By NICO SCAVELLA

Tribune Staff Reporter

nscavella@tribunemedia.net

THE Court of Appeal has ordered a retrial for a man previously convicted of stabbing another man to death five years ago.

The appellate court, in a 2-1 majority verdict, quashed Shadrach Gibson’s conviction and sentence concerning the death of Sidney Brian Hart in June 2013.

Acting appellate Justices Sir Michael Barnett and Milton Evans both agreed Gibson should be retried because the trial judge did not properly direct the jury on how to treat evidence that Gibson was oppressed and/or beaten by police.

Instead, Sir Michael contended the directions the trial judge gave invited the jury to give “full weight” to the confession, notwithstanding the possibility that the jurors may have had “doubts as to whether the confession was given voluntarily or in the absence of oppression or unlawful conduct”.

Appellate president Sir Hartman Longley disagreed, however, stating as there was no direct evidence of police oppression/brutality, such as Gibson giving evidence or the police witnesses agreeing to or admitting it occurred, it was not necessary to give directions to the jury concerning oppression or unlawful means.

And in the absence of that evidence, Sir Hartman reasoned, no reasonable jury could have found the statement was not given voluntarily.

According to the ruling, on June 9, 2013, Hart died from multiple stab wounds to the torso. The stabbing took place near AID on Wulff Road. Hart was found at Wulff Road west of Jerome Avenue, with multiple stab wounds in the early hours of the date in question.

Pearline McKenzie testified she was sitting outside the Wulff Road Police Station when a man she knew as “Fox Hill” walked up to her and told her a group of boys “jook him up” and that the youngest one was ten years old. At the end of her testimony, she was shown the voter’s card of the deceased and she recognised him as the man she knew as “Fox Hill”.

Gibson was arrested the same day at SuperWash on Wulff Road, at which time he allegedly told the officer that he was there but “Takoyo jook him up”. Gibson was searched by Corporal 2688 Coakley and a black, flip-blade knife was found in his right front pocket.

Gibson was interviewed by police and allegedly told them he knew Takoyo had a black, flip-blade knife and that as he and a group of his friends were walking along Wulff Road when they spotted Hart on the opposite side of the road.

Gibson said when they saw Hart, Takoyo said “let’s cross the road” and knowing they were crossing the road to beat up the deceased, the group did so. Gibson said Takoyo asked Hart “what he saying”, and Hart responded by saying “ain’t nothing” because he wasn’t “on that run”. Gibson said Takoyo subsequently snatched Hart while two more of his friends held him. Gibson said Takoyo then took a knife out of his pocket and started stabbing Hart.

Afterwards, Gibson said he walked to his home and told his mother about what had happened.

Police were called to a scene opposite AID where they discovered Hart lying on the ground. He was subsequently taken to hospital where he was pronounced dead on arrival. Forensic pathologist Dr Caryn Sands said Hart died from multiple stab wounds to the torso. She said the characteristics of the wounds on his skin were indicative of being cause by a “single-edged sharp weapon”.

According to the ruling, the only evidence that connected Gibson to the crime was the information in the record of interview. Based on a review of that information, Sgt 1095 Johnson put certain “information” to Gibson to which he responded. However, the ruling noted there was no indication as to how that officer obtained the “information” that he put to Gibson.

During the course of the trial, objection was made to the Crown’s reliance on the record of interview, however the interview was admitted. As a part of its case, the Crown called Dr Timothy Providence to interpret the results of Gibson’s medical report prepared at the prison, which was exhibited into evidence.

The report revealed that Gibson was examined upon being admitted to the Fox Hill facility, and that he made a complaint about being beaten by the police. The doctor in question, who died before the commencement of trial, did not note any injuries on the medical report, but did prescribe a painkiller to be taken twice a day by Gibson.

At the close of the prosecution’s case, Gibson exercised his right to remain silent and did not call any witnesses. He was later acquitted of murder but convicted of manslaughter on March 30, 2016, and sentenced to 30 years imprisonment on May 11.

Gibson, via his attorneys Christina Galanos and Bjorn Ferguson, appealed the decision, contending amongst other things that the trial judge erred by telling the jury that there was no evidence in the trial of police brutality; and that they may rely on the record of interview even if it was obtained through oppression.

According to the ruling, the trial judge said in her summation: “…An allegation or a question does not become fact unless the witness accepts the truth of the assertion in their answer. The witness for the prosecution never accepted that they beat (Gibson), and (Gibson) himself never gave evidence to assert that he was beaten. So other than the medical evidence from the prison doctor, Dr Providence…there is no evidence in this trial about police brutality.”

However, Justice Evans said based on that excerpt, there is “no direction that the jury must be satisfied beyond a reasonable doubt that the record of interview was obtained without oppression”.

Justice Evans further said his “real concern” was that the trial judge “did not clearly direct the jury that it was the prosecution’s duty to prove that the interview was voluntary”.

“It is not, in my view, sufficient to say that the witnesses for the prosecution never accepted that the defendant had been beaten,” Justice Evans said. “It is true that suggestions which are not accepted do not become evidence. However, the fact that the officers did not accept the allegations of beating does not necessarily mean that the jury could not have doubts as to the truth of their evidence.

“The presence of the medical evidence and the fact that allegations were being made via cross-examination could very well cause the jury to have doubts. In my view, the jury was not properly assisted on how they should approach the question of whether the record of interview was voluntary obtained.

“Accordingly, I allow the appeal and quash the conviction and sentence; and I order that the case be remitted to the Supreme Court for retrial.”

Sir Michael, though limiting his decision on the issue of the confession evidence, nonetheless supported Justice Evans’ view that the appeal should be allowed and a retrial ordered.

Sir Michael further said that for him, Gibson’s case raises the “important issue” as to “what is the proper direction to be given by a judge to a jury as to what weight it should give to a confession made by an accused person and in what circumstances should such a direction be given”.

“In my judgement whenever a jury is being directed as to how to consider a confession, it is incumbent on the judge to direct the jury that ‘if they have any reasonable doubt that a confession was made as a result of oppression or some other improper circumstance they should disregard it,” Sir Michael said.

“The burden is on the Crown to prove that the statement was obtained voluntarily and if the jury, having seen the demeanour of the police witnesses and heard their evidence, is not satisfied that the confession was given voluntarily, they are entitled to disregard the confession. This does not in my judgement depend upon the presence of actual evidence given by the accused as to the circumstances as to how the confession.”