The Tribune

By LAMECH JOHNSON

Tribune Staff Reporter

ljohnson@tribunemedia.net

THE Court of Appeal has ordered a retrial of a man a Supreme Court jury had convicted of the paid execution of a banker.

Janaldo Farrington, 26, appeared in the appellate court in April for his substantive hearing concerning his formal challenge to a jury’s verdict concerning the murder of Stephen Sherman five years ago.

Mr Sherman, an assistant manager at the Royal Bank of Canada in Palmdale, was shot in the head when he pulled up to his Yamacraw Shores home on the evening of February 17, 2012. He was robbed of his cell phone before being shot. His niece, who was in the car with him, was also robbed.

Renee Sherman, the victim’s wife, along with Farrington and Cordero Bethel, both of Pinewood Gardens, were charged with conspiring to commit murder.

Farrington and Bethel were also charged with Sherman’s murder and two counts of armed robbery while the widow was charged with aiding and abetting the murder of her husband. All three denied the charges.

During trial, the widow and Bethel were acquitted of their respective charges on the direction of the judge, leaving only Farrington to answer to the charges against him because of a confession he gave to the police on February 24, 2012.

On October 8, 2013, before excusing the jury to deliberate on a verdict for the four counts Farrington faced, Justice Roy Jones told the 12-member jury that “the case stands and falls on your acceptance or rejection of the confession statement.”

He was convicted of two counts of armed robbery, conspiracy to commit murder and murder and, in May 2014, sentenced to 15 years for each offence of armed robbery and two sentences of life imprisonment on the conspiracy and murder convictions.

His lawyer Murrio Ducille argued the verdict was unreasonable and could not be supported having regard to the evidence.

In a 27-page judgment released by the appeal court on Monday, the presiding panel of Justices Dame Anita Allen, Jon Isaacs and Stella Crane-Scott explained their reasons for allowing Farrington’s appeal.

“Tanarje Hunt was the only eyewitness to the events of February 17, 2012 wherein she and her uncle were robbed and her uncle shot and killed by the robber,” Dame Anita noted.

“Her description of the person who robbed them and killed the deceased, and her ability to identify that person were never tested as she did not take part in an identification parade, and never identified the appellant as the man who committed the crimes. She identified the assailant as being a ‘short, dark man’ and the confession by the appellant, a light-skinned slim man that he shot and killed the deceased could not both be true. In determining the facts, the jury could not accept both the description of the assailant given by Ms Hunt and the confession by the appellant that he was the gunman. It is only if the jury rejects the description of the gunman given by Tanarje Hunt, and is still satisfied that he made the confession, and that it is true, could they properly convict him. In my view, this case then fell within limb 2(b) of Galbraith, and was properly left by the learned judge for the consideration of the jury.

“It would follow, however, that the learned judge ought to have pointed out the material inconsistency between the description given by Tanarje Hunt of the assailant, and the appellant’s actual appearance in his summing up. He ought to have directed the jury to take that factor into account in determining whether the appellant had confessed to something which might not be true, consistent with his allegation that he did not voluntarily confess,” Dame Anita further noted.

“In my view, the judge’s failure to alert the jury to this material inconsistency and to direct them of its possible benefit to the appellant’s case, is a misdirection. Consequently, while there is evidence on which the appellant may be properly convicted by a jury properly directed, due to this misdirection by the learned judge the verdicts are unsafe.

“The verdicts of the jury in this case should be set aside not because of the insufficiency of the evidence but because the summing up was not evenly balanced, and the jury not properly directed. The case therefore may properly be retried so that proper directions may be given, and the interests of justice may be served.”

Dissent

Justice Crane-Scott agreed with her colleagues that there was a miscarriage of justice and that the conviction should be quashed.

However, she dissented on the necessity for a retrial.

“It is axiomatic that the appearance of inconsistencies and discrepancies in the evidence is a normal, if not inevitable, part of any trial, whether civil or criminal. In criminal trials it is generally for the jury, as the judges of the facts, to resolve such conflicts in the evidence and to determine the true facts of the case,” she noted.

“ . . .At the close of the Crown’s case, it is clear that the confession and record of interview obtained from the ‘tall, slim, bright male’ suspect which the judge had earlier admitted into evidence, now stood in stark conflict with the evidence of the eye-witness who unequivocally told the court that the armed robbery offences and the murder had been committed by a ‘short, dark...very dark man.’ In my view, given the state of the evidence at the close of the prosecution case, this discrepancy was not one which a jury, even if properly directed could resolve and it would be unsafe to leave such a case to the jury. Given the state of the evidence, I am satisfied that the prosecution evidence taken at its highest, was such that a jury properly directed could not properly convict on it. In short, at the close of the prosecution case, the case fell squarely in limb 2(a) of Galbraith and the judge was duty bound to withdraw the case from the jury’s consideration.”

“I am satisfied that the learned judge erred in not withdrawing the case from the jury under limb 2(a) of Galbraith (ground 3); and that the verdict is therefore unreasonable, cannot be supported having regard to the evidence (ground 7) and is unsafe and unsatisfactory in all the circumstances of the case (ground 6).

It seems to me that even though the circumstances of this case are not exactly on all fours with Reid, this is nonetheless a case which arguably falls somewhere near to the other extreme of the continuum (also identified in Reid) on the basis that a retrial ought not to be ordered because the prosecution evidence adduced at the trial was so tenuous that it was insufficient to justify a conviction by a reasonable jury even if properly directed.”

“The nature of the discrepancy which had arisen at the close of the case was not one which could be resolved by the jury being permitted to make a choice between Tanarje Hunt’s physical description of the gunman on the one hand and the physical description of the suspect arrested by Detective Constable Beauford King from whom a written confession and record of interview had allegedly been obtained on the other. In my view, without more, there is no way that the jury could reasonably reject Tenarje Hunt’s evidence as to the physical description of the gunman, without severely undermining the entire basis on which the confession and record of interview was obtained. In short, at the close of the prosecution case, a very real doubt had arisen on the evidence as to the connection between the gunman described by Tenarje Hunt and the suspect who had given the disputed confession and record of interview. The Crown’s case viewed as a whole at its close was inherently contradictory, completely irreconcilable and ought never to have been left for consideration by the jury.”

“Having balanced the competing interests of justice in this case, I am satisfied that despite the seriousness of these offences, the prevalence of such crimes in this jurisdiction and the interest of persons in this community in knowing that persons who are guilty of serious crimes are brought to justice and should not escape it, the prosecution evidence in this case is so inherently contradictory and tenuous in character that it is not in the interests of justice to order a new trial and I decline to do so,” Justice Crane-Scott noted.

“I would allow the appeal, quash the appellant’s four convictions and the associated sentences and direct a judgment and verdict of acquittal to be entered in relation to each conviction,” Justice Crane-Scott concluded.

Olivia Nixon appeared for the Crown in the appeal.

The full judgment is available on the Court of Appeal’s website.