Anthony Gayle v R
| Jurisdiction | Jamaica |
| Judge | Straw JA |
| Judgment Date | 24 September 2021 |
| Neutral Citation | JM 2021 CA 99 |
| Docket Number | SUPREME COURT CRIMINAL APPEAL NO 2/2012 |
| Court | Court of Appeal (Jamaica) |
[2021] JMCA Crim 30
IN THE COURT OF APPEAL
The Hon Mrs Justice Mcdonald-Bishop JA
The Hon Miss Justice Straw JA
The Hon Mr Justice Brown JA (AG)
SUPREME COURT CRIMINAL APPEAL NO 2/2012
Mrs Valerie Neita-Robertson QC and Ms Kymberli Whittaker instructed by Robertson & Co for the applicant
Mrs Sharon Milwood Moore and Okeeto DaSilva for the Crown
Just a few days before Christmas, on 20 December 2011, the applicant was convicted by D McIntosh J (‘the learned judge’) in the High Court Division of the Gun Court, held in the parish of Saint Elizabeth, for the offences of illegal possession of firearm, illegal possession of ammunition, shooting with intent and robbery with aggravation. The applicant was sentenced on 10 January 2012 to serve 10 years’ imprisonment in respect of the ammunition charge and 20 years’ imprisonment in respect of each of the other counts. The sentences were ordered to run concurrently.
Both the case for the Crown and defence, which could almost be described as cinematic, are summarised below. The learned judge, having considered the evidence, ultimately accepted the Crown's case.
The Crown called a number of witnesses in support of its case. These witnesses were, Constable Novelette James, Marvin Brown (who was also known as ‘Bud Brown’), Constable Claudia Francis, Corporal Errol Montaque, Sergeant Donovan Forbes, Detective Corporal Eugene Mitchell, and Sergeant Kevon Chambers.
It was the night of Friday 26 October 2007, and a “dance” was held in the Cheapside community in the parish of Saint Elizabeth. Constable Novelette James and her colleague, Constable Claudia Francis, decided to attend the dance. At the time of giving her evidence at trial, Constable Novelette James had been elevated to the rank of Corporal of Police. She will therefore be referred to as Corporal James and Claudia Francis as Constable Francis. It is worth mentioning that at the relevant time, they were both police constables stationed in the parish.
In the early hours of Saturday morning, at about 1:30 am, Corporal James left the dance with another friend, Marvin Brown (‘Bud Brown’), on his motorcycle. Bud Brown controlled the motorcycle, and Corporal James was his pillion passenger. They were heading to Corporal James’ home in Top Hill, Saint Elizabeth. While on their way and reaching in the vicinity of Junction, Corporal James noticed a motor car, which had been travelling behind them for some time.
Bud Brown made a sudden left turn on the Ballards Valley parochial road, and the motor car followed suit. The motor car then drove very close to them. Corporal James said that it started to try to “bank” them. By this, she explained that the motor car drove alongside them, steering to the left. This caused them to go more to the left, on the “bankin” (embankment). Corporal James told Bud Brown not to stop, and the motor car continued to drive alongside them. She then observed someone in the front left passenger side of the motor car pointing a firearm at them. The motor car then overtook them and blocked their path, causing them to stop.
The motor car stopped, and the person pointing the firearm came out of the motor car, still pointing the firearm at them and demanded the motorcycle from Bud Brown. In response, Corporal James pulled her licensed firearm and fired at the man. She recalled seeing a flash of light coming from the man's hand that held the firearm.
Corporal James also fired at the motor car. The driver of the motor car came out and the first man, the passenger, went into the driver's seat and drove off.
Corporal James, having jumped off the motorcycle, left Bud Brown, telling him to run. She ran into the bushes and walked home. When she arrived home, she asked a relative to take her to the police station.
Bud Brown went to the Junction Police Station, only to see the same motor car and the same man who had driven it away earlier. So he decided to leave and, instead, proceeded to Corporal James' home.
Constable Francis received a report and went to the Junction Police Station. There, she saw a man whom she noticed was injured. He was the applicant, Mr Anthony Gayle. He identified himself to her as a police officer. Constable Francis took the applicant to the Mandeville Hospital, where he handed over to her a firearm, magazines and ammunition. Other police officers found an injured man walking on the road and also took him to the same hospital. Constable Francis heard this injured man speaking with the applicant and formed the view that he was involved in the incident. He later identified himself to Sergeant Kevon Chambers as Damion Barrett of a Weymouth Avenue address in Kingston. He was taken to the hospital and treated. During investigations by the Bureau of Special Investigations, a statement was collected from Damian Barrett (‘Damion’) and the applicant was eventually charged for the above — described offences. Damian was never charged in this matter.
At the trial, Corporal James and Bud Brown identified the applicant as the passenger of the motor car, who had demanded the motorcycle. Corporal James also indicated that she was stationed at Mobile Reserve at some point and that she knew that the applicant was also stationed there. However, she said that she was looking at the firearm and not his face at the time of the incident.
The applicant gave sworn evidence. His account was that on 26 October 2007, he travelled in a grey Toyota motor car (‘motor car’) (owned by a friend) with his friend Damion from Kingston to Saint Elizabeth, the parish in which he grew up. The purpose of this journey was to visit his grandmother and other family members, but he also stopped by the dance in Cheapside at about 1:00 am.
The applicant said that when he left the dance, Damion drove, and he was seated in the front passenger seat. They were heading towards the Junction Police Station, which was in the direction of Round Hill district, where he intended to spend the night.
While travelling along the Junction main road, the applicant recalled sitting back in the front passenger seat, which was fully reclined. He sat up when he heard a motorcycle ride up behind the motor car. As the motorcycle passed the right side of the motor car, the applicant observed a male rider and a female pillion. He thought the rider resembled a friend (and in-law) of his, who was of a similar complexion.
The applicant asked Damion to use the headlamp to signal to the rider, which he did. He also tooted the horn. The motorcycle continued to travel in front of them for a mile and a half and the motor car followed behind, as they were heading in the same direction. According to him, on reaching the Ballards Valley main road, Damion tooted his horn and the motorcycle stopped under a streetlight.
After asking “waa gwan”, the applicant realised that the rider of the motorcycle was not his friend. He indicated his error and, at the same time, noticed that the rider had his hand under the jacket he was wearing. The applicant then saw the rider with a firearm in his hands. This caused him to pull his service firearm, which was in his waist. He told Damion to drive. Immediately after that, the applicant said that he heard several explosions coming from the direction of the motorcycle. He also heard glass breaking around him and felt that he was shot several times. As a result, he received injuries to his back, left side, right thumb and forefinger.
The applicant stated that his firearm had become jammed when he tried to put a round in the breech, so he was unable to discharge it; also, he was shocked during the shooting. When the shooting stopped and he regained his composure, he noticed that Damion was not in the car. He did not know at what point Damion had exited the car. As a result, he went around the steering wheel and drove to the Junction Police Station. By this time, he did not see the rider, the pillion passenger or the motorcycle.
The applicant denied coming out of the motor car at any time at Ballards Valley. He also denied pointing or firing his firearm at the rider and pillion passenger and demanding the motorcycle. Specifically, he denied uttering the words “gimmi da bike ya”. At no time was the applicant asked whether he had known or recognised Corporal James.
The applicant sought leave to appeal against his conviction and sentence. This was refused by a single judge of the court. What came before this court was a renewal of that application.
Additionally, at the outset of the hearing, an application was made on the applicant's behalf for fresh evidence to be adduced on appeal, pursuant to section 28(a) and (b) of the Judicature (Appellate Jurisdiction) Act (‘JAJA’). The evidence which was the subject of this application was an affidavit as well as a typed statement, both of which were attributed to the driver of the motor car, Damion. The application was opposed by the Crown.
After hearing submissions on both sides, we concluded that the application to adduce fresh evidence must be refused. The reasons which were indicated at the time of refusal, may be briefly restated.
We considered the proposed evidence as well as the cumulative criteria laid down in R v Parks (1961) 46 Cr App Rep 29, which has been followed in numerous cases decided by this court.
It was our view that the applicant had failed to establish the first criterion, namely, that the evidence was not available at the time of the trial. In the instant case, the applicant knew the witness, Damion. They were friends and the applicant knew where he lived, as Damion's address had not changed between 2007 and the date of trial in December 2011.
Damion,...
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