Brown (Rohan) and Valentine Bowes v R
| Jurisdiction | Jamaica |
| Judge | BROOKS, J.A. (Ag) |
| Judgment Date | 30 July 2010 |
| Neutral Citation | JM 2010 CA 107 |
| Judgment citation (vLex) | [2010] 7 JJC 3010 |
| Court | Court of Appeal (Jamaica) |
| Date | 30 July 2010 |
CRIMINAL LAW - Illegal possession of firearm - Robbery with aggravation - Illegal possession of ammunition - Leave to appeal - Insufficient evidence -Good character evidence - Excessive sentence
Messrs Rohan Brown and Valentine Bowes were, on 12 October 2007, convicted in the High Court Division of the Gun Court, being then held in the parish of Clarendon. They were each sentenced to serve five years imprisonment for the offence of illegal possession of firearm (count one), 12 years imprisonment for that of robbery with aggravation (count two) and three years imprisonment in respect of the illegal possession of ammunition (count three). The sentence for the illegal possession of ammunition was, in each case, ordered to run consecutively to that imposed for the robbery, thus making a total of 15 years for each offender.
A single judge of this court refused their respective applications for leave to appeal against the convictions and sentences, but they have both renewed those applications before us. Counsel for the applicants, both abandoned the original grounds of appeal that were filed and instead argued, with leave, supplemental grounds. Dr Randolph Williams, for the applicant Brown, made submissions on the following grounds:
"1. The judgment of the learned trial judge on count 3 of the indictment is unreasonable there being no evidence that the applicant had knowledge that the co-defendant was in possession of ammunition.
2. The failure to put the applicant's good character in evidence denied him of a chance of acquittal.
3. The sentence is manifestly excessive."
Mr Leonard Green, for the applicant Bowes, argued these grounds:
"1. The learned trial judge failed to demonstrate in his reasons for judgment that he applied the proper criminal standard of proof in arriving at his verdict as it related to the specific offences in particular the offence of Robbery with aggravation and he failed also to demonstrate that he did not arrive at a verdict of guilt simply on the basis that he did not believe the accused Bowes.
2. Not having determined the issue of guilt on the basis of recent possession the learned trial judge failed to have given himself the requisite warning on the critical matter of visual identification since the prosecution's case against the accused Bowes depended entirely on what role he was alleged to have played in a robbery."
Before assessing these grounds, it is necessary to outline the evidence which was placed before the learned trial judge.
The Prosecution's Case
The convictions arose from an incident which occurred on 18 May 2007. Sometime that night, Mr Myrie Simpson was sitting in his motor car along the roadway in front of his home located at Turtle Pond district in the parish of Clarendon. He noticed a Toyota Marl II motor car go past him and stop nearby, with its rear facing him. Two men alighted from it and after a short while, approached his vehicle.
One of the men produced a gun and they both pulled him out of his vehicle at gunpoint. He noticed that the male driver of the Mark II was looking back in the direction of the transaction. He saw that man's face. His assailants started to "jook [him] up" with the gun. He was there for a while with the men. He said, "[m]e did deh deh a beg them, because I don't know what they were going to do". They let him go and he ran.
Both men drove off in his car, following the Mark II. Mr Simpson made a report to the police and alerted his friends. Five minutes later, he was travelling with one of his friends, in a car heading in the direction in which the robbers had gone. Exactly one mile away, he saw his vehicle parked along the roadway. He examined it and discovered that his ignition key and his music equipment, namely, an amp, a pre-amp and a CD player, had been removed from the vehicle and taken away. He had had the equipment installed that very day.
Detective Corporal Leonard Jennings, at about 11:00 o'clock that very night, with the assistance of one of Mr Simpson's friends, "Steppy", mounted a road block at Pennants district in Clarendon. The procedure netted a white Mark II motor car with three men aboard. The applicant, Bowes, was the driver of that vehicle. One of the men (neither of these applicants), had in his possession a 9 mm pistol loaded with 13 rounds of ammunition. On the floor of the Mark II, in front of the front passenger seat was a piece of music equipment, others were on the rear seat. "Steppy" identified the equipment as belonging to Mr Simpson.
Mr Simpson received a telephone call from "Steppy". This was after Mr Simpson had found his car. Following their discussion, Mr Simpson went to Pennants district. Half an hour after having been robbed, he saw the police with his assailants and the car in which they had travelled. His assailants and the driver of their vehicle (whom he said was the applicant Brown), were in a police jeep. He recognized them by their clothing, faces, and in one case, an earring that the man was wearing. He pointed them out to the police as the persons who had robbed him of his motor car. The applicant Bowes, he said, was the man who accompanied the armed robber that had accosted him, as he sat in his car. Only one of the men spoke in response to the accusations. He was not one of the applicants, but a Mr Taylor, who, at the scene of the robbery, is said to have used the firearm to hit Mr Simpson.
Mr Simpson also saw his music equipment in the robbers' vehicle. The equipment was on the rear seat. He identified the items by the presence of his initials, which he had previously scratched on each piece.
All three men were arrested and charged. Mr Taylor, who proved to be a member of the Island Special Constabulary Force, pleaded guilty to the offences perpetrated against Mr Simpson.
The Defence
In his defence the applicant Bowes, who said that he is a mechanic, gave sworn testimony. He said that he had transported Mr Taylor to a "nine-night" in Clarendon and was transporting him back to Saint Catherine when Mr Taylor asked him to stop. At that time, he said, the applicant Brown was sleeping on the rear seat of the vehicle.
The applicant Bowes said that when he stopped, Mr Taylor alighted and shortly afterward, he saw Mr Taylor drive up beside him in a vehicle which had been parked nearby. Mr Taylor indicated that he intended to take the vehicle to the police station. The applicant Bowes drove off, as did Mr Taylor. Along the journey, Mr Taylor stopped the other vehicle and alighted from it. He indicated that it had developed mechanical problems. He took some audio equipment from the vehicle and placed it in the applicant Bowes' Mark II. The applicant Bowes then drove off, still with the intention of going to the police station to which Mr Taylor was directing him. The applicant Brown...
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