Michael Holness v R
| Jurisdiction | Jamaica |
| Judge | Panton P |
| Judgment Date | 28 September 2012 |
| Neutral Citation | [2012] JMCA Crim 45 |
| Date | 28 September 2012 |
| Court | Court of Appeal (Jamaica) |
| Docket Number | SUPREME COURT CRIMINAL APPEAL NO 31/2008 |
[2012] JMCA Crim 45
JAMAICA
IN THE COURT OF APPEAL
The Hon Mr Justice Panton P
The Hon Miss Justice Phillips JA
The Hon Mrs Justice Mcintosh JA
SUPREME COURT CRIMINAL APPEAL NO 31/2008
CRIMINAL LAW - Illegal possession of firearm - Shooting with intent - Whether verdict against the weight of the evidence - Credibility of witness - Common design - Character evidence
On 20 December 2010, we refused this application for leave to appeal and ordered that the sentences were to run from 13 June 2008. These are the reasons for our decision.
The applicant was convicted on 27 February 2008, by Jennifer Straw J, of the offences of illegal possession of firearm, illegal possession of ammunition and shooting with intent. He had also been charged with unlawful wounding but was found not guilty as the learned judge was not satisfied as to the quality of the evidence on that charge.On each of the illegal possession charges, he was sentenced to five years imprisonment and on the shooting with intent charge he was sentenced to eight years. All of the sentences were ordered to run concurrently.
The applicant filed as his ground of appeal a complaint that the verdict was against the weight of the evidence. The single judge of this court who refused the application for leave to appeal expressed the view that the main issue in the case was the credibility of the witnesses and that there was sufficient evidence that the applicant was part of a common design in the discharge of the firearm.
At the commencement of the hearing before us, Mr Robert Fletcher for the applicant sought and was granted leave to abandon the original ground that had been filed by the applicant, and to argue two new grounds crafted by him, namely:
‘i. The learned trial judge misdirected herself with respect to critical aspects of the evidence and in so doing the applicant was denied a fair and balanced consideration of his case and a real chance of acquittal;
ii. The learned trial judge never considered the issue of character raised in the applicant's case. By this omission the applicant was denied consideration of a critical element of his defence.’
The case for the prosecution was that on 2 August 2006, at some time after 9:40 pm, the applicant was one of four armed men who alighted from a Toyota Coaster bus on Roosevelt Avenue, St Andrew, and fired shots at police officers who had converged on the area as a result of a police radio transmission. The driver of the bus was one of the four armed men, and they were the only persons on the bus at the time.
The men ran in pairs in different directions. They were chased by the police officers. In the end, two of the men were found suffering from gunshot injuries and were taken to the Kingston Public Hospital where they were pronounced dead. The applicant and one of those who died were chased on to Latham Ave. In the process, the police recovered a firearm, six spent shells, as well as a 9mm magazine with six unexpended cartridges. Two of the spent shells were found on the sidewalk and the other four on the roadway in the vicinity of 3 Roosevelt Avenue. The firearm, when examined by the ballistics expert, Superintendent Sydney Porteous, was found to be incapable of discharging a missile and had not recently been fired. The incapacity of the firearm was due to the fact that the hammer, the sear and the connecting arm were missing.
The applicant, who had fallen during the chase, was held and taken to a nearby police station. At about 11:45 pm, his hands were swabbed at a different location forevidence of gunshot residue. The swabs were placed in four transparent plastic bags and submitted to the Government Laboratory for analysis.
Mrs Marcia Dunbar, government analyst, examined the swabs and found the following in respect of the applicant:
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• right palm —gunshot residue at trace level
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• back of right hand —no gunshot residue
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• left palm —gunshot residue at elevated level
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• back of left hand —gunshot residue at intermediate level.
In Miss Dunbar's opinion, trace level indicates a small amount of gunshot residue and would arise from an initial deposit of either the elevated or intermediate level, and with the passage of time and activity, there is a loss of gunshot residue resulting in a level at trace level. It would also arise from being in the direct path of gunshot residue as it is emitted from a fired firearm to the distance of 24 inches; or it could arise from secondary transfer, that is, coming in contact with a surface that has a deposit of gunshot residue. Gunshot residue at an elevated level indicates a high level and would arise from firing a firearm or being in the direct path of the gunshot residue as it is emitted from a fired firearm within a distance of 9 inches. Finally, gunshot residue at intermediate level results from firing a firearm or being in the direct path of the gunshot residue as it is emitted from a fired firearm at a distance of 18 inches.
The applicant was arrested and charged by Detective Inspector Webster Francis. When cautioned, he said, ‘I did not rob anyone and I never had a gun’.
The applicant gave evidence. He said he was a laboratory technician/computer assistant at the Department of Educational Studies at the University of the West Indies where he was also a student. On 2 August 2006, he said he went to an early evening movie at the Carib Cinema in Cross Roads. He left the cinema sometime between 7: 30 and 7:40 pm, and had a meal nearby. A friend of his called him on the telephone. Consequently, he set out on a bus to ‘downtown’ Kingston with a view to collecting a jump-drive from another friend of his. He paid the conductor and sat two seats away from the conductor's seat. By the time the bus had reached ‘downtown’ Kingston most passengers on the bus had disembarked. He saw two armed men enter the bus. One of them had braided hair and the other had on a camouflage outfit and a hat. The man with the braided hair pushed the driver out of the bus while the other robbed the conductor. The applicant acknowledged that he was acquainted with the man in the camouflage outfit as he had seen him a ‘couple times’ in the community called Hermitage.
The applicant said that he tried to get off the bus but the man in the camouflage outfit blocked his path, pointed his gun at him and told him he could not get off at that time. A third man then took over the driving of the bus. He drove to Roosevelt Avenue where the police stopped the bus. At that point in time, the applicant said the man with the braided hair went towards the rear of the bus to see what was happening. He, the applicant, then took the opportunity to force himself through the passenger door on the left side of the bus. After exiting the bus, he heard explosions. He ran on to LathamAvenue where he stumbled and fell. Seconds later, two officers came and searched him. He said there were two men lying near to him and, on inquiry by police officers, these men said that they had been shot. He then saw an officer shoot one of the two men several times. The applicant said he was taken to the nearby Stadium Police Station, then to an office on Duke Street where his hands were swabbed. He was next taken to the Half Way Tree Police Station and was charged the following day.
The applicant denied being in possession of a gun that night. He denied running with anyone from the bus. He said that he became aware of the presence of someone from the bus being near to him when he had fallen and the police had come up to him.
The applicant called, as witnesses, his older brother and Rev Harold Rhudd to say that he is right-handed. Rev Rhudd also said that he knew the applicant ‘as a good character’.
In arriving at her verdict, the learned trial judge said:
‘The issue for the court to determine is whether the accused man was one of four men armed with firearms who ran out of a stolen coaster bus on Roosevelt Avenue and engaged in a shoot-out with the police. The court has to decide whether there is credible evidence provided by the prosecution to satisfy...
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