Austin et Al v R

• Jurisdiction: Jamaica
• Judge: Morrison P
• Judgment Date: 26 September 2017
• Neutral Citation: JM 2017 CA 30
• Date: 26 September 2017
• Court: Court of Appeal (Jamaica)
• Docket Number: SUPREME COURT CRIMINAL APPEAL NOS 65, 66, 67, 69, 70 & 71/2012

[2017] JMCA Crim 32

IN THE COURT OF APPEAL

Before:

THE HON Mr Justice Morrison P

THE HON Mrs Justice Sinclair-Haynes JA

THE HON Mr Justice F Williams JA

SUPREME COURT CRIMINAL APPEAL NOS 65, 66, 67, 69, 70 & 71/2012

Demone Austin

Lennox Brown

Kemar Brown

Texroy Perry

Christopher Campbell

Kirkdayne Virgo

and

R

Mrs Caroline Hay and Neco Pagon for the first applicant Demone Austin

Mrs Ann-Marie Feurtado-Richards for the second applicant Lennox Brown

William Hines for the third applicant Kemar Brown

Dr Randolph Williams for the fourth applicant Texroy Perry

Delano Harrison QC for the fifth applicant Christopher Campbell

Oswest Senior-Smith for the sixth applicant Kirkdayne Virgo

Mrs Christine Johnson-Spence for the Crown

Criminal Appeal - Directions to jury on credibility of virtual complaint — Dock identification — Turnbull warning — Good character direction — Appeal against sentence — Sentences for wounding with intent — Aggravating and mitigating factors.

Morrison P

1 On 13 June 2012, after a trial before McDonald-Bishop J (as she then was) (‘the judge’) and a jury in the Saint Ann Circuit Court, the applicants were convicted of the offence of wounding with intent. On 14 June 2012, the first applicant was sentenced to 15 years' imprisonment, the second to 12 years' imprisonment and the third, fourth, fifth and sixth to 14 years' imprisonment each.

2 The applicants sought leave to appeal against their convictions and sentences, their applications for leave having previously been refused by a single judge of this court on 11 October 2013. On 26 May 2017, the applicants' renewed applications for leave to appeal against conviction and sentence were refused and the court ordered that their sentences should be reckoned as having commenced from 14 June 2012. These are the reasons for this decision.

3 The applicants were charged with wounding with intent, contrary to section 20 of the Offences Against the Person Act. The particulars were that, on 26 May 2007 in the parish of Saint Ann, they wounded Mr Roger Foreman (‘the complainant’) with intent to do him grievous bodily harm. Also charged with them were Messrs Kenrick Wilson and Damion Raymond. However, the jury returned a not guilty verdict in respect of Mr Wilson and, on 13 April 2015, Mr Raymond's application for leave to appeal was refused by the court on the basis of a concession by his counsel. Nothing more needs therefore be said in respect of either of them.

4 The prosecution's case at trial may be summarised as follows. The complainant was a barber by profession. On 26 May 2007, apparently in culmination of an ongoing feud between the complainant and his assailants, he was the victim of a vicious attack by eight men. He was unarmed, but his assailants were variously armed with machetes, knives and other implements.

5 The altercation started at some point after 10:00 o'clock on the night of 26 May 2007. While the complainant and another man were walking in the vicinity of Nam's Hardware in Brown's Town, Saint Ann, they came upon the applicants on the road. There was a brief exchange between the complainant and the first and fourth applicants (referred to by the complainant as ‘Kem’ and ‘Kitty’ respectively). The latter then stepped off the piazza and said to the complainant, “hay boy, a gunshot you a go get in your head”, before flinging a bottle at him. Shortly after that, another bottle was flung from the crowd, but the complainant could not say who threw it. A lady then intervened and the complainant left the scene.

6 Not long after that, the complainant went to an establishment known as London House. This was an old building which housed a number of shops and business places. While there, the complainant again saw the applicants some 21–25 feet away. They were in separate groups of three, each group in front of the other. Some of them had machetes in their hands, two had knives, while another held a “golf stick”. The complainant ran across the road and, when he looked behind him, he saw the applicants moving towards him. The complainant ran further away with the applicants in pursuit. Running through Brown's Town Beef Market Street, he saw a bus parked in the middle of the street and some people packing their goods into the bus. There were some seven to eight people to his right and another three to his left. He ran into a gentleman, fell, got back up and started running again. He heard a male voice bawling out “thief”. As they ran after him, the applicants were all chopping at him. The fourth applicant flung a bottle which hit the complainant in his back. In short order, all of the applicants caught up with him and started chopping him and stabbing him.

7 During the attack, the complainant was chopped, stabbed and struck all over his body. In addition to multiple lacerations (in excess of 10), he sustained a fracture of the skull and an injury to his left hand of such severity that the doctor who treated him the day after the attack considered it unlikely that he would ever have a full restoration of function of that hand. Both the injury to the head and to the hand would have been inflicted by the use of severe force. In the doctor's view, these were serious injuries, which would all have been inflicted by sharp instruments, such as machetes, knives and broken bottles.

8 The complainant positively identified all of the applicants as having been among his attackers. In relation to each of the applicants, his evidence was to the following effect:

• (i) The first applicant, Kem, had been known to him for over 18 years. He was accustomed to seeing Kem every second week and used to shave his face and trim his hair. He and Kem had had some kind of dispute before 26 May 2007, which had resulted in his causing injury to Kem on that occasion. On the day of the attack, Kem was one of the men who were armed with machetes. Kem came in close proximity to the complainant while others chopped at him and he was one of the men who also chopped at him, causing injuries to his face, his forehead and his left hand. Towards the end of the attack, before the men all ran off, Kem said to the others, “come on de boy dead”.

• (ii) The second applicant (‘Hungry’) was his cousin. He had known Hungry from the time, as he put it, he knew himself. He knew where Hungry lived, he had been to his house and they were friends who would usually see each other night and day. He would usually cut Hungry's hair almost every weekend. He and Hungry had had a dispute some two weeks before the incident, when Hungry approached him with a knife, but, as a result of the intervention of a third party, they did not have a fight. On the night of the incident, Hungry had a golf stick in his hand and approached him alongside two of the others who were armed with machetes. While he was being chopped by others, Hungry hit him in his head and chest using the golf stick.

• (iii) The third applicant (‘Spragga’) had also been known to him from the time he knew himself. Although he was not as close to Spragga as to some of the others, he would see him at parties on weekends and he knew that he lived in Brown's Town. He had never cut Spragga's hair, but Spragga had been a student at Brown's Town High School at the same time as he was, albeit in a lower grade. During the course of the attack on him, Spragga was armed with a knife, which he described as being as big as a “lass”, with which he cut him on his hand while the others were also cutting him and hitting him.

• (iv) The fourth applicant, Kitty, had been known to him for a long time. However, he did not know what his real name was. Before May 2007, he would see Kitty three times per week or so and he would call to him every time he saw him. He knew where Kitty lived and he used to cut Kitty's hair every three weeks or a month for many years, although he had not done so for some time. Kitty was the one who had told him, before the attack, that “a gunshot you a go get in your head”. Kitty was one of the men who chased him down, with two bottles in his hands, and used a bottle to hit him in the back. Kitty was there during the attack on him, while the other men were cutting and stabbing and hitting him in his head.

• (v) The fifth applicant (‘Caesar’) had been known to him for 15 years. He would see him every weekend and, while he did not know where he lived, he would see him at the hardware store and at parties. Caesar was armed with a knife and was one of the men who ran after him and attacked him. Caesar stabbed at him, causing a stab wound to the left side of his stomach in the area of his ribs.

• (vi) The sixth applicant (‘Riggy’) had also been known to him from he knew himself. He would see him almost every weekend or every other weekend. He would see Riggy while he “outlined” his face and shaved him. Although he did not know Riggy's real name, they were good friends, he knew where he lived and he had been to his house. During the incident, Riggy was armed with a machete and was one of those who chopped him at the same time as the others chopped, cut and hit him.

9 The complainant said that he had no difficulty identifying any of these men, given the state of the lighting, which was ample, the distance from which he was able to observe them and the absence of any obstruction. But the applicants all gave brief unsworn statements, in which they denied attacking the complainant and asserted that they were elsewhere on the night on which he was attacked. However, there was no challenge from any of them to the complainant's account of the circumstances in which they were known to him, nor was there any denial that they were known by the nicknames which he attributed to each of them.

10 After the judge had summed up the case to the jury in admirable detail, they returned verdicts of guilty and each of the applicants was in due course sentenced in the manner which...