Irving (Kevaughn) v R

• Jurisdiction: Jamaica
• Judge: PANTON, P.
• Judgment Date: 30 July 2010
• Judgment citation (vLex): [2010] 7 JJC 3003
• Court: Court of Appeal (Jamaica)
• Date: 30 July 2010

[2010] JMCA Crim 55

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR JUSTICE PANTON, P THE HON. MISS JUSTICE PHILLIPS, J.A THE HON. MR JUSTICE BROOKS, J.A. (Ag.)

KEVAUGHN IRVING

v

R

Mrs Jacqueline Samuels-Brown, QC and Mr Kashka Hemans for the applicant

Mrs Ann-Marie Feurtado-Richards for the Crown

CRIMINAL LAW - Illegal possession of firearm - Abduction - Rape - Indecent assault - Leave to appeal - Misidentity of witness - Lack of evidence - Unfair trial - Miscarriage of justice - Corroboration warning

PANTON, P.

1 [1] The applicant was convicted by Sarah Thompson-James, J sitting alone in the High Court Division of the Gun Court on an indictment containing five counts which charged the offences of illegal possession of firearm, abduction, rape, indecent assault and robbery with aggravation. For each of the offences of illegal possession of firearm and rape, he was sentenced to five years imprisonment, whereas for each of the other offences he was sentenced to three years imprisonment. These sentences were ordered to run concurrently.

2 [2] A single judge of this court refused leave to appeal, so the applicant renewed his application before the court. Four grounds of appeal were filed, and the Court granted leave to argue two supplemental grounds. The four original grounds read as follows:

"(1) Misidentity by the witness: That the prosecution witness wrongfully identified me as the person or among any other persons who committed the crime.

(2) Lack of Evidence: That the learned trial judge erred in law in not accepting the result of the D.N.A. test. Medical report, bank receipt and a prescription to prove my innocence to the Court.

(3) Unfair Trial: That the evidence and testimonies upon which the prosecution relied on to convict me lack facts and credibility, thus rendering the verdict unsafe in the circumstances.

(4) Miscarriage of Justice: That the court and the learned trial Judge failed to recognize the fact that I was also a victim of the crimes and should not have been convicted for a crime or crimes I did not commit."

3 [3] The supplemental grounds read as follows:

"1. The Learned Trial Judge erred in law as she failed to give herself the requisite warning as to the need for corroboration and the dangers of proceeding in the absence of the said corroboration in a case alleging rape. The said failure has resulted in a miscarriage of justice and vitiates the convictions.

2. (This ground was abandoned)

3. The Appellant did not receive a fair trial as evidence favourable to him was not adduced at the trial."

4 The evidence from the prosecution

5 [4] The complainant boarded a taxi at Bog Walk at about 8.30 p.m. on 7 April 2007. A few moments later, the taxi stopped and four men including the applicant entered the vehicle. The driver pointed a gun at her and one of the others asked the complainant for her phone and purse, while holding a gun at her side. On reaching an area known as Roadside, one of the men asked the applicant if he knew where they could take the complainant. He responded that his grandmother had land in the neighbourhood, and proceeded to direct them to the location. However, on arrival, there was too much activity at the location as persons were moving about. One of the men took the gun from the applicant hit him and asked him if he had directed them there to inform on them. They next moved to the notorious Mud Lake area, where all the men raped the complainant. She gave clear intimate details as to the applicant's...