Omar Grieves v The Queen
| Jurisdiction | UK Non-devolved |
| Judge | SIR ROGER TOULSON |
| Judgment Date | 20 October 2011 |
| Neutral Citation | [2011] UKPC 39 |
| Date | 20 October 2011 |
| Docket Number | Appeal No 0025 of 2010 |
| Court | Privy Council |
and others
[2011] UKPC 39
Lord Brown
Lord Mance
Lord Dyson
Sir Roger Toulson
Sir Paul Girvan
Privy Council
Appellant
Michael Birnbaum QC
Stuart Biggs
Natalie Roberts
(Instructed by Lawrence Graham LLP)
Respondent
Tom Poole
Ms Meridiane Kohler
(Instructed by Charles Russell LLP)
On 21 June 2002 at the Circuit Court Division of the Gun Court in Kingston (Mrs H Harris J and a jury), the appellants were convicted of the murder of Lancelot Todd on 30 December 1996. They had been convicted at an earlier trial together with a fifth man, Dwayne Larmond, but their convictions were quashed on appeal, and a retrial of the appellants (but not Dwayne Larmond) was ordered. They appealed against their convictions on the retrial to the Court of Criminal Appeal of Jamaica (Walker and Cooke JA and Harrison JA (Ag)). On 30 July 2004 their appeals were dismissed by a majority, Cooke JA dissenting. They now appeal with leave granted on 21 July 2010. The interval of six years between the dismissal of their appeals by the Court of Criminal Appeal and the grant of leave to appeal to the Board was explained by Mr Michael Birnbaum QC, who has appeared on their behalf. In short, the review of the case and preparation of the appeal were carried out pro bono, and the resources available for such work are small in comparison with the demand for them.
The case against the appellants rested on the identification evidence of two witnesses, namely the deceased's brother, Andrew Todd, and a police officer, Detective Sergeant Reynolds. Their appeals to the Court of Criminal Appeal were advanced on a number of grounds, most of which were rejected by all members of the court. The grounds on which Cooke JA would have allowed the appeals were that the trial judge failed to give adequate directions to the jury about inconsistencies or possible inconsistencies a) between the evidence of Andrew Todd and the ballistics evidence, and b) between the evidence of Todd and that of Reynolds. Those are the main grounds, but not the only grounds, which have been advanced by Mr Birnbaum on the present appeals.
The deceased was shot dead between about 2.30 and 3 pm on 30 December 1996 in Barry Street, Kingston, near to Gold Street Police Station. He was killed by a single bullet which entered the back left side of his neck. The police station is on the corner of Gold Street and Barry Street. The front entrance is on Gold Street and there is a rear exit to Barry Street.
Gold Street runs north to south and Barry Street runs east to west. Travelling east along Barry Street from the junction with Gold Street, the next streets parallel with Gold Street are Foster Lane, High Holborn Street and Ladd Lane.
Todd's evidence was that he was standing at the junction of High Holborn Street and Barry Street, talking to a friend, when the deceased walked past in the direction of Gold Street. As the deceased passed the junction of Barry Street and Foster Lane, a group of about six men came from Foster Lane into Barry Street with guns in their hands. They crossed Barry Street and one shot his brother in the back of the head. He said that in the group he recognised "Gummy", "Silly Bread", "Dubba" and "Buddy Roy". Those are the street names, respectively, of the appellants Hanse, Grieves, Peterkin and Larmond. He said that he had known each of them for some years and he saw their faces for what he estimated to be eight seconds. He identified Gummy as the person who fired the shot which struck his brother in the head. When asked in chief if he could remember what kind of guns the men were carrying, he said that it was a long time ago and he did not remember what type of guns they had. In cross examination he said that the man who was closest to his brother had a Mack 11 and that one of the men had a .38 (revolver). His description of the shooting was that one of the men (Gummy) went across the road to his brother and fired several shots. The others stopped in the middle of Barry Street but then also started to fire. He could not remember whether the man closest to his brother was holding his gun in his right or his left hand. He agreed in cross examination that on a previous occasion he had said that Silly Bread (Grieves), Dubba (Peterkin), Buddy Roy (Paul Larmond) and Dwayne Larmond had 9mm pistols.
Todd said that on being shot his brother fell to the ground. The attackers then ran away up Foster Lane and he rushed over to his brother, who was lying face down. He turned him over, could see that he was struggling and ran to fetch his mother. They lived in Ladd Lane. He heard what he described as a "gun salute" behind him. When he returned, his brother was being put into a police jeep which drove away. There was a crowd and he did not see Reynolds. In Barry Street he was spoken to by a police officer who took him to Central Police Station, where he made a statement. Central Police Station is five intersections to the west and two to the north of Gold Street Police Station.
Reynolds's evidence was that he was on duty at the Gold Street Police Station when he heard explosions and saw people running along Barry Street and Gold Street. He pulled out his firearm, a 9mm pistol, and cautiously went outside into Barry Street. He saw the deceased lying on the ground and noticed three of the appellants, whom he knew, running towards the deceased with firearms in their hands. The three were Grieves, Peterkin and Hanse. He did not see what firearms they were carrying but he fired a shot in their direction. They returned fire and ran up Foster Lane. He then went to the intersection of Foster Lane and Barry Street, looked up Foster Lane and saw the same three men coming back towards him in a tip-toed position. When they saw him they fired in his direction and ran away northwards up Foster Lane. He returned to the deceased, got out a police jeep and placed the deceased in it with the help of Sergeant Douglas. By then a crowd had begun to gather. He did not see Andrew Todd at the scene. He drove the vehicle to a hospital. As the deceased was being placed in the jeep Reynolds noticed that the body was shaking as if he was trying to move. He was pronounced dead at the hospital. From the hospital Reynolds took the body to a funeral home and then went on to Central Police Station. There he prepared warrants for the arrest of the appellants after having spoken to Todd.
Douglas said that he was on duty at Gold Street Police Station when he heard the sound of gunfire. Reynolds rushed outside and Douglas heard more gunshots. In cross examination he estimated that the total duration of the gunfire was about fifteen seconds. He went outside and saw the deceased, whom he recognised, lying on the pavement and struggling. Reynolds went for the jeep and Douglas helped him to place the deceased in it.
Sergeant Christie was on duty at Central Police Station when he heard the sound of gunfire nearby. He heard about fifteen to twenty shots in quick succession. A radio transmission came in that there was shooting in the area of Gold Street Police Station. He mustered all the men he could and with two vehicles drove to Gold Street Police Station. When he arrived, Reynolds had left but there was a crowd. He collected some spent ammunition from the scene. Altogether the police recovered four cartridge cases and two 0.38 bullets. He took into custody three people who were present at the scene, one of whom was the appellant Larmond. The arrested men were taken to Central Police Station. There Larmond was swabbed for traces of gunshot residue. An elevated level of gunshot residue was found on his hands. The forensic evidence was that this would only be found if the person had fired a gun within the previous five to six hours. Larmond's hands were swabbed about 5pm.
Christie said that while Larmond was sitting with others on a bench in the guardroom in the CIB office at Central Police Station, he took a statement from Todd in his office within the CIB office. He gave Todd's statement to Reynolds when Reynolds came on duty at 6pm. Although Reynolds was stationed at Gold Street, he worked a night shift at the Central Police Station from 6pm to 6am. Christie said that the first time he saw Reynolds on 30 December was when Reynolds came on duty at 6pm, although he had heard Reynolds on the radio transmission earlier that afternoon.
A ballistics expert, Mr Daniel Wray, gave evidence that the ammunition recovered from the scene had been fired by five firearms. The four cartridge cases were from three different semi-automatic 9 mm pistols. The two bullets were fired by two .38 revolvers. One of the 9mm pistols may, of course, have been the one used by Reynolds. The bullet retrieved from the deceased's body had in Mr Wray's opinion been fired by a . 38 or .3 revolver. A Mack 11 is a form of semi-automatic pistol.
Another ballistics expert, Mr Fred Hibbert, gave evidence that most Mack 11 firearms which he had seen fired 9mm or .45mm cartridges but he also testified that guns have been adjusted to fire all kinds of missiles.
None of the appellants gave evidence, but they all made statements from the dock denying that they were at the scene of the shooting.
Evidence was given on behalf of Grieves by Miss Petrona Bennett. She said that she was at the corner of Gold Street and Barry Street when she met the deceased walking along Barry Street. At that point a man ran from Foster Lane across the street, pulled out a gun from his pocket and fired a single shot, hitting the deceased in the back of the head. She had seen the man before. She had not spoken to him but someone had pointed him out as "Hit man" or "Short man". After the shot was fired the deceased fell on his face and the...
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