Jahvid Absolam v R
| Jurisdiction | Jamaica |
| Judge | Brooks P |
| Judgment Date | 14 October 2022 |
| Neutral Citation | JM 2022 CA 104 |
| Docket Number | SUPREME COURT CRIMINAL APPEAL NOS 47, 49 & 50/2014 |
| Court | Court of Appeal (Jamaica) |
| Year | 2022 |
[2022] JMCA Crim 50
THE HON Mr Justice Brooks P
THE HON Mr Justice D Fraser JA
THE HON Mr Justice Laing JA (AG)
SUPREME COURT CRIMINAL APPEAL NOS 47, 49 & 50/2014
IN THE COURT OF APPEAL
Mrs Melrose Reid for the appellant Jahvid Absolam
Ms Karlene Afflick for the appellant Winston Harris
Leroy Equiano for the appellant Garnett Linton
Miss Natallie Malcolm and Mrs Kimberly Guy-Reid for the Crown
On 11 April 2014 Messrs Jahvid Absolam, Winston Harris and Garnett Linton (‘the appellants’) were convicted for the offences of illegal possession of a firearm, two counts of robbery with aggravation and one count of simple larceny. Their convictions followed a trial in the High Court Division of the Gun Court before a judge sitting without a jury. The learned trial judge, on 9 May 2014, sentenced each of them to serve 15 years’ imprisonment for the illegal possession of a firearm, 20 years’ imprisonment for each of the robbery offences and five years’ imprisonment for the simple larceny. He ordered that the sentences run concurrently.
A single judge of this court refused the appellants' leave to appeal against their respective convictions but granted leave to appeal against the sentences. The appellants have pursued that grant of leave but have also renewed their application to appeal against their respective convictions.
Learned counsel for each of them has employed a different approach to the grounds of appeal. These will be set out after the facts have been outlined.
At the trial, the prosecution led evidence that on 6 April 2011 at about 11:00 am four men and a woman held up the staff of the Tropical Jewellers store in the Tropical Plaza in the parish of Saint Andrew, and robbed them, at gunpoint, of firearms and cellular telephones. The robbers also took away a large quantity of merchandise that was in the showcases in the store. This included rings, chains, and Movado watches.
The robbery was reported to the police. On 7 April 2011, the investigations led the police to Mr Harris' house and a search produced a Movado watch, three gold chains and $185,000.00. The police took Mr Harris into custody, and, on 9 April 2011, he gave them a cautioned statement in which he admitted to having been complicit in the robbery. His involvement, he said, was to have waited for, and transported, the lookout man from the plaza where the store was.
The police took Messrs Absolam and Linton into custody. After being cautioned, Mr Absolam stated that the robbery was a set-up, involving someone connected to the store. They were placed on identification parades but only one of the persons who were present in the store at the time of the robbery identified them as being among the robbers. He is Mr David Russell, a security guard who had been posted at the store.
At the trial, defence counsel, on Mr Harris' behalf, unsuccessfully objected to the cautioned statement being admitted into evidence. Mr Harris gave sworn testimony and relied on an alibi. He said that he was at home at the time of the robbery. He was, he said, also at home the following day when the police came, searched his house and took his cash, which he says was his “partner draw”. They then took him into custody and seized his car. He contended that he did not voluntarily give the cautioned statement. Mr Harris called, as witnesses, some of the occupants of the store who had failed to identify anyone on identification parades held in respect of the case.
Messrs Absolam and Linton both gave unsworn statements in which Mr Absolam denied being involved in the robbery and they both stated that they were elsewhere at the time of the robbery.
There were overlaps between the various grounds of appeal that the appellants relied on. Accordingly, the grounds will be assessed on the issues that they raised. The issues are set out below but not necessarily in the order in which they were argued:
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a. the charging of two counts of robbery with aggravation in the indictment;
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b. the inclusion of the count of larceny on the indictment;
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c. the learned trial judge's treatment of the discrepancies and contradictions in the identification evidence given by the prosecution's witnesses;
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d. the learned trial judge's treatment of Mr Harris' cautioned statement;
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e. the learned trial judge's interventions during the taking of evidence;
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f. the dock identification;
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g. the appropriateness of the sentences; and
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h. the delay in the appeal being heard.
Mrs Reid, on behalf of Mr Absolam, argued several points which, were not restricted to his case. The first of the general issues that she raised was that the prosecution ought not to have included two separate counts of robbery with aggravation in the same indictment because the offences arose from the same incident. The basis for learned counsel's complaint is that the indictment, in two separate counts, charged the appellants with having robbed two separate people of their respective firearms. Learned counsel submitted that there should only have been a single count of robbery with aggravation since the Crown's case was that the robberies were committed at the same time and place. Mrs Reid relied on, among others, United States v Hope 545 F 3rd 293 (2008) (5 th Circuit) and Jemmison v Priddle [1972] 1 All ER 539.
Miss Malcolm, on behalf of the Crown, submitted that the complaint was misplaced. Learned counsel submitted that each taking from the two victims was not a single transaction but a separate offence. She submitted that Jemmison v Priddle was distinguishable on the facts. Instead, learned counsel relied on Elio Delgado v R [2017] JMCA Crim 34.
Mrs Reid's complaint is completely misplaced. Rule 3 in the Schedule to the Indictment Act allows for the joining of charges in a single indictment where those charges are founded on the same set of facts. The rule states:
“3. Joining of charges in one indictment — Charges for any offences, whether felonies or misdemeanours, may be joined in the same indictment if those charges are founded on the same facts or form or are a part of a series of offences of the same or similar character.”
The two counts of robbery with aggravation fall within the contemplation of rule 3 as they arose out of the same facts. They can be dealt with in separate counts because they constitute separate takings against different individuals and therefore are separate offences. It would have been improper to include the separate takings in a single count. Straw JA (Ag), as she then was, explained the point in Elio Delgado v R. The learned judge said, in part, in paragraph [42] of the judgment that “In Rex v Thompson [1914] 2 KB 99, the general common law view on duplicity was expressed that an indictment was bad if it charged more than one offence in each count”.
The cases which Mrs Reid cited are distinguishable by their facts. In United States v Hope the court ruled that Mr Hope was improperly charged twice for possession of a firearm when there was no evidence that he had parted with possession of the firearm between the two occasions that he was sighted with it. In Jemmison v Priddle, the court ruled that a single information against Mr Priddle for killing two deer on the same occasion did not charge more than one offence and was not bad for duplicity. In the present case, the indictment is not bad for duplicity. There were two complaints of robbery with aggravation and the indictment clearly outlines separate counts, for each complaint. Mrs Reid's submission, therefore, fails.
Mrs Reid complained that the count charging larceny of the merchandise from the store's showcases was improper as a judge of the Gun Court had no jurisdiction to try such a case. Ms Afflick, on behalf of Mr Harris, also adopted this submission.
Learned counsel are on good ground with this submission, and Miss Malcolm unhesitatingly conceded its correctness. Learned counsel noted that the appellants had not been charged with an offence under section 25(2) of the Firearms Act and therefore a charge of larceny was inappropriate.
Mr Equiano, on behalf of Mr Linton, advanced the arguments in respect of this issue. Learned counsel submitted that there were several differences between the testimonies of the various occupants of the store, who gave evidence. This was especially so in the aspects of the number of robbers and what they were wearing. Mr Equiano argued that the learned trial judge merely accepted Mr Russell's evidence but did not give a reason for doing so. Learned counsel submitted that if the learned trial judge had carefully analysed the discrepancies, it would have raised doubt about the correctness of Mr Linton having been identified as one of the robbers. Mrs Reid adopted those submissions in favour of Mr Absolam.
Miss Malcolm submitted that the learned trial judge's directions to himself were unimpeachable. She pointed out that the learned trial judge gave himself general directions as to inconsistencies and discrepancies and, as he reviewed the evidence, pointed out the differences between the various witnesses. She said that Mr Russell's evidence was the lynchpin in the prosecution's case and the learned trial judge was impressed by it. Learned counsel submitted that the major issue in the case was the identification of the perpetrators and the learned trial judge gave himself the correct ( R v Turnbull and Another Turnbull [1977] QB 224; [1976] 3 WLR 445) directions in that regard.
The...
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