Claims 95 per cent of Jamaicans in Cayman probably look alike
Norval Barrett, sentenced earlier this year to 12 years for robbery, unsuccessfully applied to appeal his conviction but won a three-year reduction in his term of imprisonment.
Barrett, a Jamaican national also charged with entering Cayman illegally, maintained his innocence. He said he may have looked like the man who robbed Shedden Road Esso with a gun in August 2010, but he was not that man.
The Court of Appeal heard on Monday that both the gas station cashier and pump attendant identified Barrett in a police identification parade, even though he changed his place in the line-up between their separate viewings.
“He says the reason they picked him out was because he was the one who most resembled the perpetrator,” Attorney Keith Collins told the court. He also argued that the parade was not conducted according to police rules.
Mr. Collins presented his client’s assertions that 95 per cent of Jamaicans in Cayman probably look alike, the majority have similar complexions, and maybe 75 per cent are of similar general appearance in their facial features.
The robber was wearing a cap with a long beak and sunglasses, the attorney pointed out, and Barrett maintained that the robber was taller than he. The jury saw CCTV footage of the incident, but it should have been played more slowly or in single frames, he argued.
Arrested days later
Barrett was arrested several days after the robbery when the investigating officer, attending George Town Hospital on another matter, saw Barrett there and recognised him as the man he had seen on the CCTV. He arrested him and took him into custody. The police identification parade was then arranged.
In his appeal, Mr. Collins said organisers of the ID parade should have ensured that the participants were of the same general appearance. But the cashier, who picked out Barrett, described the line-up as being of men with different builds, heights and skin colours. “She picked him out because he was of similar appearance to the perpetrator,” Mr. Collins submitted.
He pointed out that, when the witness was asked during the trial on what basis she had picked out the man she did, she witness replied, “The structure of his face and body.”
Appeal court president Sir John Chadwick pointed out that this witness had already given her evidence about the identification factors before she was asked this question by the defence attorney.
After conferring with Justice Elliot Mottley and Justice Abdulai Conteh, the president announced their decision to dismiss the appeal and uphold the conviction.
He pointed out that officers conducting the identification parade had kept notes of what occurred; from those notes one could see that both Barrett and the person with him (lawyer/friend) were asked if they were satisfied the parade was fair. The recorded answer was “As far as I am aware.”
He also observed that the trial lawyer could have asked for the CCTV to be shown to the jury in different ways. To not ask was a tactical decision and it was not for the judges of the appeal court to speculate. The president noted that the CCTV footage was available to jurors during their deliberation.
The appeal judges agreed that there were breaches of the police rules in that no photos were kept of the participants in the parade and no record of their addresses, but they did not find any error in the way Justice Charles Quin summed up the matter to the jury.
In all the circumstances, there were no grounds for an appeal against conviction. However, on sentence, the court did give permission to appeal.
The president said inadequate weight had been given to the fact that this was a robbery that took place in a short space of time [the video showed 45 seconds]; the amount stolen was comparatively small [$454]; and no violence was actually used [the robber threatened to shoot the cashier if she did not hand over the money, but no shots were fired].
The sentencing judge should have taken these factors into account and considered them mitigation, the appeal court said. For this reason the sentence of 12 years for robbery was reduced to nine years. In his grand Court sentencing, Barrett was given six years concurrent for possession of an imitation firearm with intent to commit the robbery.
This sentence was not interfered with.