Brown (Orville) v R

JurisdictionJamaica
CourtCourt of Appeal
Judge PHILLIPS, JA
Judgment Date03 December 2010
Judgment citation (vLex)[2010] 12 JJC 0303
Date03 December 2010
[2010] JMCA Crim 74
IN THE COURT OF APPEAL
BEFORE:
THE HON MR JUSTICE PANTON, P THE HON MISS JUSTICE PHILLIPS, JA THE HON MRS JUSTICE M C INTOSH, JA (Ag)
ORVILLE BROWN
v
R
Robert Fletcher for the appellant
Miss Meridian Kohler and Alwayne Smith for the Crown

CRIMINAL LAW - Illegal possession of firearm - Robbery with aggravation - Leave to appeal - Identification - No case submission

PHILLIPS, JA
1

[1] On 18 and 19 November 2008, the appellant was tried in the High Court Division of the Gun Court, holden in the parish of St James, for the offences of illegal possession of firearm (count one) and robbery with aggravation (count two). On 19 November 2008, he was convicted and sentenced to seven years and eight years imprisonment at hard labour, respectively. Both sentences were ordered to run concurrently. A single judge of appeal granted leave to appeal. On 17 June 2010, we dismissed the appeal and affirmed the convictions and sentences with an order that the sentences are to commence as of 19 February 2009. We promised to put our reasons in writing. This is a fulfilment of that promise.

2

The case for the prosecution

3

[2] The prosecution called two witnesses; the virtual complainant Mr Kemar Tomlinson and Detective Constable Courtney Ellis, the investigating officer. Mr Tomlinson gave evidence that at approximately 3:45 a.m. on 9 October 2008, he was at the Bay West Plaza in Montego Bay, Saint James. He had parked his taxi under a street light and had gone to purchase certain items from a cane cart man and on his return to his car, two men came up to him from behind, stood on either side of him and held him up; one of them with a handgun. The man on the left side of him asked for $100.00 which he said he did not have. The said man then asked him to turn out his pockets, which he did and took out his wallet at the same time. This man whom he later identified as the appellant, asked him how much money was in the wallet and when he told him it was $7,000.00, the appellant took the wallet from him and told him, "fi walk off and nuh look back". He described the hand gun held by the man to the right of him and said that as he was under the street light he was able to see it clearly. He was also able, by the said street light, to see the faces, and the whole of the two men who robbed him. He said that they both had on peak caps on their heads; one had on a black cap and the other had on a white one, but he was able to see the appellant's face from his "forehead come down" and the face of the man who accosted him on the right, "from him eye come down". Otherwise, he was able to see the "whole of them", as they were about two feet from him. He said that he saw their faces for about 3–4 minutes.

4

[3] After the men left, he drove his vehicle to the Freeport Police Station and made a report. He then returned with the police to the Baywest Plaza where the incident took place, in search of the men who had robbed him. It was his evidence that he was driving on Union Street in front of the police, when he saw one of the men in a lane near a club and he pointed him out to the police. He said that person was the assailant who had been on his left, whom he then said was the man with the gun, contrary to what he had said in evidence earlier. He said that the person was wearing a black hat, a black T-shirt and blue jeans pants and had on the same clothes that he had been wearing earlier when he had robbed him, but in his evidence earlier, he had not identified which of his assailants had on a black hat. The appellant was apprehended by the police and taken to the station.

5

[4] Mr Tomlinson testified that it was not the first time that he had seen his assailants, as before he started to operate his taxi, which he had been doing for about one year before the incident, he had been a conductor on a bus for about six years, and he had seen these men in the Montego Bay Bus Park, "all the while". He could not remember when last he had seen them, but he knew that he had seen them, "more than one time". In fact he made this statement, to which surprisingly there was no objection, "A nuh the first time me see dem do dem something deh but a nuh wid me, you understand". Toward the end of the examination in chief he was asked yet again about his knowledge of the appellant during the period that he used to 'run bus' and he said, "Really an truly, a whole heap of time mi see him". The bus route was from Negril to Montego Bay and he would sometimes see the appellant four times for the week. He never exchanged any words with him at any time and did not know his name. He said, "Mi see how him behave all the while, so through that, mi stay far".

6

[5] In cross examination Mr Tomlinson was challenged that he could not have seen the men for as long as 3–4 minutes. He insisted that he had. He was asked whether with one man on either side of him, he could have seen the faces of either, in particular the appellant's face for that period. His response was, "Mi did a look pon the two of them because mi nuh know what dem up to". It was put to him that the police did not take the appellant directly to the police station but on a winding route in Montego Bay and all the way down to the foot of "Long Hill" where they stopped the vehicle, and when he drove up the policemen said to him, "is him dis?", to which, he responded, "I am not sure". Mr Tomlinson vehemently denied this. He said, "any way me see dem me know dem. Any way me see the next one, me nuh know a name, me can identify dem any way me see dem. me can identify dem." It was suggested to him that he was mistaken in respect of the appellant and his response was, "Nothing like that me know him definitely. He cannot miss me". Finally it was suggested to him that it was not true when he said that he had known the appellant from the bus park many years ago, as he did not know him at all. Mr Tomlinson's response was, "Of course, him can't hide me. A something way him do already but a no wid me. Him say... one him can't hide".

7

[6] Detective Constable Courtney Ellis, the investigating officer also gave evidence. He testified that one night in October 2008, Mr Tomlinson attended on the Montego Bay Police Station at about 4:00 a.m. and made a report which led him to go with Mr Tomlinson to the bottom of Union Street and Strand Street where at about 6:00 a.m. Mr Tomlinson identified the appellant as one of the persons who had robbed him. He was searched and $3,000.00 found on him, which he said belonged to him. The appellant was apprehended and taken to the station. He recorded a further statement from Mr Tomlinson. The appellant was arrested and charged. After being cautioned, he said, "me no know nothing bout dat".

8

[7] In cross examination Detective Corporal Ellis denied taking the appellant to Flankers and around Montego Bay and to "Long Hill" foot. He said that Mr Tomlinson had driven behind the police car to the police station, and he denied any confrontation between the appellant and Mr Tomlinson at "Long Hill" foot. He also denied having taken $2,000.00 from the appellant's pocket and giving the same to Mr Tomlinson.

9

The case for the Defence

10

[8] Counsel for the defence Miss Sharon Barnes made a no case submission on the basis that the identification of the accused man was tenuous. The learned trial judge ruled that there was a case to answer. The appellant made an unsworn statement. He said that on the night in question at about 4:30 a.m. he was at "Bottle" with a girl. He said the police directed him into the police car, and he said, "I don't know nothing, bout nothing". He was taken to Flanker, Nonrwood, Devon and past the Freeport Police Station and when he inquired about his destination and the fact that they were driving past the station, a bag was placed over his head. He said he feared that the police were going to kill him. He prayed for his safety. He said he did not see anywhere else on the journey, and when the car stopped, the bag was taken off his head. A car drove up and the police inquired of a young man whether this was the man who had robbed him, and he responded that he was not sure. Nonetheless the police, he said, took $2,000.00 from him and gave to the young man. The appellant was in effect denying the Crown's case and saying it was not him who had committed the robbery.

11

The appeal

12

[9] The appellant filed two grounds of appeal on 14 December 2008. At the hearing of the appeal those grounds were abandoned and Mr Robert Fletcher for the appellant sought and was granted leave to argue three supplementary grounds of appeal, filed on 15 April 2010. These are set out below.

13

Ground of appeal one

14

The learned trial judge erred in admitting the evidence of similar fact and having admitted it made improper use of it in his consideration of the evidence.

15

[10] Counsel for the appellant complained at first that similar fact evidence arose in two places in the evidence. In examination in chief of Mr Tomlinson on page 12 line 2 of the transcript, where he said:

"A nuh the first time me see dem do dem something deh but a nuh wid me, you understand."

16

And on page 19 line 10:

" Mi see how him behave all the while, so through that mi stay far."

17

It was counsel's contention that although the information provided by the witness appeared to be spontaneous, it was not lost on the learned trial judge and informed his ruling on the no case submission, as the judge said that the previous activity, noted by the virtual complainant, related to the question of identification as it was the reason that the appellant "stood out". Counsel submitted that the judge considered the admissibility of this "similar fact" evidence and used it thereafter for believing the identification evidence of the complainant.

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[11] In his written submissions, counsel referred to the...

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