Easton Blake v R
| Jurisdiction | Jamaica |
| Judge | Foster-Pusey JA,Brown JA |
| Judgment Date | 29 October 2021 |
| Neutral Citation | JM 2021 CA 123 |
| Docket Number | RESIDENT MAGISTRATES CRIMINAL APPEAL NO 24/2014 |
| Court | Court of Appeal (Jamaica) |
[2021] JMCA Crim 40
IN THE COURT OF APPEAL
THE HON Mr Justice Brooks P
THE HON Mrs Justice Foster-Pusey JA
THE HON Mr Justice Brown JA (AG)
RESIDENT MAGISTRATES CRIMINAL APPEAL NO 24/2014
Robert Fletcher and Ms Nancy Anderson for the appellant
Mrs Sharon Millwood-Moore and Ms Cindi-Kay Graham for the Crown
Foster-Pusey JA AND Brown JA (AG)
This is the judgment of the court.
The appellant was summarily convicted on 29 August 2014 by the learned Senior Resident Magistrate (now Judge of the Parish Court) for the parish of Saint Ann, at the end of a trial which commenced on 22 November 2012, and continued on divers dates, for possession of and dealing in ganja. On the information charging him with possession of ganja, he was sentenced to pay a fine of $15,000.00 or, in the alternative, serve a sentence of six months' imprisonment. On the information which charged him for dealing in ganja, he was ordered to serve a sentence of six months' imprisonment. The appellant paid the fine the same day and, on that day as well, he was released on bail pending the hearing of his appeal.
The appellant filed his notice and grounds of appeal on 4 September 2014. The sole ground was “[t]hat the verdict is unreasonable and cannot be supported having regard to the evidence. In due course, further supplemental grounds were filed and permission sought, and was granted to argue them. These will be set out below. Before doing so, it is useful to provide the background against which those grounds will be argued.
The case for the prosecution may be summarized as follows. On Tuesday 20 October 2009, at about 9:50 pm, Corporal Devon Sterling (‘Cpl Sterling’) was on mobile patrol in Claremont in the parish of Saint Ann. He was driving a marked Hilux pick-up and accompanied by three other policemen. They were all dressed in blue denim and wearing ballistic vests marked ‘police’. Whilst on mobile patrol, they heard a radio transmission which caused them to be on the lookout for a burgundy Toyota Corolla motor car registered 8919 EZ.
This burgundy Toyota Corolla motor car was observed in the vicinity of the Ferncourt High School, travelling in the opposite direction. Consequently, Cpl Sterling turned around the police vehicle and went in pursuit of the burgundy Toyota Corolla motor car but lost sight of it. He next saw the burgundy Toyota Corolla motor car stationary at a service station some distance from the Claremont Square. He drove past the motor car and stopped.
Cpl Sterling and his party alighted from their vehicle and walked towards the burgundy Toyota Corolla motor car. As they did so, he noticed the burgundy Toyota Corolla motor car being turned, going back onto the main road and towards the Claremont Square. From a distance of about 30 feet away, Cpl Sterling saw four occupants in the burgundy Toyota Corolla motor car, equally distributed between the front and the rear of the vehicle. As Cpl Sterling and his team continued their approach to the target vehicle, loud explosions sounding like gunshots came from the driver's side and the passenger seated behind the driver. Cpl Sterling and his party took cover and returned the gunfire. The burgundy Toyota Corolla motor car was then driven away in the direction of the Claremont square.
Following that encounter, Cpl Sterling and his companions re-boarded the police vehicle and a hot pursuit commenced. They lost sight of their target. However, Cpl Sterling later received information which led him to Ferncourt Street. Travelling along Ferncourt Street, he came upon a knitted bag in the middle of the road. He stopped, disembarked, and retrieved the knitted bag. He opened it and found it to contain five rectangular parcels wrapped in masking tape with vegetable matter resembling ganja. He placed the knitted bag with its contents in the police Hilux pick-up and drove to the end of Ferncourt Street.
At the end of Ferncourt Street, Cpl Sterling came upon a track. He drove onto this track. At the end of the track, he saw the burgundy Toyota Corolla motor car registered 8919 EZ, abandoned. Cpl Sterling searched this vehicle and, in its trunk, he found four knitted bags, three of which contained five rectangular parcels while the other had four rectangular parcels; two large travelling bags (which resembled tote bags), each containing two rectangular parcels; and one white bucket with loose vegetable matter resembling ganja. All the parcels were wrapped with masking tape. He cut one of the parcels and saw that it contained vegetable matter resembling ganja. Corporal Sterling took possession of all the containers.
Sometime after the containers with the ganja had been removed from the burgundy Toyota Corolla motor car, on the night of the incident, the car was towed to the Claremont Police Station. It was there that Detective Constable Kevon Daniels processed the car on 22 0ctober 2009, sometime after 4.30 am when he was summoned by Det Sgt Brady. During that exercise, Detective Cons Daniels noticed a pay advice slip (exhibit 1), dated 25 June 2009, on the back seat of the car, among other papers. This pay advice slip bore the name of the appellant and was inscribed, “Police Department”. He handed over the pay advice slip to Inspector Minto, who was in charge of the Claremont Police Station.
Later that day, about 4:45 pm the appellant was questioned by Deputy Superintendent of Police Mevarol Smith (‘DSP Smith’) in the presence of two senior officers, one of whom was the appellant's immediate supervisor, at the Major Investigation Taskforce (‘MIT’). DSP Smith questioned the appellant about the duties he performed on 20 October 2009. His answers led to DSP Smith asking the appellant if he knew why all those questions were being asked. The appellant responded in the affirmative and said he realized his documents, including his pay slip, fell in the car. Asked which car, he replied the burgundy car in Claremont. Asked what he was doing in the car, he replied, “a mi friend Omar ask mi fi pilot him. Mi should a get a next vehicle but mi neva get it so mi travel inna di car wid him”. The cross-examination of DSP Smith at the trial, by defence counsel, concentrated on his understanding of the word “pilot”. He never asked the appellant what he, the appellant, meant by the word “pilot”.
No other questions were asked of the appellant save two concerning legal representation. Once he gave the last answer, DSP Smith asked the appellant if he had an attorney-at-law. Upon receiving an answer in the negative, the appellant was next asked if he wanted a good lawyer who practised in the parish. He answered yes, at which time DSP Smith dialled the telephone number for Mr Oswest Senior-Smith and handed the telephone to the appellant. After that, the appellant was taken into custody.
While he was in custody, on 27 October 2009, the appellant gave a statement under caution in the presence of his attorney-at-law, Mr Oswest Senior-Smith. Two days later, on 29 October 2009, the appellant was the subject of a question and answer session, again in the presence of Mr Oswest Senior-Smith. Both documents were admitted in evidence (exhibits 2 and 3 respectively).
The cautioned statement turned out to be, in some sense, an abbreviated version of the appellant's sworn testimony.
A file was prepared and submitted on 3 November 2009 to the Director of Public Prosecutions for a ruling on whether the appellant should be charged. The ruling was handed down the same day. Upon receiving that advice, Det Sgt Brady informed the appellant of the ruling, and then charged him for the offences.
The appellant gave sworn testimony and called four witnesses. His primary defence was a denial of knowledge of the ganja found in the trunk of the motor car. The main planks of his testimony were an explanation of his presence in the motor car, his conduct inside the motor car during the encounter with the police, his conduct after that encounter and his effort to speak with a senior member of the constabulary. The appellant's evidencewill be summarized below.
The appellant testified that at the time of his trial he had been a member of the Jamaica Constabulary Force (‘JCF’) for 13 years. Prior to joining the JCF he was a vendor's bailiff. During the execution of his functions as a vendor's bailiff he met Orville Lugg aka Omar. They appear to have struck up a friendship and Mr Lugg would sometimes pick up the appellant at work in his burgundy motor car registered 8919 EZ. He later partnered with Mr Lugg in the running of a bar. That relationship lasted for six months and had come to a close about the time of this incident.
On the 20 October 2009, between 9:30 pm and 10:30 pm, he was aboard the burgundy Toyota Corolla motor car being driven by Omar, as the appellant referred to Mr Lugg in his evidence. He boarded the motor car at his gate. Omar had asked the appellant to accompany him to Saint Ann, saying he got a “roast” to “drop” somebody in Saint Ann. When the appellant boarded the car, he seated himself at the rear of the motor car. On the floor of the car, behind the driver's seat, was a white knitted bag. There was also a white five-gallon plastic bucket on the rear seat.
In the front passenger seat sat a male who the appellant did not know. Omar would later address this unknown male as ‘Homeboy’. The appellant said he got into the car as it was his day off and he wished to explain to Omar why he was ending their business relationship and hand over the keys for the bar. He also spoke of a prior arrangement he had with Omar to travel to Saint Ann with him in separate vehicles, which Omar would procure. This was to allow Omar to leave his car in that parish with relatives for repairs. They would then travel back in the vehicle driven by the...
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