By NICO SCAVELLA
Tribune Staff Reporter
THE COURT of Appeal has ordered a man previously convicted for killing another man during a Junkanoo practice approximately five years ago be retried in the Supreme Court "as speedily as practicable."
Court of Appeal President Dame Anita Allen, along with fellow Justices Jon Isaacs and Roy Jones, set aside Bruce Colebrooke's 45-year sentence concerning the October 3, 2012 murder of Obayomi Sargent, and ordered a retrial of the same.
This, the appellate judges ruled, was due to the trial judge's decision to allow a Crown witness to "testify while completely screened from herself and the jury," and because that decision was not in accordance with the procedure outlined in the Criminal Evidence (Witness Anonymity) Act, 2011.
According to the ruling, on the day in question three friends: Dwight Griffen, Darvin Dean and the deceased were in the process of leaving a Junkanoo practice at Christie Park, Nassau Street, when one of them noticed two men were following them.
Griffen also noticed a man standing in the road on a cell phone, however, that man walked off into a shortcut leading from the Base Road area as they approached their car, the ruling said. Nonetheless, Griffen conveyed his suspicions about the men to Dean that someone was plotting something.
By this time, the ruling said, the two men who were following them were standing across the road from them behind a parked, silver Sentra. Griffen's back was facing them but he spun around just in time to see one of the men come across the street about 15 feet from the trio, pull up his shirt, pull out a gun.
The man fired a shot, prompting the trio to run. According to the ruling, Griffen said as everyone ran he heard three more shots.
When people returned to the area of the shooting, they found Obayomi on the ground suffering from apparent gunshot injuries. He died at the scene.
According to the ruling, Colebrooke was arrested on September 10, 2013 when he, accompanied by family members and his attorney Keod Smith, turned himself in to police headquarters on East Street. During an interview later on in the day, Colebrooke denied shooting Obayomi and stated that during the time of the shooting he was at home.
Days later on September 11, Colebrooke participated in an identification parade which was attended by Griffen and an anonymous Crown witness named "Alpha." The parade consisted of eight people, with Colebrooke taking up position number three.
Griffen came in, saw the line up, and identified the alleged shooter as occupying position number three. Colebrooke was subsequently invited to take another position in the line up - position number one. Nonetheless, Alpha was brought into the room and identified the alleged shooter as occupying position number one.
Colebrooke was subsequently charged with Obayomi's murder and tried before Justice Indra Charles and a jury. However, before the trial began in earnest, Colebrooke's attorney raised an issue of witness "Alpha" being able to give evidence anonymously.
Justice Charles allowed "Alpha" to give his evidence without the appellant being able to see him, despite objections from the defence, and according to the ruling, "Alpha" gave his evidence "without any of the participants in the trial having sight of him other than perhaps the judge's clerk who administered the oath to Alpha."
On March 18, 2015, the jury found Colebrooke guilty of murder. On July 14, he was sentenced to 45 years in prison.
However, in an amended notice of appeal filed on September 29, 2016, Colebrooke contended the trial judge erred in law by determining "that it was necessary to grant a witness anonymity order in respect of Alpha because the conditions required by section 13 of the Act were not made out by the Crown; and that the judge's assessment of the evidence relied upon by the Crown did not meet the "highest standard of proof required under the Act."
Colebrooke further contended that Justice Charles' order was not adhered to and what transpired in the trial "went too far" by concealing Alpha with a screen from the judge, the jury and counsel; and by allowing "modulation of Alpha's voice so that his natural voice could not be heard by the judge, the jury and other members of the court."
Colebrooke also challenged the trial judge's decision not to withdraw the case from the jury after Alpha testified he knew the appellant from CR Walker High School, despite "unrefuted independent evidence" from government officials that showed that Colebrooke actually attended CC Sweeting High School for the same period of time Alpha "and the Bruce he knew the shooter to be, attended CR Walker High School."
The ruling noting the judge's failure to do so was "especially egregious" and "amounts to a miscarriage of justice when considering that the trial judge had granted an anonymity order which led to Alpha being completely screened from the jury's sight so that they were not able to assess his demeanour while he testified."
Regarding Colebrooke's main argument, the trial judge erred by granting the anonymity order, the appellate judges said while the ability to conceal any witness' identity from a defendant "has been allowed by statute," it is an "important part" interrogating witnesses "to see how the witness reacts to the various questions posed."
An example of this, the ruling said, would be if the witness flinched or fidgets when "a particular line of questioning is pursued."
The justices also noted the power to order a witness to testify anonymously "goes contrary to the normal procedure whereby a witness' "identity is known to all of the participants in the trial." The ruling said such a procedure "enables the opposing side to question the witness on any possible animus or interest the witness may have which motivates the evidence given so the jury can properly evaluate the quality and reliability of the evidence."
"The judge's decision to allow Alpha to testify out of sight of herself and the jury amounted to a material irregularity substantially affecting the merits of the case particularly since total concealment did not accord with the order that she had made," the ruling said.
In weighing the options, the appellate judges said the "appropriate course" to be followed would be to order a retrial.