AN Appeal Court panel on Friday said its decision in July to overturn the murder conviction of a St Catherine mechanic for a 2008 murder rested on deficiencies which struck at the core of the prosecution’s case, and the fairness of the jury’s assessment of the only evidence said to link him to the offence.

The mechanic, Kenneth Pottinger, had been tried in the Home Circuit Court before then Supreme Court Judge Georgiana Fraser and a jury for two murders arising from a shooting incident, in February 2008, along St John’s Road, Spanish Town, St Catherine.

In that incident Devarowe Powell and Ronald Robinson were killed.

Pottinger was convicted for the murder of Powell in January of 2020 and sentenced to life in prison with the stipulation that he serve 23 years before becoming eligible for parole. The prosecution offered no evidence in Robinson’s murder, and a formal verdict of not guilty was entered.

During that trial, attorney Peter Champagnie, KC had contended that the case should be withdrawn from the jury because of the weaknesses in the identification evidence. The trial judge, however, disagreed, saying she would leave the matter for the jury’s consideration.

In appealing his conviction and sentence, Pottinger, through attorney Samoi Campbell, contended that the original trial judge had erred in law in several respects by among other things “failing to direct the jury’s attention to the specific weaknesses in the identification evidence, resulting in a material misdirection”, and by “giving an unbalanced summation which diluted a material issue affecting the credibility and reliability of the sole eyewitness”.

Campbell argued that the judge had erred in rejecting a no-case submission made during the trial which hinged on the fact that the prosecution’s case rested entirely on the visual identification evidence of the sole eyewitness — a detective constable — which was of poor quality and unsupported by independent evidence capable of confirming its accuracy.

In maintaining that the constable’s opportunities for observation were limited — consisting first of a sighting of five men crossing a road for approximately four to seven seconds, and subsequently of a group of men observed for some 15 to 20 seconds during an exchange of gunfire — Campbell argued that no separate period of observation was identified in relation to Pottinger, who was previously unknown to the constable.

She noted further that the detective constable was simultaneously observing multiple persons while returning fire and seeking cover; and had described no distinctive identifying feature of Pottinger.

Accordingly, Campbell said, “the identification evidence was weak, unreliable and incapable of sustaining a conviction”, making it so that the trial judge should have withdrawn the case from the jury.

The appeal panel — comprising Court of Appeal President Justice Marva McDonald-Bishop, Justice Nicole Simmons and Justice Marcia Dunbar-Green — in acquitting Pottinger, said, “In our respectful view, the learned judge did not sufficiently engage with that issue. Instead, the weaknesses in the identification were treated as matters for the jury to grapple with, concomitant with the learned judge’s view that the observations were ‘beyond a fleeting glance’.

“Had the learned judge sufficiently analysed that difficulty, she might well have concluded that the quality of the identification evidence was poor and that, in the absence of any supporting evidence, the case ought not to have been left to the jury. We, therefore, concluded that the learned judge erred in rejecting the no-case submission.”

The appeal court judges added that, having regard to the nature of the case and the errors identified in the judge’s summation to the jury, it had concluded that the judge did not sufficiently assist the jury in dealing with the weaknesses in the identification evidence, while the direction on the identification parade constituted a material misdirection which occasioned a miscarriage of justice.

The judges of the appeal further noted that in a case depending entirely on the evidence of a single identifying witness, greater balance was required as far as the judge’s summation on the credibility of the sole identifying witness and the circumstances in which he claimed to have identified Pottinger was concerned.

“For the reasons given, that evidence was of such poor quality that the learned judge ought to have withdrawn the case from the jury at the close of the prosecution’s case. Having failed to do so, the jury was, thereafter, not adequately directed on the central weaknesses in the identification evidence, particularly the absence of any distinct period of individualised observation of the perpetrator said to be the applicant, the collective nature of the purported observations, and the limited evidential significance of the identification parade.

“These deficiencies were not peripheral. They struck at the core of the prosecution’s case, and the fairness of the jury’s assessment of the only evidence said to link the applicant to the offence,” the appeal panel explained.

The appeal panel, in reiterating its July 1 order freeing Pottinger, pointed out that the case was not one in which it could apply the proviso under Section 14(1) of the Judicature (Appellate Jurisdiction) Act which gives the court statutory discretion to dismiss a criminal appeal and uphold a conviction, even if a legal error or irregularity occurred during the trial, provided that it had determined that no substantial miscarriage of justice occurred.