Judge’s error frees Dantay

Dantay Brooks, son of popular international dancehall artiste Mavado, was greeted with screams of joy from jubilant family members and friends who rushed to his side as he walked free from the Tower Street Adult Correctional Centre in Kingston yesterday.

“Freedom street, mi breda, and heart a love, man!” one family member shouted as Brooks’ sister jumped into his arms, embracing him tightly.

Brooks and co-accused Andre Hinds, who had spent nearly four years in prison for the murder of Lorenzo Thomas, were freed by the Court of Appeal yesterday.

Both men declined to speak to the media after walking out into freedom. However, Brooks’ lawyer, Hugh Wildman, said, “He is so happy, he is so excited, and he is thanking us profusely.”

Hinds’ attorney Kemar Robinson said his client was “super elated. Today is his grandmother’s birthday and he went straight to see her after being freed.”

Brooks and Hinds, who were convicted in January 2021 and both given life sentences, had their convictions quashed and sentences set aside by justices Marva McDonald-Bishop, David Fraser, and Kissock Laing, who heard the appeal last December.

The judges cited the trial judge’s error in the treatment of the identification evidence, which was unreliable, and credibility issues with the sole eyewitness as reasons for acquittal.

“We are of the view that the failure of the learned trial judge to adequately warn himself of the dangers inherent in the identification evidence, combined with the deficiencies in his treatment of the identification and matters going to the credibility of the prosecution’s sole eyewitness, resulted in the applicants being deprived of the safeguards developed by law to prevent the ‘ghastly risk’ of conviction on unreliable evidence of identification,” they said in the published judgment.

The appellate judges also commended the prosecution for acknowledging the judge’s error and for not seeking a retrial.

FATHER’S TESTIMONY

Brooks, who was 18 years old at the time of his sentencing in the Home Circuit Court, was ordered by Justice Leighton Pusey to serve 22 years before parole. He was also slapped with a 15-year sentence for arson and a 20-year sentence for illegal possession of a firearm.

Hinds, who was 26 years old, was ordered to serve 17 years before parole and given similar sentences for the same two charges.

The two were arrested and charged in connection with the home-invasion killing of Thomas in the St Andrew community of Cassava Piece on June 5, 2018.

Prosecutors led evidence that Brooks and Hinds were among five men who entered the house, shot Thomas, and then pushed his father into another room. They were accused of attempting to sever Thomas’ head before aborting that plan because the machete was too dull. They then allegedly poured gasolene on the house and the body before setting both on fire.

Prosecutors relied on the eyewitness testimony of Thomas’ father, who indicated that he knew his son’s killers from the community and had not only seen the face of both men but had also recognised them by their voices.

However, both men had maintained their innocence, stating that they were never at the scene and had raised a defence of alibi.

NOT FOLLOW TURNBULL’S PRINCIPLES

Among Brooks’ grounds of appeal were that the trial judge had erred in eliciting and admitting hearsay evidence, not directing himself on the question of the applicant’s alibi, failing to properly direct himself on the question of voice identification, and failing to warn himself adequately of the dangers of mistaken identification/recognition. His legal team also argued that the judge placed considerable reliance solely on the truthfulness of the witness as opposed to the accuracy of the identification.

Hinds’ grounds included that the no-case submission ought to have been properly upheld by the trial judge; that credibility, as one of the foremost issues in the trial, was not appropriately analysed by the court, thereby causing insuperable prejudice to the appellants; and that no judicial safeguards were applied by the trial judge in relation to the evidence of voice identification he relied upon to ground his findings of guilt and the eventual convictions of the appellants.

Noting that the case hinged primarily on the accuracy of the visual identification, Wildman argued that the trial judge needed to have properly warned himself about the correctness of the eyewitness’ identification, rather than focusing on the truthfulness. As a result, he failed in that regard.

He further emphasised that it was not enough for the judge to determine the issue of identification by considering his own opinion on whether the witness was truthful, instead of considering whether Thomas’ identification of Brooks was accurate.

In arguing that the trial judge did not correctly follow Turnbull’s principles (a guiding standard in criminal cases), Wildman highlighted that he failed to give a specific indication of how the question of voice identification should be dealt with and did not demonstrate that he applied those principles.

‘TERRIFYINGLY’ DIFFICULT CIRCUMSTANCES

Hinds’ lawyers, Kemar Robinson and Oswest Senior Smith, in their submission, argued that “a plethora of inherent inconsistencies, contradictions, and overall variances in the evidence from the main witness for the prosecution” were identified and that it was incumbent upon the trial judge to consider the quality and reliability of the evidence.

“Counsel highlighted the evidence of the attempt to behead the deceased, which he contended was not supported by the postmortem report, and this apparent discrepancy was not adequately resolved by the learned trial judge,” the judgment said.

Senior Smith also noted that the eyewitness’ failure to identify the appellants when he had the first opportunity to do so was not effectively resolved by the trial judge, and that this was a matter that affected the reliability of his evidence of visual identification.

“It was also submitted that the learned trial judge wrongly utilised the evidence of police witnesses, who spoke of the reluctance of persons to give evidence in some of these matters, in support of Mr Thomas’ explanation for his conflicting evidence, since none of these witnesses gave evidence that the reluctance of these witnesses was because they thought the police officers at Constant Spring Police Station were corrupt,” the judgment read.

Senior Smith also argued that the purported identification of Hinds was in “terrifyingly” difficult circumstances, including poor lighting in the early morning hours, and the distance of the veranda light to the face of the person identified as Hinds, which was not ascertained.

Counsel contended that these and other difficult circumstances, including the fact that the witness had seen his son mortally wounded, were not adequately addressed by the learned trial judge.

Senior Smith also advanced that although the trial judge referred to the Turnbull principles, he did not sufficiently apply the guidelines.

NOT RESOLVING INCONSISTENCIES

The Crown, represented by Kathy Ann Pyke and Andrene Hutchinson, conceded that the learned trial judge did not demonstrate that he applied the Turnbull factors when he examined elements of the father’s evidence, such as his prior knowledge of Brooks and the opportunities he had to observe his assailants.

The Crown, however, argued that the trial judge had appropriately acknowledged the inconsistencies in the eyewitness’ testimony, including his failure to identify his assailants in his first statement to the police.

However, the Court of Appeal judges rejected the Crown’s argument that the learned trial judge’s reference to the Turnbull guidelines was sufficient to satisfy the duty imposed on him by law to “give sufficient expression of the legal and factual considerations which underpinned the verdict”.

They acknowledged that while the trial judge had analysed some of the essential matters in his attempt to determine whether the evidence of the sole eyewitness concerning his ability to identify the applicants was reliable, he did not give sufficient weight to the possible weakness in the identification evidence caused by the poor lighting in the early hours of the morning, nor sufficiently address the stressful circumstances under which the identification was made.

The judges concluded that the trial judge had erred in not resolving the inconsistencies and discrepancies in relation to the visual identification of the applicants and that the voice identification evidence should not have been admitted because the requisite foundation for its admission was not laid.

tanesha.mundle@gleanerjm.com