Michael Burnett v R

• Jurisdiction: Jamaica
• Judge: McDonald-Bishop JA
• Judgment Date: 10 February 2017
• Neutral Citation: [2017] JMCA Crim 11
• Docket Number: SUPREME COURT CRIMINAL APPEAL NO 37/2014
• Court: Court of Appeal (Jamaica)
• Date: 10 February 2017

[2017] JMCA Crim 11

JAMAICA

IN THE COURT OF APPEAL

Before:

The Hon Miss Justice Phillips JA

The Hon Mrs Justice McDonald-Bishop JA

The Hon Miss Justice P Williams JA

SUPREME COURT CRIMINAL APPEAL NO 37/2014

Michael Burnett

and

R

Norman D Manley for the applicant

Jeremy Taylor for the Crown

McDonald-Bishop JA

1 On 28 February 2014, after a trial before G Fraser J, sitting without a jury in the High Court Division of the Gun Court in the parish of Clarendon, Michael Burnett, the applicant, was convicted on an indictment containing three counts. The first count charged him with the offence of illegal possession of firearm; the second count charged him with illegal possession of ammunition; and the third count, with the offence of robbery with aggravation.

2 The combined particulars of the three counts, in summary, are that on 3 December 2011, in the parish of Clarendon, he had in his possession a firearm and ammunition, not under and in accordance with the terms and conditions of a Firearm User's Licence and being armed with the said firearm and ammunition, he together with another man, robbed Noel Scott of his 9mm taurus pistol, ammunition, a Nokia cellular phone and an undetermined sum of money.

3 The applicant was sentenced to eight years imprisonment at hard labour on counts one and two and 15 years imprisonment at hard labour on count three. The sentences were ordered to run concurrently.

The application for leave to appeal

4 The applicant, being aggrieved by his conviction and sentence, filed an application to this court for leave to appeal both his conviction and sentence. The application was considered and refused by a single judge who opined that the issues in the case revolved primarily around identification and credibility and that those issues were adequately dealt with by the learned trial judge. The applicant has renewed his application before this court.

The case at trial

The prosecution's case

5 The prosecution called six witnesses, however, as enunciated by the learned trial judge herself, the prosecution's case rested primarily on the evidence of the virtual complaint, Mr Noel Scott.

6 The salient facts pertinent to this appeal, as presented by the prosecution, are that on 3 December 2011, at about 9:25 pm, the complainant was at his business place in Four Paths in the parish of Clarendon. He was standing inside a bar. Whilst there, he saw a man, who later turned out to be one, Tremain Clark, who he did not know before, standing in the corner of the bar. The complainant then noticed the applicant, who he also did not know before, enter the bar. The applicant spoke to the complainant saying, “Howard you fi dead yuh know bwoy” and then brandished a gun and pointed it in his face. He told the complainant that one “Tony Tuff” said that he should take the complainant's gun and kill him. While the applicant spoke to the complainant, he observed that Tremain Clark was still standing in the corner of the bar, and had a 9mm Glock gun.

7 The applicant subsequently stepped away from the complainant, and Tremain Clark then approached the complainant and took from him, his licensed 9 mm Taurus gun, wallet and Nokia cellular phone. Tremain Clark and the applicant then left together.

8 The complainant kept the men in sight as they left the bar and went through the gate of the premises. He entered his mini bus that was parked in the compound, drove off after the men and then used his vehicle to hit them to the ground on the main road, as they tried to make their getaway. The men fell in the road. When the complainant saw that the men were not moving, he drove to the Four Paths Police Station where he made a report. He then returned to the section of the roadway where he had hit the men, having been told that the police were on their way. After waiting at the scene of the accident for the arrival of the police and not seeing them, the complainant returned to the police station. Whilst at the police station, he saw one, Adolphus Swaby, arrive and handed in a gun which was said to be similar to the one described by the complainant, as being in the possession of the applicant. Adolphus Swaby gave his account to the police that he had found the gun near the hand of one of the two men who had been hit down, while they were lying on the scene.

9 The complainant drove to the May Pen Hospital (which he referred to as the Denbigh Hospital) where he saw both the applicant and Tremain Clark lying on separate beds at a section of the hospital. He pointed both men out to Sergeant Cleveland Reid of the Four Paths Police Station as the two men who had held him up at gun point and robbed him of his property.

10 Sergeant Reid testified that he participated in having the applicant and Tremain Clark removed from the scene where they were hit down and brought to the May Pen Hospital. He said that at the hospital, he saw the complainant who informed him that the two men who had just been taken to the hospital had robbed him of his licensed firearm.

11 Constable Fredi Ferguson gave evidence that he was stationed at the Four Paths Police station at the material time, and having received information whilst on patrol in the Four Paths area, he proceeded to the May Pen Hospital. On arriving at the hospital, he made enquiries and was directed to a room where the applicant and Tremain Clark were seen. He searched both men and removed from the person of Tremain Clark two Nokia cellular phones. He took the phones to the Four Paths Police Station where the complainant, he said, identified them as belonging to him. The complainant was later taken to the hospital where he identified the phones in the presence of the applicant and Tremain Clark.

12 The applicant was later arrested and charged and upon being cautioned, he made no statement.

The applicant's case

13 The applicant gave an unsworn statement from the dock. He stated that on the night in question he was at a street dance in Four Paths standing in the roadway. He turned his back to the road, when he felt an impact from behind. He knew nothing after that until he awoke in the May Pen Hospital, where a police was asking him about the robbery. He told the police that he knew nothing about the robbery. The police searched him and found nothing. The police asked him if he knew Tremain Clark and he told the police no. The applicant called no witnesses.

The grounds of appeal

14 The applicant filed two original grounds of appeal:

• “1) Unfair Trial:–That the verdict is unreasonable, having regard to the Evidence

• 2) That the Sentence is manifestly excessive — That additional Grounds of Appeal will be filed on receipt of the Notes of Evidence”

15 At the hearing of this application, Mr Manley, appearing for the applicant, was permitted to argue two supplementary grounds in connection to and as an expansion on ground one of the original grounds of appeal, being:

• “1. The Learned trial judge failed to fully examine the implications of the quality of the evidence of identification at the hospital, and in particular the cogency of the complainants [sic] evidence of identification having regarded to circumstances under which the complainant identified the [applicant] at the May Pen Hospital.

• 2. The Learned trial judge failed to explain or reconcile the differing accounts given by the complainant and the Investigating Officer present at the purported identification and as to why the complainant was at the hospital in the first place.”

16 Mr Manley also advised the court that he would abandon the original ground two that the sentences were manifestly excessive. The court agreed with that position for reasons that will be disclosed later. Leave was therefore granted for the applicant to abandon his application for leave to appeal against sentence.

Submissions

17 Mr Manley, in advancing the arguments in support of the grounds, submitted, inter alia, that no credible explanation was given by the complainant for going to the hospital; as to how he came to be on the ward that the applicant was on; how he was able to identify the applicant on the ward at the hospital; and why Sergeant Cleveland Reid “coincidentally and by happen stance” met him at the hospital after he had pointed out the applicant. This, learned counsel submitted, amounted to the identification of the applicant “being confirmed by highly speculative circumstantial evidence”. He contended that the explanations given by the complainant and Sergeant Reid defy credibility and leave open the question of whether the identification of the applicant at the hospital was done in a “fair, open and honest way” and, in particular, whether it was a sufficient test of the ability of the complainant to describe his assailants.

18 Learned counsel maintained that the learned trial judge's reference to the identification of the applicant at the hospital as “spontaneous” is not supported by the evidence. Mr Manley argued that “elements of confrontation” arose on the evidence, although it was not specifically raised by the defence during the trial and so it was the duty of the learned trial judge to consider, in particular, whether there was a fair test of the complainant's ability to recognise the applicant at the material time. He added that the burden was on the prosecution to establish that the witness' ability to recognise the applicant who robbed him was fairly tested. This burden, counsel submitted, was not discharged.

19 In response, on behalf of the Crown, Mr Taylor, relying on the decision in R v Gilbert (1964) 7 WIR 53, sought to remind the court that the general principle in instances where it appears that the evidence against a person suspected of committing an offence depends to a great extent on identification, there is a “distinct duty upon the police to take every care to see that the witness who is going to identify...