Chris Brooks v R

• Jurisdiction: Jamaica
• Judge: Morrison JA
• Judgment Date: 02 March 2012
• Neutral Citation: JM 2012 CA 19
• Docket Number: SUPREME COURT CRIMINAL APPEAL NO 103/2008
• Court: Court of Appeal (Jamaica)
• Date: 02 March 2012

Chris Brooks

and

R

[2012] JMCA Crim 5

Before:

The Hon Mr Justice Panton P

The Hon Mr Justice Morrison JA

The Hon Miss Justice Phillips JA

SUPREME COURT CRIMINAL APPEAL NO 103/2008

JAMAICA

IN THE COURT OF APPEAL

CRIMINAL LAW - Illegal possession of firearm - Shooting with intent - Leave to appeal identification evidence - Admissibility and weight of certain forensic evidence adduced against the appellant at trial - Whether the learned judge dealt adequately with good character evidence

Ronald Paris for the appellant

Jeremy Taylor for the Crown

Morrison JA

Introduction

1 This appeal is brought pursuant to leave granted by a single judge of this court on 16 September 2009. The appellant was convicted on 18 August 2008 in the Home Circuit Court, after a trial before Beckford J sitting as a judge of the Gun Court on an indictment charging the appellant with the offences of illegal possession of firearm (count one) and shooting with intent (count two). He was sentenced to 10 and 15 years' imprisonment at hard labour on counts one and two respectively.

2 The appeal is concerned with (i) the quality of the identification evidence against the appellant and the manner in which the learned judge dealt with this issue; (ii) the admissibility and weight of certain forensic evidence adduced against the appellant at his trial; and (iii) whether the learned judge dealt adequately with the evidence put forward on his behalf as to his good character.

The evidence

3 The evidence against the appellant at trial came primarily from two eye witnesses to the alleged offences, Constable Dwight Bessick and Sergeant Clive McLeod, who were both stationed at the material time at the Hunts Bay Police Station in the parish of St Andrew. In addition to these police officers, Constable Dennis Forbes gave evidence of having swabbed the appellant's hands for gunshot residue after the offences were allegedly committed and officers from the Forensic Science Laboratory also gave evidence as to the results of the analysis of the test samples received from Constable Forbes.

4 At around 2:30 in the afternoon of 29 April 2007, a Sunday, Constable Bessick, Sergeant Clive McLeod and Corporal F. Beckford were together on mobile patrol in a marked police vehicle in the Olympic Gardens area of St Andrew. The evidence at the appellant's trial was given by Constable Bessick and Sergeant McLeod, Corporal Beckford having unfortunately died some time before the trial. The policemen were dressed in blue denims and they were all armed. As they travelled along Pennystone Avenue, they observed two men standing ahead of them in the road. As the police vehicle approached them, the men moved off briskly in the direction of the gate at number 6 Pennystone Avenue. The policemen's suspicions having been aroused, the police vehicle stopped and the officers alighted, whereupon both men pointed guns in their direction and opened fire. Corporal Bessick took cover by throwing himself to the ground and returned the fire, as did his colleagues. The men then ran through the gate of 6 Pennystone Avenue, with Constable Bessick and Corporal Beckford in pursuit. Both men ran towards the fence at the rear of the premises, scaled it and went over into the adjoining premises. Constable Bessick and Corporal Beckford continued the chase and, while they were themselves in the process of going over the fence, one of the men stopped, turned around and again opened fire at them, forcing the policemen to take cover, though they did not return the fire at that point. Constable Bessick then saw the men go over a perimeter fence on those premises, at which point he lost sight of them for about six or seven seconds, before he and Corporal Beckford were again able to follow them over that fence into a third premises. There, at the gate of those premises, which turned out to be 26 Bishop Avenue (which, his evidence was, ran perpendicular to Pennystone Avenue), Constable Bessick finally caught up with the man who had actually fired shots at himself and his colleague. When this man was accosted, captured and searched, no firearm was found on his person.

5 Constable Bessick and Corporal Beckford were soon afterwards joined by Sergeant McLeod, who had not taken part in the chase, but had returned to the police vehicle, reversing along Pennystone Avenue to Balmagie Avenue and then driving onto Bishop Avenue. There, he saw the appellant running across the road. Then, after looking in the direction of the police vehicle, the appellant turned back into premises at 26 Bishop Avenue, which is where Sergeant McLeod came upon Constable Bessick holding on to the appellant.

6 The man who had been captured, who was not previously known to either officer, was identified by both Constable Bessick and Sergeant McLeod as the appellant, from his ‘physical description’, as well as from the fact that, when he was apprehended, he was dressed in the same clothing (either a ‘blue and white and red or blue and white’, ‘plaid or stripe shirt’, and ‘short jeans pants’) as the man who had fired shots at them. Constable Bessick's estimate of how close he got to the fleeing men during the chase was about 40 feet and the duration of the entire chase was further estimated by him to have been about 25 to 30 seconds. During the chase, Constable Bessick stated that he had been able to see the appellant's face twice, on the first occasion, when the appellant turned around and fired at him, for about five seconds and, on the second occasion, when the appellant again turned around and fired at him the second time, for about three to four seconds. Sergeant McLeod, for his part, initially had ‘a glance at [the appellant's face]’, for ‘[m]aybe a second or so’ when he saw him on Pennystone Drive, but he gave no estimate of how long he had been able to observe the appellant when he next saw him on Bishop Avenue. Both officers said that there was no obstruction to their view of the appellant on each of these occasions and there were no other persons in the vicinity during the chase.

7 The police officers were unable to carry out any further searches of the area because, shortly after the appellant was taken into custody, a crowd of people descended on the car, smashing it up and puncturing some of the tyres. Finding themselves outnumbered, the officers requested assistance by radio and in due course reinforcements arrived from the Hunts Bay Police Station.

8 With a view to suggesting that his account of having pursued the appellant from Pennystone Avenue to 26 Bishop Avenue was not credible, Constable Bessick was extensively cross examined by the appellant's counsel on the physical layout of and the relationship between Pennystone Avenue, Balmagie Avenue and Bishop Avenue. Thus, it was specifically put to Constable Bessick that ‘no two yards cannot [sic] take you to Bishop Avenue from number 6 Pennystone Avenue’ (to which the response was, ‘[w]ell that is the situation’); and further, ‘that to reach Bishop Avenue from Penny Stone Avenue you would be going in over…five sets of dwelling houses in excess of five dwelling houses’ (to which the response was, ‘no’). Further pressed by counsel on the point, Constable Bessick held his ground with the following remark:

‘We are talking about some informal setting so the place is not how it is normally in some areas. They are combust [sic] and jumbled. It's a ghetto area.’

9 The cross examination ended with a series of suggestions by counsel to Constable Bessick. Firstly, that he did not chase the appellant from Pennystone Avenue to a yard on Bishop Avenue; secondly, that the appellant ‘was at no time firing any shots at you or anybody else’; thirdly, that the appellant was apprehended by him at 28 Bishop Avenue, after he and Sergeant McLeod had entered those premises through the front gate; that the appellant was at that time dressed in ‘a brown jeans shorts and a blue shirt’ and that a shirt ‘was thrown on to him by Constable Beckford’; and that, ‘the fence at 26 Bishop Avenue is more than 6 feet tall’.

10 Sergeant McLeod was also challenged in cross examination about the layout of the area. In particular, he was pressed about the route that he took and the time that it took him to drive the police vehicle from 6 Pennystone Avenue, after his colleagues had allegedly gone in pursuit of the appellant, to 26 Bishop Avenue. Sergeant McLeod maintained that it took him about 20 seconds to reverse onto Balmagie Avenue and then to go around to Bishop Avenue and that the time that had elapsed from when he and his colleagues had arrived on Pennystone Avenue to the point at which the appellant was accosted was about ‘[t]hirty, thirty five, forty seconds most’.

11 Among the suggestions put by the appellant's counsel to Sergeant McLeod in cross examination were that the appellant had at no time that day fired shots at the police party; that the appellant was not chased by any member of his party to Bishop Avenue; and that he, Sergeant McLeod, and Constable Bessick ‘entered 28 Bishop Avenue and saw [the appellant] sitting on the ground with Constable Beckford over him’.

12 The appellant was taken to the Hunts Bay Police Station, where, about half an hour later, his hands were swabbed for gunshot residue by Constable Dennis Forbes, who was stationed at the scene of crimes division of the police force. The samples taken from the appellant were placed in an envelope, which was sealed and labeled by Constable Forbes, and stored by him at CIB Headquarters in a ‘special refrigerator prepared especially for exhibits’. On 15 May 2007, the sealed envelope was retrieved by Constable Forbes from the refrigerator and taken to the Government Forensic Laboratory. There, it was handed over by him for testing and analysis, in exchange for an official receipt, bearing ‘FL number 1204/2007’. The delay of over...