Trevor Whyte v R Nigel Calder Allan Beecher

• Jurisdiction: Jamaica
• Judge: P Williams JA
• Judgment Date: 07 April 2017
• Neutral Citation: JM 2017 CA 43
• Docket Number: SUPREME COURT CRIMINAL APPEAL NOS 230, 231 AND 232/2003
• Court: Court of Appeal (Jamaica)
• Date: 07 April 2017

Trevor Whyte

Nigel Calder

Allan Beecher

and

R

[2017] JMCA Crim 13

Before:

THE HON Mr Justice Morrison P

THE HON Mrs Justice McDonald-Bishop JA

THE HON Miss Justice Williams JA (AG)

SUPREME COURT CRIMINAL APPEAL NOS 230, 231 AND 232/2003

IN THE COURT OF APPEAL

Criminal Appeal - Murder — Identification — Turnbull guidelines — Whether the judge adequately directed the jury — Mistaken identification — Alibi — Unsworn statements — Credibility — Whether the judge appropriately directed the jury on the issues relating to reasonable inference — Circumstantial evidence and common design — Inadequacy of summation — Whether the verdict was unsupported by evidence — Appeal against sentence — Whether the appellants' sentence should be reduced as a result of the inordinate delay — Turnbull [1976] 3 All ER 549 — Mc Greevy v DPP 1 [1973] All ER 503 — Melody Baugh-Pellinen v. R [2011] JMCA Crim 26 — R v. Finch (1916) 12 Cr App Rep 77 — R v. Nelson SCCA No 138/2000 — Dennison v. R [2014] JMCA Crim 7 — R v. Rose SCCA No 150/1997 — Gouldbourne v. R [2010] JMCA Crim 42 — Morrison v. Chairman of Parole Board and others SCCA No 24/2003.

Miss Nancy Anderson for the appellant Whyte

Robert Fletcher for the appellant Calder

Mrs Ann-Marie Feurtardo-Richards and Trevor Cuffe Jnr for the appellant Beecher

Mrs Natalie Ebanks-Miller and Miss Kamesha Campbell for the Crown

P Williams JA (AG)

Background

1 On 27 November 2003, the appellants, Messrs Trevor Whyte, Nigel Calder and Allan Beecher were each convicted for murdering Icylin Vaughan and Milton Grey on 31 August 2001. The conviction came after a trial at the Home Circuit Court before James J and a jury in which the appellants were charged on an indictment containing two counts. Each victim was the subject of one of the counts. A fourth man, Omar Creary was also charged and tried with the appellants but the jury was unable to arrive at a unanimous verdict in regards to him and his matter was set for re-trial.

2 Each of the appellants was on the same day of conviction sentenced to life imprisonment for the first count of the indictment with the judge specifying that they each serve 30 years imprisonment before being eligible for parole. On the second count, they were each sentenced to death in the manner prescribed by law.

3 Notice of appeal was received by this court on 10 December 2003 from all three men. They also at that time applied for legal aid. They each appealed against their conviction and sentence relying on identical grounds of appeal namely:

They also indicated that further grounds of appeal would be filed by “the legal aid assigned” to each of them.

• (a) Unfair trial.

• (b) Miscarriage of justice.

• (c) Fabricated evidence.

4 As was then the custom in these courts, because the death sentence had been passed, these matters came before the court as appeals, without applications for leave to appeal having been considered by a single judge. The transcript of the trial was received by this court in January 2005 and the appeal was listed to be heard on 25 July 2005.

5 In June 2005, a practice direction was issued in the Supreme Court requiring the holding of a sentence hearing whenever any person was convicted of a murder which could attract a death sentence. Cases where the sentence had been passed without the benefit of such a hearing were listed for re-sentencing. Such a hearing was therefore held for the three appellants and on 22 August 2005, a sentence of life imprisonment was imposed on each appellant with a recommendation that they each serve a period of 25 years before being eligible for parole. The sentences were deemed to have commenced from the first day on which they were sentenced, 27 November 2003.

The Appeal

6 Each appellant filed several grounds of appeal supplemental to those originally filed. Commendably, however, counsel for the appellants recognised that there was significant overlapping on the several grounds and in order to avoid repetition made a proposal that found favour with this court. The proposal was that rather than argue the grounds as raised, each counsel would make submissions on different issues which were largely identified as being the substance of the grounds. The issues were identified as being:

• “1. Identification.

• 2. Reasonable inference, circumstantial evidence, partial circumstantial evidence.

• 3. Common design.

• 4. Alibi.

• 5. Unsworn statement.

• 6. Inadequacy of summation

  • (a) Duty of Judge, Prosecution-Jury not mentioned at all;

  • (b) Burden of proof not properly explained;

  • (c) Separate counts — not mentioned at all;

  • (d) No sympathy, prejudice for accused or witness — not mentioned at all;

  • (e) Ingredients of murder-not properly explained;

  • (f) Prejudicial comment made by witness, Linval Thompson which was not dealt with by LTJ in his summation (comment about when in trouble would run away to country);

  • (g) Corroboration — mentioned and not required;

  • (h) Expert witness — not mentioned at all, and;

  • (i) Verdict- not mentioned at all;

• 7. Discrepancies.

• 8. Usurping function of jury.

• 9. Delay.”

The Case for the Prosecution

7 The offences for which the appellants were charged and convicted took place at 100 Red Hills Road, also called Hundred Lane, in the parish of Saint Andrew. The quiet of the night of 31 August 2001 was shattered at about 2:30 am by the sounds of explosions. A yard located at 100 Red Hills Road was invaded by a group of men some of whom were armed with firearms. More sounds of explosions were heard in that yard thereafter.

8 The Crown relied on one witness who related what happened that night. Mr Linval Thompson was in the house located in that yard that night with other family members in other sections. He was first awoken at about 2:30 am by the sound of the explosions coming from the direction of a lane close to the one on which he lived.

9 Upon hearing the sounds, Mr Thompson rose from his bed and looked through the metal louvre blades of his bedroom window out in to the yard. He saw nothing at that time so he returned to lying on his bed. Approximately half an hour later, he heard his dog barking in the yard. Mr Thompson looked through the window once more and saw men entering the yard.

10 With the assistance of a 100 watt light bulb to the front of the house, Mr Thompson recognised four of the men entering his yard. From a distance of between 35 and 40 feet, he saw “Thunder Cat” who was pointed out in court as being the appellant Trevor Whyte. Mr Thompson saw a small hand gun in Mr White's hand. He also saw a person he knew as Nigel or “Stepa” and identified Nigel Calder as that man. He also saw a man he called “Twelve” who he identified as being the appellant Allan Beecher. He said Twelve had something in his hand but the object was not clearly seen as Twelve had it pointing down and was moving around with it. Mr Thompson also recognised a man he knew as Rohan who was armed with a small gun.

11 Mr Thompson rolled off the bed and moved into an adjoining store room and looked through a hole in the door to look into the back of the premises. He was able to see out into this section of the yard with the assistance of another 100 watt electric light bulb located at the rear of the building. He saw some more men entered the yard. He recognised one of the men he knew as “Dinks” identified as Omar Creary.

12 Mr Thompson then heard “shots begin to fire” inside the yard so he went and hid beside some sand stored in the store room. The shooting continued for approximately five minutes. Eventually, Mr Thompson emerged from the storeroom and went out on the veranda. He noticed that the door to his mother's room was kicked off. Upon entering that room, he saw his stepfather Milton Grey lying on his back with blood coming from all over his body. Milton Grey was not moving or breathing and appeared to be dead.

13 Mr Thompson further observed that the room was “all turn up side down, everything pulled up inside there”. He looked for his mother who shared that room with his stepfather. He noticed the back door to that room was also kicked out. He went through that door in to the passage that leads outside. He eventually returned to his mother's room and looked underneath the bed. There he saw his mother lying on her back. She too appeared to be dead.

14 Detective Corporal Mark Foster was on duty at the Constant Spring Police Station at about 3:00 am on 31 August 2001 when he received a report that caused him to go to Park Lane. Whilst there he received yet another report and he thereafter went to 100 Lane. There he saw and spoke with Linval Thompson who showed him the bodies of the male and female lying on the floor in a bedroom of the premises. He was given the names of these two deceased persons.

15 Detective Corporal Foster received a report from Mr Thompson and made observations. He saw spent shells on the ground. He made contact with police control radio room and requested the presence and assistance of personnel from the Scene of Crime Unit.

16 Detective Constable David Campbell and Detective Corporal Butler were the two officers from the Scene of Crime Unit who visited the scene that morning. Detective Constable Campbell gave evidence of taking several photographs of the scene to include photographs of the bodies as well as the spent shells, damaged war heads and gunshot holes seen in different areas, mainly throughout the rooms to the front of the house. He did not take any photographs of the rear of the building.

17 Several of the photographs he had taken were admitted into evidence. The other witnesses when giving their evidence used the photographs to assist in explaining where on the premises they said certain things happened. The photographs were also used to identify the deceased persons. Mr Thompson indicated who the persons in the photographs were, namely his mother Icylin Vaughn...