Higgins (Oneil) v R
| Jurisdiction | Jamaica |
| Judge | PHILLIPS, J.A. |
| Judgment Date | 16 April 2010 |
| Neutral Citation | JM 2010 CA 58 |
| Judgment citation (vLex) | [2010] 4 JJC 1601 |
| Court | Court of Appeal (Jamaica) |
| Date | 16 April 2010 |
CRIMINAL LAW - Illegal possession of firearm - Wounding with intent - Alibi - Excessive evidence - Firearms Act, s. 20
The applicant was tried in the High Court Division of the Gun Court on an indictment containing two counts: on count one, he was charged with illegal possession of a firearm and on count two with wounding with intent. The particulars of the offences were that the applicant on 20 April 2006 in the parish of Saint Catherine unlawfully had in his possession a firearm contrary to section 20(1) (b) of the Firearms Act and not under and in accordance with the terms and conditions of a Firearm User's Licence, and that the applicant contrary to section 20 of the Offences Against the Person Act wounded Lyndon Barrett with the intent to do him grievous bodily harm. He was convicted on both counts and on 30 May 2008, sentenced to 10 years and 12 years imprisonment at hard labour respectively, both sentences to run concurrently.
His application for leave to appeal was refused by a single judge on 16 June 2009. He has now renewed the application for leave to appeal before this court.
The Prosecution's Case
The case for the prosecution depended in the main on the sole eye-witness, the virtual complainant, Mr Lyndon Barrett. Mr Barrett gave evidence that in April 2006 he was living at 52B Corletts Road, Spanish Town, and that he was a haulage contractor. At about 8.30 pm on 20 April 2006 he had been sitting on a chair between his verandah and the dining room watching television. His mother and his niece were in the dining room also watching television. He said that he heard a banging at the fence to the right side facing the house. He said he got up and "walk beside the grill" to look, but as he did not see anything, he went back to his seat on the verandah. He said he heard the dogs barking and so he ran them away three times. On the fourth occasion, he flung a "nut and bolt and 'lick' the dog" and the dog ran to the back of the premises. Then the dog came back to the front, but this time he was "lapping his tail and looking frighten". Mr Barrett said he then thought something was wrong and so he went to the grill, which was locked, and looked to the side of the house. At that time he said he saw the applicant at the side of the house in a "bending" position which he (Mr. Barrett) demonstrated to the court. The applicant had a gun in his hand, and was underneath the light, which was on at the time. He recognized the applicant whom he said he knew as Peter Holness.
Mr Barrett told the court that he also saw another man behind the applicant who was also armed with a gun. He said he looked at them, and just as he was going to turn away, the applicant lifted his hand with the gun in it, dipped his hand toward him, which he (Mr. Barrett) also demonstrated to the court, and then he ran inside the house. It was Mr Barrett's testimony that as the applicant lifted his hand, he moved and then he heard a barrage of shots as he ran inside the house.
Mr Barrett said that it was only five feet from where he had been looking at the side of the grill on the verandah, to the inside of the house. As he was about to enter the house he saw the applicant at the grill firing at him constantly. By then, the applicant was just two feet away from the grill. Mr Barrett said that as he ran inside the house, he looked back at the applicant, and then placed himself against a wall, when he felt a burning in his back and realized that he had been shot. He then turned to his mother who was sitting on the settee and told her who had shot him. While he was talking to her, shots were coming in through the window, and though he "could not see the shots," he could hear the pop of the gun and the shots colliding on the wall inside the house. This shooting lasted for about fifteen minutes.
Mr Barrett said that when the shooting stopped, he and his parents (although there is no indication or evidence as to when his father entered the house and was a part of this incident) ran to the back of the house, and as he turned into a room there he realized that he had been shot and had received injury to his hand which was bleeding. He heard thereafter someone talking at the back of the house, which he said he recognized as the voice of "Sound Boy". Sound Boy was "a well- known person to me, we grow up together in the community", he stated. He heard Sound Boy say, "Him get shot". He indicated that it was Sound Boy who was the other man with the applicant at the wall. He said after he heard the talking, he heard, "clunk, clunk", and then a single shot came through the back of the door, where he was standing.
He further said that the police were called and they came to the house. He said that he told them exactly who shot him. He was taken to the Spanish Town Hospital where he was admitted, and treated. He was discharged the following day.
He stated that he had known the applicant for about one year. He also said that he had seen him the night before the incident and earlier on the evening of the incident. He said on the night of the incident, he had passed the applicant on the road just before the incident and had seen him for about two minutes, while riding his bicycle, and he saw the applicant facing him in a three-quarter grey pants and shirt. Mr. Barrett said on the night before, he had seen the applicant at a wall near a shop and a bar, which were about a chain from his house. He said that was where the applicant "hangs out". He said he passed him and saw his face that night for about two minutes. He said although the applicant was "an outsider" he had seen him often during that year, about three times a week.
On the night of the incident, Mr Barrett said that he was able to see the applicant, as he came to the grill and looked sideways to the wall. He was only five feet away and there was light at the side of the house and on the street. He said he looked at him for about a minute.
In cross-examination, Mr Barrett reiterated that he had observed the men for a minute or more, as he did not think that they were coming for him. He was challenged that in his statement to the police he had stated that both men had pointed their guns toward him and started shooting, and he had run towards the living room and the bedroom. In fact that portion of the statement was entered in evidence as Exhibit 1. He stated that the applicant was wearing a three-quarter pants and grey shirt and had fine plaited hair, although this latter description was not given to the police, and also that he was shot as he was about to enter the house. He maintained that he looked at the men very well for about two minutes, before he moved into the house, and that there was light on the verandah that night. He said that he had told the police that the applicant had a "tall face" and his "hair plait fine". It was suggested to him that because Sound Boy was dead, he was "trying to put it on Peter", but he responded that Sound Boy died after he had given his statement to the police.
Sergeant Clifton Bryan told the court that he conducted an identification parade at the Spanish Town Police Station on Friday, 30 August 2007, where the applicant was represented by counsel Mr Keith Bishop. Sergeant Bryan gave evidence that the applicant and members of the cell staff selected the other men on the parade. At the request of the applicant the men tied their heads with handkerchiefs. The applicant was pointed out and the parade was dismissed. The applicant initially, on appeal, was challenging the propriety of the conduct of the parade with regard to how the men were selected, the fact that they were not sufficiently similar in appearance and that the rules relevant to the conduct of the parade had not been followed. However, at the hearing of the appeal, counsel for the applicant abandoned this ground of appeal so we will say no more about it.
Constable Jameson Ricketts gave evidence that he went to the Spanish Town Hospital in April 2006 and met with the witness Barrett who had bandages on sections of his body. Based on certain information received he apprehended the applicant, and told him of the report he had received from Mr Barrett. The applicant, he said, was cautioned. Later he was charged with the offences of illegal possession of firearm and wounding with intent. When cautioned, on both occasions he said, "Officer a nuh mi shot Randy"...
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