Kirk Mitchell v R

• Jurisdiction: Jamaica
• Judge: BROOKS, JA (Ag)
• Judgment Date: 14 January 2011
• Neutral Citation: JM 2011 CA 1
• Judgment citation (vLex): [2011] 1 JJC 1401
• Docket Number: SUPREME COURT CRIMINAL APPEAL NO 131/2007
• Court: Court of Appeal (Jamaica)
• Date: 14 January 2011

JAMAICA

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR JUSTICE HARRISON, JA

THE HON. MR JUSTICE MORRISON, JA

THE HON. MR JUSTICE BROOKS, JA (Ag)

SUPREME COURT CRIMINAL APPEAL NO 131/2007

KIRK MITCHELL

v

R

CRIMINAL LAW - Illegal possession of firearm - Wounding with intent - Shooting with intent - Leave to appeal - No case submission - Identification evidence - Excessive sentence

BROOKS, JA (Ag)

1 Mr Kirk Mitchell was, on 17 October 2007, convicted of the offences of illegal possession of firearm, shooting with intent and wounding with intent. The intent in each of the two latter charges was to cause grievous bodily harm. He was sentenced to seven years imprisonment on the first offence and 15 years imprisonment on each of the others. Although the latter two sentences were ordered to run concurrently, they were ordered to run consecutive to the sentence on the first offence; thus making a total of 22 years. All this was in the High Court Division of the Gun Court, being then held in the parish of Clarendon.

2 A single judge of this court has granted him leave to appeal a gainst the sentences imposed but refused his application for leave to appeal against the convictions. Mr Mitchell has pursued his appeal against the sentences and has renewed his application for leave to appeal against the convictions. Mr Equiano, on his behalf, has argued five grounds of appeal. The grounds were:

• ‘1. The Learned Trial Judge erred in law when he failed to uphold the no case submission made by counsel for the Appellant.

• 2. The Learned Trial Judge in his summation failed to demonstrate that he identified, considered or appreciated the weaknesses in the identification evidence.

• 3. The inconsistencies and discrepancies in the identification evidence render the conviction unsafe.

• 4. The Learned Trial Judge in his summation failed to demonstrate how the inconsistencies in the identification evidence were reconciled.

• 5. The sentence of the court was manifestly excessive.’

3 In considering the arguments proffered we shall assess grounds 1 and 5 separately. Grounds 2, 3 and 4 will be considered together. Before doing so, however, we shall set out a brief outline of the evidence, with the hope that it will assist with understanding the issues.

Synopsis of the Evidence

4 The convictions arose from an incident which occurred on 3 November 2004. Two police officers, Constables Nelson and Lindsay, acting on information, approached a group of three men. The men ran. The police officers gave chase and fired warning shots. Two of the men turned, with guns in hand, and fired in the direction of the police officers. The officers took cover but Constable Lindsay, unfortunately, was shot in the chest and leg. He was then, a recent graduate of the police training school. Happily, he survived to tell the tale of his ordeal. The gunmen made good their escape. The officers made a report to a Detective Sergeant Norman who, on the same day, secured a warrant of arrest for the appellant in the names ‘Kirk Mitchell’ otherwise called ‘Round-Head’.

5 Constable Nelson testified that the appellant was a member of the group and that he was one of the two men who had fired at the police. He, Constable Nelson, had known the appellant and one of the other men, before. He said that more than two years after that incident, he saw the appellant at a police check point. He said he identified the appellant to other police officers, but that the appellant gave a false name at the time and denied that his name was Kirk Mitchell or that he was called ‘Round-Head’. He was nonetheless taken into custody.

6 Constable Lindsay testified that he did not know any of the men before. On 30 April 2007, he attended an identification parade where he pointed out the appellant as one of his assailants.

7 The defence to the charges, as divined from the suggestions made to the witnesses for the Crown, was that the appellant was not at the scene when the offences were committed. It was also suggested that he did not give a false name to the police. The appellant, however, did not give evidence and made no statement in his defence. The defence rested on a submission that there was no prima facie case to answer.

8 We now address the grounds of appeal.

Ground 1: The learned trial judge erred in law when he failed to uphold the no case submission made by counsel for the appellant.

9 Mr Equiano submitted that the quality of the identification evidence and what, he said, were the numerous discrepancies in the evidence concerning the identification, were such that the learned trial judge ought to have ruled that there was no case for the appellant to answer. Learned counsel was particularly critical of the evidence of Constable Lindsay. He submitted that the evidence of that officer was such that if should not have been relied on at all.

10 The issue for determination on this ground may be conveniently summarized by quoting from the judgment of this court in Brown and McCallum v R SCCA Nos 92 and 93/2006 (delivered 21 November 2008). After a careful review of all the major authorities on the issue concerning no case submissions, in the context of visual identification cases, the court concluded, at paragraph 38:

‘The essential question for the court's consideration was whether the quality of the identification evidence at the close of the prosecution's case was so poor or had a base which was so slender as to be unreliable and therefore not sufficient to found a conviction.’

11 Miss Ebanks, for the Crown, cited the judgment in Director of Public Prosecution v Varlack PCA 23/2007 (delivered 1 December 2008), where their Lordships sitting in the Privy Council approved the statement that, in considering a submission of no case, the trial judge, ‘is concerned only with whether a reasonable mind could reach a conclusion of guilty beyond reasonable doubt and therefore exclude any competing hypothesis as not reasonably open on the evidence’ (see paragraph 22).

12 Mr Equiano comprehensively perused the evidence concerning the constables' opportunity for viewing the perpetrators of the offences. He sought to demonstrate that the opportunity, which the police officers had to view those persons, was of short duration. He also submitted that the sighting was made in difficult circumstances.

13 What was the quality of the identification evidence before the learned trial judge? The evidence reveals, firstly, that the offences were committed during the daytime, at approximately 10:00 o'clock. Secondly, that the time for viewing the appellant was, in the case of Constable Lindsay, a matter of seven seconds in the first instance, and on and off for eight to ten seconds thereafter. By Constable Nelson's evidence, the time for viewing the appellant was two minutes or thereabouts in the first instance and for ten to 12 seconds after the appellant had displayed his firearm and a further ten to 12 seconds during the firing. The face and upper section of the body were observed by both witnesses. The distances at which the sightings were done varied between 50 feet and 75 feet in the case of Constable Nelson and was as little as 25 feet in the case of Constable Lindsay. Thirdly, Constable Nelson knew the appellant for about three to four years, had seen him for about five to eight times over that period and had last seen him three or four months before the incident. Fourthly, this sighting was during an incident which, on one account, lasted approximately two minutes. Fifthly, Constable Lindsay pointed out the appellant at an identification parade.

14 On the negative side, it must be said that the sightings were made from distances which could not be described as close quarters and were made, during the latter stages, in difficult circumstances. Firstly, the men were running away shortly after being initially observed and secondly, were soon thereafter, firing at the police. There were also differences in the timings given by the constables. In the case of Constable Lindsay, there were inconsistencies between his written statement, given to the investigating officer, and his testimony. There were also discrepancies between his testimony and that of Sergeant Eric Williams, who conducted the identification parade.

15 The weaknesses and inconsistencies, mentioned in the last paragraph, will be more closely examined below. We are however of the view that the evidence, as a whole, was such that we cannot agree that ‘the quality of the identification evidence at the close of the prosecution's case was so poor or had a base which was so slender as to be unreliable and therefore not sufficient to found a conviction’. There was ample evidence upon which a tribunal of fact could have reached a conclusion of guilty after assessing whether the witnesses were truthful and reliable. The evidence was not so riddled with inconsistencies and discrepancies that it could reasonably be said that nothing of consequence remained of the Crown's case. In the circumstances we cannot fault the learned trial judge for ruling that the prosecution had presented a prima facie case for the appellant to answer.

Ground 2: The learned trial judge in his summation failed to demonstrate that he identified, considered or appreciated the weaknesses in the identification evidence.

Ground 3: The inconsistencies and discrepancies in the identification evidence render the conviction unsafe.

Ground 4: The learned trial judge in his summation tailed to demonstrate how the inconsistencies in the identification evidence were reconciled.

16 Mr Equiano submitted that the learned trial judge merely recited the evidence which was led in the case and failed to demonstrate that he appreciated that there were discrepancies and inconsistencies therein, especially in the critical area of identification. On this basis, learned counsel submitted, the conviction is...