlement in Bog Walk’ (page 65 of the transcript). Yet it was Mr Lowver's evidence that he did not take any notice of the second man and so was unable to give any information about that man from his own knowledge and observation.

14 In addition to that cloud over Mr Lowver's purported identification of Mr Palmer, learned counsel submitted, it seems patent that what occurred at the police station was a clear case of improper confrontation. She pointed to the fact that Sergeant Nelson, having received the report of the robbery, left the police station in search of the robbers, and left Mr Lowver at the station. Having taken Mr Palmer into custody, and having no indication that Mr Lowver would have known Mr Palmer before, Sergeant Nelson made no effort to isolate Mr Palmer from being seen by Mr Lowver. He took Mr Palmer into the police station's guard room where Mr Lowver is said to have pointed out Mr Palmer as one of the robbers.

15 That confrontation, Ms Cummings submitted, was unlike that in R v Trevor Dennis (1970) 12 JLR 249, where the suspect was apprehended close by and brought back to the complainant's home within 30 minutes of the commission of the offence. Ms Cummings sought to distinguish Dennis on the bases of the length of time between the commission of the offence and the later confrontation, and on the location at which the confrontation occurred. Learned counsel submitted that the confrontation identification at the police station in this case, ought not to be relied upon. She relied, in support of her submissions on this aspect, on a number of cases, including Noel Williams v R (1997) 51 WIR 202, R v Gilbert (1964) 7 WIR 53 and R v Cargill (1987) 24 JLR 217.

16 Other cases relied upon by Ms Cummings on the issue of identification were Daley v R [1993] 4 All ER 86 and R v Omar Powell and Another SCCA Nos 18 and 19/2001 (delivered 11 November 2003).

17 Miss Smith, in response to those submissions, contended that this was not a case of a fleeting glance. She submitted that it was an identification made in adequate circumstances that would render it reliable. Learned counsel pointed to the evidence that Mr Lowver knew Mr Palmer before and that Mr Palmer had also admitted knowing Mr Lowver before. She pointed out that Mr Palmer stated that he lived in Bog Walk and argued that that is in the same area that Mr Lowver has his business place. In addition, Miss Smith argued, Sergeant Nelson testified that when he went in search of the robbers, he saw Messrs Palmer and Dewar together as the only two adult males in a group of people...