Dwayne White v R

• Jurisdiction: Jamaica
• Court: Court of Appeal (Jamaica)
• Judge: Morrison JA
• Judgment Date: 01 March 2013
• Neutral Citation: JM 2013 CA 21
• Docket Number: SUPREME COURT CRIMINAL APPEAL NO 7/2009
• Date: 01 March 2013

Dwayne White

and

R

[2013] JMCA Crim 11

Before:

The Hon Mr Justice Morrison JA

The Hon Mrs Justice McIntosh JA

The Hon Mr Justice Brooks JA

SUPREME COURT CRIMINAL APPEAL NO 7/2009

JAMAICA

IN THE COURT OF APPEAL

CRIMINAL LAW - Illegal possession of firearm - Abduction - Assault with intent to rape - Unfair trial

Delano Harrison QC for the appellant

Miss Dahlia Findlay for the Crown

Morrison JA

Background

1 On 8 November 2012, this appeal was dismissed and the court ordered that the

appellant's sentence should be reckoned from 10 March 2009. These are the promised reasons for this decision.

2 This is an appeal, pursuant to leave granted on 4 June 2012 by a single judge of this court, from the appellant's conviction and sentence in the High Court Division of the Gun Court on 10 December 2008. The appellant was tried before Gayle J (Ag) (as he then was) on an indictment containing three counts, for illegal possession of firearm (count one), abduction (count two) and assault with intent to rape (count three). He was sentenced to 10 years' imprisonment on each of counts one and two, and two years' imprisonment on count three. The sentences were ordered to run concurrently.'

The Crown's case

3 The main witness for the prosecution (“the complainant”), was at the material time a student at the Papine School in the parish of St Andrew. Her evidence wag that, at about 10:45 am on 11 May 2006, she was standing by herself on the side of the road, dressed in her school uniform, in Industrial Village, Gordon Town, St Andrew. There was a bus stop on the left side of the road, going towards Papine from Gordon Town, and she was standing on the right side of the road, opposite the bus stop. As she stood there, a car headed in the direction of Papine stopped in front of her on her side of the road. The windows of the car were wound up initially, but when the window on the right side, which faced her, was wound down, she saw a man whom she did not know before. He was alone and sitting inside the car on the right side. He was holding a gun pointed in her direction. This man, who the complainant later identified as the appellant, ordered her into the car, telling her that, if she did not comply, he would kill her. Frightened, she went into the car, as ordered, taking a seat on the left side of the vehicle, in the passenger seat, whereupon the appellant drove off in the direction of Papine, with the gun still pointed at her. When he got to a point in the road known as “Look up”, the appellant turned the car onto Jacks Hill Road, where, according to the complainant, he drove up the road and stopped the car, parking it ‘in a bushy place’. During this journey, nothing was said between them.

4 The appellant then took up the gun, which he had placed between his legs, and again pointed it at the complainant, telling her, ‘Do weh mi tell yuh fi do or mi a kill yuh’. The appellant touched her breast, but she pushed away his hand, whereupon he stuck the gun in her side, attempting to pull the button on her uniform skirt and to push his hand under the skirt. She then started to cry, and asked the appellant if ‘him nuh have woman’, to which his response was no, that was why he wanted her. A struggle ensued, during which the appellant took out his penis and instructed the complainant to perform oral sex on him, which she refused to do, and to take off her panties. She initially declined to do the latter, but the appellant hit her in the head with the gun and threatened to kill her, after which she removed her panties. After a further exchange between them, the appellant pulled the complainant down over him in the driver's seat of the car, at which point she pushed her foot underneath the seat and told the appellant that it was stuck under the seat. The appellant put down the gun, which was up to that time still in his hand, and tried to pull out the complainant's foot from under the seat. During this manoeuver, apparently inadvertently, the appellant opened the front door on the driver's side of the car and the complainant jumped out of the car, grabbing the gun at the same time, and fell to the ground.

5 A further struggle now commenced between the appellant and the complainant for control of the gun. This is the complainant's account of what happened next:

‘A: Mi and him was wrestling and him a draw the gun from me and mi hand between the round part and him draw the gun and mi a draw it back and when mi look, mi see a white van a come

Q: Stop. Yes.

A: The white van a come, mi draw the gun and wrestling the gun.

Q: On the ground same way?

A: No, him stand up on the side and spin go round and him a draw mi and mi draw him back, mi leggo the gun and just run towards the van.

HIS LORDSHIP: Yes?

A: The van stop and mi a run towards it and bawl and cry fi help.

MISS AUSTIN: And you cry fi help?

A: And mi run towards the van, mi just open the door and go inside there; two man did inside there.

Q: When you open the door to go inside the van…, was the van moving or it stopped?

A: It stop

Q: You saw the two men inside the van?

A: Yes.

Q: Continue please.

A: Mi just open the door and go inside and mi tell him the man a try fi rape mi.

HIS LORDSHIP: Yes?

A: And the man dem never move and dem stand up a watch him and dem tek down the licence plate.

MISS AUSTIN: Just a moment. All right…

A: Wi deh-deh a watch him, him go round the other side where mi did deh.

Q: Him who?

A: The man who did a try fi rape mi.

Q: Go round the other side?

A: And him tek out mi bag and book and panty and mi short [sic] and threw [sic] out.

Q: Out of what?

A: The car and through [sic] them on the ground,

Q: The bag, panty, what else?

HIS LORDSHIP: And shorts, Yes?

A: And then him go round the other side and drive off but mi ID did leff inna him car.

MISS AUSTIN: All right. Now, after the man drove off, did you go anywhere?

A. The man den drive and go up little where him was and mi tek up mi panty, mi shorts and mi bag.’

6 The men who had rescued her assisted the complainant and in due course a report was made to the Papine Police Station. Some time afterwards, the complainant attended an identification parade at the Half-Way-Tree Police Station, where she identified the appellant as the person who had taken her away in his car on the day in question.

7 The second witness for the prosecution was Mr Andre Britton. By the time of trial, Mr Britton was a university student, but at the material time he was an employee of his father's company. His evidence was that at approximately 10:50 am on 11 May 2006, in the company of a co-worker, he was driving a motor truck up Jacks Hill Road when he saw two persons, a female in uniform and a man, at a distance of about 18 metres or so, further up the road. The persons appeared to be fighting, ‘physically pulling and pushing’ and, as Mr Britton reduced his speed, they continued to struggle with one another. But, as he got closer to them, the female ran off in the direction of the truck and jumped into the vehicle on the left side, beside Mr Britton's co-worker, ‘shouting “help, him trying to rape me” or something like that’. At this point the male, who Mr Britton subsequently identified as the appellant, went back into the car, which was stationary on the road ahead of Mr Britton's truck, turned the car around, threw a bag and some books out of the car onto the road and drove past the truck. As the car passed him, Mr Britton took down the licence number of the car, which he gave in court as 2079EP.

8 During the course of a very brief cross-examination by the appellant's counsel at the trial, it was suggested to Mr Britton that the appellant and the complainant ‘were not engaged actually in a fight; from the distance you thought it was a fight’. There was no response by the witness to this suggestion, ‘[was] any reason why you didn't try to part the struggle or the fight?’ to which he replied, ‘I was in a moving vehicle, I couldn't stop the fight.’

9 On 22 May 2006, Mr Britton attended an identification parade at the Half-Way-Tree Police Station, where he identified the appellant as the male person whom he had seen with the complainant on the Jacks Hill Road on the morning in question.

10 Sergeant Livene Henry, who was at the material time the manager of the Divisional Intelligence Unit at the Hunts Bay Police Station, also gave evidence for the prosecution. Sergeant Henry told the court that the appellant was attached to that unit. She also said that a Mitsubishi Lancer motor car, licensed no 2079EP, was assigned to the unit and that the appellant, who was wearing civilian clothes at the time, had been given permission to drive the motor car on the morning of 11 May 2006. Cross-examined by counsel for the defence, Sergeant Henry said that the appellant had worked under her command for over a year and, when asked to state her reaction to the allegations that had been made against him in this case, she replied, ‘It was surprising to me.’ She went on to explain that, ‘I don't know of him to be involved —I know him as a decent young man, attached to our unit.’

11 Evidence having been given (without controversy) by Constable Edwin Campbell as to the conduct of the identification parade, the final witness for the prosecution was Sergeant Vancietta Craig, who was the arresting officer. Upon being cautioned, the appellant said, ‘I am not guilty of those charges, you are just doing your job.’ Cross-examined, Sergeant Craig said that she had known the appellant for approximately eight years before and that, when she heard of the allegations against him, she was ‘really astonished’. She went on: ‘The person I know, I don't know him of that character.’

The defence

12 That was the case for the prosecution, after which the appellant gave evidence in his defence. At the material time,...