Brandon Campbell v R
| Jurisdiction | Jamaica |
| Judge | Brooks JA |
| Judgment Date | 15 November 2012 |
| Neutral Citation | JM 2012 CA 102 |
| Date | 15 November 2012 |
| Court | Court of Appeal (Jamaica) |
| Docket Number | SUPREME COURT CRIMINAL APPEAL NO 24/2011 |
[2012] JMCA Crim 54
JAMAICA
IN THE COURT OF APPEAL
The Hon Mr Justice Morrison JA
The Hon Mr Justice Dukharan JA
The Hon Mr Justice Brooks JA
SUPREME COURT CRIMINAL APPEAL NO 24/2011
Leroy Equiano for the appellant
Mrs Lisa Palmer Hamilton and Mrs Denise Samuels-Dingwall for the Crown
CRIMINAL LAW - Illegal possession of firearm - Assault with intent to rob - Illegal possession of ammunition - Mis-identity by witness - Unfair trial - Lack of evidence - Whether sentence excessive
Mr Brandon Campbell was convicted by Sykes J, on 26 February 2009, in the Gun Court of the offences of illegal possession of a firearm and assault with intent to rob. He was acquitted of the offence of illegal possession of ammunition. He was sentenced to 12 years imprisonment at hard labour in respect of the firearm count and five years in respect of the assault with intent to rob. The learned judge ordered that the sentences should be served consecutively.
Mr Campbell applied for leave to appeal against his conviction and sentence. A single judge of this court refused his application in respect of the conviction but granted him leave to appeal against the consecutive nature of the sentences. Mr Equiano argued the appeal before us, on his behalf.
On 31 October 2012 we made the following orders:
‘The application for leave to appeal is allowed and the hearing of the application is treated as the hearing of the appeal. The appeal against conviction is allowed in part, the conviction in respect of the count of assault with intent to rob is set aside and a verdict of acquittal is entered in its stead. The conviction and sentence in respect of the illegal possession of firearm are affirmed and Mr Campbell's sentence is to be reckoned as having commenced on 27 May 2009.’
At that time we promised that our reasons in writing would follow shortly. We now fulfil that promise.
The evidence which the Crown placed before the court below, and which the learned trial judge accepted as truthful, demonstrated Mr Campbell's misfortune in choosing a victim as brave and tenacious as the virtual complainant, Mr Gifford McKenzie. As will be shown below, the prosecution and the society, by virtue of the recovery of the firearm, have benefitted from Mr McKenzie's bravery.
It was Mr McKenzie's evidence that on 22 July 2008, at about 10:00 pm, while operating his taxi-cab along Spanish Town Road, in the parish of Saint Andrew, he picked up a male passenger in the vicinity of Seaview Gardens. As was Mr McKenzie's wont, the roof light in the vehicle was on and remained on as a security measure. Similarly, as a standard safety measure, he constantly observed his passenger along the journey. That journey took them along Spanish Town Road to the intersection with Hagley Park Road and along Hagley Park Road to its junction with Mahoe Drive where the passenger indicated his wish to disembark.
According to Mr McKenzie, he stopped the vehicle and looked through his driver's side window with a view to making a U-turn to return to the intersection with Spanish Town Road. While in that position, he was waiting to hear the passenger's door close in order for him to be on his way. The expected sound did not come and Mr McKenzie looked around just in time to see the passenger pull a firearm and point it at his side.
Mr McKenzie reacted with dramatic effect. He let go of the steering wheel and grabbed the gun. He struggled with his assailant and in attempting to wrest the firearm away from him, bit him on the hand and on the shoulder as the miscreant tried to escape from the vehicle. His tenacity won the day and the assailant fled leaving the weapon. Mr McKenzie was not left unscathed, however. The severity with which he bit the attacker caused his gums to bleed severely.
Despite his injury, Mr McKenzie pursued the assailant and, while chasing him, a shot was discharged from the firearm that was in Mr McKenzie's hand. The bullet hit a bystander who raised an alarm and Mr McKenzie abandoned his chase of the miscreant.
The police attended the scene and a report was made. Mr McKenzie and the bystander were taken to the hospital where Mr McKenzie's injury was assessed as requiring dental services and he was quickly released. He was taken to the Hunts Bay Police Station. There, while giving his statement to the police, Mr Mckenzie saw his attacker being brought in by police personnel. He immediately pointed out the man to the police as being the person who had attacked him.
According to Mr McKenzie, the man was dressed in the same clothing, including a white or pale jacket with a hood and had the same ‘chiney-bump’ hairstyle that he had earlier that night. The man, who proved to be the appellant, Mr Campbell, also bore injuries on his hand and signs of blood on his jacket in the region of his shoulder.
In addition to Mr McKenzie's evidence, there was the evidence or Sergeant Christopher Mattis who testified that, in answer to a transmission, he went to the junction of Hagley Park Road at about 10:50 on the night of 22 July 2008. There he received a report and he and other officers conducted a search of the neighbourhood. While searching, he noticed a man under a truck in nearby premises. At his command, the man emerged from under the vehicle and Sgt Mattis noticed that the man, Mr Campbell, had blood on his right hand and shoulder and was dressed in a ‘white…sweater type thing with a hoodie over it that goes on your head’.
Mr Campbell's explanation to Sgt Mattis, for being under the truck, was that, ‘A dog rush mi and mi run go under the truck goh hide.’ Sgt Mattis took him to the CIB room at the Hunts Bay Police Station where, as mentioned before, Mr McKenzie, being fortuitously present, pointed Mr Campbell out as the attacker.
Mr Campbell was arrested and charged. Subsequent tests by a ballistics expert, on the weapon which Mr McKenzie had surrendered to the police, confirmed that it was capable of firing deadly missiles.
Three grounds of appeal were originally filed by Mr Campbell personally, namely:
‘1. Misidentify [sic] by the Witness:- That the witness wrongfully identified me as the person or among any persons who committed the alleged crime.
2. Unfair trial:- That the evidence and testimonies upon which the Learned Trial Judge relied on [sic] for the purpose to [sic] convict me, lack [sic] facts and credibility thus rendering the verdict unsafe in the circumstances.
3. Lack of Evidence:- that the prosecution failed during the Trial to put into evidence any piece of substansive [sic] evidence to link me to the alleged crime.
In addition to those grounds, Mr Equiano sought and obtained permission to argue an additional ground, namely, ‘The sentence of the court was manifestly excessive.’
Mr Equiano, although not abandoning the original grounds, concentrated his submissions on two areas. He argued firstly, that the evidence did not support a conviction for assault with intent to rob. Secondly, learned counsel argued, the sentences imposed were excessive.
For the reasons which shall, hereafter, become apparent, we found no merit in ground one. Grounds two and three were considered together in the submissions made by Mr Equiano in respect of the evidence concerning the assault with intent to rob. These latter grounds are the ones which we shall assess.
In respect of his first point, Mr Equiano highlighted the particulars of offence for the relevant count on the indictment proffered against Mr Campbell, by the Crown. The particulars stated:
‘Brandon Campbell, on the 22 nd day of July, 2008 in the parish of St. Andrew assaulted Gifford McKenzie with intent to rob him of a Grey 1993 Nissan Sunny Motor Car Registered 6885 EX.’ (Emphasis as in original)
Learned counsel submitted that in light of the evidence that no words were used by the attacker and that his only gesture was to point the firearm at Mr McKenzie's side, there was not sufficient evidence to support the count as framed. Mr Equiano argued that, in those circumstances, any number of inferences could have been drawn. He gave as examples, kidnapping, robbery of Mr McKenzie's money or forcing Mr McKenzie to drive to some other location.
Learned counsel relied, in support of his submissions, on the cases of R v Hussein [1978] Crim LR 219 and R v Bozickovic [1978] Crim LR 686. Both cases concerned accused persons breaking into property with intent to steal. In Hussein the property was a motor car and in Bozickovic it was a private flat. Nothing was taken in either case. In both cases an intention to steal was denied. Both were acquitted on the basis that, as was expressed in Bozickovic,‘by bringing the charge the Crown undertook to prove an intent to steal as an ingredient of the charge. There was no evidence sufficient to provide any proper basis for the inference that [the accused] intended to deprive [the owner] of any item of property’ (see page 687).
Both decisions were criticised by the learned editors of the Review. They, however, thought that the decision in Hussein may have been justified on the basis that the prosecution had alleged an attempt to steal specified items (see pages 687–8).
Mrs Palmer Hamilton, for the Crown, disagreed with Mr Equiano's stance. She submitted that the inference was one to be drawn by the tribunal of fact. She pointed to the fact that the most likely inference was that the passenger's door was open at the time that the firearm was brandished. This inference,...
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