Anthony Atkinson and Paulston Mairs v R

• Jurisdiction: Jamaica
• Judge: F Williams JA (AG)
• Judgment Date: 05 February 2016
• Neutral Citation: JM 2016 CA 10
• Docket Number: SUPREME COURT CRIMINAL APPEAL NOS 45 & 46/2012
• Court: Court of Appeal (Jamaica)
• Date: 05 February 2016

[2016] JMCA Crim 4

JAMAICA

IN THE COURT OF APPEAL

Before:

The Hon Ms Justice Phillips JA

The Hon Mrs Justice Mcdonald-Bishop JA

The Hon Mr Justice F Williams JA (AG)

SUPREME COURT CRIMINAL APPEAL NOS 45 & 46/2012

Anthony Atkinson Paulston Mairs

and

R

Ms Althea McBean for the applicants

Ms Kelly-Ann Boyne for the Crown

F Williams JA (AG)

Background

1 This matter came before us as an application by both applicants for leave to appeal against conviction for the offence of arson. The applicants were jointly tried by a judge and jury in the Hanover Circuit Court on an indictment containing two counts: the first charging them with setting fire to a shop; and the second with setting fire to a bird coop. They were found guilty on 21 February 2012 at the end of a two-day trial. On 9 March 2012 the applicant Atkinson was sentenced to four years' imprisonment on each count; and the applicant Mairs was sentenced to five years' imprisonment on each count. The sentences for each applicant were ordered to run concurrently.

2 When the matter came before us on 1 December 2015, we made the following orders:

• ‘1. The applications for leave to appeal against conviction in respect of both applicants, Anthony Atkinson and Paul Mairs, are refused.

• 2. The sentences in respect of both counts and for both applicants shall be reckoned from 9 March 2012.’

3 We promised then to put our reasons into writing. This is a fulfillment of that promise.

4 The case against the applicants in, summary, was that on 25 January 2009 they went to the home of Mr Garfield Saunders, the virtual complainant, and there set fire to his shop, which was to the front of his dwelling house, and to his bird coop. On Mr Saunders' evidence, he actually saw the applicant Mairs with a lighter in his hand in the company of the applicant Atkinson and another man, near to the coop which was on fire. He approached them and asked: ‘wha dis fah?’ and both applicants and the other man ran. He testified as well to having been in a confrontation over land earlier that day with the two applicants and his (the virtual complainant's) father's wife, during which the applicants had threatened that ‘…they going to kill me, burn down me place and kill me or something…’ (see page 9, line 25 to page 10 line 2 of the record).

5 Apart from the virtual complainant, the Crown also led evidence from the investigating officer, Sergeant Hugh Mendez, who arrested and charged the applicants and testified to his observations when he visited the scene of the fire.

6 In respect of the defence, the applicants made unsworn statements and called as a witness one Mr Oneil Graham. By his evidence, Mr Graham placed himself at the scene of the fire on the night in question. He observed, he testified, the virtual complainant leave his house and the entire premises shortly after the fire was brought to his attention. The virtual complainant did not return whilst he, the witness, was there, that night. (Inferentially, therefore, the virtual complainant would not have been there to have identified anyone; and so, his testimony in that regard must be false.)

The grounds of appeal

7 Ms McBean for the applicants argued (with the leave of the court), two grounds of appeal contained in the supplemental notice and grounds of appeal dated 7 November 2015 and filed on 10 November 2015. The grounds of appeal were:

• ‘1. The verdict was unreasonable having regard to the evidence before the Court.

• 2. Evidence of an expert witness not placed before the Court is contradictory to evidence given by witnesses at the trial and this resulted in a material irregularity, an unfair trial and miscarriage of justice.’

Ground one: verdict unreasonable having regard to evidence

8 The focus of Ms McBean's submissions in respect of this ground, was to highlight inconsistencies, discrepancies and omissions in the evidence and to submit that these were not addressed adequately (or, in some cases, at all) in the learned judge's summation to the jury. In addition, she submitted that the learned judge did not properly direct the jury how to treat with the evidence from the preliminary examination and that the identification evidence in the case was weak.

Discrepancies and inconsistencies

9 In respect of the inconsistencies and discrepancies, these were the main submissions that she made in her skeleton arguments filed on 27 November 2015:

‘1. There were such material inconsistencies that the complainant's evidence was not credible and should not have been relied on by the Jury to arrive at a conviction as it was unsafe to rely on such inconsistent evidence….

4. When he came out he saw the top part of his house and verandah on fire, yet the Appellants were indicted for burning down or setting fire to a shop that was in front of the house. His evidence is that the shop is three quarters of an arm's length from the house yet the police officer puts it at 8–9 feet away. P 31.

5. There was also a discrepancy in respect of words spoken by the Complainant. He said he went up to them and said ‘a wah dis fah’. In cross-examination, he recounted his words as being ‘Marley and Earl what dis fah?’ This was also not in his statement to the police and is again a critical aspect of the case and smacks of recent fabrication.’

10 On behalf of the Crown, Ms Boyne, whilst recognizing that there were indeed several inconsistencies and discrepancies in the evidence, pointed the court to several portions of the summation, as a basis for contending and submitting that the learned trial judge had dealt with these adequately. She further submitted that it was axiomatic that the mere presence of discrepancies and inconsistencies in a trial do not render evidence unreliable or inadmissible; and that a jury might be given directions as to how to deal with them, as was done in this case.

11 It was further submitted on behalf of the Crown that there were two inconsistencies that arose on the evidence and one discrepancy. These inconsistencies were: (i) whether the virtual complainant saw the applicants two hours before the incident (as he had testified at the preliminary examination); or whether after the confrontation he had not see them again until the incident; and (ii) whether the bird coop was 40 feet from the back of his house or half a chain from the house (as he had said at the preliminary examination). In relation to the discrepancy, that discrepancy emerged between the evidence of the investigating officer, on the one hand, who testified that the shop was some 8 or 9 feet away from the house; and, on the other hand, the evidence of the virtual complainant, who said that the distance between the two was some 2 feet or three-quarters of an arm's length.

Discussion

12 In his summation, the learned trial judge began by giving what might be regarded as the standard opening direction on inconsistencies and discrepancies — that is, inter alia , that it is not uncommon to find them in a trial. This was what he said at page 6, line 23 onward of the record:

‘So, I am to tell you, members of the jury, that it is not unusual for there to be discrepancies or inconsistencies in a criminal case, especially when the facts about which witnesses speak are not of recent occurrence. And, you will remember, members of the jury, that the charges laid in the indictment concerned an incident which took place in January of 2009-10, 11, 12 — so, we are three years down the road.

Now, where discrepancies or inconsistencies occur, it is your duty to take them into account and decide what you make of them. What one witness says on a particular point may be completely different from what another witness says on the same point. Discrepancies may arise because witnesses do not remember in the same detail all that happened on a particular occasion. One witness' recollection may be quite clear while that of another may be dull. The occurrence of disparity in the testimony of witnesses recognizes that in observation, recollection and expression, the ability of individuals vary.’

13 Further on in his summation, the learned trial judge dealt specifically with the particular inconsistencies being discussed when he said of the virtual complainant's evidence, at page 8, beginning at line 20:

‘Now, in this court, he told us that having seen—after the confrontation between 9:00 and 10:00 that morning, the next time that he saw the accused was outside the foul [sic] coop and he said, well, he said, I think, ‘I don't remember if I saw them again that day’. But she reminded him of the evidence. She put it to him and he agreed that he told the judge, that's the judge in the magistrate's court that he knew them a long time and that he spoke to them about two hours before the incident. He saw them down at his father's wife's house. That's what he said in that court. So there is an example of that.

Now, in any case, and I will point out a few more examples of —-examples that you may consider to be inconsistencies. Now, in any case where you find there is a discrepancy or inconsistency, you are to ask yourselves whether the inconsistency or discrepancy is a major or minor one. That's the question you have to ask yourself.’

14 The learned trial judge further stated in relation to this issue at page 10, lines 5-9 of the record:

‘You have seen and heard the witnesses and it is for you to say whether the inconsistencies are profound and inexplicable or whether the reasons which have been given, if any, for the inconsistencies are satisfactory.’

15 With specific reference to the discrepancy between the virtual complainant's evidence and that of the investigating officer as to distance, we have had regard as well to the learned judge's assessment of the virtual complainant, when he observed at page 41, lines 11–18:

‘…there is light up there, and is...