Navardo Lampart v R
| Jurisdiction | Jamaica |
| Judge | Dukharan JA |
| Judgment Date | 08 February 2013 |
| Neutral Citation | JM 2013 CA 10 |
| Docket Number | SUPREME COURT CRIMINAL APPEAL NO 59/2009 |
| Court | Court of Appeal (Jamaica) |
| Date | 08 February 2013 |
[2013] JMCA Crim 8
JAMAICA
IN THE COURT OF APPEAL
The Hon Mrs Justice Harris JA
The Hon Mr Justice Dukharan JA
The Hon Mr Justice Hibbert JA (Ag)
SUPREME COURT CRIMINAL APPEAL NO 59/2009
Ernest Smith for the appellant
Miss Dahlia Findlay for the Crown
CRIMINAL LAW - Illegal possession of firearm - Shooting with intent - Whether judge addressed contradictions in evidence before her - Whether the sentence was excessive
The appellant was convicted and sentenced in the High Court Division of the Gun Court, held in Clarendon after a trial which commenced on 11 May and ended on 20 May 2009, for the offences of illegal possession of a firearm and shooting with intent. He was sentenced to 10 years and seven years respectively with sentences to run consecutively.
A single judge of this court refused the application for leave to appeal against conviction on the basis that the case turned entirely on issues of credibility, which the learned trial judge resolved in favour of the prosecution as he was entitled on the evidence to do. However, the application for leave to appeal sentence was granted. This is a renewal of the application for leave to appeal conviction.
On 3 October 2011, we heard arguments when we refused the application for leave to appeal the convictions. However, the appeal against sentence was allowed in part, in that, the consecutive element in the sentence was set aside, and instead, the sentences on both counts were ordered to run concurrently and to run from 20 August 2009. We promised then to put our reasons in writing and this is a fulfillment of that promise.
The prosecution relied on section 20 (5)(a) of the Firearms Act in order to prove that although the appellant himself had not been in actual possession of a firearm, by virtue of that section, he ought to be treated as being in possession. The prosecution had to show: that the applicant was in the company of the principal offender and that the principal offender must have used the firearm to commit the offence; the existence of circumstances which gave rise to the reasonable presumption that he was present to aid and abet the commission of such offence; and the absence of reasonable excuse.
The relevant facts are that on 19 January 2009, at about 10:00am, Constables Davion Lindsay and Jarrett Walker were on patrol in a marked police vehicle along Howard Avenue, May Pen, in the parish of Clarendon. Both officers observed a speeding green and black station wagon motor car. There were two men in the back and the driver alone in the front. The police followed the speeding car and attempted to pull it over by flashing their blue lights, honking the beacon horn and asking them to stop, using the Public Address System installed on their vehicle. The police finally caught up with the speeding vehicle which was in a line of traffic. Constable Lindsay came out of the police car and approached it when it sped off. What followed was a chase that involved many of the streets in May Pen and a period when the police lost sight of the vehicle in the Western Park area. There was a reappearance of the car on Glenmuir Road a few minutes later. The chase continued when the speeding vehicle collided with another vehicle and continued travelling until it ended on a dirt road up a hill. The vehicle then came to a stop.
Constable Lindsay said he saw two men alighting from the two rear doors. He heard explosions coming from the direction of the men, who fired at them. Constable Lindsay said he returned the fire with his M16 rifle.
There was another attempt by the driver of the car to speed away. This time he did not get very far as he crashed into a stone. Constable Lindsay said he saw a man come out of the driver's seat and run towards the bushes. He chased him and the man shouted, ‘Mi get shot, mi get shot’. He was apprehended and he said, ‘Ah taxi mi ah run, mi no know them.’ This man is the appellant. He was taken to the May Pen hospital for treatment where he was subsequently arrested and charged for illegal possession of a firearm and shooting with intent.
The appellant gave evidence in his defence. His defence was that he was alone in his car and that he was on Stork Street and not Howard Street as the police said. He admitted to fleeing from the police, but not via the route in the evidence given by the police. He said he was trying to get to Buck Common where his relatives were living. His reason for trying to evade the police was that his cover note (insurance) had expired and the police would seize his car for operating a robot taxi. He also feared that he would be accused of having something illegal in his possession if the police were to apprehend him.
The appellant called three witnesses in his defence. The evidence given by these witnesses concerned what happened subsequent to the apprehension of the appellant and would not have assisted the appellant in the rebuttal of the prosecution's case.
The first witness for the defence was Marcia Lampart. She said the appellant is her nephew. On 19 January 2009, he ran towards her with his hands in blood and said to her, ‘Auntie look what dey do to mi hand dem and ah don't do anything.’ She said he was eventually put in a police car and taken away.
The second witness for the defence was Omar Rhoden. He told the court he knew the appellant from school days. On 19 January 2009 he saw him at Stork Street in May Pen and they discussed the sale of a phone to him (the witness). After that, the appellant drove off alone in a car.
The third witness was Wavelyn Daley. She testified that she is a bartender living in Bucks Common and she knows the appellant. She said on the day in question she saw him driving and as he passed her gate she heard explosions. Shortly afterwards, she saw him coming out of the car crying and saying, ‘Them shot mi, them shot mi.’ She saw two police officers. She never saw anyone else come from the appellant's car.
Mr Smith, for the appellant, abandoned the original grounds, sought...
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