The Queen Claimant v [1] Shervon Ramsay [2] Kurt James a.k.a. "Bertie" James [3] Eustace James a.k.a. "Boots" for Murder Defendants [ECSC]
| Jurisdiction | St Lucia |
| Judge | EDWARDS J |
| Judgment Date | 26 July 2006 |
| Judgment citation (vLex) | [2006] ECSC J0726-1 |
| Date | 26 July 2006 |
| Court | High Court (Saint Lucia) |
| Docket Number | CASE NO. SLUCR 0068, 0069, 0071 OF 2005 |
IN THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
(Criminal Division)
CASE NO. SLUCR 0068, 0069, 0071 OF 2005
Mr. L. Mondesir for Crown
Mr. J. Walter for Accused Shervon Ramsay and Kurt James
Mr. Shawn Innocent for Eustace James
There are 2 Rulings to this Judgment, which interpret Sections 100 and 102 of the Evidence Act No. 5 of 2002 (St. Lucia). The First Ruling arises from an objection taken during the trial on the 24 th July 2006 concerning the police officer's explanation as to why an identification parade for one of the accused was not held. The second Ruling relates to the No Case and other Submissions at the end of the prosecution's case. The Judgment is arranged in the following sections:
| FACTS - | PARAGRAPHS 1–19 |
| SECTION 100 OF THE ACT - | PARAGRAPHS 20–21 |
| THE LAW BEFORE NOVEMBER 2005 - | PARAGRAPHS 22–34 |
| CONCLUSIONS - | PARAGRAPHS 34–39 |
| THE GALBRAITH TEST - | PARAGRAPHS 41–54 |
| THE TURNBULL TEST - | PARAGRAPHS 55–58 |
| RECONCILIATION OF GALBRAITH AND TURNBULL PRINCIPLES - | PARAGRAPH 59 |
| CONCLUSIONS BASED ON COMMON LAW - | PARAGRAPHS 60–62 |
| STATUTORY STANDARD OF PROOF FOR IDENTIFICATION EVIDENCE IN SECTION 102 OF THE ACT - | PARAGRAPHS 63 |
| SUBMISSIONS - | PARAGRAPHS 64–69 |
| THE MEANING OF SECTION 102 - | PARAGRAPHS 70–78 |
| THE EFFECT OF SECTION 102 - | PARAGRAPHS 79–91 |
The 3 Accused are being tried on an Indictment for murder of Bryan St. Clair allegedly committed by them on the 30 th April, 2003 at Marchand (St. Lucia). They were arraigned on the 24 th July 2006.
The sole eyewitness Terry Alfred testified that he has known the 3 Accused from they were little boys growing up in the Marchand Boulevard area. All of the Accused are in their early twenties. Mr. Alfred is 31 years old.
His evidence was that he is a Rastafarian, and marijuana vendor, and he sells Marijuana by the Black Mallet Gap opposite the New Tronics Repair Shop.
On the 30 th April he was sitting on the steps of the New Tronics Shop at about 8:45 am, reasoning with his 'bretheren' Bryan St. Clair (deceased), when the 3 Accused came together from a gate by the side of the New Tronics building. His evidence was that the 3 Accused were in a line, one behind the other with "Boots" in front, Ramsay behind "Boots", and Kurt behind Ramsay. 'Boots' was armed with a handgun appearing to be either a .357 spin barrel or a .38 special. He was carrying it down in his hand.
The Accused Shervon Ramsay had a Tech 9 he said, and he did not see Kurt James with anything. The 3 Accused turned to face the witness and the deceased, and at a distance of about 12 feet from witness and the deceased, Mr. Alfred had a quick glance at them and saw their faces. Shervon Ramsay began firing the Tech 9 at Mr. Alfred and the deceased.
There was a burst of shots, 7 or 8 shots, during which Mr. Alfred got hit, moved from the steps and threw himself face down on the ground and lay there for about 5 seconds pretending to be dead.
Upon getting up eventually from the ground after the shots had stopped bursting, he did not see the 3 Accused, and he discovered that he had been shot once in his belly and 3 times in his back.
He noticed the deceased lying lifeless in the gutter by the step, bleeding. He sought assistance from a motorist on Marchand Road who took him to the Victoria Hospital, there, he was admitted for 1 1/2 weeks.
Police Constable Linus George who was at the Criminal Investigations Department (CID) at Police Headquarters, received a report at about 8:45 a.m. about the shooting. He arrived at the crime scene about 9:00 am. With the assistance of other police officers he cordoned off the crime scene and the police recovered 8 spent cartridge cases and 4 copper projectiles at various points on the crime scene.
On his subsequent arrival at the Victoria Hospital that same day, he visited the Mortuary, and saw the body of the deceased. On the 1 st May, 2003 he spoke to Mr. Terry Alfred in Ward 9 at the Hospital. Mr. Alfred give him the names of the 3 Accused in a written statement that day. Mr. Alfred gave no description of the three Accused to the police, or what they were wearing on the 30 th April, 2003 when the shooting took place.
On the 1 st May, 2003 he executed a Search Warrant and arrested Accused Kurt James at Peter Baptiste's premises at Rock Hall. On the 5 th May, 2003 the police detained Accused Shervon Ramsay. Constable George executed 2 search warrants at Moses Rismay and Shermain Ramsay's premises on the 6 th and 7 th May respectively, and nothing was found. He testified that he was searching for a firearm and a mask, after viewing the Police Statements of 2 witnesses Adolphus Purlogne and Tony Cyril.
On the 16 th October, 2003 Accused Eustace James was arrested for murder on Warrant 2097/2003.
On 24 th March, 2004 Accused Kurt James who apparently had been released between the 1 st May, 2003 and 19 th May, 2003 was re-arrested on a warrant and charged with murder.
There is no evidence as to exactly what Police Constable George told each Accused when he arrested them. The warrants were not tendered as Exhibits. Constable George testified that Eustace James denied being on scene at Marchand Road on the 30 th April, 2003.
Constable George testified under cross-examination that he did not conduct or arrange for an identification parade in respect of Accused Kurt James. There was a confrontation between the Accused Ramsay and Mr. Alfred on the 26 th May, 2004 before ASP Gregory Montoute. Mr. Alfred identified Ramsay as the "Shervon" who he had said in his statement had shot him at Marchand on the 30 th April, 2003. ASP Montoute testified that Shervon Ramsay said after caution — "Officer I never shot Terry, I never had any problems with that man."
Learned Counsel Mr. Mondesir attempted on re-examination to elicit from Constable George, the reason why he did not conduct an identification parade for Kurt James.
Learned Counsel Mr. Walter objected to this evidence being adduced with assistance from Learned Counsel Mr. Innocent. Having upheld the objection with an oral ruling, I promised to elaborate on my ruling in writing for future guidance, subject of course to appellate correction.
Both Counsel relied on the Judicial statement of Lord Carswell in the recent Privy Council decision: Garnett Edwards v The Queen Privy Council Appeal No. 29 of 2005 UUPC/2006/23 (Jamaica) delivered 25 th April 2006.
At paragraph 23 of this judgment Lord Carswell opined — "[The police witness ] … was wrongly allowed to give evidence on a couple of matters. He should not have given his opinion on the need for an identification parade; and again the Judge should have prevented it or at least directed the jury that his opinion on the point is irrelevant and should be disregarded."
In Jamaica there is no statutory provision comparable to Section 100 of our Evidence Act No. 5 of 2002 which states —
"100 — (1) Identification evidence adduced by the prosecutor is not admissible evidence unless —
(a) either —
(i) an identification parade that included the defendant was held before the identification was made; or
(ii) it would not have been reasonable to have held an identification parade and subsection (5) applies; and
(b) the identification was made without the person who made it having been intentionally influenced to make it.
(2) Without limiting subsection (1), the matters to be taken into account in determining whether it was reasonable to hold an identification parade as mentioned in that subsection include -
(a) the kind of offence and the gravity of the offence concerned;
(b) the importance of the evidence;
(c) the practicality of holding such an identification parade having regard, among other things —
(i) to whether the defendant refused to co-operate in the conduct of the parade, and to the manner and extent of and the reason, if any, for, the refusal; and
(ii) in any case, to whether identification was made at or about the time of the commission of the relevant offence; and
(d) the appropriateness of holding such an identification parade, having regard, among other things, to the relationship, if any, between the defendant and the other person who made the identification.
(3) Where —
(a) the defendant refused to co-operate in the conduct of an identification parade unless an Attorney-at-Law acting for him or her was present while it was being held; and
(b) there were, at the time when the identification parade was to have been conducted, reasonable grounds to believe that it was not reasonably practicable for such Attorney-at-Law to be present;
it shall be presumed that it would not have been reasonable to have held an identification parade at that time.
(4) In determining whether it was reasonable to have held an identification parade, the Court shall not take into account the availability of pictures that could be used in making identifications.
(5) Where it would not have been reasonable for an identification parade to be held and a group identification, video film identification or in the case where neither was practicable; a confrontation was held, the identification evidence is admissible.
The judicial statement of Lord Carswell in Garnett Edwards ought not to be unreservedly applied in St. Lucia in my opinion, without having regard to Section 100 of the Evidence Act, particularly Section 100 (2) (c).
...
To continue reading
Request your trial