Bryan (Steven), Smith (Searchwell) v R

• Jurisdiction: Jamaica
• Judge: SMITH. J.A.:
• Judgment Date: 20 December 2002
• Neutral Citation: JM 2002 CA 56
• Judgment citation (vLex): [2002] 12 JJC 2011
• Court: Court of Appeal (Jamaica)
• Date: 20 December 2002

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR. JUSTICE DOWNER, J.A THE HON. MR. JUSTICE BINGHAM, J.A THE HON. MR. JUSTICE SMITH, J.A

STEVEN BRYAN

SEARCHWELL SMITH

v.

REGINA

Keith Bishop

Tanya Lobban Crown Counsel

CRIMINAL LAW - Illegal posession of firearm - Wounding with intent - Discharging a firearm in a public place

SMITH. J.A.:

1 The appellants Steven Bryan and Searchwell Smith were, on the 23 ^rd day of August, 2001, convicted of the offences of Illegal Possession of Firearm (count 1), Wounding with Intent (count 2) and Discharging a Firearm in a Public Place (count 3) by Mcintosh J in the High Court Division of the Gun Court held at Morant Bay in the parish of St. Thomas.

2 in respect of count 1, each was sentenced to fifteen (15) years imprisonment at hard labour. In respect of count 2, Bryan was sentenced to 15 years imprisonment and Smith to 25 years imprisonment at hard labour. On count 3, each was sentenced to 12 months at hard labour.

3 On the 2 ^nd October, 2002 we treated the hearing of their applications for leave to appeal as the hearing of the appeals. We dismissed their appeals against convictions. We allowed in part their appeals against the sentences imposed. The sentence on count I was set aside and a sentence of 10 years substituted therefor. The sentence of 25 years against Smith on count 2 was set aside and a sentence of 15 years substituted therefor. We ordered that the sentences should commence on the 23 ^rd November, 2001 and should run concurrently. As promised then we now put our reasons in writing.

4 The prosecution's case rests mainly on the evidence of the victim Mr. Delroy Downer, from Font Hill in St. Thomas. His evidence, in summary is as follows: During the early morning of the 2 ^nd July, 2000, he was at a dance at Messenger Lawn, Font Hill. He had gone there with his girlfriend Wendy. The appellants, whom he knew very well before, were also there. They were expecting what is popularly known as a "sound clash" that night. At about 2:00 a.m. he was sitting outside the Lawn on the bonnet of a car with his girlfriend Wendy sitting in his lap. He saw the appellants climb to the top of an old abandoned and roofless shop. They sat straddling the wall of this old building. The appellant Smith was looking at Mr. Downer while the appellant Bryan spoke to Smith. The "sound clash" had begun. "Messenger Sound" put on a record. "Merciless" was the deejay. It was a war tune - "A war them want, a war them want..." The appellant Steven Bryan drew a gun from his waist and fired four shots in the air. That was the gun salute. Wendy became fearful and left. The appellant Bryan passed the gun to the appellant Smith. Mr. Downer got up and walked away quickly. He saw Smith point the gun at him and he heard on explosion. He was shot in the left side. Smith fired another shot which caught the finger of a chicken vendor. The two appellants then jumped off the wall. Mr. Downer was taken to the Princess Margaret Hospital. Whilst there, he was visited by the police to whom he gave a statement. He was later transferred to the Kingston Public Hospital.

5 Detective Inspector Anthony Brown told the Court that on the 2 ^nd July, 2000, Cpl. Drysdale escorted the appellants Smith and Bryan to the Morant Bay Police Station. Inspector Brown told the appellants that he had received a report that they were involved in the shooting of someone at Messenger Lawn, Font Hill. Each denied that he was involved. The Inspector instructed Constable Thorne to swob the hands of the appellants. This was done with their consent. Inspector Brown subsequently charged them. When cautioned, the appellant Smith said he was in his car when the shooting was taking place. The appellant Bryan said he was at the section where the music was being played.

6 Detective Constable Luke Thorne testified that on the 2 ^nd of July 2000 about 10:00 a.m. he was at the Morant Bay C.I.B office. inspector Brown and the appellants were also there. In their presence Inspector Brown instructed him to swab their hands. Both appellants he said consented to this course of action. For each appellant he used four swabs. He placed each cotton swab into separate plastic bags which he labelled and sealed. On the 14 ^th July he took the swobs in sealed envelopes to the Government Forensic Lab.

7 Miss Marcia Dunbar, a forensic scientist and analyst attached to the Government Forensic Laboratory, told the court that on the 14 ^th July, 2000 she received from Constable Thorne envelopes containing plastic bags with cotton swabs. The upshot of the scientific tests carried out on these swabs was that traces of gun powder residue were found on the left palm and bock of left hand of the appellant Steven Bryan and on the right palm and back of the left hand of the appellant, Searchwell Smith.

8 The Defence

9 The appellants who are cousins gave sworn evidence and called two witnesses. Both knew Mr. Downer before. They did not deny that during the early morning of the 2 ^nd July, 2000 they were at a dance at Messenger Lawn in Font Hill District. They testified that they had gone there together with one Miss Kerry-Ann Stewart.

10 The appellant Bryan told the Court that sometime offer 2:00 a.m. he, Searchwell, Kerry-Ann and some girls left the dance, and went on the road. Searchwell and his girlfriend went into a car which was parked in a "boll ground". He and the girls sot on a wall facing the car. The girls with him left, leaving him alone sitting on the wall. He was joined by" a next youth and his girlfriend". While sitting on the wall he heard four (4) shots. The sound of these shots come from behind him, that is "up in the dance". Then he heard another shot. The youth sitting beside him said "is clash time". He said he got up off the wall to go back in the dance but stopped to help a man whom he saw bleeding and whose hands and feet were tied. He swore that he did not see Mr. Downer at the dance anytime that night. He did not hove a gun and he did not fire shots in the air that night. In cross-examination he denied handing a firearm to the appellant Smith. He said he heard that Mr. Downer got shot before he, Bryan, left the dance to go home.

11 The appellant, Searchwell Smith testified that he did not shoot Mr. Downer and that he did not hove a firearm that night. In cross-examination he said he knew Mr. Downer from he "had sense", that is, over seventeen (17) years. He was nineteen (19) at the time. He agreed that shots were fired that night.

12 Miss Kerry-Ann Stewart gave supporting evidence. She swore that she was at the dance with the appellants. About 2:00 a.m. they came out of the dance, went to their car which was parked in a "ball ground" nearby. She and Searchwell went inside the car. The appellant Bryan sat on a wall in their...