The failure of police investigators to record information gathered when they first responded to a shooting and robbery report; their failure to record the alibi of the man later accused; their failure to take a sample of his DNA though he had agreed to allow it; and a flawed identification parade process, all contributed to the recent fall of the prosecution’s case against Deless Phillip.
The 31-year-old man, who was 25 at the time he was charged with shooting Herbe Williams with intent to murder him, and aggravated robbery, on April 10, 2012, escaped a retrial after High Court Justice Iain Morley ruled that the ID parade evidence was “inadmissible” because it was tainted.
That was the only evidence linking the accused to the crime.
Phillip was convicted earlier on both charges in 2015 and he won his appeal, resulting in the order of his retrial. In preparation for the new trial, new information was provided by the defence and challenges which were not raised at the first trial, were raised this time around.
Having considered all the arguments, Justice Morley ruled, “I have decided I will rule the identification evidence is inadmissible, with the consequence the Crown will be unable to offer evidence to implicate Phillip, so that I expect there shall be a directed verdict of not guilty…”
The facts of the case were that in April 2012, Herbe Williams of Hatton, was robbed when he went outside his house to get water shortly after returning from a beach party.
A man whom he did not know, called him an insulting name, shot and robbed him of the gold chain he was wearing.
Two days after the incident, the victim recounted to police that his attacker was “slim, 5ft 11, dark in complexion, dressed in dark clothing wearing a tam on his head and a kerchief around his face.”
Williams was shot through his chest and right shoulder at a close range of two feet. He said he pursued his attacker and they struggled on the ground for the gun near a streetlight which was about five feet away. During the fight, he pulled off the handkerchief from the robber’s face and also bit into his hand. He also said the attacker was someone he had never seen before, but if found, he should have a bite mark on his hand.
The victim’s girlfriend witnessed the robbery, and she described the attacker as “slim, about 6ft tall, with a tam on his head, with a kerchief tied around his face, wearing a dark-coloured long sleeved shirt, long pants and tennis shoes.”
A green kerchief was recovered from the scene, and at trial in 2015, the victim said for the first time, that the one his attacker wore was green.
The judge noted that no distinguishing marks were identified as it relates to the attacker, except his height, even though he was “a rastaman with locks, a noticeable gap between his front teeth, the right incisor being broken, and with strong cheekbones and a notably strong angular forehead.”
Additionally, the judge highlighted that unlike in the first trial, evidence was provided to the court from the police that Phillip, though slim, is six feet, three inches tall.
Another area of concern for the judge, was that the investigating officer, Corporal Frank Simmons, kept no notes of what he was told on the scene, so there was no preserved description of the assailant. Phillip lived within two miles of where the incident occurred and was on bail for another aggravated robbery case, and he had stopped reporting to Gray’s Farm Police Station shortly after Williams was robbed, so he became the chief suspect. When he was picked up and questioned, he provided an alibi, indicating he was at a bar with some friends and went home after consuming a bottle of rum.
However, the investigating officer kept “no notes of any investigation of the alibi, nor was there any evidence of tennis shoes recovered, nor a dark long-sleeved top”, the judge said.
In addition, Phillip’s hands were inspected for any evidence of a bite mark, and none was found, though, this was again not recorded.
Most importantly though, was the identification parade, which was done after the victim was shown 500 to 600 photographs and then later asked to pick out someone from an ID parade line-up. When he looked at the images, he picked out Phillip and when the line-up was done, he picked out Phillip. The judge said, “this was tainted by the photo identification so that it could be said Williams was picking out the man he saw in photo 1066, begging whether the photo identification was correct, not whether the parade identification was correct.”
And, what was also striking, according to the judge, was that the investigating officer preserved no notes of how many photos the victim looked at, over what period, what was being said, who was in the room, what time this was, nor what instructions Williams was given. It was Williams who revealed the number of photographs the police gave him to review when he testified at Phillip’s trial in 2015.
The judge indicated that a parade usually involves no more than 12 individuals so for Williams to have looked at 500 to 600 photos “such activity must have taken a long time, and begs what interaction or discussion there was in the room with the [investigating officer], about which a fortiori there was no record, and in a context where Williams may have felt the robber must be in the gallery and he had to pick someone out having been offered so many choices.”
Another issue which arose, was the questioning of Phillip by the investigating officer, who asked him, “If I was to tell you that Herbe Williams picked out your picture from a profile and said is you that robbed him, what would you say, would he be lying?” to which Phillip replied, “if he did that he would be lying”.
Justice Morley said the question was clearly designed to make Phillip think his photo had been picked out, “but this was not true, it had not, but it now raised the spectacle that it would be.”
When Phillip was interviewed again, four months after the incident, he said he would give a DNA sample and the judge contended that “this might have exculpated him as the person wearing the recovered green kerchief.” However, his DNA was not taken, and according to the judge, “this was said by the [investigating officer] to be the later decision of Phillip, though again there was no contemporaneous note of his refusal, nor when, or in what context, or where, or why.”
He concluded that, “The only evidence to implicate Phillip was the picking of photo 1066, eleven weeks later on [June 29, 2012] when Phillip is significantly the wrong height, had had no injury to his hand on [May 21, 2012], had in part an alibi whose investigation was unrecorded, the investigation preserved no other notes, and the [investigating officer] had tried to trick him on [May 21, 2012] into believing his photo had already been picked, which suspiciously it later was with no contemporaneous record.”
In all these circumstances, the man’s lawyer, Sherfield Bowen, challenged the identification evidence, and the judge agreed it was inadmissible.
The judge said even if the identification evidence was determined to be proper, it would be difficult to see how the prosecution’s case would have survived a no case submission, “recalling the test is whether a reasonable jury properly directed could possibly properly convict, and here the especial duty of a judge to protect proceedings from the dangers of a mistaken identification.”