Anthony Brown v R
| Jurisdiction | Jamaica |
| Judge | Brown JA |
| Judgment Date | 01 October 2021 |
| Neutral Citation | JM 2021 CA 131 |
| Docket Number | SUPREME COURT CRIMINAL APPEAL NO 92/2018 |
| Year | 2021 |
| Court | Court of Appeal (Jamaica) |
[2021] JMCA Crim 47
IN THE COURT OF APPEAL
The Hon Miss Justice P Williams JA
The Hon Miss Justice Simmons JA
The Hon Mr Justice Brown JA (AG)
SUPREME COURT CRIMINAL APPEAL NO 92/2018
Miss Zara Lewis for the appellant
Mrs Lenster Lewis-Meade for the Crown
The appellant was convicted on an indictment charging him with two counts of illegal possession of firearm, one count of illegal possession of ammunition and one count of murder, before G Brown J (‘the learned judge’) and a jury, in the Home Circuit Court on 8 May 2018, after a trial which lasted five days. On 16 November 2018, he was sentenced to concurrent terms of imprisonment of five years on each of the counts for illegal possession of firearm, three years on the count for illegal possession of ammunition and imprisonment for life on the count for murder. In respect of the latter count, he was ordered to serve 29 years before becoming eligible for parole.
A single judge of this court granted his application for leave to appeal against his convictions and sentences. However, his convictions for the offences under the Firearms Act were not challenged before us.
The appellant listed what amounts to seven grounds of appeal in his application for leave to appeal. Those grounds are reproduced immediately below:
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“i. Misidentity by the Witness: That the prosecution witness wrongly identified him as the person or among any person [sic] who committed the alleged crime.
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ii. Lack of Evidence: That the prosecution failed to present to the Court any ‘concrete’ piece of evidence (material, forensic or scientific) to link him to the alleged crime of [sic] which he was subsequently convicted for [sic].
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iii. Conflicting Testimonies: That the prosecution witness presented to the Court conflicting and contrasting testimonies which amount to perjury thus call into question the soundness of the verdict.
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iv. Unfair Trial: That the evidence and testimonies upon which the learned trial judge relied on for the purpose to [sic] convict him lack facts and credibility thus rendering the verdict unsafe in the circumstances.
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v. That the learned trial judge failed to give adequate direction to the jury regarding the inconsistent and contradictory testimonies as presented by the prosecution witness.
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vi. Miscarriage of Justice: That the prosecution and the learned trial judge failed to take into consideration the argument of his defence attorney as it relates to his whereabout [sic] on the date of the alleged crime.
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vii. That he was wrongfully convicted for a crime he knew
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viii. nothing about and could not have committed.”
In addition to these grounds, the appellant's attorney-at-law, Miss Zara Lewis, filed seven supplemental grounds. She sought and obtained leave to argue the supplemental grounds, together with the original grounds filed by the appellant. The following are the supplemental grounds:
“1. The learned trial judge failed to deal, adequately, with specific weaknesses in the visual identification evidence and failed to address, sufficiently, the material inconsistencies that cast doubt on the reliability of the said visual identification evidence. Consequently, the learned trial judge failed to assist the jury adequately or properly and this deprived the Appellant of a fair trial and resulted in a substantial miscarriage of justice.
2. The learned trial judge erred in law in directing the jury as to how to treat the evidence of the Prosecution witness vis-à-vis their previous inconsistent statements or inconsistencies. This was a material misdirection particularly as the learned trial judge did not assist the jury by highlighting the weaknesses in the Crown's case due to the said inconsistencies. The Appellant was, therefore, denied a fair trial and this led to a grave miscarriage of justice.
3. The learned trial judge only rehearsed [the] evidence in a round-about and global way and therefore erred in law by failing to give adequate and appropriate directions in relation to the visual identification evidence pursuant to the principles enunciated in R v Turnbull [1977] QB 224.
4. The learned trial judge failed to instruct the jury as to how to treat with the fact that the witness, Rohan Sewell, was as a matter of law a witness with an interest or purpose of his own to serve or, at least to alert them to that probability, and further assist them as to the caution with which to assess the evidence of such a witness.
5. The learned trial judge erred in law in rejecting the no case submission.
6. The delay in bringing the case to trial was a breach of the Appellant's constitutional right to a fair hearing within a reasonable time as is guaranteed by the Charter of Rights enshrined in our Constitution.
7. The sentence imposed by the learned trial judge was manifestly excessive, considering the Sentencing Guidelines for Use by Judges of the Supreme Court of Jamaica and the Parish Courts, December 2017 (the Sentencing Guidelines). The learned trial judge therefore fell into error because he failed to take into consideration some of the factors relevant to sentencing [sic] of convicted persons.”
Supplemental ground 6 was abandoned during the course of the hearing of the appeal.
Detective Corporal Ransford Durrant (‘Det Cpl Durrant’) was shot and killed on the morning of 17 December 2012 shortly after he entered a shop in Windsor Heights in the parish of Saint Ann. The report of the pathologist, which was admitted into evidence as agreed facts, revealed one entrance wound on the left side of his face at the outer angle of his left eye. The bullet penetrated his skull and went downwards, exiting on the upper part of the right side of his chest. His skull showed penetrating fractures. The interior surface of his brain was contused (bruised). The roof of the left orbital cavity (eye socket) of the skull and the right maxillary bone (upper jaw) were fractured. His immediate cause of death was as a result of cranio-cerebral injuries due to a gunshot wound to the head.
On the morning of the shooting, one spent 9mm cartridge casing was recovered from the public or buyer side of the shop by personnel from the constabulary's Technical Services Division, Scenes of Crime. This spent casing was parcelled, labelled and taken to the Institute of Forensic Science and Legal Medicine (‘IFS&LM’) for ballistics testing.
His killer or killers remained at large until 3 January 2013 at about 12:30 am, when detectives from the Spanish Town Criminal Investigation Branch, acting on information, went to the vicinity of the Angels Plaza and signalled a motor truck to stop. The driver complied. The rear of the truck was laden with goods and partially covered by tarpaulin. Upon removing some of the goods, the appellant and another man (his co-accused) were found. They were ordered from the truck. The appellant was searched and a firearm, which had a magazine containing five rounds of ammunition, was removed from the region of his groin (crotch). These items were submitted to the IFS&LM for ballistics testing.
Detective Sergeant Mike Henry, ballistics expert attached to the IFS&LM, testified that there was a ballistics match between the firearm recovered from the appellant and the spent casing recovered from the shop in Windsor Heights. He outlined for the jury the process by which this was done. Therefore, the appellant was found in possession of the firearm from which the fatal bullet was fired, killing Det Cpl Durrant.
The prosecution also relied upon eyewitness testimony from Rohan Sewell, to whom Det Cpl Durrant was previously known, that it was the applicant who was Det Cpl Durrant's assailant. Rohan Sewell, a resident of the parish of Saint Ann, testified that he knew the appellant as “Bow” and “Kevin” for about five years from Saint Ann's Bay. He would see the appellant one or two times, mostly in the day, at an area of Saint Ann's Bay called “Ghetto”. Mr. Sewell, however, did not know any of the appellant's relatives. He had never spoken to the appellant.
Rohan Sewell's evidence was that on 17 December 2012, at about 9:00 am, he was walking to a shop in Windsor Heights. En route, he noticed two persons, one of whom was Det Cpl Durrant. The other person (the man held with the appellant and his co-accused) was sitting by a church, counting money, while Det Cpl Durrant was approaching on foot through a gully. Mr Sewell walked past where this other man was to a standpipe that was in the vicinity of the shop. He stood at the standpipe and was facing the shop, which was about the distance of the length of a cricket pitch away (66 feet).
About this time, Mr Sewell noticed that Det Cpl Durrant had walked past the shop. Det Cpl Durrant used his cellular telephone then turned back and entered the shop. After Det Cpl Durrant entered the shop, Mr Sewell heard one, then a second loud explosion, both of which sounded like gunshots. After the first explosion, Det Cpl Durrant stumbled outside the shop and fell on his back. After the second explosion, he saw the appellant go over to where Det Cpl Durrant was lying on his back, and removed a chain from his person. The appellant then went across a football field.
During cross-examination, Mr Sewell said he never knew the appellant by his proper name, Anthony Brown. It was the police who told him the appellant's name at the identification parade, about two months after the incident. He said he gave the police the name Kevin o/c Bowie. According to Mr Sewell, the police was showing him pictures when he saw the name “Anthony Brown” below it. He insisted he never saw the picture, only the name below it. Closely cross-examined on this point, Mr Sewell maintained that what he saw was the name “underneath a blank picture” and “just a blank thing [with his name]”. Crossed-examined further, he explained that the...
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