Hit men came for David Darby – Part 2
KENNETH Clarke, alias Paul, one of the men arrested for the murder of Telstar Cable company principal David Darby, gave testimony at the trial, in which he claimed that he had been beaten on the soles of his feet, had his teeth knocked out and was made to sign a document written by the police.
The others arrested for this heinous crime were Donovan Starrad o/c ‘Danny’; and Hopeton Robinson o/c ‘Flipper’ or ‘Starchie’ who were later tried in the Home Circuit Court. The main witness for the prosecution was Kirk Rose of Thatchwalk district, St Ann, who waited in the getaway car while the men pumped four bullets into Darby’s body as he strung cables along Roehampton Circle in St Andrew one day in February 1996.
The trial judge ruled that Clarke’s statement was given voluntarily and was, therefore, admissible. It was then read to the jury. According to Clarke, Rose had been living at Myrie Avenue for two months prior to the murder. Hopeton Robinson was his (Clarke’s) girlfriend’s brother, and Danny was a taxi driver who drove a white Toyota Corolla.
His statement told how Danny came to Myrie Avenue on February 24, 1996, picked up Rose and himself and drove to the Chinese cemetery to pick up Hopeton. Danny had said that the purpose of the mission was to “go drop a man” identified as a “cable man fi somebody”.
“Danny asked Hopeton for the guns and Hopeton showed him a chrome 9mm and a .38 Special. They passed a fridge repair shop and drove to Roehampton where Danny say ‘the cableman me fi kill a do some work’ and he pointed out the cable technicians at work. They stopped the car and got out. Danny gave Clarke the 9mm gun and told him to go with Hopeton, ask for Mr Darby and kill him. They did so and ran back to the car.”
The Court then heard that after Rose drove back to the Esso gas station, Danny took over.
Asked why they killed Darby, Clarke was reported to have said: “An Indian man who owns a bicycle shop on Waltham Park Road and was also in the cable business paid us J$90,000 to eliminate competition.”
The money was paid over to Hopeton, Rose and himself. According to Clarke, he took $40,000 and Danny received the other $50,000. Hopeton and Rose were to get money later.
In an unsworn statement from the dock after the prosecution closed its case, Clarke claimed that he and Rose never got on very well. He related an incident in which he alleged Rose had threatened him and his girlfriend with an ice-pick.
He told the court that he had been beaten on the soles of his feet by the police and repeated his previous allegations against them.
Starrad, too, made a statement from the dock, in which he only admitted going with Clarke and Rose to the Chinese cemetery.
In his unsworn statement, Robinson denied all the allegations.
Following a two-week trial, Clarke was convicted of capital murder and sentenced to death. Starrad and Robinson were convicted of non-capital murder and sentenced to life imprisonment.
All three accused appealed.
The Court of Appeal, on July 30, 1999 dismissed Clarke’s appeal against conviction. It also dismissed the appeals of the two co-accused.
On March 6, 2000 the Privy Council dismissed the appellant’s application for special leave to appeal to the Privy Council.
In the meantime, on September 17, 1999, following dismissal of the appeals by the Court of Appeal, Wayne Denny, an attorney from the Independent Jamaica Council for Human Rights (IJCHR), paid a visit to Clarke at the St Catherine District Prison. The visit was in relation to a petition being made by Clarke for Special Leave to Appeal to Her Majesty in Council. Arising out of a conversation with Clarke, Denny learnt that Rose was a prisoner at the same institution, awaiting trial on a charge of housebreaking. He was advised by Clarke that it would be “pertinent” for him to speak to Rose.
Danny went to see Rose on October 29 and Rose gave him a statement, to which he swore in the form of an affidavit on March 4, 2000. He also swore to another affidavit dated November 23, 2000.
That affidavit, together with one from his aunt, Tencie Rose of Thatchwalk district, formed the basis for a petition to the governor general for a reference back to the Court of Appeal under Section 29(1)(a) of the Judicature (Appellate Jurisdiction) Act.
In a complete reversal of his evidence before the judge and jury during the trial, Kirk Rose said in part: “Superintendent Tony Hewitt told me he knew I had nothing to do with it but he wanted me to give him some information. Again, I insisted that I knew nothing. Along with Supt Hewitt were Inspector ‘Chipper’ Grant and Det Sgt Williams. They told me that they wanted me to sign a statement and go to court and say I was with the men in the car when they killed Mr Darby. Inspector Grant did most of the talking.
“Supt Hewitt did not say much but appeared to be in charge. They promised to send me abroad and give me a start in life, but I refused to do as they asked. I was kept at the Constant Spring station for several months until the trial. On the first two days I was repeatedly beaten by them as well as by other policemen, including one called Mr O’Connor, who almost broke my jaw.
“Mr Hewitt slapped me around. Det Williams beat me repeatedly with a strip of old tyre rubber and Chipper Grant kept hitting me in the head with a baton, though not very hard. This continued into the second day until I agreed to do as they asked.”
The governor general advised the Court of Appeal on June 8, 2000 that the petition had been granted. The Court of Appeal heard the matter on November 27 and 28, 2000. It considered the affidavits of Rose, his aunt Tencie Rose, as well as the affidavits of the police officers whom Rose alleged used violence to coerce him to testify.
The appeal was dismissed and the reasons were handed down on October 25, 2001.
The Privy Council in its majority judgement adverted to submissions put before the Court of Appeal by Dennis Daly, QC on Clarke’s behalf. Namely, that the evidence of Kirk Rose and Tencie Rose, in their affidavits “was credible and ought to be heard”.
“Even if the court was not satisfied that the evidence of Rose was true, it raises an issue and therefore the witness should be heard,” Daly argued.
In its judgement, the Court of Appeal said: “We regard it as quite unlikely that a witness such as Kirk Rose, a woodworker by trade, who agrees that he can write, but asked if he could read, answered ‘Not so good, sir’ could have given evidence at the trial and maintained his story consistent with his earlier statements unless he was speaking the truth and from his own knowledge. It is unlikely that he was diligently reciting what the police had told him to say. Accordingly, the evidence which was sought to be led as fresh evidence is less than credible.”
The Court added that Rose’s conduct in taking the police to the various points on the journey to Roehampton Drive (which was not denied in his new affidavits) showed an “intimate knowledge of the events of February 24” and coincided with his statements of March 17 and March 20, 1996.
“It is therefore quite likely that he, himself, did give the latter statements to the police and that makes the ‘fresh evidence’ sought to be tendered less than credible.”
The Board took note that the Court of Appeal found that Rose’s new evidence was “not capable of belief” and refused the motion to admit it.
It referred to the submissions before them of Miss Montgomery, QC, on behalf of Clarke, that the Court of Appeal should have taken the view of the new evidence from Rose, as advocated in the case of Clifton Shaw v The Queen (2002) (unreported), October 15, 2002 (an appeal from Jamaica to Their Lordship’s Board). She submitted that Rose’s evidence should have been heard de bene esse — to take evidence for future use while it is available — together with oral evidence from the policemen who had sworn affidavits in answer.
“The Court of Appeal was being asked to entertain the possibility that a number of policemen had conspired to capture a not particularly intelligent rural petty criminal who happened to be in Kingston, beat him into agreeing to sign two written statements which contained certain inconsistencies of their own, and then put him forward as the principal prosecution witness, following which he was not only able to narrate in the most circumstantial detail a wholly fictitious tale, set in a town with which he had a very limited acquaintance, but to carry off the deception over a day and a half of cross-examination so as to convince the jury that he had been telling the truth.
“Their Lordships share the view of the Court of Appeal that this story was not capable of belief…”
The Board came to the conclusion that the Court of Appeal was also entitled to reject the evidence of Tencie Rose — Rose’s aunt — as incapable of belief as it was contradicted not only by Rose’s evidence at the trial but also by his new story.
Finally, the appellant complained of the prosecution’s failure to disclose material which might have assisted the defence, on two grounds: a) he had been wanted by the St Ann police for a wounding or shop-breaking charge at the time of the murder; b) re another prosecution for murder involving a couple called Livingstone, which, according to the defence, would show that two other men had been hired to kill Mr Darby.
Said the Board: “…Inquiry has revealed nothing to show that the appellant was wanted by the St Ann police or any connection with the Livingstone proceedings. These grounds of appeal must therefore fail.
“Their Lordships will therefore humbly advise Her Majesty that the appeal against conviction should be dismissed. There is also an appeal against sentence which has, by consent, been adjourned to a date to be fixed.”
In his dissenting judgement, Lord Steyn drew attention to Craig, Administrative Law, 4th Ed 1999, pps 786-789 and stated: “…One must never lose sight of the fact that in death sentence cases the responsibility of the Board is an awesome one. Common humanity demands of the Board the greatest vigilance to identify possible injustices and failures of due process… the proposition in Gayle cannot mean that the Privy Council must defer to the decision of a Court of Appeal where its decision is materially defective as a matter of law (as in the present case) or otherwise unsatisfactory (as in the present case).
“Lord Griffiths would have had these qualifications well in mind but I emphasise them because they are sometimes overlooked. In any event, against the background of the flawed approach of the Court of Appeal, it would be absurd to apply to their decision what is, in effect, a principle of deference.”
“Finally, I pose the question whether, unassisted by the flawed judgement of the Court of Appeal, objectively the new affidavit evidence was so incontrovertibly incapable of belief that it would be right for the Board to dismiss the appeal.
“In my view the new evidence, although on the face of the affidavits somewhat implausible, should have been carefully tested by hearing it de bene esse. It could readily have been done in the two days set aside for the hearing and Kirk Rose was available to be examined and cross-examined. The short cut adopted by the Court of Appeal was ill-advised. It was also unjust. Due process required the Court of Appeal to hear the evidence de bene esse.
“In these circumstances, I would allow the appeal, quash the decision of the Court of Appeal and remit the matter for hearing by a differently constituted Court of Appeal.”
Based on the majority judgement, Clarke’s sentence of death was subsequently affirmed.
Next week: Leslie Hylton — popular cricketer kills his wife in a crime of passion
Sybil E Hibbert is a veteran journalist and retired court reporting specialist. She is also the wife of Retired ACP Isadore ‘Dick’ Hibbert, rated as one of the leading detectives of his time. Send comments to allend@jamaicaobserver.com