Crown defends Ninjaman convictions

The Crown on Thursday urged the Court of Appeal to uphold the convictions and sentences of dancehall entertainer Desmond ‘Ninjaman’ Ballentine and his co-accused, arguing that there was compelling evidence that they acted together to murder Ricardo Johnson.

Senior Deputy Director of Public Prosecutions Kathy Ann Pyke told the court that the trial judge was correct in refusing to withdraw the case from the jury as the prosecution had presented sufficient evidence upon which a reasonable jury, properly directed, could convict.

The two-day appeal hearing before the three-member panel of Justices David Fraser, Lorna Shelly Williams, and Marcia Dunbar-Green ended yesterday, with the court reserving judgment.

During her submission, Pyke rejected the defence’s argument that the trial judge erred in allowing the case to proceed and that the Crown’s evidence of a joint enterprise was weak, vague, or inconsistent. She argued that the prosecution’s case was “quite cogent and coherent” and that several witnesses provided evidence of critical actions involving all three accused men.

She argued that while there were shortcomings in the evidence, those issues were matters for the jury and did not justify withdrawing the case. Relying on R v Galbraith and other authorities, including Ellis Taibo, Pyke said once there was evidence capable of supporting a conviction, questions of credibility and inference were for the jury.

Common chain of events

Pyke submitted that the evidence showed a common chain of events involving Ballentine, his son Janiel Ballentine, and Dennis Clayton, beginning with threats made before the shooting. She told the court that witnesses heard threats against Johnson and another man, including statements that Johnson’s family should prepare his funeral.

She noted that the accused men returned minutes later armed with weapons, demonstrating a shared intention to attack. Pyke submitted that there was “no accidental return” and that the evidence suggested that the men returned to carry out threats already made.

She pointed to evidence that Clayton approached with a metal bat while Ballentine and Janiel Ballentine arrived in a vehicle armed with guns. The Crown said the men entered the premises, chased Johnson and another man through the yard, and shots were fired.

Pyke argued that under joint enterprise principles, it did not matter which person fired the fatal shot because anyone who shared the intention to carry out the attack could be held responsible for the actions of others involved.

She relied on evidence from one of the witnesses, who testified that she heard gunshots and later heard voices at the back of the property, including a voice, identified as Janiel’s, making threats against Johnson and another man.

The Crown said the evidence placed Clayton near the back fence shortly after the shooting, which supported the argument that he was part of the pursuit.

Pyke acknowledged that no witness identified who fired the fatal shot,but said the trial judge properly directed the jury that suspicion could not replace proof and that the prosecution had to prove the common purpose beyond a reasonable doubt.

She also defended the identification evidence, arguing that witnesses had sufficient familiarity with the accused men because they lived in the same community and had known them for years. She said recognition did not require extensive conversations but required a genuine opportunity to know and identify a person. She made similar arguments in respect of the voice identification with respect to Janiel.

Crown Counsel Sean Nelson later addressed the challenge to the judge’s directions on joint enterprise, arguing that the defence had wrongly relied on the principle from Jogee, which deals with parasitic accessory liability.

Nelson told the court that Jogee applies where individuals agree to commit one offence and another offence occurs during the course of that crime. He argued that that was not the situation in this case.

“This was a well-organised assassination in which the intention from the outset was to assassinate,” Nelson submitted.

He argued that there was no separate “Crime B” because the Crown’s case was that the accused men acted together from the beginning with the intention to kill Johnson.

He said Clayton and Janiel did not claim that they went to the location for another purpose and that the killing happened unexpectedly. Instead, their position was that they were not present.

Nelson argued that the trial judge correctly gave the conventional joint-enterprise direction and that the use of the word “foresight” did not prejudice the accused.

He said the jury was properly instructed that a person did not have to fire the fatal shot to be guilty if they played a role in the common purpose and encouraged or assisted the attack.

Nelson also addressed the ground of appeal concerning the prosecution’s failure to disclose earlier that its key witness had been located and placed in the witness protection programme.

The defence had argued that the late disclosure amounted to trial by ambush and affected their ability to prepare cross-examination, particularly on credibility issues and the witness’ eight-year absence.

Nelson rejected that argument, saying the disclosure delay caused no prejudice. He argued that the witness had faced threats and intimidation and that protecting his safety was a necessary public-interest consideration.

He said the defence already had the witness’s previous statements and had sufficient opportunity to prepare for cross-examination. Nelson maintained that the trial judge allowed adequate time and that there was no unfairness, abuse of process, or prejudice.

Crown Counsel Sharelle Smith also argued that the life sentences imposed on the father and son duo were appropriate. She submitted that the trial judge considered all relevant sentencing factors and that the absence of an explicit reference to a fixed term before parole eligibility did not amount to legal error.

Smith said the sentences were consistent with established sentencing principles for serious offences and should not be disturbed.

Ballentine, his son Janiel Ballentine, and Dennis Clayton were sentenced to life imprisonment in 2017 after being convicted of the 2009 murder of Kingston resident Ricardo Johnson and shooting with intent.

The prosecution’s case was that the killing arose from a dispute in Lower Mall Road, St Andrew, and that the men returned armed with weapons, chased Johnson and another man through the yard, and opened fire.

tanesha.mundle@gleanerjm.com