Odean Blake v R
| Jurisdiction | Jamaica |
| Judge | P Williams JA |
| Judgment Date | 07 October 2022 |
| Neutral Citation | JM 2022 CA 101 |
| Docket Number | SUPREME COURT CRIMINAL APPEAL NO 47/2015 |
| Court | Court of Appeal (Jamaica) |
| Year | 2022 |
[2022] JMCA Crim 47
THE HON Miss Justice P Williams JA
THE HON Mr Justice Fraser JA
THE HON Mrs Justice Dunbar-Green JA
SUPREME COURT CRIMINAL APPEAL NO 47/2015
IN THE COURT OF APPEAL
Sean Osbourne for the applicant
Miss Patrice Hickson for the Crown
On 7 May 2015, after a trial in the High Court Division of the Gun Court held in the parish of Kingston, before Harris J, as she then was (‘the learned trial judge’), sitting without a jury, Odean Blake (‘the applicant’), was convicted on an indictment containing nine counts. The first count was for the offence of illegal possession of firearm, and the remaining eight counts were for wounding with intent. He had been indicted with four other persons, but they were acquitted. On 26 June 2015, he was sentenced to 15 years' imprisonment at hard labour for the offence of illegal possession of firearm, and 22 years' imprisonment at hard labour, on each of the other counts. The learned trial judge ordered that the sentences were to run concurrently.
The applicant made an application for leave to appeal his conviction and sentence. On 29 November 2018, a single judge of this court considered his application and refused him leave to appeal, opining that the learned trial judge gave “immensely proper directions”, and it was her prerogative to accept the witnesses whom she felt were credible. As was his right, the applicant renewed his application for leave to appeal conviction and sentence before us.
On 12 and 13 November 2020, we heard and considered the submissions from counsel and made the following orders:
“1. Application for leave to appeal conviction and sentence refused.
2. Sentences reckoned to have commenced on the 26 June 2015.”
We promised then to reduce the reasons for our decision to writing. This judgment fulfils that promise, with profound apologies for the delay.
The basic factual background leading to the charges being laid against the applicant and the four co-accused was not disputed. On 14 February 2013, sometime after 8:00 pm, several persons were gathered outside an unfinished concrete dwelling house on a pathway located at Moore Town Way, Nannyville, in the parish of St Andrew. Some were playing cards around three separate tables near a lit streetlight, while others stood by watching the activity. The relative calm of the night was shattered when a group of five men armed with firearms came from the direction of a track that led to a nearby gully and fired a barrage of shots at the persons there. Eight persons were shot and injured. Mr Ian Smith Junior (‘Mr Smith Jr’) was shot in his side and back and left paralysed; Mr Clifford Smith (‘Mr C Smith’) was shot in the right hip; Ms Marlene Edwards (‘Miss Vee’) received injuries to her buttocks, left arm, right side and head (a bullet remains lodged in her head). Mr Cornell Kelly (‘Mr Kelly’) was shot to the right side of his back, and Mr Leon Reddick (‘Mr Reddick’) was shot in his left leg, which led to him walking with the aid of clutches at the time of the trial. Mr Alva Bryan (‘Mr Bryan’) was shot on his left thumb. Ms Shanoya Rowtham (‘Ms Rowtham’) was shot in her right foot. A young child, Brandon Brown, who was only four years old at the time, suffered multiple gunshot injuries to his left leg.
Of the nine witnesses who testified on behalf of the Crown about the incident, only four identified assailants: Mr Smith Jr, Mr C Smith, Mr Ian Smith Senior (‘Mr Smith Snr’) and Mr Bryan. Mr Kelly, Miss Rowtham and Miss Vee gave evidence of being among the group of persons playing cards that night and of how they came by their injuries. Mr Reddick testified that he was not a part of the group gathered in the pathway that night but was on his way home when he heard explosions and was shot as he tried to leave the area. Miss Sadonya Straw, the mother of Brandon Brown (the four-year-old child who was also injured that night), testified to his presence in the area when the shots were fired, leaving her son suffering from gunshot injuries.
Mr Smith Jr gave evidence that he was engaged in a card game when he saw a group of five men “coming out of the lane” with what appeared to be handguns or pistols in their hands. He heard explosions and saw the five men moving around. He immediately felt “like [he] received a needle to the side…like [he] just got pricked to the side and the back as well”. He eventually fell to the ground and realised he had no control over his lower limbs, leaving him paralysed.
He said that after falling to the ground, he could continue observing the men with the aid of a streetlight about 3 feet away. He recognised the applicant and one other man. He had known the applicant for over eight years and would see him about four times weekly. He would occasionally exchange greetings with the applicant, who was older than he was. He indicated that during the shooting incident, the applicant and the other man he recognised wore a “mesh like stocking…something very thin, transparent” over their heads. All the men, including the applicant, were about 5 1/2–6 feet away from him during the incident. He maintained that the “mesh like stocking” worn by the men over their heads during the incident did not prevent him from recognising them.
After the men left, Mr Smith Jr was assisted to a car by his father and transported to the hospital, where he remained until 30 March 2013. On 26 February 2013, while still in the hospital, he pointed out the applicant on a video identification parade.
Under cross-examination, Mr Smith Jr gave a full description of the area in which the incident occurred. He explained the location of the path that the men had taken to arrive at where he had been playing cards. The men, he said, exited the path “right under the light post”. He insisted that he had “a fair amount of time to observe and saw who [he] was suppose [sic] to see and noticed who [he] was supposed to notice”. He was questioned as to whether he had told the police that he could not recall whether the five men were armed and that although he was not sure all five men had guns in their hands, he was certain that he saw the applicant, the other man he recognised and a third man with guns. He maintained that he was unable to recall doing so. In addition, he was challenged as to his evidence that he had been standing while playing cards prior to the incident, given that it was recorded in his statement that he was seated. He stated that he could not recall telling the police that he was in shock after the guns were fired. He also could not remember telling the police that all five men ran up the lane, and then he heard another set of explosions. He refused to accept the invitation to look at his witness statement when confronted about possible inconsistencies with his testimony.
Mr Bryan testified that he is the brother of Mr C Smith and Mr Smith Snr. That night he was among the group of people playing cards. He was at a table with Mr Smith Jr (his nephew) and two women. He said he heard “a little rush come from off the side of the gully” as if someone was rushing towards them, and then he heard two shots fired from the direction of the gully. He became frightened, heard a barrage of shots, and when he looked, he saw five men, about 5 or 6 yards from the streetlight. He said the men were standing beside each other; they all had guns and were firing shots. He ran into his house, and whilst in his house, he looked through a hole the size of a $20.00 coin in a sheet of zinc on his window and saw his brother (Mr Smith Snr), his nephew (Mr Smith Jr), Miss Vee and Miss Rowtham lying on the ground. He saw a man go to a table that Miss Vee was lying behind, pushed the gun underneath the table and fired about six shots. Mr Bryan said he heard “click click” from the gun, and then the man ran away. Mr Bryan explained that after rushing to his house, he felt a burning on his left thumb and realised it had been “shot off”.
Mr Bryan said that he knew four assailants by name before that night. He did not know the applicant by name and said, “looking through the glass I couldn't really identify him”. However, he pointed out the applicant as the person who fired under the table where Miss Vee was lying. At that point, Mr Bryan said the applicant was 11–12 feet away from him, under the streetlight, and had nothing on his head. He was able to see his face for approximately two minutes.
During cross-examination, Mr Bryan agreed that the path beside the gully behind his house was dark. He was challenged on his evidence that he was unfamiliar with guns when, in his statement to the police, it was recorded that he had said one of the men had a black Glock 9mm pistol. He insisted that he did not know anything about any gun and did not know the name of any. When confronted with the contents of his statement, Mr Bryan maintained he had not given the police the name of any of the guns he had seen in the hands of the attackers.
Mr Smith Snr said that on the night of the shooting, he was playing cards with three other men at a table about 10 feet away from the “bright streetlight” when he heard a sound like “a clapper burst”. He jumped up and asked, “a who burst deh clapper”, and when he turned around, he saw five men shooting. He jumped off his seat onto a step that had two walls and lay there. He looked down the street and saw when one of the men came up under the streetlight while the other four stood back. The man who came up to the streetlight started firing shots with a black gun.
From his position, lying on his belly with his arms under his head and his head turned in the direction of where the man was standing, Mr Smith Snr identified the man under the streetlight firing shots as the applicant. He said he saw the applicant shoot at Miss Vee...
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