An Appeal Court panel, in striking the convictions and life sentences of Dantay Brooks — the son of dancehall artiste Mavado — and Andre Hinds for a 2018 shooting murder, said it had done so as their convictions had been “rendered unsafe leading to a substantial miscarriage of justice”.

According to the Appeal Court panel, which included President Justice Marva McDonald-Bishop, Justice David Fraser, and Justice Kissock Laing, it was of the view that, “The failure of the learned trial judge to adequately warn himself of the dangers inherent in identification evidence combined with the deficiencies in his treatment of the identification evidence and matters going to the credibility of the prosecution’s sole eyewitness resulted in the applicants being deprived of the safeguards developed by the law to prevent the ‘ghastly risk’ of convictions on unreliable evidence of identification.”

“In the circumstances of this case, the convictions of the applicants are rendered unsafe, leading to a substantial miscarriage of justice. Accordingly, there is a justifiable basis for this court to quash the applicants’ convictions and set aside the sentences imposed by the learned trial judge,” the panel said in the judgment handed down on Friday.

The Crown, in accepting that the trial judge erred in treating with the evidence of identification and the conflicts in the evidence of its star witness — which critically affected his credibility and reliability — did not argue for a retrial.

Brooks and Hinds were in March 2021 sentenced to life behind bars for the 2018 murder of Lorenzo “Israel” Thomas in Cassava Piece, St Andrew. According to a report of the Jamaica Constabulary Force’s Corporate Communications Unit, at 3:30 am on June 5, 2018, a group of armed men forced their way into the victim’s house where he was shot, chopped, and his body set ablaze.

Brooks, who was 16 at the time of the murder, was ordered by trial judge Justice Leighton Pusey, who heard the matter without a jury, to serve 22 years before being eligible for parole. He was also sentenced to 20 years for illegal possession of firearm and 15 years for arson.

His co-accused, Hinds, who was 23 at the time of the incident, was sentenced to life imprisonment for murder and would not have been eligible for parole before 17 years. He was also sentenced to 15 years at hard labour for illegal possession of firearm and 15 years at hard labour for arson.

However, in an appeal heard on three dates between December 2024 and March 7 this year, Brooks’s attorney Hugh Wildman and Hinds’ attorneys Oswest Senior-Smith and Kemar Robinson argued, among other things, that the judge made fatal errors in his treatment of the visual and voice identification evidence in the case.

Wildman contended that since the case turned primarily on the correctness of the visual identification by the main witness for the prosecution, who happened to be the father of the dead man, it was “incumbent upon the learned trial judge to properly warn himself on the correctness of the visual identification by him as opposed to the truthfulness of it”.

Wildman further argued that it was not sufficient for the trial judge to resolve the issue of identification by considering whether, in his opinion, the father was a witness of truth, but that he had to go the added step of considering whether his identification of Brooks was accurate.

In relation to the purported voice identification of Brooks by the witness, Wildman asserted that the trial judge did not give a specific indication of how the question of voice identification should be dealt with and did not demonstrate that he applied these principles.

Senior-Smith and Robinson, in their submissions, asserted that the purported identification of Hinds was in “terrifyingly” difficult circumstances, including poor lighting in the early morning hours. They further said the distance of the veranda light to the face of the person identified as Hinds was not ascertained. According to the attorneys, these and other difficult circumstances, including the fact that the witness had seen his son mortally wounded, were not adequately addressed by the trial judge.

Furthermore, they argued that the judge’s summation did not embody the accepted principles regarding the need for caution before founding convictions on the basis of voice identification.

They further maintained that the witness’s failure to identify the appellants when he had the first opportunity to do so was not effectively resolved by the trial judge, which they said “affected the reliability of his evidence of visual identification”.

They also took issue with the trial judge’s acceptance of the explanation by the sole witness that he told untruths in a statement given to the Constant Spring Police after the incident because he did not trust the police officers there.

In the meantime, the prosecution conceded that it had not elicited the necessary evidence of the witness’s knowledge of and familiarity with the voice of Brooks, which the authorities (case law) dictate must be present before voice identification can be utilised. Consequently, the Crown accepted that the learned trial judge erred in relying on the evidence of voice identification.

Said the Appeal Court: “We acknowledge that the learned trial judge did analyse some of the essential matters in his attempt to determine whether the evidence of [the main eyewitness] concerning his ability to identify the applicants was reliable. However, we agree with the submission of Mr Senior-Smith that the learned trial judge 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.”

“Having regard to this issue and the reliance on lighting from the veranda, the distance of the light source on the veranda from the faces of the applicants, at any point, was not ascertained,” the panel said.

The Appeal Court judges further said, “The learned trial judge also did not sufficiently address the terrifyingly stressful circumstances under which Mr Thomas purported to identify the applicants, with his son being killed before his eyes.”

It said an equally important issue that impacted the learned trial judge’s acceptance of the identification evidence was his treatment of the credibility of [the witness], having regard to the inconsistencies in his evidence.

The witness, during his evidence-in-chief, had admitted that in his first statement, which was made at Constant Spring Police Station on June 5, 2018, said the men had on masks, but that was not true because they did not have on any. He also admitted that he lied when he said it was four men and not three men and a woman who entered his house. He explained that he did not speak the truth in this first statement because he was afraid due to the Constant Spring Police Station being a “corrupt station”, and he knew of incidents happening there as a result of having done construction work there.

Said the judges of the admissions, “There is a clear distinction between, on the one hand, telling untruths because one does not trust the police and, on the other hand, being pressured to say certain things in a witness statement and also being pressured to sign the statement containing those untruths.”

“In our view, the learned trial judge did not adequately explain why he accepted the first explanation as reasonable and, by extension, credible, in light of the alternative and contradictory explanation also coming from [the witness] of him being pressured,” the panel said in ordering the convictions quashed, the sentences set aside, and a judgment and verdict of acquittal entered in respect of Brooks and Hinds.