Saved by the tapeWednesday, November 13, 2002
THE London-based Privy Council has overturned the murder convictions of two Jamaican men on the basis that video footage of the scene of a 1996 robbery in which a cop was shot dead does not show either man and was not made available to the defence at their trial.
The Law Lords have remitted the case to the local court of appeal to determine whether to order a new trial of the appellants, Randal Dixon and Mark Sangster.
Dixon was found guilty of capital murder for the shooting death of Detective Acting Corporal Phillip Gordon during the robbery and sentenced to death, while Sangster, who the jury found acted as a secondary party, was convicted of non-capital murder and sentenced to life imprisonment.
Appeals by the men against their respective convictions were dismissed by the Jamaican Court of Appeal in a judgement dated March 23, 2000.
The robbery in which both men were implicated took place on September 18, 1996 at a Western Union branch in Spanish Town, St Catherine.
According to the prosecution, at the time of the robbery, four police officers were in the plaza where the Western Union branch was situated -- Detective Acting Corporal Gordon, special constables Anthony Gayle and Valimore Lawman and a District Constable Mullings.
Constable Gayle, the court was told, saw a crowd running from the direction of the Western Union and members of the crowd alerted him to the fact that something was happening there. The cops then took up various positions in the vicinity of the Western Union and a number of armed men were seen coming out of the front entrance, one of whom had an Uzi sub-machine gun. He fired at Constable Lawman, hitting him in the leg. After that, another man, armed with a 9mm gun, fired a shot that hit Corporal Gordon, who died as a result.
The Privy Council report said that the prosecution's case against Dixon was that he was the man who shot Corporal Gordon, and constables Gayle and Lawman identified him at an ID parade on October 16, 1996. The prosecution said that Sangster was the man who came out of the Western Union carrying the Uzi and was picked out of an identity parade by constables Gayle and Lawman on October 7, 1996.
The Law Lords' report pointed out that the only civilian witness to the events who viewed the identity parade for Dixon said, "I don't see him", and in cross-examination, the civilian said that none of the four men was in court.
However, videotape footage from security cameras in the Western Union during the robbery was not produced by the police at either the trial or the hearing before the Court of Appeal.
The Law Lords, who saw the video recording which formed the basis of the two grounds of appeal on which they heard arguments, found that it was material.
"Whether the matter is considered under the first ground of appeal relating to the duty of disclosure, or under the fifth ground of appeal relating to fresh evidence, their Lordships are satisfied that the evidence of the videotape is material in the sense that, if it had been disclosed to the defence and had been led at the trial, it might reasonably have affected the decision of the trial jury to convict," the judges said.
"That being so, the convictions of the appellants must be regarded as unsafe, with the result that there has been a miscarriage of justice," they added.
The Law Lords also said that neither Sangster nor Dixon was on the footage and argued: "While some of the pictures are somewhat blurred, others are remarkably clear. In particular, some of the pictures show the faces and clothing of men who were in the bank carrying out the robbery. It is common ground that none of the images shows either Sangster or Dixon. The best estimate of counsel was that the images showed four robbers. In these circumstances, Mr Guthrie QC for the director of public prosecutions, very frankly conceded that, had they been available, the pictures of the video recording would have been material evidence at the appellants' trial."
The judges noted, too, that Conrad Nicely, the Grace, Kennedy Remittance Services Limited employee who was responsible for the proper running of the security cameras at the Western Union at the time of the robbery, said in an affidavit that the cops saw the videotape on the day of the robbery.
"However," said the judges, "the police officers do not appear to have informed the DPP about the existence of the tape so that it was never disclosed to the defence."
Added the judges: "Their Lordships are conscious that it is not for them to instruct the police in Jamaica as to the investigation of crime. Nevertheless, the video recording forms a possible starting point for re-opening the investigation of the robbery and murder as a whole, including any involvement of the appellants."