McKoy (Mardio) v R

• Jurisdiction: Jamaica
• Judge: PHILLIPS, J.A.
• Judgment Date: 27 October 2010
• Neutral Citation: JM 2010 CA 79
• Judgment citation (vLex): [2010] 5 JJC 2103
• Court: Court of Appeal (Jamaica)
• Date: 27 October 2010

[2010] JMCA Crim 27

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR JUSTICE PANTON, P THE HON. MRS JUSTICE HARRIS, J.A THE HON. MISS JUSTICE PHILLIPS, J.A

MARDIO MCKOY

v

R

Mrs Valerie Neita- Robertson for the applicant

Mrs Caroline Hay and Miss Keisha Prince for the Crown.

CRIMINAL LAW - Illegal possession of firearm - Robbery with aggravation - Leave to appeal - Alibi

PHILLIPS, J.A.

1 On 10 March 2008, Mardio McKoy, the applicant was convicted in the High Court Division of the Gun Court, having been charged on an indictment containing 2 counts. The first count was for illegal possession of firearm and the second count was for robbery with aggravation. He was sentenced to 10 years imprisonment at hard labour on count one and 15 years imprisonment at hard labour on count two. It was ordered that the sentences should run concurrently and additionally, that the applicant be subject to two years of supervision.

2 On 3 March 2009, his application for leave to appeal against conviction and sentence was refused by a single judge, and the applicant renewed his application to the court. The matter was heard in October 2009 and our decision delivered on 18 December 2009. We treated the hearing of the application for leave to appeal against conviction and sentence as the hearing of the appeal. We allowed the appeal, quashed the convictions, set aside the sentences and entered a judgment and verdict of acquittal. We promised to put our reasons in writing and we do so now.

The case for the prosecution

3 Mr Patrick Thorpe, a transport operator gave evidence that on 27 March 2006 at approximately 8:15 pm he had attended a doctor's office on Passage Fort Drive in St. Catherine with his girlfriend and his son Danday. He drove his Honda CRV motor car to the office and parked immediately outside the office facing the same. On attempting to leave the doctor's office, having just entered his car with his son in his lap, he was "pounced upon" by three men who were armed with guns. The applicant, he said, was one of the men and he carried a black 9mm beretta handgun. The applicant was also one of the two men who were on the right side of the car where he was, and who pulled at the driver's door and requested that he, Mr Thorpe, come out of the vehicle. Mr Thorpe said he hesitated and the man on the left hand side of the car, who had prevented his girlfriend from closing her door said, "Hey bwoy, how you so stubborn, yuh want mi shoot yuh? Yuh hear mi seh come out of the van?" Mr Thorpe responded. He came out of the car with his young son in his arms. One of the men took away his black razor cellular phone, valued at about $15,000 and then searched him and found his licensed firearm, in his pants waist. One of his assailants said to the other men, "The bwoy a police", and he said the applicant said "Shoot di bwoy", and took from him the firearm valued at $120,000. Mr Thorpe said that he started to bawl, "Mi a nuh police". He said that the applicant repeated two or three times, "Shoot the bwoy, he a police" while he, Mr Thorpe, had his son in his hands. He told the court that he slid his son to his feet and then ran off across the road and left him. But then he saw his son running across the road with vehicles coming, so he stopped the vehicles, grabbed his son and continued running away from the scene with him. Mr Thorpe said he saw the applicant jump around the steering wheel of his vehicle, reverse it and then all of the men left in the vehicle, which was quickly driven away.

4 Mr Thorpe's evidence was that he was able to observe the men as there was sufficient lighting. There were lights, he said, from the car's headlights, roof and middle lights, and there was light projecting from the doctor's office which was only 5 feet away from where he had parked his car. There were also lights from other vehicles which passed on the road. He maintained that, "the place was not dark where I cannot see them".

5 Mr Thorpe said that the two men at his side of the vehicle were beside him, within touching distance, so he could see their faces, their eyes and their noses. He stated that the incident lasted about 4–5 minutes between when he was accosted and when he ran off with his son. He gave evidence that there was nothing to obstruct his vision with regard to the men, even though one of the men (the applicant) was wearing a cap. He was, he said, the shorter of the two who were beside him, and described the cap as a "peak" cap. He demonstrated that the cap rose up in a peak under which "his hair plait up or something". It was not used to disguise his face, as he could see that clearly. He did not take much notice of the third man, who held up his girlfriend but focused on the two, who were by his side throughout the incident; the one who searched him and the other, (the applicant) who said "shoot di bwoy". Mr Thorpe, although he said that he was throughout this unfortunate experience feeling more concerned for his son and his girlfriend than for himself, admitted that he was feeling afraid.

6 Mr Thorpe made a report to the police the same night at the Caymanas Police Station and the vehicle was recovered two hours later, at White Marl, St. Catherine, having been identified by him. The vehicle, he said, was "crashed and write-off". The damage extended to the front of the vehicle, the entire front panel, the bonnet, grill, headlight, windscreen and radiator.

7 In cross examination, Mr Thorpe was questioned specifically about the description that he gave to the police with regard to the men that accosted him that night. He said initially, that the man who searched him was 5'7" tall, with a funny eye and a broad mouth. The other one, (the applicant), he said, was the short one, "with a slight bow leg". The third one, who was on the left side of the car, and was the one who held up his girlfriend, was a "black, black one". He then later admitted in cross-examination that he did not say anything to the police about the complexion of the man with the funny eye and the broad mouth, nor did he mention the slightly "bow leg", in respect of the applicant. He accepted that the description that he gave to the police of the men could fit a lot of people and he finally stated that the description that he gave to the police of the applicant was that he was short, dark and wearing a cap. This statement was given to the police the day after he was held up...