Denhue Harvey v R

• Jurisdiction: Jamaica
• Judge: HARRIS JA
• Judgment Date: 03 June 2011
• Neutral Citation: JM 2011 CA 52
• Docket Number: SUPREME COURT CRIMINAL APPEAL NO 83/2008
• Court: Court of Appeal (Jamaica)
• Date: 03 June 2011

[2011] JMCA Crim 22

JAMAICA

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR JUSTICE PANTON P

THE HON. MRS JUSTICE HARRIS JA

THE HON. MR JUSTICE DUKHARAN JA

SUPREME COURT CRIMINAL APPEAL NO 83/2008

DENHUE HARVEY

and

R

Everton Bird for the appellant

Miss Meridian Kohler, Brodrick Smith and Miss Kelly-Ann Boyne for the Crown

CRIMINAL LAW - lllegal possession of firearm - Shooting with intent - Wounding with intent - Leave to appeal - Unreasonable verdict - Misdirection in law

HARRIS JA

1 The appellant was on 2 July 2008 convicted in the High Court Division of the Gun Court on three counts of an indictment. The indictment on which he was tried contained four counts. On count one, he was charged with illegal possession of firearm, on count two, he was charged with wounding with intent, count three charged him with shooting with intent and on count four he was charged with assault. He was acquitted on count two. He was sentenced to seven years hard labour on count one, 12 years hard labour on count three and four years hard labour on count four. It was ordered that the sentences should run concurrently.

2 On 12 February 2010, we allowed the appeal, quashed the convictions, set aside the sentences and entered a judgment and verdict of acquittal. We promised to put our reasons in writing. This we now do.

3 The evidence upon which the prosecution relied originated from two witnesses, Miss Edna Burke and her daughter Nordia Henry. Miss Burke testified that at about 11 o'clock on the night of 7 April 2005, she was sitting at her gate at 47 A Red Hills Road, with Nordia and several other members of her family. She observed a man pass with a gun in his waist. About five minutes later, having heard Nordia make a statement, she got up, armed with a machete. Nordia, she said, ran off. She then said that the appellant, who was armed with a gun, approached her, pointed it at her and held on to her gate. She chopped at him with the machete. He released the gate, she said, because his gun stuck. During this time, she said, she heard gunshots being fired in her yard.

4 The appellant, she asserted, after releasing the gate, chased Nordia. She, Miss Burke, then ran into her yard. She said she heard shots being fired continuously and heard Nordia, who ran next door over to her (Miss Burke's) sister's yard, screaming and calling for help. She then proceeded to her house. Thereafter, one of her sons ran into the house and locked his bedroom door. As she was about to step up into the house, she looked behind and saw the appellant still armed with the gun. He fired two or three shots through her living room door, she declared. After firing the shots, she stated that he walked up to her and held on to the living room door and she then went and leaned on her son's bedroom door. Thereafter, the appellant, she asserted, again pointed the gun at her, whereupon she told him to shoot her because he had previously shot two of her children. The appellant hissed his teeth and left. Following this, she said she unsuccessfully tried to communicate with the police, and having failed to do so, she ran to the Halfway Tree Police Station and made a report. She stated that she had known the appellant since birth and on the night of the incident she was able to view his face at the gate aided by a street light, light from a light post in her yard and from the neighbour's house. She also said, when he was in the house, she was able to view his face with the assistance of light from the ceiling.

5 Nordia Henry testified that she was sitting at the gate with her mother and brothers when she felt something at her ear which she bounced off. She then heard ‘click’, looked around and saw the appellant with a gun. After informing her mother that the appellant was armed with a gun, she ran off to the lane ‘mouth’ towards Red Hills Road. Thereafter, she heard shots. She went on to say that when she was at the top of the lane she heard explosions, she looked around, saw the appellant struggling with her mother and she ran off again. In cross examination, she admitted that in her statement she told the police that she ran to the lane “mouth” where the appellant pointed the gun at her, she heard explosion and saw fire coming from the gun. She spoke of being able to view his face for a few seconds while they were at the gate.

6 She said that the relationship between the appellant and herself was hostile for two years preceding the night of 7 April 2005. It was further asserted by her that before the incident, there was an altercation between them, he having hit her.

7 The appellant made an unsworn statement in which he said that he lived at 47A Red Hills Road. He said that he and Nordia had a little fight and he slapped her.

8 The original grounds of appeal were abandoned and Mr Bird was granted leave to argue two supplemental grounds of appeal, which are as follows:

Ground one

‘The verdict of the court was against the weight of the evidence adduced by the two purported eyewitnesses whose credibility was destroyed both as a result of the examination in chief and cross- examination.’

Ground two

‘The learned trial (sic) erred on the facts and applied wrong principles of law in arriving at the verdict handed down.’

8 The gravamen of Mr Bird's complaint was that the credibility of Miss Burke and Nordia, the two main witnesses, was completely destroyed by the overwhelming and fundamental discrepancies in their evidence, which, as contended by him, went to the root of the prosecution's case. The essence of his submissions was that there were two competing sets of allegations coming from these two witnesses upon which no reliance could be placed. He adverted our attention to several material discrepancies arising on the evidence of each witness and in particular pointing to the conflicts in the narrative given by the witnesses as to the sequence of events occurring that night.

9 Section 14 (1) of the Judicature (Appellate Jurisdiction) Act empowers this court to set aside a conviction if it is of the opinion that the verdict, on the whole, is unsafe or unsatisfactory. The section reads:

‘14 (1) The Court on any such appeal against conviction shall allow the appeal if...