Everett Rodney v R

• Jurisdiction: Jamaica
• Judge: Brooks JA
• Judgment Date: 18 January 2013
• Neutral Citation: JM 2013 CA 4,[2013] JMCA Crim 1
• Court: Court of Appeal (Jamaica)
• Docket Number: RESIDENT MAGISTRATE'S CRIMINAL APPEAL NO 21/2012
• Date: 18 January 2013

Everett Rodney

and

R

[2013] JMCA Crim 1

Before:

The Hon Mr Justice Morrison JA

The Hon Miss Justice Phillips JA

The Hon Mr Justice Brooks JA

RESIDENT MAGISTRATE'S CRIMINAL APPEAL NO 21/2012

JAMAICA

IN THE COURT OF APPEAL

CRIMINAL LAW - Wounding - Unlawful wounding - Leave to appeal conviction and sentence - Whether Magistrate erred in her treatment of the defence of attempting to protect life - Whether Magistrate exercised bias in her treatment of the respective witnesses - Whether Magistrate failed to consider issue of good character

Lambert Johnson for the appellant

Mrs S. Sahai Whittingham-Maxwell for the Crown

Brooks JA

1 On 2 April 2012, the appellant, Mr Everett Rodney was convicted of the offence of unlawful wounding. This was in the Resident Magistrates' Court for the parish of Westmoreland. Mr Rodney was, at the time, a serving member of the Jamaica Constabulary Force (JCF).

2 He was not in uniform at approximately 1:30 am on 14 December 2008 when, as found by the learned Resident Magistrate, he shot and injured Mr Andre Cunningham. Mr Rodney was dressed in shorts and a plaid shirt. He was, however, armed with a pistol issued by the JCF. The events leading to the shooting occurred while Mr Rodney was attending a dance in Highgate, Darliston, in the parish of Westmoreland. Mr Cunningham was also among the patrons.

3 The learned Resident Magistrate, who convicted Mr Rodney, sentenced him to serve 15 months imprisonment at hard labour. Mr Rodney has appealed against his conviction and sentence. Mr Johnson, who argued Mr Rodney's appeal against the conviction, based his submissions on four main plinths. He argued that:

Each of these issues will be dealt with in turn, but first an outline of each case will be given in order to aid comprehension of the submissions and the analysis.

• a. The learned Resident Magistrate made findings of fact that were flawed because they were either not based on the evidence or did not consider serious discrepancies in the prosecution's case.

• b. The learned Resident Magistrate erred in her treatment of Mr Rodney's defence that he believed himself to be in danger and fired his weapon in protection of his life and safety.

• c. The learned Resident Magistrate entered into the arena and exhibited bias in favour of the prosecution during her treatment of the respective witnesses for each side.

• d. The learned Resident Magistrate failed to consider the issue of Mr Rodney's good character, by virtue of the fact that he was a serving police officer.

The prosecution's case

4 Mr Cunningham and the other witnesses, as to the events of that early morning, testified that Mr Rodney became embroiled in a confrontation with another man, identified as Dalmayne Vassell, while both were inside the premises in which the dance was being hosted. The prosecution's case was that Mr Cunningham had known Mr Rodney before that day and knew that he was a policeman. Mr Cunningham held Mr Rodney, took him out of the premises and took him to his (Rodney's) car, encouraging him to leave in order to avoid a disruption of the dance.

5 Mr Rodney, however, refused to heed the advice of Mr Cunningham and others. He drew his pistol and charged back into the premises seeking Mr Vassell, saying among other things, ‘di bwai diss mi, di bwai fi dead’. His behaviour infuriated some of the patrons, and they surrounded him in a hostile manner. Mr Cunningham again went to him, hugged him, and walked with him toward the car. This time a crowd of patrons followed them.

6 They reached the car, but Mr Rodney, despite encouragement, refused to get in. One of the persons who had gone to the dance with Mr Rodney started the car and began to drive away slowly, but Mr Rodney remained obdurate. Then it happened.

7 Someone threw a missile at Mr Rodney and he reacted. He ran into a lane from whence the missile came, and fired several shots. Persons, who were leaving the dance, were in the lane. He came back to the main road and sat on a wall, despite the fact that his friends were in the car and asking him to get in. More stones were flung from the lane. One hit and shattered the rear windscreen of the car. Another hit Mr Rodney. He remained where he was for a short while, then went back into the lane and fired his weapon again. When he returned to the main road, he went toward his car. Before he got to the car, however, he turned, pointed the gun at Mr Cunningham, and fired at least one shot.

8 The bullet struck Mr Cunningham and he fell. Mr Rodney then ran toward Mr Cunningham and kicked him several times. According to one witness, Mr Rodney said, while he was kicking Mr Cunningham, ‘Do you know I get pay to kill people.’ More missiles, including bottles, were thrown and Mr Rodney ran to his vehicle and got in. The vehicle was then driven away. Mr Cunningham was, thereafter, taken to the hospital.

The case for the defence

9 Mr Rodney and another police officer, Constable Andre Allen, testified for the defence. They stated that Mr Vassell was the aggressor and that he used the following words during the clash, ‘Must kill one a unno police bwai up ya tonight.’ Mr Vassell went away and returned shortly thereafter with 15-20 men armed with ‘machetes, sticks, stones and other implements’.

10 Mr Rodney and his friends made their way out of the venue but were closely pursued by an ‘angry mob, uttering threatening words and behaving boisterously’. He got to his car but was hit by stones when he got there. The car was also damaged by stones. He was in fear of his life and he fired one shot from his service pistol in the direction from whence the stones came. He said that he fired six shots from his firearm that night. He fired in order to prevent Mr Vassell's mob from attacking his group.

11 In cross-examination, Mr Rodney specifically denied the allegations by the prosecution that:

• a. he had been coaxed away from the venue;

• b. persons spoke to him seeking to pacify the situation;

• c. he returned to the venue;

• d. he ran into the lane and fired wildly;

• e. he stayed back after his friends went into the car;

• f. he shot Mr Cunningham;

• g. he kicked Mr Cunningham; and

• h. he said that he got paid to kill.

12 Whilst Mr Rodney fired in the direction from whence the stones came, his colleague Constable Allen, who was also armed with a JCF-issued firearm, fired several shots upward into the air. This, Constable Allen said, was in order to fend off the mob.

The findings of fact

13 Mr Johnson complained that, in her findings of fact, the learned Resident Magistrate drew conclusions that were contrary to the evidence. Learned counsel specifically pointed out that whereas the prosecution's witnesses testified that Mr Rodney faced Mr Cunningham when he fired, the medical evidence indicated that the injuries, although to Mr Cunningham's side, were more to his back. The medical certificate stated that the injuries included ‘1 cm GSW left posterior axillary fold’ and ‘1 cm GSW x 2 posterior medial and lateral aspect of left arm’.

14 With that medical evidence, learned counsel argued, it was puzzling that the learned Resident Magistrate should have found that Mr Cunningham was shot from in front rather than from behind. The inference to be drawn from Mr Johnson's submission was that it was someone else who inflicted the injuries.

15 Associated with that complaint, Mr Johnson also stated that the learned Resident Magistrate seemed to have been shifting the burden of proof to Mr Rodney. Learned counsel argued that what the learned Resident Magistrate said, at pages 40-41 of the record of appeal, demonstrated the validity of his submissions. She said:

‘Defence Attorney Mr. Johnson also made heavy weather of the Complainant's [Mr Cunningham's] injury and Medical Certificate. He says it defies common sense that he could have been shot more to his back when he said the [appellant] was facing him. Not so. The Complainant said Rodney pointed in his direction and fired, and he also said he faced him. But there is no evidence before the court as to Mr Rodney's skill as a marksman . The bullet, the Complainant said, entered through his left arm and ended up going through his side ( more to the back ) and grazed his lungs. He pointed out to the court the place where the bullet entered his arm. That is consistent with being shot from in front, certainly not behind.’ (Emphasis supplied)

16 The learned Resident Magistrate, in her reference to Mr Rodney's marksmanship, seems to have been saying that there was no guarantee that Mr Rodney would have hit Mr Cunningham to the front of his body. Contrary to Mr Johnson's submission, this does not place any burden of proof on Mr Rodney. Although the learned Resident Magistrate did not allude to it, there was evidence that when Mr Rodney pointed the gun and fired, Mr Cunningham ‘ducked, he turned and went down on the ground’ (page 20 of the record). That action may well have accounted for Mr Cunningham having sustained injury to those parts of his body.

17 There was, therefore, evidence that could have explained the sites of Mr Cunningham's injuries. The learned Resident Magistrate was in no doubt that Mr Rodney shot Mr Cunningham. She stated this expressly, as one of her findings of fact. She said at page 41 of the record:

‘4. That after a stone was thrown at [Mr Rodney], he hesitated, again fired into the crowd then turned his gun directly at Andre Cunningham who was not in a group or crowd, and fired at him.’

Mr Rodney's subsequent action, as the learned Resident Magistrate found, of kicking Mr Cunningham, would have supported her finding that Mr Rodney was the aggressor and that he had deliberately shot Mr Cunningham.

18 Mr Johnson also argued that the learned Resident Magistrate failed to consider a number of discrepancies in the prosecution's...