Joseph Stanley v R
| Jurisdiction | Jamaica |
| Judge | Simmons JA |
| Judgment Date | 30 July 2021 |
| Neutral Citation | [2021] JMCA Crim 27 |
| Docket Number | SUPREME COURT CRIMINAL APPEAL 41/2016 |
| Court | Court of Appeal (Jamaica) |
IN THE COURT OF APPEAL
THE HON Mrs Justice McDonald Bishop JA
THE HON Ms Justice Simmons JA
THE HON Mrs Justice Dunbar-green JA (AG)
SUPREME COURT CRIMINAL APPEAL 41/2016
Mrs Carolyn C Reid Cameron QC instructed by Carolyn C Reid and Company for the appellant
Orrett Brown instructed by Director of Public Prosecutions for the Crown
On 9 December 2020, the court had the benefit of hearing submissions from counsel. At the conclusion of the hearing, we made the following orders:
We promised to put our reasons in writing. This judgment is a fulfilment of that promise.
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“1. The appeal is allowed.
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2. The conviction is quashed, the sentence set aside and a judgment and verdict of acquittal entered.”
The appellant Joseph Stanley, who was a police officer, was tried in the High Court Division of the Gun Court by Campbell J between 18 April and 4 May 2016, on an indictment containing two counts. The first count was for illegal possession of firearm, contrary to section 20(1)(b) of the Firearms Act, the particulars of which were that on 30 August 2009, in the parish of Kingston, he unlawfully had in his possession a firearm not under and in accordance with the terms and conditions of a Firearm User's Licence. The second count was for wounding with intent, the particulars of which were that on 30 August 2009, in the parish of Kingston, he wounded the complainant with intent to cause her grievous bodily harm. The prosecution relied on three witnesses.
The defence was self-defence. The appellant gave an unsworn statement from the dock and called three witnesses. He was convicted on both counts and on 4 May 2016 was sentenced to a fine of $100,000.00 or two years' imprisonment and $200,000.00 or two years' imprisonment, respectively. The sentences were ordered to run consecutively in the event that the appellant failed to pay the fines imposed. He was also barred from holding a firearm for three years.
His application for leave to appeal was considered on paper by a single judge of this court, who on 21 November 2019, granted him leave to appeal conviction and sentence.
At the commencement of the hearing of the appeal, the original grounds of appeal were abandoned with leave of the court, and Mrs Carolyn Reid Cameron QC, for the appellant, was granted permission to argue the following supplemental ground of appeal in place thereof:
“That the learned trial judge erred in law in failing to cognise the appellant's good character, and afford him the benefit of a good character direction. Thus rendering the verdict unsafe and the trial unfair.”
It was alleged that on 30 August 2009 there was a dispute between the appellant and Kayla Palmer (‘the complainant’), at Sophrine Drinking Saloon (‘the bar’) located at 119 Red Hills Road, Kingston which resulted in the complainant being wounded. There were no eye witnesses to this incident and the complainant was the only prosecution witness as to fact. The evidence of the three witnesses called on behalf of the Crown is summarized below.
The complainant's evidence was that on 30 August 2019, whilst she was working as a bartender at the bar, a dispute arose between her and the appellant, who was a patron at the bar, surrounding his alleged failure to pay his bill of $420.00. The appellant was said to have ordered a Guinness Stout for himself and a Heineken for his friend along with two slices of cheese.
It was her evidence that the appellant would visit the bar about two times each week. She stated that he would always give her a “nice pleasant smile and [say] hello”. She also indicated, that in the nine months that she had known him preceding the incident, she never had any problems with him. She stated that on the day in question, when she insisted that he had not paid the bill, the appellant accused her of being a thief and said that he was going to give her six shots. At the time she was standing on the server's side of the bar and the appellant was on the customer's side. The appellant, she said, took up a jug of water and threw the contents in her face. He then took up an ashtray from the bar counter and threw it at her face but it missed its target and hit some bottles on the shelf behind the area where she was standing. The bottles fell and broke. She further stated that he threw the Guinness bottle, from which he was drinking, at her.
The appellant, she said, then came around to the server's side of the bar, removed a firearm from his waist, pointed it at her and shot her in her left side causing a wound. She stated that whilst he was pointing the gun at her, she told the appellant that if he was going to shoot her for $420.00, she would pay the bill. He then reached behind the counter, picked up a cutlass which belonged to the bar and used it to cut his hand. He told her that “this [was] his evidence that [she] chopped him”. After being shot, the complainant said that she did not fall to the floor but remained standing until she was escorted to the hospital by the police.
The complainant stated that she did not attack the appellant and did not do anything to defend herself but only tried to avoid being hit. She said that she did not use any physical force against the appellant nor did she use any indecent language as she knew that he was a police officer. She also said that she called her boss whilst the incident was occurring and advised her of what had been taking place.
In cross-examination, she stated that this was the first time that she had gotten into an argument with a customer. She also denied that she had indicated at the preliminary enquiry that it was not the first time that she had gotten into an argument with a customer. She denied having been in an argument with someone named “Buno”. However, having been shown her deposition, she agreed that at the preliminary enquiry she had stated that this was not the first time that she had argued with a customer. She, however, denied that she had hit Buno with a stick and that he had been rescued by the appellant.
The complainant maintained that the appellant took the gun from his waist. It was revealed that although she had indicated in her statement to the police that he had pointed the gun at her, there was no indication that he took it from his waist.
When challenged as to whether she told the police that the appellant used the cutlass to cut himself she stated that the “medications drunk [her], put [her] to sleep so [she was] not going to remember everything”. She went on to say “…it is nuff things I never remember to tell them.”.
The complainant stated that the appellant having cut himself with the cutlass stated that, that was the evidence that she had chopped him. When it was put to her that she gave no statement to that effect, she stated that she “said it to Mr Edwards, but it looks like he didn't write it”. It was also revealed that in her statement to the police, she said that the appellant had taken up the cutlass and said that it was evidence that she drew it at him.
The issue of whether the complainant was “drunk” with medication when she gave her statement to the police was explored extensively. During the trial, she asserted that, that was the case but at the preliminary enquiry she said that her mind was “clear”.
The witness stated that at the time of the incident, he was stationed at the Area Five Scene of Crime division which covered Portmore, Saint Catherine North and South and Saint Andrew North. The Red Hills Road area was a part of that division.
He stated that on 30 August 2009 at about 4:50 pm, whilst coming from Saint Thomas, he received a telephone call from Police Control. As a result, he along with Detective Sergeant Mayni went to the bar.
Upon entering the bar, he observed a piece of a broken Guinness bottle on the left side of the bar counter. He also saw pieces of broken bottles and liquid on the floor of the bartender's side of the bar. The witness also observed a brown stain resembling blood on the floor and on a refrigerator which were on the bartender's side of the bar. His evidence was that he took several photographs of the crime scene. He also searched the bar for spent casings and bullet fragments based on the report he had received before arriving at the scene. None were found.
In cross-examination, he stated that upon his arrival at the bar he saw several persons on the outside, including Deputy Superintendent Campbell and Detective Corporal Amos. He also saw the appellant who was not known to him before and observed that he had what appeared to be a bruise on his left arm. He stated that he could not say whether the scene had been tampered with before his arrival. In re-examination, he stated that the scene had been cordoned off prior to his arrival.
The witness stated that he was now a Detective Sergeant of Police and was stationed at the National Police Station College of Jamaica. At the time of the incident, he was stationed at the Bureau of Special Investigations (‘the Bureau’).
His evidence was that he was assigned to investigate the shooting injury of the complainant. As a result, on the day after the incident he went to the bar and visited the complainant at the Kingston Public Hospital. He observed that she had a white bandage on her left side and judging by her facial expression and the fact that she was holding onto the side where the bandage was situated, appeared to be in pain. He recorded a statement from her.
He recounted that, on 1 September 2009, he made a phone call to the appellant and requested that he report to the Bureau to make a statement. On the following day, the appellant attended the Bureau and submitted a written statement to him. He asked the...
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