Lindsay v R

• Jurisdiction: Jamaica
• Court: Court of Appeal (Jamaica)
• Judge: Morrison, J.A.
• Judgment Date: 25 February 2011
• Neutral Citation: JM 2011 CA 129
• Docket Number: Criminal Appeal No. 146 of 2007
• Date: 25 February 2011

Court of Appeal

before

Harris, J.A.;

Morrison, J.A.;

Dukharan, J.A.

Criminal Appeal No. 146 of 2007

Lindsay

and

R

Appearances:

Fabian Campbell for the applicant.

Mesdames Paula Llewellyn, QC, Director of Public Prosecutions and Coleen Barnett for the Crown.

Criminal Practice and Procedure - Application for leave to appeal against conviction and sentence — Illegal possession of firearm (9 years imprisonment) — Illegal possession of ammunition (5 years imprisonment) — Whether the trial judge should have upheld the no case submission — Whether the judge's verdict was unreasonable and not supported by the evidence.

Morrison, J.A.

1 This is an application for leave to appeal against conviction and sentence on the 14 December 2007, by McIntosh, J. (as she then was) in the High Court Division of the Gun Court, for the offences of illegal possession of firearm and illegal possession of ammunition. The applicant was sentenced to nine years imprisonment for illegal possession of firearm and five years imprisonment for illegal possession of ammunition, both sentences to run concurrently.

2 The application was first considered by a single judge of this court who refused it and this is therefore the applicant's renewed application for leave to appeal to the court itself. The applicant was originally charged jointly with another on an indictment containing four counts, including a separate count for illegal possession of a firearm and a count for shooting with intent, but he was acquitted, as was his co-accused, of the first two counts by the learned trial judge. The evidence against the applicant on the two counts on which he was convicted came from Constables Rodney Spence and Leonard Grizzle, both of whom were at the material time stationed at the Waterford Police Station.

3 On 11 September 2005, as a result of information received by Constable Spence, the two Constables set out along with two other colleagues to premises at 1454 Belina Way also in the Waterford area. They were armed with a search warrant in the name of Lenora Denton, who is the aunt of the applicant and with whom the prosecution alleged that the applicant resided at that address. At these premises, the Constables carried [out a search of the room in the house which the applicant admitted to be his and there] in the presence of the applicant, a firearm and five live cartridges were found wrapped in a barrel in a ladies' dress. During the search, the applicant pointed out certain items of clothing which were his, some in a corner of the room and some in the barrel which was also in the room. Constable Spence asked both Miss Denton and the applicant whether they were holders of a firearm licence to which Miss Denton replied: “a Kevin gun”, referring to the applicant, who said nothing. While all this was going on, the evidence was that the applicant was:–

“Looking very nervous, sweating hard and continuously and seeming to be nervous. Among the personal items in the room were shoes which the applicant had acknowledged to be his and indeed when it was decided to take him into the police station he donned a pair of these shoes. The applicant was in due course taken to the Waterford Police station where he was arrested and charged for illegal possession of a firearm and ammunition.”

4 An unsuccessful submission of no case to answer having been made on his behalf, the applicant in a brief unsworn statement from the dock denied that he lived at Waterford, and insisted that he lived at Naggos Head. He denied owning any clothes in his aunt's house at Waterford and he denied owning any gun. In her summation the learned trial judge accepted the evidence that the applicant lived in Waterford in his aunt's house and that the gun which had been found wrapped in a dress was his.

5 On the totality of the evidence therefore, the judge found as follows:

“I find that it is because he knew that that firearm was in that house wrapped up in that dress why he was nervous.

Both witnesses (Grizzle and Spence) clearly stated that they saw the nervous attitude that he displayed and I accept that was so and the reason for that is because he knew well what the police were going to find when they undertook the search of the house. Both of them were very much present when the warrant was read and the warrant was addressed to them.”

6 In the result, the applicant was found guilty and sentenced as already indicated. At the outset of the hearing of the applicant's renewed application for leave to appeal, Mr. Fabian Campbell, counsel for the applicant sought and was granted leave to argue two supplemental grounds of appeal which were as follows:

• (1) The learned trial judge should have upheld the no-case submission; and

• (2) The verdict of the learned trial judge was unreasonable and was not supported by the evidence.

7 On ground 1, Mr. Campbell submitted that in order for the applicant to be liable for anything found in the room in Miss Denton's house which was said to be his, it was necessary for the Crown to prove that he was in exclusive possession of the room, given that the house itself belong to Miss Denton. Both ladies' and men's clothing were found in the barrel in...