Fabian Dockery v R
| Jurisdiction | Jamaica |
| Judge | P Williams JA |
| Judgment Date | 30 July 2021 |
| Neutral Citation | [2021] JMCA Crim 28 |
| Docket Number | SUPREME COURT CRIMINAL APPEAL NO 6/2013 |
| Year | 2021 |
| Court | Court of Appeal (Jamaica) |
IN THE COURT OF APPEAL
THE HON Mrs Justice McDonald-Bishop JA
THE HON Miss Justice P Williams JA
THE HON Miss Justice Straw JA
SUPREME COURT CRIMINAL APPEAL NO 6/2013
Robert Fletcher and Miss Nancy Anderson for the applicant
Miss Cheryl-Lee Bolton for the Crown
On 18 July 2012, after a trial before Campbell J (‘the learned trial judge’), sitting without a jury in the High Court Division of the Gun Court in the parish of Kingston, Mr Fabian Dockery (‘the applicant’) along with his co-accused, Mr Rohan Edwards, were convicted of the offences of illegal possession of firearm, robbery with aggravation and shooting with intent. On 12 December 2012, the applicant was sentenced to seven years’ imprisonment in respect of the offence of illegal possession of firearm and ten years’ imprisonment in respect of each of the offences of robbery with aggravation and shooting with intent. The sentences were ordered to run concurrently.
The applicant's application for leave to appeal both his conviction and sentence was considered and refused by a single judge of this court on 2 August 2016. He renewed his application before us and, on 25 July 2019, having heard and considered the submissions from counsel, we refused the application for leave to appeal conviction and sentence. We ordered that the sentences are to be reckoned as having commenced on 12 December 2012.
We promised, then, to reduce into writing our reasons for the decision. This is a fulfilment of that promise, with apologies for the delay.
On 3 October 2009, at about 1:45 pm, Mr Nakeiya Nesbeth was at his business place along the Linstead By-pass, Rosemont, in the parish of Saint Catherine. He was in the yard with several persons, including his uncle Carl Walters, a Detective Constable of Police in the Jamaica Constabulary Force, when two men entered the premises. Mr Nesbeth noticed that one man was dressed in short jeans pants and a plaid shirt and the other in brown pants with a purple shirt. He spoke to them and they expressed a desire to purchase some parts for a motor vehicle.
When the men were entering, Constable Walters left the premises through the main gate and stood on the sidewalk at the front of the premises. He noticed a motor car at the gate with two men sitting in the front with the motor car's engine running.
Constable Walters noticed one of the men push his head out of the left front passenger window of the car, look in Constable Walter's direction and then pull his head back in. Constable Walters then saw the other man, who was sitting around the steering wheel, turn around and look in his direction through the back windshield of the car. This aroused Constable Walter's suspicion, and he memorised the licence plate number. It was 2143 FN. He also noted that the car was a black Toyota Altis.
Constable Walters remained at the gate and observed that the two men who had entered the premises were still with his nephew, Mr Nesbeth. He was able to observe them for about three to four minutes. He identified the applicant as one of the two men who had entered the premises and was with Mr Nesbeth in the yard before following Mr Nesbeth into the office.
Whilst in the yard, Mr Nesbeth told the men that he did not have the parts they wanted but offered to source them. The man dressed in the short jeans pants asked him for his business card, and he walked off to his office to get it. The men followed him into the office, and the man dressed in the short jeans pants told Mr Nesbeth that he had been given $300,000.00 to kill him. He asked Mr Nesbeth, “way you can do fi yuhself?”. The other man, who was dressed in the purple shirt, pointed a gun at Mr Nesbeth, who held on to the firearm to keep it away and avoid getting shot. He told them that he only had $9,000.00 or $10,000.00 and begged them not to kill him. The man in the short jeans pants then relieved Mr Nesbeth of his wallet and removed all the money it contained. The man in the purple shirt took up his laptop but returned it to the desk after looking out into the yard.
As they were about to leave, the man in the short jeans pants said to Mr Nesbeth, “Boy me nuh waan kill you you nuh but me nuh know weh fi do wid yuh”. At his suggestion, the men locked Mr Nesbeth into a storeroom and left the office. Mr Nesbeth identified the applicant as the man dressed in the purple shirt who had been armed with the gun and who had taken up his laptop.
While still at the gate, Constable Walters saw when the two men who had gone with Mr Nesbeth exit the office, walk past him, and enter the back of the Toyota Altis motor car. They walked at what he described as a “fairly moderate, not too fast” pace and got to 5 feet from him as they passed him. He was able to observe the entire faces of the men. He again identified the applicant as one of the two men.
After the men entered the car, it was driven off “very quickly”. Constable Walters saw Mr Nesbeth, who had by then managed to free himself from the storeroom, at the doorway of the office. He was shouting to Constable Walters, who noted that he appeared frightened. They spoke, then got into Mr Nesbeth's car and drove out of the premises in the general direction where the Toyota Altis had gone.
Constable Walters called the Linstead Police Station and informed them of what had just taken place. Shortly after, he called Area 3 Control and spoke to the operator and soon thereafter, he received a call from Kingston Police Control.
Whilst on the phone, Constable Walters saw a black motor car fitting the description of the one he had seen earlier, proceeding some distance ahead of them. Mr Nesbeth managed to get closer to it, and Constable Walters saw that it was a Toyota Altis, and he recognised the licence plate number, which was as he had memorised. He also noted that there were four men in the car. Constable Walters estimated that about eight minutes or less had passed since he had seen the vehicle drive off from the gate where he had seen it.
They followed the Toyota Altis through the Bog Walk Gorge and into the Angels Estate housing scheme. Constable Walters kept the police operator advised of their location. Mr Nesbeth testified that although the Toyota Altis gained some distance ahead of him, he was able to keep sight of it. He said they eventually came closer to it when it was stopped at a dead end and was turned around facing them as they approached.
Mr Nesbeth said that as they approached the Toyota Altis, it sped off and drove past them. He turned around to follow it again. He testified that Constable Walters then said something to him, and he stopped the car so that Constable Walters could exit. He said Constable Walters proceeded to run behind the Toyota Altis. Mr Nesbeth was not able to see what happened then because he said he had stopped, but he heard several gunshots. He eventually continued driving until he saw the Toyota Altis stopped again, elsewhere in the housing scheme, with the four doors wide open and no one inside. A police vehicle was parked directly in front of the Toyota Altis.
Constable Walters testified that he had exited Mr Nesbeth's car while the Toyota Altis was in the process of being turned around and he shouted ‘police’. It was eventually driven towards him, and he noticed that there still were four men inside. He saw one man sitting at the right side to the back of the car point a firearm in his direction, and he heard a loud explosion. Constable Walters fired several shots and took cover behind a column in a yard nearby. He gave chase and saw when a marked police vehicle arrived and drove in the direction of the Toyota Altis. He said that by that time, Mr Nesbeth had picked him up and their chase continued. He heard several loud explosions.
Inspector Eric Byfield, then assigned to the Saint Catherine North division, was on patrol with other officers when he heard a transmission from police control and proceeded to the Angels Estate. Upon arrival in the scheme, he testified that he saw a black Toyota Altis being pursued by another vehicle, and he heard gunshots being fired. He saw four men alight from the Toyota Altis and run in different directions. Inspector Byfield testified that one man came out of the bushes with his hands up and shouted, “[o]fficer, do nuh shoot mi, mi with[sic] talk, mi we talk”. He further testified that a search of the area was conducted for other men, and a man was found in an unfinished building. He said both these men were taken to the Spanish Town Criminal Investigation Branch office, where they were handed over to Detective Corporal Kirk Roache.
Detective Corporal Roache, who was then stationed at the Spanish Town Criminal Investigation Branch, testified that he was on supervision duties at the Spanish Town Police Station when he heard a transmission from police control. He was dispatched to the Angels Grove area, where upon arrival, he saw several police officers and observed a Toyota Altis parked along the roadway. Within half an hour of his arrival on the scene, he saw a man being led from some bushes and taken to him. Both Mr Nesbeth and Constable Walters identified this man as one of the men who had been in the Toyota Altis. This man was the applicant's co-accused, Mr Edwards.
Detective Corporal Roache then gave instructions and participated in the search of the area. After searching for less than an hour, he came upon a house that was under construction and spotted a man stooping in a darkened corner of the building. He ordered the man to stand up and asked him who he was. The man replied, “[o]fficer, do nuh shoot mi”. Detective Corporal Roache said the man had a purple shirt and a purple handkerchief wrapped up in his hand. Detective Corporal Roache identified the applicant as the man he had seen in the...
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