Separue Lee v R

• Jurisdiction: Jamaica
• Judge: McIntosh JA
• Judgment Date: 21 March 2014
• Neutral Citation: JM 2014 CA 33
• Court: Court of Appeal (Jamaica)
• Docket Number: SUPREME COURT CRIMINAL APPEAL NO 67/2011
• Date: 21 March 2014

Separue Lee

and

R

[2014] JMCA Crim 12

Before:

The Hon Mrs Justice Harris P (Ag)

The Hon Mrs Justice McIntosh JA

The Hon Ms Justice Lawrence-Beswick JA (Ag)

SUPREME COURT CRIMINAL APPEAL NO 67/2011

JAMAICA

IN THE COURT OF APPEAL

CRIMINAL LAW - Murder - Death sentence - Leave to appeal - Sentence substituted to life

Hopeton Clarke for the appellant

Jeremy Taylor for the Crown

McIntosh JA

1 On 7 July 2011, the appellant was convicted in the Circuit Court Division of the Gun Court for the parish of Clarendon, on an indictment which charged him with two counts of murder, arising from the deaths of Dwight Fraser and his wife, Joan Fraser, on 1 February 2010, in the said parish. The appellant was then transferred to the Home Circuit Court for sentencing where, after a hearing on 13 January 2012, he was sentenced in respect of each conviction, to suffer death in the manner authorized by law.

2 He appealed his convictions and sentence and after hearing submissions on 23 September 2013, we made the following order:

‘Appeal against convictions dismissed. Appeal against sentence allowed. Sentence of death is set aside on each count and substituted therefor is a sentence of life imprisonment.

It is ordered that the appellant should serve a period of 20 years consecutively on each count, before becoming eligible for parole. Sentence to commence on 13 January 2012.’

We indicated then that we would reduce the reasons for our decision into writing and we do so now.

The grounds of appeal

3 On 24 January 2012, the appellant filed five grounds with his notice of appeal. However, before us, his attorney-at-law, Mr Hopeton Clarke, abandoned all but two of the grounds with the leave of the court, arguing only grounds four and five which read as follows:

Ground 4 No case submission should have been upheld on the basis of a fleeting glance (a two second viewing of accused. Accused not well known (known for 2 ¹/₂ months).

Ground 5 The death penalty should not have been imposed for the following reasons:

• (a) “Notice” given in December by the prosecution.

• (b) Killings do not fall in the category of “rarest of the rare”.

• (c) Convict's Antecedent, History, Social Enquiry Report speak well of him; no indication that he cannot be reformed.

Ground 4 – Should the prosecution's case have been left to the jury?

4 To appreciate the arguments advanced in relation to ground four it is necessary to look briefly at the evidence adduced from the prosecution's main witness as to fact, Makalia Grant, who was 13 years old at the time of the killings and was the niece of the deceased Joan Fraser. She testified that she then resided with her aunt, her aunt's husband and their three children in Bucknor District, Clarendon. At about 6:30 on the evening of 1 February 2010, the family of six (including the witness) had returned home from a shop which her aunt operated in the district. The adults were in the kitchen while she and two of the children went to their room, leaving the third child sitting in the living room. As she was preparing to have a bath, she heard what she took to be the sound of three gunshots and saw her aunt running towards the children's room, calling on the Lord's name and being pursued by a man. When her aunt reached into the room she bounced Makalia who then fell backwards on the bed, in a sitting position.

5 The man called her aunt to come out but she refused and backed away from him. He then held her by her blouse and pulled her out of the room. At first, when he was pulling her aunt, he held his head down, as if to conceal his face, she thought, but as he pulled her out to the living room, he held up his head and, because her aunt had bent down in front of him, she was able to see his face from where she still sat on the bed. At some point after that, she went behind a settee which was near to one of two doors in the room.

6 Questioned about her ability to see the intruder that night Makalia said there was electric light in the house – in the kitchen, in the room and in the bathroom (see page 44 of the transcript). She further testified that ‘the house is bright’ and that the electric light in the room was ‘near to the door’ and was ‘right beside his face. The light shine in his face and I see his face’ (see page 79). She had seen his face for about two seconds that night, she said.

7 When her aunt was dragged from the bedroom Makalia said she heard male voices in the living room asking her aunt for money and her aunt's voice telling them that she had none. She heard other demands being made of her aunt and, after hearing the sound of about three or four more gunshots, there was silence. She emerged from her hiding place behind the settee and saw that her aunt was back in the room but she could not say how or when she got there. Blood was coming from her aunt's mouth and her face was ‘messed up’. Afterwards she saw Mr Fraser in the kitchen lying on his belly with two holes in his back which she thought were bullet holes.

8 Young Makalia further testified that she recognized the man she saw pulling her aunt out of the children's bedroom towards the living room as a man she had seen before, passing in the lane where they lived, ‘about three to four times’ before the night of the incident (pages 64–68) although she was unable to say exactly when it was that she had last seen him. When pressed however, she said it was a long time ago. That night he was wearing a white T-shirt and a cut off jeans and his hair was pulled up. She had not shared that with the police when she spoke to them after the killings that night although she had told her mother. The following morning she had seen the appellant twice, first passing with a friend and then by himself. He was wearing the same clothes and his hair was in the same condition. Prior to 1 February 2010, she had also seen the appellant, on about two occasions, at premises to the rear of her aunt's house.

9 On 13 February 2010, she attended an identification parade at the May Pen Police Station where she pointed out the appellant, in the number six position in a line-up, as the man who had killed her aunt and her aunt's husband on 1 February 2010.

10 In cross-examination she was asked about a previous statement she had made that she had seen the face of the intruder for one second as opposed to her evidence before the jury that the time was two seconds. She said she did not know what a second was then but she subsequently found out and maintained that two seconds was the correct assessment of the viewing time. She was also asked about her evidence that she had lived with her aunt for three months before the killings, as opposed to her statement to the police that it was two and a half months. This was a factor to be considered when assessing the opportunity she would have had to see the man she said was the appellant and be able to subsequently identify him. In response, Makalia said she had told the police that it was November that she started to live with her aunt and agreed that that would make the period closer to two months than three months.

11 When further cross-examined Mekalia testified that although there was nothing special about the appellant to aid her recollection of him, she definitely knew it was he who was in the house that night. She first saw him in the very month of November when she started to live with her aunt and she added that ‘sometime he in a yard behind us … Sometime he go down a him friend dem’ (see page 96). When it was suggested to her that she did not know the man well she said ‘I know him well. I saw him’ and, in answer to defence attorney's question as to why she had not disclosed her prior knowledge of him to the police that night, she said ‘[b]ecause I told my mother and my mother said to don't tell anybody “cause they will come back and kill us’ (see page 109 of the transcript). It is to be recalled that this was a child of 13 years.

12 At the close of the prosecution's case defence attorney made a no-case submission urging the court to find that the evidence adduced by the prosecution was tenuous and weak so that the appellant should not be called upon to answer the charges. Ground four was based upon the rejection of that submission.

The arguments

13 Mr Clarke contended that the purported identification of the appellant by Makalia Grant amounted to a mere fleeting glance and there was no other evidence to support it. In addition, he submitted that although the court may view this as a case of recognition of a person previously known, he urged the court to consider that the period of two and a half months would be insufficient to enable Makalia to recognize the appellant in a viewing time of two seconds. She gave no evidence of...