Hunter v R

• Jurisdiction: Jamaica
• Court: Court of Appeal (Jamaica)
• Judge: Panton, P.
• Judgment Date: 28 July 2011
• Neutral Citation: JM 2011 CA 74
• Docket Number: Criminal Appeal No. 58 of 2006
• Date: 28 July 2011

Court of Appeal

Panton, P.; Dukharan, J.A.; McIntosh, J.A.

Criminal Appeal No. 58 of 2006

Hunter

and

R.

Appearances:

Miss Althea McBean for the appellant.

Miss Kathy-Ann Pyke for the Crown.

Criminal law - Illegal possession of firearms — Robbery with aggravation — Wounding with intent — Appeal against conviction and sentence — Conviction upheld — Sentences to run concurrently.

ORAL JUDGMENT

Panton, P.

1 On 27 and 30 June 2011, we heard this appeal and postponed our decision to today.

2 The appellant was tried in the High Court Division of the Gun Court in the parish of St Mary on 21, 22, and 23 March 2006 for the offences of illegal possession of firearm, robbery with aggravation and wounding with intent. The trial took place before Mr. Justice Campbell. The appellant was found guilty and sentenced as follows:

Count 1 for illegal possession of firearm — 7 years imprisonment

Count 2 for robbery with aggravation — 20 years imprisonment

Count 3 for wounding with intent — 20 years imprisonment.

The learned trial judge ordered that the sentences for illegal possession of firearm and robbery with aggravation were to run concurrently and that the sentence for wounding with intent was to run consecutive to that imposed on the other counts, thereby making a total of 40 years imprisonment. It should be noted that the count for wounding with intent was added on the second day of the trial. According to the indictment, the appellant was charged jointly with one Rafton Christie. However, the transcript of the evidence gives that name as Ralston Christie in that, that is the name that was put by the registrar when the plea and verdicts were being taken.

3 The particulars of count one, illegal possession of firearm, are that the appellant and Rafton Christie on 27 January 2005, in the parish of St Mary, had in their possession a firearm not under and in accordance with the terms and conditions of a Firearm Users' Licence. Count two, robbery with aggravation, the particulars being that the appellant and Rafton Christie on 27 January 2005, in the parish of St Mary being armed and together with others robbed Ann Johnson of cash amounting to $68,000.00 and the particulars of count three, wounding with intent, are that the appellant and Rafton Christie on 27 January 2005, in the parish of St Mary wounded Ann Johnson with intent to do her grievous bodily harm. It should be pointed out that at some stage prior to the end of the trial Mr. Christie changed his plea to one of guilty.

4 A single judge of this court, in considering the application for leave to appeal considered that a term of 40 years imprisonment was “a bit excessive”. Hence, he granted leave to appeal sentence. Miss Althea McBean for the appellant has widened the scope of the hearing by renewing the application for leave to appeal against conviction.

5 The case for the prosecution was to the effect that Miss Ann Johnson, a grocery store operator of Sand Side, St Mary closed her shop at about 8:30 p.m. on 27 January 2005. She went outside and saw the appellant and Mr. Christie. The appellant used to operate a bar nearby. There were two very bright lights on the outside of Miss Johnson's premises. Mr. Christie asked her to sell him some cigarettes. She told him that she had closed her shop but he handed to her $50.00 for the cigarettes. She went back into the shop, got the cigarettes, handed them to him whereupon he asked for his change. There followed a discussion between them as to whether he had given her $100.00 or $50.00. She went back into the shop to check the money that she had received. When she came back outside she did not see Mr. Christie. Instead, she saw another man, a third man with a gun, who ordered her not to move. She said this man was about 7 feet away and while she was under the gun, Mr. Christie returned and at that time she said that she saw the appellant peeping from the back of an outside shed. She said she saw his head and he thereupon rushed up in front of her and covered her head with a jacket. She also said that he said “Weh the rest of the money?” She said that he kept talking into her face and saying “Weh the rest of the money, weh de rest,” talking into her ears “weh the rest of the money deh, whey the rest a money deh?” At about that time she was stuck in the right side of her neck with a knife and this was the subject of the charge for wounding with intent. Corporal Gibbons who gave evidence indicated that he saw Miss Johnson at the Port Maria Hospital bleeding from a stab wound to the right side of her neck.

6 The appellant gave evidence at his trial; an unusual feature of persons in this jurisdiction, persons charged with a criminal offence giving evidence on oath. This evidence was to the effect that he was not in the area at the time the incident took place. He lives at Sand Side, knows Miss Johnson and that she has a shop across the road from where he has a bar. He also said that he knows Mr. Christie. He said that at the time of the incident he was doing...