Sheldon Anderson and Another v R
| Jurisdiction | Jamaica |
| Judge | Lawrence-Beswick JA (Ag) |
| Judgment Date | 12 December 2013 |
| Neutral Citation | JM 2013 CA 129,[2013] JMCA Crim 56 |
| Docket Number | SUPREME COURT CRIMINAL APPEAL NOS 8 & 10/2010 |
| Court | Court of Appeal (Jamaica) |
| Date | 12 December 2013 |
[2013] JMCA Crim 56
JAMAICA
IN THE COURT OF APPEAL
The Hon Mr Justice Panton P
The Hon Mr Justice Morrison JA
The Hon Ms Justice Lawrence-Beswick JA (Ag)
SUPREME COURT CRIMINAL APPEAL NOS 8 & 10/2010
Ronald Paris for the applicant Sheldon Anderson
Chumu Paris for the applicant John Morris
Adley Duncan and Miss Sophia Thomas for the Crown
CRIMINAL LAW - Murder - Life imprisonment - Weakness in identification evidence - Lack of evidence - Alibi - Identification parade - Restriction of fross examination
The applicants, Sheldon Anderson and John Morris were charged jointly for the murder of Mr Afflick Turner. They were tried by a judge and jury in the Home Circuit Court from 30 November to 4 December 2009 and were each found guilty of the offence. On 16 December 2009, each was sentenced to life imprisonment, to serve 20 years before being eligible for parole. They applied for leave to appeal the convictions and sentences and on 4 November 2011, a single judge refused leave to appeal. They renewed their applications before this court and on 31 May 2013, we refused those renewed applications and ordered the sentences to run from 16 March 2010. These are the reasons for that decision.
The case presented by the prosecution was that on 20 April 2007, Mr Afflick Turner, now deceased, was walking along the Pinto main road in Pinto District, St Andrew, when he was approached from behind by the applicants, each armed with a firearm. They called him by name and he turned around and faced them, at which time both applicants fired shots at him. Mr Turner ran and the applicants pursued him. There were several more explosions thereafter.
Mr Mark Nelson testified that he had witnessed this encounter in the early morning at about 6:00 a.m. whilst he was sitting on a culvert at his gate. He had seen the applicants emerge from a lane and look up the road in the direction of the deceased, just before shooting at him. When the shots were being fired he, Mr Nelson, ran to his yard. Corporal George Roye testified that later that day at about 8 a.m. he saw Mr Turner's body, appearing to be dead, lying in the bushes in Pinto District. It had what appeared to be a gunshot wound to its head.
There was no evidence as to how the applicants came to be in custody but the witness, Mr Mark Nelson, knew both applicants from before and identified each of them at an identification parade. Both applicants denied having played any part in Mr Afflick's death and denied having been at the scene of the incident. Cross-examination elicited evidence that the applicant Morris had told the police that he and the witness had had a fight eight years before the incident. That was not explored further by the defence and there was additional evidence that the applicant Morris and the witness would ‘hail’ each other in the community and that they were friends (page 89 of transcript). Whilst they were deliberating on the verdict, the jury returned to the courtroom and indicated that they had not reached a unanimous verdict. They asked the learned trial judge particular questions. She responded and thereafter they retired again and eventually returned with a unanimous verdict.
Mr Ronald Paris on behalf of the applicant Anderson argued the four original grounds of appeal filed on 23 December 2009 and we gave him leave to argue 10 supplemental grounds which had been filed on 21 November 2012. These 14 grounds can be summarized into eight categories:-Category one — Weakness in identification of Sheldon Anderson.
The first original ground was that the prosecution's witness wrongly identified Sheldon Anderson as the person or as being among any person who committed the alleged crime. The first of the supplemental grounds also concerned identification and stated that the learned trial judge ‘failed to analyze, remind and put before the jury the specific weaknesses in the identification evidence adduced during the trial against the applicant, Sheldon Anderson so as to assist the jury in assessing and weighing carefully the strength of that evidence in arriving at their verdict’.
Mr Paris submitted that the eye-witness had not been consistent about the time in which he viewed Mr Anderson. At first, he had said the time was one to three minutes but in cross-examination he maintained that it was one minute. Further, there was no evidence to show what the witness meant by one minute. He also argued that the distance demonstrated by the witness from which he identified applicant Anderson, appeared to be different at the preliminary enquiry, from the distance he said at the trial and it was the prosecutor in fact who eventually suggested the distance. Counsel acknowledged however, that the jury would have seen the distance pointed out by the witness but he regarded the learned trial judge's directions as unhelpful in this regard. Counsel for the Crown responded that the issue of the precise timing for identification purposes was irrelevant. The defence was not that identification was mistaken, but rather, that because of malice, the witness had incorrectly stated that the applicants were the killers.
The second original ground of appeal was that the prosecution failed to present any form of material, scientific or ballistic evidence to link the applicant Anderson to the alleged crime. The third of the original grounds of appeal was that there was a lack of facts and credibility thus rendering the verdict unsafe in the circumstances. Although Mr Paris had stated that he was relying on these grounds, he did not expand on them except to argue that the learned trial judge had failed to address the omission in the evidence as to how and when both applicants had been apprehended. The approach of counsel was no surprise as all the pertinent evidence had been fairly placed before the jury. Further, there was never any challenge as to the apprehension of the applicants.
The final of the four original grounds filed was that: “I was misdirected by my attorney-at-law, in respect to my alibi, to confirm [sic] my innocence”. This complaint was unclear but seemed to involve a perceived failing of the applicant's attorney-at-law at the trial, concerning an alibi. This too was not pursued, although counsel had stated that he was relying on all the original grounds. The meritorious directions on the manner in which the jury should treat with the alibi evidence (pages 289 —290 of the transcript) could withstand any challenge, albeit the learned trial judge had omitted them from her initial directions and had called the jury back into the court room from their retirement, in order to give them the additional directions.
The second supplemental ground of appeal concerned the fairness of the identification parade. It stated, inter alia, that: ‘The learned trial judge failed to state the law correctly to the jury with respect to the ability of the applicant to choose the men on the identification parade and to absolve the Sergeant in charge of the parade from any responsibility to ensure that the parade was conducted with fairness’. Mr Paris submitted that the procedure for the identification parade in which applicant Anderson was identified, was wrong. There had been an earlier identification parade for the co-accused Morris and some of the persons had been in both parades. This, he said, resulted in an unfair parade. [Although applicant Anderson was represented by an attorney-at-law at the parade, there had been no protest at the time. Mr Paris' submission was that counsel has no duty to protest while the parade is being conducted or to interfere with the manner in which it was conducted.] Counsel for the Crown, on the other hand, submitted that the identification parade was fair because its purpose was to connect the names of the persons whom the witness had stated were the killers, with the actual persons who were in custody, both of whom he had known from before the date of the incident. In any event, the applicants were represented by attorneys-at-law at the parade and they had a duty to protest any unacceptable situation at the parades. The Crown submitted that it was uncontroverted that the applicant Anderson had himself selected the men who stood on his parade.
The third supplemental ground of appeal concerned restrictions placed by the learned trial judge on the cross-examination by defence counsel. It stated that the learned trial judge unfairly restricted defence counsel's use of an exhibited photograph of the culvert on which Mark Nelson had sat and by so doing “denied counsel the opportunity of exploring the additional relevant geographical and physical features of the crime scene visibly represented in the exhibit”. Counsel for the Crown submitted that defence counsel could not use the photograph which was exhibited to ask other questions about the general geographical area because it had been admitted into evidence specifically to show the location of the culvert from where the witness said he had observed the incident he had described (pages 128 —130 of the transcript).
The fourth supplemental ground of appeal also concerned the judge's restriction on cross-examination. It stated that the learned trial judge improperly and unfairly stopped defence counsel from ‘pursuing a legitimate line of cross-examination of Mark Nelson to establish the fact that the last time the witness saw Afflick Turner … he was alive and running and had not been shot. There being no evidence from Mark Nelson as...
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