Damion Anderson v R

• Jurisdiction: Jamaica
• Judge: Brooks JA
• Judgment Date: 28 September 2012
• Neutral Citation: [2012] JMCA Crim 46
• Court: Court of Appeal (Jamaica)
• Docket Number: SUPREME COURT CRIMINAL APPEAL NO 24/2009
• Date: 28 September 2012

[2012] JMCA Crim 46

JAMAICA

IN THE COURT OF APPEAL

Before:

The Hon Mrs Justice Harris JA

The Hon Mr Justice Dukharan JA

The Hon Mr Justice Brooks JA

SUPREME COURT CRIMINAL APPEAL NO 24/2009

Damion Anderson

and

R

CRIMINAL LAW - Illegal possession of firearm - Rape - Abduction - Leave to appeal conviction and sentence - Whether judge erred in direction on corroboration - Whether sentence excessive

Brooks JA

1 The appellant, Mr Damion Anderson, was convicted in the High Court Division of the Gun Court, held at King Street in Kingston, on 6 February 2009, of the offences of illegal possession of firearm, abduction and rape. He was sentenced to 10, two and 12 years respectively, for the offences. Whereas the sentence on the first two counts were ordered to run concurrently, the sentence on the third count was ordered to run consecutively to the first two.

2 A single judge of this court gave the appellant permission to appeal against conviction and sentence. Mr Mitchell, on his behalf, abandoned the grounds originallyfiled and succinctly argued three grounds of appeal. This was done with the permission of the court. The grounds are:

• ‘1. That the Learned Trial Judge erred in rejecting the evidence contained in the statement of Kaddian Robinson. Further that if the evidence of Kaddian Robinson had been accepted then the evidence of the complainant would have been rendered unreliable.

• 2. That in the circumstances of this case the Learned Trail [sic] Judge ought to have demonstrated that he had the matter of corroboration in his approach to the case as he assessed the evidence. That at no time in his summation did the Learned Trial Judge demonstrated [sic] or indicated [sic] that he considered the matter of corroboration.

• 3. That the sentence was manifestly excessive. That a consecutive sentence was not appropriate in all the circumstances.’

3 The evidence adduced by the Crown at the trial was that on 23 January 2007, at about 2:30 am, the appellant accosted the complainant (whose name, for the sake of her privacy, will not be disclosed in this judgment) at the door of a house at which she had been staying and, at that time, was just exiting. He was with a number of other men and she saw the handle of a firearm secured at the waist-band of his trousers. He held on to her and took her to an abandoned house nearby. There he demanded sex from her, but on enquiring of her and discovering that she did not have a condom, he sent one of the other men to fetch a condom for him while he waited with the complainant.

4 When the condom was produced, he took off his clothes, put the firearm under the bed and had sexual intercourse with her without her consent. He then allowed herto leave the room but when she went outside, she was held, against her will, by one of the other men. That man engaged her in conversation while the appellant looked on and laughed. She was eventually allowed to leave. She met with her boyfriend and later that morning they went together to the police station where she made a report about her ordeal.

5 On 18 June 2007, she pointed out the appellant at an identification parade on which he was the suspect. She said that, before the incident, she had seen the appellant in her area, from time to time, over the course of about a month. She, however, had never spoken to him.

6 The defence, at the trial, was that the appellant did not have sexual intercourse with her on the night in question. The appellant made an unsworn statement in which he categorised the complainant's story as a malicious lie. He said that he had previously been intimate with her and had promised her some money. It was his account that, on his failing to produce the money and declining to take her to his mother's home to stay there (she was staying at a friend's house), the complainant had, out of spite, told this lie on him.

7 At the trial, the defence secured the admission into evidence of a statement given to the police by Mr Kaddian Robinson. Mr Robinson was the complainant's boyfriend with whom she was going to meet when she was accosted by the appellant. Mr Robinson did not testify at the trial as his whereabouts could not have been ascertained, at that time, by the police. According to the defence, Mr Robinson'sstatement sharply differed from the complainant's evidence. It was argued that the contents of the statement should have been accepted by the learned trial judge or, at least, have placed the complainant's credibility in serious doubt.

8 That is the gravamen of ground one, which was argued by Mr Mitchell.

Ground One: The effect of the evidence contained in Kaddian Robinson's statement.

9 The essence of the difference between the complainant's testimony and the contents of Mr Robinson's statement, is that whereas she asserted that she met with Mr Robinson during the evening of 22 January 2007 and only parted company with him some minutes before she went to the house from which she was abducted, Mr Robinson's statement gives the impression that they did not meet at all, prior to the time that the incident, which she described, had occurred.

10 On both accounts, however:

• 1. they had agreed to meet at a certain place;

• 2. she did not turn up at the appointed time;

• 3. he was calling her telephone and got no answer;

• 4. she called him some time later and recounted her ordeal; and

• 5. they went to the police station together to report the matter.

11 Apart from the difference concerning whether there was a previous meeting, the complainant's evidence, as to the time that she and Mr Robinson met and the duration of their meeting, itself contained some inconsistency. In examination in chief, she stated that she was with her friend at a gas station until Mr Robinson arrived. It was when Mr Robinson arrived, she then said, that the friend left the gas station (see page 4 of the transcript). She did not state the time at which he arrived.

12 At one portion of her cross-examination she said that her friend had left her by herself at the gas station (see pages 50 - 51 of the transcript). The complainant, at that point of the cross-examination, said, ‘[The friend left me] because I was waiting on someone.’ When the cross-examination resumed on a later date, the complainant testified that it was after Mr Robinson had arrived that her friend left. She then said (at page 62 of the transcript), ‘[Mr Robinson] was out there, that is why [the friend] left.’

13 These are matters which the tribunal of fact had to take into account. The learned judge considered the fact that Mr Robinson's statement had not been tested by cross-examination. He found that the untested evidence contained in the statement was not sufficient for him to disbelieve the complainant. This he was, as the tribunal of fact, entitled to do. He also, in accordance with the guidance given by the Privy Council inBarnes and Others v R (1989) 37 WIR 330 (1989) 37 WIR 330 at page 340, identified the features of the statement which differed from the complainant's testimony. The learned trial judge also dealt with the inconsistencies in her testimony. Having done so, he said, at pages 138 - 139 of the transcript:

‘And so the question then would be, has this statement coming in from Mr. Robinson caused me to have doubts about the credibility of [the complainant]? Now, as I indicated, when it was being said that there was this inconsistency about her evidence, about the meeting of [sic] Mr. Robinson it was not an inconsistency at all. I found overall that [the complainant] was a truthful witness, that she was endeavouring to speak the truth , not that her evidence was perfect in every respect. It had inconsistencies but in my view those inconsistencies are...