Kemar Sharma v R

• Jurisdiction: Jamaica
• Court: Court of Appeal (Jamaica)
• Judge: Brooks JA
• Judgment Date: 06 March 2015
• Neutral Citation: JM 2015 CA 29
• Docket Number: CRIMINAL APPEAL NO 3/2009
• Date: 06 March 2015

Kemar Sharma

and

R

[2015] JMCA Crim 6

Before:

The Hon Mr Justice Morrison JA

The Hon Mr Justice Dukharan JA

The Hon Mr Justice Brooks JA

CRIMINAL APPEAL NO 3/2009

JAMAICA

IN THE COURT OF APPEAL

SUPREME COURT

CRIMINAL LAW - Illegal possession of firearm - Robbery with aggravation - Wounding with intent - Appeal against conviction and sentence - Discrepancies and inconsistencies - Alibi - Whether sentence manifestly excessive

Ms Jacqueline Cummings for the applicant

Mrs Paula Rosanne Archer-Hall for the Crown

Brooks JA

1 On 4 December 2008 Mr Kemar Sharma was convicted in the High Court Division of the Gun Court on charges of illegal possession of a firearm, robbery with aggravation and wounding with intent. He was sentenced by the learned trial judge, Daye J, to sentences of 10, 14 and 16 years imprisonment on the respective charges. Mr Sharma is dissatisfied with the convictions and sentences and seeks leave to appeal against them. His initial application was considered by a single judge of this court but was refused. He has renewed his application before us.

2 The evidence that the learned trial judge accepted in finding Mr Sharma guilty of the offences concerned an incident which occurred on 29 January 2008. The only witness as to the shooting was the victim thereof, Mr Leroy Playdle. He testified that sometime in the evening of that day he was at his home in Old Harbour in the parish of Saint Catherine. While there, he received a telephone call from someone whom he knew before as ‘Baby Two’. As a result of the call he expected a visit from Baby Two or someone associated with him.

3 At about 8:00 pm that evening there was a call at his gate and he went to the gate to see a motor vehicle with three men, including Baby Two, aboard. He spoke to Baby Two, whom he identified to be Mr Sharma. Mr Playdle testified that he gave Mr Sharma $1,000.00, but Mr Sharma voiced dissatisfaction with that amount. One of the other men, armed with a gun, came out of the car and ordered Mr Playdle into the vehicle. He complied and when he had got into the car Mr Sharma told Mr Playdle that he was going to kill him. The men took him to another location. During the drive Mr Playdle remonstrated with Mr Sharma, offering to give him $50,000.00, which was at his home, in lieu of his life, but Mr Sharma was undeterred by their discussion.

4 At their destination, Mr Playdle testified, Mr Sharma brandished a gun, ordered him out of the car and marched him to a nearby track. While on the track, Mr Sharma kicked Mr Playdle's feet from under him and he fell face down. While he lay on the ground, Mr Sharma ordered his cronies to search Mr Playdle's pockets. The men took $83,000.00 from his pockets.

5 Mr Sharma then shot him in the hand. He got up, pushed Mr Sharma and ran for his life. He was however shot again while he ran. He hid in bushes and the next morning called for help. The police came to his rescue. One of the officers, Constable David Bernard, testifed that he saw Mr Playdle in bushes lying on his back, ‘with what appeared to be gunshot wounds over his body’ (page 88 of the transcript). The officers took Mr Playdle to hospital where he was admitted and treated for his injuries.

6 On 21 June 2008, he pointed out Mr Sharma on an identification parade as being one of his assailants. He said that he knew Mr Sharma for about five to six months before the day of the shooting. He knew Mr Sharma's father and brother. He said that Mr Sharma was always calling him on his telephone, begging for money.

7 At the trial, Mr Sharma, in an unsworn statement, denied being involved in Mr Playdle's misfortune. He said that he was at his home on the night of the incident. He said that some time before that day, Mr Playdle had asked him to kill a man named Joe, but he declined saying that he would have nothing to do with such matters. He, however, agreed to introduce Mr Playdle to two men who could assist Mr Playdle with that nefarious task. He said that on the evening in question, Mr Playdle had telephoned him saying that he was in the company of the men and they were on their way to Joe's place. Mr Sharma called a witness who supported his alibi.

8 The main issues with which the learned trial judge had to wrestle were those of credibility, identification and alibi. He found that Mr Playdle was an honest witness. He found that there was no mistake in the identification and he rejected Mr Sharma's alibi.

9 Ms Cummings, on behalf of Mr Sharma, argued that ‘the discrepancies and inconsistencies in the prosecution [sic] case were so numerous and [so] serious in nature that the Learned Trial Judge ought not to have convicted [Mr Sharma] for these offences’. She submitted that the learned trial judge was also in error in his reliance on voice identification in accepting the prosecution's case. Learned counsel also argued that the sentences were ‘harsh and excessive having regard to all the circumstances of the case’. These complaints will be considered in turn.

The discrepancies and inconsistencies

10 Ms Cummings pointed out a number of discrepancies and inconsistencies in the prosecution's case. These, she said, were as follows:

• ‘(a) The lack of medical evidence and the difference between what the complainant said was [sic] his injuries and what the police described as his injuries.

• (b) The fact that the complainant said he did not see the gun all that good but he knew it was a gun.

• (c) The issue on [sic] when the complainant said he knew or first met the Appellant.

• (d) The lack of lighting on the scene and not seeing the face of his assailants in the circumstance would have made identification of anyone difficult

• (e) When the complainant gave his statement to the police and if he read it or was it read over to him and when it was dated.

• (f) Whether the complainant had 3, 4 or 5 assailants on the date in question.

• (g) The sequence of event [sic] how the complainant met the Appellant.

• (h) How many times the complainant was shot or a gun was fired.

• (i) The omissions of evidence of general importance by the complainant from the police statements and whether they were recent concoctions.’

11 Learned counsel acknowledged that the learned trial judge did assess the various discrepancies and inconsistencies and had resolved them in favour of the prosecution. The learned trial judge had also identified and assessed omissions from Mr Sharma's statement to the police that defence counsel had highlighted during the trial. Ms Cummings submitted, however, that these discrepancies, inconsistencies and omissions were so numerous and serious that the learned trial judge should have found that there was no case for Mr Sharma to answer. She argued that the learned trial judge erred when he found that these flaws in the prosecution's case were not serious enough to affect the credibility of its main witness. She relied on R v Galbraith [1981] 1 WLR 1039 in support of these submissions.

12 In answer to these submissions, Mrs Archer-Hall submitted that the prosecution's case was such that it could not be said that no jury properly directed could not convict Mr Sharma. Learned counsel argued that the decision at first instance depended on the view of the tribunal of fact of Mr Playdle's credibility. She submitted that the decided cases have firmly established the principle that an appellate court will not disturb the findings of the tribunal of fact unless it is obviously and palpably wrong.

13 Mrs Archer-Hall further submitted that where there is a complaint about a conviction based on findings of fact, it is not sufficient to say that it was against the weight of the evidence. Learned counsel submitted that the authorities required that the appellant must show that the verdict is so against the weight of the evidence that it is unreasonable and unsupportable. She relied on the cases of Charles Salesman v R [2010] JMCA Crim 31 and R v Joseph Lao (1973) 12 JLR 1238, among others, in support of these submissions.

14 Of the inconsistencies pointed out by Ms Cummings, only two may be considered as being serious. These are (c) and (g) identified above. The others are really not material. The questions of differences in injuries and the description of the weapons used cannot undermine the strong evidence that Mr Playdle was shot and his injuries were plain to see by the police officer who saw him in the bushes the morning after the shooting. The lack of lighting at the scene of the shooting cannot be viewed in isolation. The interaction between Mr Playdle and his assailants commenced with a telephone call, continued with a discussion at Mr Playdle's gate and a further discussion as they drove along to the spot where they disembarked. There was ample evidence of the opportunity for identification of someone who was known before to Mr Playdle; a previous knowledge that Mr Sharma acknowledges. It is true that there was no evidence of lighting or the time for which Mr Playdle saw Mr Sharma's face but based on their previous knowledge of each other and the length and quality of their interaction on the evening in question it would be pedantic to say that the requirements of a reliable identification were not specified in the evidence.

15 The difference in the number of men is also not significant. Mr Playdle in his statement to the police said that Mr Sharma came to his house with three other men. In his testimony he said it was two other men and that they picked up another man along the way after they had taken Mr Playdle from his home. The...