Another appeal refused for convict who left birth certificate at crime scene

A man who ran from a shooting scene, leaving his birth certificate behind, after firing at the police, has again been refused permission by the Court of Appeal to appeal against his 15-year sentence and conviction.

The applicant, Fabian Manderson, who was convicted of illegal possession of firearm and shooting with intent, was sentenced in November 2020 to 10 years’ imprisonment and 15 years’ imprisonment on the respective counts.

Among his new grounds of appeal was that the judge was wrong to have relied on the identification document to support his visual identification.

However, the appellate judges said in the recently published judgment that “ the biographical documents were found about 50 feet from the abandoned motor car, in the vicinity of a fence. It is an odd coincidence that documents belonging to the applicant were found in an envelope on the very night of the shoot-out in which he was identified as one of the gunmen.”

Added to that, they said, “ Since there was no dispute as indicated earlier, one would have expected an explanation from the applicant for them being found where they were.

“None was forthcoming. As Lord Widgery said in R v Turnbull, at page 553 ‘ ... odd coincidences can, if unexplained, be supporting evidence’ of visual identification.”

Manderson had initially appealed his sentence and conviction on the grounds of unfair trial and false accusation by the witnesses but was refused in September 2021

However, his lawyer Kemoy McEkron, at the start of the hearing, abandoned those grounds and submitted new ground, including that “the learned trial judge erred when he found that the circumstantial evidence of the biographical documents which were not tendered as evidence in their original form automatically supported the correctness of the identification and pointed in one direction only”.

The other grounds were that “the learned trial judge erred when he failed to warn himself or demonstrate that he did warn himself of the need for special caution in the form of the Turnbull directions in considering the identification evidence before he convicted the applicant“ and that “the learned trial judge erred when he failed to demonstrate that he drew all the weaknesses in the identification evidence to the attention of his jury mind and critically analysed them, to wit, the danger of having an identification parade two years after the first purported identification (incident) and the effect of the biographical documents to include photographs of the accused, which were alleged to have been found on the scene.”

But the judges, in refusing permission, found that ground one and two had failed and ground three had no merit.

CASE FACTS

According to the facts in the case, on July 23, 2015, about 10:30 p.m., three policemen, while on mobile patrol in Mount Zion district in St James, signalled the driver of a white Toyota motor car to stop.

The driver refused, and as a result, was chased by the policemen to the point where the motor car halted at the end of a marl road cul-de-sac. Two armed men exited the motor car and fired gunshots at the police, who fired back at the men, who ran in different directions and escaped.

The following day, a police team returned to the scene and visited a yard that was to the right of the abandoned motor car and found several items strewn on the ground, including one foot of a pair of brown slippers, phone cards, and one Jamaican $50 note.

A brown envelope containing passport-size photographs, a birth certificate, and other documents bearing the applicant’s name, Fabian Manderson, was also found in the general vicinity.

Manderson later surrendered to the police and was identified by the three lawmen who were on patrol as one of the shooters.

However, McEkron, during the appeal, contended that the learned judge fell into error by not giving or abiding by the Turnbull directions. He argued during his written submission that although the trial was without a jury, it was crucial for the trial judge to warn and caution himself clearly and comprehensively along the lines of the directions in R v Turnbull.

Given that the identification parades were held two years after the commission of the offences and the likelihood that the eyewitnesses might have seen the photographs of the applicant that were recovered at the scene, McEkron argued that the judge needed to demonstrate how he resolved the issues regarding the identification parade, and especially since the applicant was previously not known to the eyewitnesses and his defence was an alibi.

But the Court of Appeal judges said: “In our view, the learned judge’s directions and treatment of the evidence adequately showed that he had the requisite warning in mind. We cannot agree with learned counsel for the applicant that more was required of the learned judge.”

They explained that the primary issue in the case was the correctness of the visual identification evidence of the applicant of which the trial judge was aware.

“He explicitly isolated visual identification as one of the bifurcated limbs of the case for the prosecution against the applicant. The other limb consisted largely of documents, coupled with the circumstances of their finding, tendered to bolster the identification evidence. The learned judge also recognised the ‘paramountcy’ of the credibility and reliability of the witnesses for the prosecution,” they reasoned.

Pertaining to the ground which stated that the judge erred in using the biographical documents since the originals were not produced, the appellate judges pointed out that no issue was taken at the trial, and as such, the production of the original in this was unnecessary.

tanesha.mundle@gleanerjm.com