Everton Lloyd Lynton v R

• Jurisdiction: Jamaica
• Judge: Phillips JA
• Judgment Date: 11 April 2014
• Neutral Citation: JM 2014 CA 43
• Docket Number: SUPREME COURT CRIMINAL APPEAL NO 14/2011
• Court: Court of Appeal (Jamaica)
• Date: 11 April 2014

[2014] JMCA Crim 17

JAMAICA

IN THE COURT OF APPEAL

Before:

The Hon Miss Justice Phillips JA

The Hon Mr Justice Brooks JA

The Hon Ms Justice Lawrence-Beswick JA (Ag)

SUPREME COURT CRIMINAL APPEAL NO 14/2011

Everton Lloyd Lynton

and

R

Mrs Valerie Neita-Robertson , Robert Fletcher and Kashaka Smith for the appellant

Miss Sanchia Burrell for the Crown

Everton Lynton in attendance

CRIMINAL LAW - Illegal possession of firearm - Indecent assault - Whether evidence insufficient to warrant conviction

Phillips JA

1 The appellant was tried in the High Court Division of the Gun Court in the parish of Kingston on 20, 21, 24 and 27 January 2011, by E Brown J, on an indictment charging him with two counts. The first count was for illegal possession of firearm, contrary to section 20 (1) (b) of the Firearms Act, the particulars of which were that on 27 April 2009, he had in his possession a firearm not under and in accordance with the terms and conditions of a Firearm User's Licence. The second count was for indecent assault, the particulars of which were that on the said day he had indecently assaulted LBR. He was found guilty on 27 January 2011 on both counts and sentenced to four years and two years respectively. The sentences were ordered to run concurrently.

2 His application for leave to appeal was refused by a single judge of this court in March of 2012, and for various reasons, the matter meandered through the court until it was eventually heard in February of this year, when by way of detailed examination of the transcript by the court, and at its request, the issue of the jurisdiction of the Gun Court to hear and determine the question of guilt in respect of the particular offences which had been before it, came up for serious discussion, consideration and resolution.

3 On 27 February 2014, we made the following orders:

‘[1] The application for leave to appeal is granted. The application is treated as the hearing of the appeal. The appeal is allowed. The convictions on counts 1 and 2 (illegal possession of firearm and indecent assault) are quashed and the sentences imposed are set aside.

[2] In respect of count one the appellant is discharged. A new trial is ordered in respect of count two. The matter is remitted to the Resident Magistrate's Court in the parish of Saint Catherine holden at Spanish Town for mention on Tuesday, 4 March 2014.

[3] The appellant is granted bail in the sum of $1,000.00 in his own surety to attend that court on Tuesday, 4 March 2014.

[4] The court recommends that in the circumstances of the period of time for which the appellant has been incarcerated, that there should be no further prosecution on count two and that the Director of Public Prosecutions enter an unconditional nolle prosequi in respect thereof as soon as possible.’

We promised that our reasons would follow. This is the fulfillment of that promise.

4 Bearing in mind the decision of the court as set out above, it is unnecessary to examine in detail all the evidence adduced at the trial, but a brief summary would be helpful with emphasis on those facts pertinent to the outcome of the appeal.

The prosecution's case

5 The complainant, LBR, gave evidence that on 27 April 2009, upon her request, the appellant agreed to give her a lift to visit a female friend of hers from Antigua who would be leaving the island the next day. As agreed, he arrived at her house later that evening driving a Honda Stream motor car and they drove to the house where the friend was staying on Washington Boulevard. At about 8:30pm, they left the premises where the friend was staying and with the help of the complainant's brother, a suitcase, given to the complainant by the friend, was put into the trunk of the vehicle. The complainant said as soon as she sat in the car, and the appellant began driving, he started cursing and accusing her of being a liar telling her that she had used him to ‘pick up [a] big ol' suitcase’. He headed in the direction of Half Way Tree but instead of proceeding in that direction as the complainant expected, the appellant drove back onto Molynes Road and then towards Washington Boulevard and further to an area where she could see ‘some houses and a hillside’.

6 The complainant said that the appellant took out a gun from his waistband and she heard a sound ‘like [he was] going to use it’. He then put the gun on his right leg. She said that the appellant wound the car window down and started to wave the gun saying, ‘You si over there suh, a pure gunman, thief and murderer over deh, and dem soon come over yah come shoot up the car and yah suh yuh fi come out mek dem kill you.’ She tried to escape but the doors of the vehicle were locked. The appellant then drove off the vehicle and upon approaching Spanish Town Road he told the complainant, ‘Mi a go rape yuh. Yes, mi a go rape yuh, you too wicked and lie.’ The complainant could not say where the firearm was at this point as, she stated, she had been looking through the window most of the time. He drove for some distance after that while the complainant tried to escape but was unsuccessful. On returning from that mission they quarrelled and instead of taking her home, he stopped the vehicle on a lonely road. He made several sexual requests to touch her intimately but she refused. The appellant then pushed his hand into her clothing and grabbed her breast. At that point, she said, that she was not paying attention to where he had his firearm but she ‘knew he had it out’ because ‘[i]t was in his right hand while he does whatever he was doing’. Eventually she managed to get the attention of a passing motorist by tooting the horn and after taking out her suitcase from the trunk, she left with the motorist. This motorist turned out to be District Constable Michael Robinson, who was stationed at the Spanish Town Police Station. He gave evidence for the defence.

The defence

7 The appellant gave evidence that he had been a member of the Jamaica Constabulary Force for 20 years. He had an intimate relationship with the complainant; they had been to several places together and they had last had sexual relations about two months before the night of 27 April. On that date the complainant had asked him to take her to visit her friend. He stated that on that night he had been carrying his personal firearm and that the complainant had had the opportunity of seeing it because, as he had always done while driving, he had placed it between his legs. The car which he had been driving that night was the same one he owned at the time of trial and it did not have a master lock. Therefore, someone sitting in the front passenger seat could get access out or exit freely without hindrance. This was borne out by a physical demonstration. He agreed that he had made certain sexual requests, that is, to fondle the complainant, and that she had refused but that he had not made any physical sexual contact. He stated though that he had told the police that at one point she had become hysterical and when he tried to restrain her he was not sure if he had accidentally touched her breast. He also testified that he asked the motorist/police who stopped at the roadside to assist, to take the virtual complainant to the nearest point to her house and he agreed.

The decision of the learned trial judge

8 Against that evidential background the learned trial judge found the appellant guilty on both counts on the indictment. In doing so he made certain findings of fact. He accepted the agreed positions taken by both counsel and indicated that it was also the court's view that the issue to be resolved was one of credibility. He did not believe the evidence of the appellant nor that of his witness. He did not accept that there was any relationship of intimacy between the appellant and the complainant. He said after careful consideration that he believed the testimony of the complainant. He stated that he did not believe that the appellant had the firearm on the seat between his legs, as stated by him, but that he had removed the firearm from his waist for intimidatory effect. He also accepted that the appellant had held the firearm outside of the vehicle and waved it when he spoke of the inhabitants of the community. He accepted that the firearm was in the appellant's hand when he grabbed her right breast. He stated that:

‘The evidence is abundant that the presence of this firearm weighed heavily on the mind of the complainant to the point where she had thought that she might have been killed with it after he had his way with her body.

So, I accept the evidence that the firearm was used in [sic] commission of this offence.’

He finally concluded:

‘… I am in no doubt that his firearm was used to facilitate the commission of this offence and accordingly, I find him guilty on both counts of the indictment.’

The appeal

9 The appellant appealed. Counsel abandoned the original grounds of appeal filed and was granted leave to argue the following ground:

‘The learned trial judge erred in finding that the handling of the firearm by the appellant evidenced the required intent to justify a conviction on count one of the indictment.

In so finding the learned Trial judge failed to give sufficient and/or adequate consideration to the evidence in respect of the said handling of the firearm by the Appellant.

As a consequence, these failures by the Learned Trial Judge denied the Appellant a real chance of acquittal.’

10 Counsel submitted that in order to ground the offence of illegal possession, it was incumbent on the prosecution to show that the behavior of the appellant was capable of amounting to an intent to use the firearm to commit the indecent assault and the handling of the firearm by the appellant never evinced any explicit or implied threat to the complainant. There were therefore no acts from...