Vernaldo Graham v R

• Jurisdiction: Jamaica
• Judge: Edwards JA
• Judgment Date: 10 July 2017
• Neutral Citation: JM 2017 CA 25
• Docket Number: SUPREME COURT CRIMINAL APPEAL NO 52/2013
• Court: Court of Appeal (Jamaica)
• Date: 10 July 2017

[2017] JMCA Crim 30

JAMAICA

IN THE COURT OF APPEAL

SITTING IN LUCEA IN THE PARISH OF HANOVER

Before:

The Hon Mr Justice Morrison P

The Hon Mrs Justice Sinclair-Haynes JA

The Hon Miss Justice Edwards JA (AG)

SUPREME COURT CRIMINAL APPEAL NO 52/2013

Vernaldo Graham

and

R

Trevor Ho-Lyn for the appellant

Mrs Andrea Martin-Swaby for the Crown

Edwards JA (AG)

1 The appellant was convicted of the offence of murder in the Home Circuit Court on 19 June 2013, after a trial before Thompson-James J and jury and was sentenced to 30 years imprisonment at hard labour. He applied for and was subsequently granted leave to appeal his conviction and sentence by a single judge of this court. We heard arguments in his appeal on 28 and 29 November 2016, and reserved our decision.

2 The facts of this case, in brief, as far as they are relevant, are that, in the early morning of 25 March 2006, at approximately 2:30 am, Tracy Ann Morgan was shot and killed in her dwelling house situated at 60 Chisholm Avenue, Kingston, Jamaica. Two persons, Vernaldo Graham (the appellant) and Leroy Collins were charged for the offence of murder in furtherance of a burglary, and murder. Leroy Collins was acquitted.

3 The prosecution called only two witnesses, Miss Carlene Morgan and Miss Denise Morgan, who are both sisters of the deceased. However, the main witness for the prosecution was Miss Carlene Morgan, who was the only eye witness to the incident.

The case for the prosecution

4 Miss Carlene Morgan (who will be referred to hereinafter as the witness) gave evidence that at the material time, there were three bedrooms on the premises where the incident took place, which she described as a board house. Present in her bedroom at the time were her boyfriend and a four month old baby who was sleeping beside her. In the other room, which she referred to as the children's room, were her sister Tracy Ann Morgan and two young boys (both children of the witness). In the third room, was a tenant referred to in the evidence as Mark. The door to the witness' bedroom opened out into the yard and there were three electrical lights in the yard, all of which shone into her bedroom and the children's room. This was made possible as there were two glass louvre windows in her room, and one in the children's room. The lights were on at the material time.

5 Whilst asleep, the witness heard a male voice say, “Open up, open up, police, police”. Her boyfriend went towards the window and looked outside. She, however, remained on the bed and her boyfriend came back to bed and lay down. Thereafter, the door to her room was kicked open and three men all armed with firearms entered her room. She recognized two of the men, one being the appellant, whom she said she had known since attending high school but only knew his first name (the witness was 32 years of age at the time of the incident) and the other whom she said she knew as ‘Eva’ or ‘Gallis’. The third man was wearing a mask which prevented her from seeing his face. The appellant, she stated, wore a handkerchief tied around his forehead, thereby preventing her from seeing his forehead, but she claimed that she was able to see the rest of his face.

6 Whilst the men were in her room, they instructed her to, “hug up yuh man”. In complying with these instructions, she hugged her boyfriend and the baby and looked down. The appellant, she said, stood close beside her whilst the other men removed items of furniture from the room, including two television sets. The men then went over to the room where Mark lived, and pushed him into the room where the witness, the baby and her boyfriend were. They then removed items from Mark's room.

7 The appellant then kicked in a side door in the witness' room. On the other side of that door was the children's room which was adjacent to the witness' room. The appellant then instructed them to go into the children's room, and particularly that Mark and the witness' boyfriend should go under the bed in the children's room. They complied. The witness went on the children's bed with the baby lying on her stomach. Her sister Tracy Ann Morgan sat on the bed. The witness' two sons were also in the room. One was seated on the bed, and the other rested in front of the deceased Tracy Ann Morgan. Mark and the witness' boyfriend were under the bed.

8 At this time the appellant stood at the side door (which he had kicked open), whilst the co-accused Leroy Collins removed a television from the children's room, and took it into the witness' room.

9 After the co-accused removed the television, he remained in the witness' room with the man in the mask and the appellant remained at the side door. The appellant was observed to turn his head in the direction of the men and spoke to them. The witness could not hear what was said. Following this, the appellant asked for their jewellery. He then looked at Tracy Ann Morgan's foot and ‘grabbed’ an ankle bracelet which was on her foot. The appellant then asked for their mother. The witness told him she did not know where their mother was. At this time, the appellant turned and spoke to the men in the other room. Again, the witness was unable to hear what was said. The appellant then turned towards the children's room and told Tracy Ann Morgan that the men wanted sex. She responded by telling them to, “come round yah so come tek it noh”.

10 The appellant then turned and spoke to the other two men. Having done so, he then said to Tracy Ann Morgan, “Yuh deaf, you nuh hear mi seh mi fren dem want some pussy from you round de so”. Tracy Ann Morgan responded by saying, “mi noh tell yuh already say dem mus come roun here soh fi it.”

11 It was at this time that the appellant pointed the gun at Tracy Ann Morgan's left ear and shot her. He then approached the witness, placed the gun on the ‘dresser’, removed a knife from his waistband and stabbed her all over her body.

The case for the defence

12 The appellant, in his defence, made an unsworn statement from the dock in which he denied any involvement in the crime and indicated that he was in the parish of Westmoreland at the time of the incident. He further alleged that the witness had a motive for accusing him as the killer, as his (the appellant's) mother had been murdered and the person accused of the murder had threatened to have his sister-in-law accuse him, (the appellant) of murder. That person, the appellant said, had demanded that he asked his family members not to come to court to give evidence against him and that he, in turn, would cause his sister-in-law not to come to court to give evidence against the appellant for murder. The defence was therefore, one of alibi and that the witness had a motive to lie.

The grounds of appeal

13 Counsel for the applicant filed four grounds of appeal as follows:

• “1. The learned trial judge failed to deal, adequately, with specific weaknesses in the visual identification evidence and failed to address, sufficiently, the material inconsistencies that cast doubt on the reliability of the said visual identification evidence. Consequently, the learned trial judge failed to assist the jury adequately or properly and this deprived the Applicant of a fair trial and resulted in a substantial miscarriage of justice.

• 2. The learned trial judge erred in law in directing the jury as to how to treat the evidence of the Prosecution witness vis-à-vis their previous inconsistent statements or inconsistencies. This was a material misdirection particularly as the learned trial judge did not assist the jury by highlighting the weaknesses in the Crown's case due to the said inconsistencies. The Applicant was, therefore, denied a fair trial and this led to a grave miscarriage of justice.

• 3. The trial judge erred in law by failing to give adequate and appropriate directions in relation to the visual identification evidence pursuant to the principles enunciated in R v Turnbull [1977] 2 QB 224.

• 4. The directions on Alibi were inaccurate and misleading and resulted in the summing up failing to properly put the Appellant's defence to the jury resulting in a miscarriage of justice.”

Grounds 1 and 3: Weaknesses in the identification evidence and the inadequacies in the Turnbull directions

14 We found it useful to follow counsel's approach and discuss grounds 1 and 3 together as they, to a large extent, cover the same issues. Counsel for the appellant identified material areas of weakness in the evidence, which he said were inadequately dealt with by the trial judge, to wit; the appellant's scars, the voice identification and the identification parade. We will deal with each in turn.

A. The scars

Submissions

15 In highlighting the weaknesses in the identification of the appellant, counsel for the appellant pointed to the fact that the appellant had significant scarring on his face which the sole eye witness to the murder did not mention or describe to the police; although at the trial she did admit to being aware of one scar to the appellant's upper lip that ran to his cheekbone. However, she was not aware of: (a) the scars on the left side of his left eye, (b) a scar below his right eye; or (c) one below his left ear. Counsel argued that this was a significant weakness in the reliability of the identification evidence which the learned trial judge did not deal with adequately. He argued that the trial judge gave no analysis of the scarring neither did she direct the jury on how to treat with it.

16 Counsel also argued that it was clear from the evidence that the witness was prevented from seeing the assailant properly because he was wearing a handkerchief across his forehead. He submitted that the witness was the sole witness as to fact for which there was no support for the correctness of her identification of the appellant and that there was a duty on the trial judge to point out the...