Clive Vidal v R
| Jurisdiction | Jamaica |
| Judge | P Williams JA |
| Judgment Date | 12 July 2019 |
| Neutral Citation | JM 2019 CA 64 |
| Court | Court of Appeal (Jamaica) |
| Date | 12 July 2019 |
[2019] JMCA Crim 25
PARISH COURT CRIMINAL APPEAL NO 4/2018
The Hon Mr Justice Morrison P
The Hon Mr Justice Brooks JA
The Hon Miss Justice Williams JA
Donald Gittens for the appellant
Mrs Sharon Milwood-Moore and Mrs Monique Corrie for the Crown
Criminal Law - Larceny — Appeal against conviction — Evidence — Identification of stolen goods — Failure of complainant to identify items taken from the home of the appellant to be his — Defence — Claim of right — Whether appellant made out a claim of right made in good faith — Whether good character of appellant was taken into consideration.
Mr Clive Vidal, the appellant, was charged on an indictment containing one count of larceny from the dwelling, the particulars being that “he on diverse days between January to December 2010 in the parish of Manchester did steal from the dwelling of Roy Francis furniture, tools, appliances valued at approximately $700,000.00”. The trial commenced on 3 April 2013 in the Parish Court for Manchester before the Senior Parish Judge, Her Honour Mrs Desiree Alleyne. At the end of the trial, which lasted several days over four years, the appellant was convicted and on 21 June 2017, he was sentenced to a fine of $200,000.00 or nine months' imprisonment.
The complainant, Mr Roy Francis, gave evidence that he is a Jamaican residing in Canada since 1984. He owns property at Albion District, Manchester, where he stays when he visits Jamaica once a year. He explained that he and the appellant grew up together and that the appellant had acted as caretaker for his property between 2008 and 2010. The appellant had keys to the premises but did not have his permission to reside there. During this period, he sent millions of dollars to the appellant to “ensure everything was ok”. He denied having any other business arrangements with the appellant.
Although his testimony commenced with his visit to Jamaica in December 2010, Mr Francis said that approximately a year earlier he had received a phone call that caused him to call the appellant about items missing from the property. The appellant admitted taking the items and explained that he had “seized them”. When asked why he took the items, the appellant responded that it was “for ransom” of $850,000.00. Mr Francis denied owing the appellant any money, telling him “you are crazy, I owe you nothing, put back my stuff”.
Thus, upon his next visit to Jamaica in December 2010, Mr Francis said he went straight to the police and reported the matter. He then went to the appellant's home, accompanied by the police. Finding the door unlocked, Mr Francis looked inside and saw some of the items that were missing from his house. In particular, he said he saw his bed, dresser, fridge, stove, flat screen television, microwave, toaster, blender and kettle.
Later that day he returned to the appellant's house accompanied by a different set of police officers and a Justice of the Peace. The appellant was not present, and the “police broke the door” to gain entry. The items that Mr Francis identified as his were removed. The items included a 19 inch Samsung television that he had purchased in Canada and an LG refrigerator which he had purchased in Jamaica. He also recovered a bed and a dresser. He had provided the appellant with money to purchase those items for him at the furniture store Singer Jamaica Limited.
Detective Constable Richard Case was one of the police officers who went to the appellant's house with Mr Francis. He was at the time stationed at the Scenes of Crime Unit at the Williamsfield Police Station in Manchester. He took photographs of the furniture and other items taken from a room at the house in Albion District. He subsequently downloaded the images on “the master and a working and viewer CD”. At the trial, objection was taken to the viewer CD being admitted into evidence.
The Justice of the Peace who accompanied the police officers and Mr Francis to the appellant's house also testified about what had transpired at the house that day. He witnessed the removal of various items of furniture, electrical items and appliances from a room at the house. These items were then photographed by someone he described as “another gentleman who accompanied” them. The Justice of the Peace did not witness any documents being removed from the premises.
Mr Francis denied that the appellant had lived at his house and that any of the furniture, appliance, tools or any other items the appellant had taken from the house had belonged to the appellant. He also denied that the tools recovered from the appellant's house were gifts he had given to the appellant or that any of the appliances recovered actually belonged to the appellant. He further denied having an arrangement with the appellant whereby the appellant would oversee, do construction and caretaking work until the house was sold, and then the appellant would get a percentage of the sale price.
The appellant gave evidence at trial. He said that he and Mr Francis grew up like brothers and lived in houses six chains apart. In 2006, Mr Francis asked him to renovate his (Mr Francis') house and he “contracted the renovation”. There was a plan that after this renovation, they would do an addition of a two-bedroom unit and a one-bedroom unit on the house. The plan also was that after the renovation and construction they would “enter into construction and real estate”. The appellant said he was normally a welder but was also a self-employed draughtsman and a farmer.
The appellant explained that he also served as caretaker for the house. Although he had his own home nearby, Mr Francis gave him a flat attached to the house to occupy. He moved into the flat in 2007 at which time it was empty and so he had to furnish it. He purchased some items from Singer Jamaica Limited to do so and had receipts to prove those purchases.
The appellant said he had no problems with Mr Francis and would see Mr Francis when he visited Jamaica once a year. On those visits, Mr Francis would stay with relatives nearby or the appellant would allow him to stay in the flat. The appellant said this was so since Mr Francis had no furniture in the house, which was being renovated, at the time.
The appellant claimed he had done work related to the construction for Mr Francis and had not been paid. Most of the monies Mr Francis sent him was used to pay workers and purchase material for the renovation. The appellant explained that the original agreement was for him to be paid from the proceeds of the business venture they had planned to enter together. However, while Mr Francis was on his annual visit to Jamaica in 2009, the appellant asked him about monies the appellant said was owed. Mr Francis promised to pay him $1,500,000.00 for his services and to send it by way of remittances. The appellant never received the money.
He stopped occupying the flat on 1 January 2010 when Mr Francis asked him to leave and gave him 24 hours to do so. When he left, he took his furnishings with him. He denied taking anything from the flat that belonged to Mr Francis since Mr Francis had nothing there. Although he initially denied having purchased any items for Mr Francis, the appellant subsequently admitted that he had been sent money by Mr Francis to purchase appliances. He had bought a stove from Mr Francis' son who had delivered it to his home. He denied calling Mr Francis and telling him he had taken items belonging to Mr Francis for ransom.
In December 2010, he arrived home one night and found the door to his apartment broken and the apartment ransacked. Several items were missing from inside. All the things missing were his property. It was when he went to the police station to report the removal of the items from his house that he was arrested.
The appellant had one witness in support of his case. A manager from Singer Jamaica Limited testified that although she did not know the appellant personally, the records from the database of the company revealed that he had purchased items from the store, which had been delivered to Albion District. On 9 January 2007 a dresser, mattress and base along with an LG refrigerator was delivered and, on 13 January 2007, a Sharp 20'' colour television was delivered.
On 27 June 2017, the appellant filed notice and grounds of appeal, which were amended on 8 June 2017 and again on 3 July 2017. At the hearing of the appeal, Mr Donald Gittens, counsel for the appellant, sought and was granted leave to abandon the original grounds of appeal and argue those that were further amended and filed on 6 November 2018. The grounds of appeal filed were as follows:
“1. The evidence does not disclose by what method or technique the complainant identified to the police the items alleged to have been stolen by the defendant and which were taken from the house of the defendant, and there was no identification of these items to the court at trial, and so the prosecution failed to prove that the complainant was the owner of the items and this proof was a necessary ingredient for conviction of the defendant.
2. The finding of the court that extreme care was taken by the police to ensure that there was proper documentation of the items taken from the home of the defendant, was unreasonably [sic] since no such documentation either in the form of a list or in the form of photographs was put before the court.
3. The evidence on the case of the prosecution manifestly raises the defence of a claim of right and negatives any intention on the part of the defendant permanently to deprive the complainant of the property alleged to have been stolen by the defendant. In that regard:
i. The learned trial judge erred in law in failing to accept, that the evidence of the complainant that the defendant told him...
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