Omar Anderson v R
| Jurisdiction | Jamaica |
| Judge | Edwards JA |
| Judgment Date | 10 March 2023 |
| Neutral Citation | JM 2023 CA 29 |
| Docket Number | SUPREME COURT CRIMINAL APPEAL NO 55/2015 |
| Court | Court of Appeal (Jamaica) |
[2023] JMCA Crim 11
THE HON Mr Justice Brooks P
THE HON Miss Justice Straw JA
THE HON Miss Justice Edwards JA
SUPREME COURT CRIMINAL APPEAL NO 55/2015
IN THE COURT OF APPEAL
Terrence Williams and John Clarke instructed by John Clarke for the appellant
Miss Paula Llewellyn QC, Director of Public Prosecutions and Ms Jamelia Simpson for the Crown
Written submissions filed by the Director of State Proceedings for the Attorney General of Jamaica as an interested party
Mr Omar Anderson (‘the appellant’) was convicted on 11 June 2015 by Dunbar-Green J (as she then was) (‘the learned judge’) in the High Court Division of the Gun Court for illegal possession of firearm and two counts of robbery with aggravation, and sentenced on 17 July 2015, to five years' imprisonment for the firearm offence and seven years for each of the robbery offences. The sentences were ordered to run concurrently. On 26 July 2015, he filed an application for leave to appeal against his convictions and sentences, but due to a delay in the provision of the transcript of his trial, which was only received by this court on 21 July 2020, the hearing of his application was, regrettably, unduly delayed. A single judge of this court, on 12 August 2020, considered the appellant's application, but refused it in respect of both conviction and sentence.
The appellant renewed his application for leave to appeal to the full court, as was his right to do. On 25 March 2021, whilst awaiting the hearing of his renewed application, he filed an application for bail pending appeal, on grounds that included the fact that he had served a substantial part of his sentence and that his constitutional rights were being infringed, due to the delay in the hearing of his application for permission to appeal. His application to be admitted to bail was heard on 13 and 15 April 2021 and was refused, primarily on the basis that, pursuant to section 4 of the Bail Act 2000, this court had no jurisdiction to grant bail where the applicant had not previously been on bail (see the decision of the single judge in Omar Anderson v R [2021] JMCA App 11).
The result of the foregoing is that, at the time this matter commenced before the full court, the appellant, who had been in custody since his arrest on 19 May 2013, had spent approximately eight years and two months in custody, six of which he spent in prison following his conviction, and whilst awaiting the hearing of his appeal. His 5-year sentence in relation to count 1 would have already been served on 16 July 2020, and there would have been only one year remaining for the expiration of his 7-year sentences in relation to the counts of robbery. That sentence would have expired on or about 16 July 2022. His early release date, for the latter sentence, would have been in and around March of 2020, and so undoubtedly, had Mr Anderson not pursued his appeal he would, likely, have been a free man since March of 2020.
This appeal, in addition to the issues raised by the original grounds of appeal filed, raised issues as to the ability of an individual, in the unfortunate situation as the appellant herein, to obtain constitutional redress in this court, for breaches of his rights under the Charter of Fundamental Rights and Freedoms of the Constitution of Jamaica. In the appellant's case, the rights alleged to have been breached were his right to be provided with a transcript of the proceedings of his trial on a timely basis, the right to have his conviction reviewed by a superior court within a reasonable time, and his right to liberty.
On 19 July 2021, the day set for the hearing of the renewed application for leave to appeal, we heard an application by the appellant, filed on 18 May 2021, pursuant to section 28 of the Judicature (Appellate Jurisdiction) Act (‘JAJA’), seeking orders that the court permit the admission into evidence of his affidavit filed 22 April 2021, as well as order the production of several items by the Jamaica Constabulary Force (‘JCF’) pertaining to the investigation of the offences for which the appellant was convicted, which were said to be relevant to the fair hearing of the appeal. On 20 July 2021, we refused the orders sought, except for the admission of the appellant's affidavit, insofar as it affected the grounds of appeal relating to the incompetence of counsel. In the interests of fairness, the court also admitted the affidavit of counsel Mr Paul Wayne Gentles, filed on 3 May 2021, and its exhibits in relation to the same ground of appeal.
We heard the application with respect to permission to appeal, and on 30 July 2021, having granted leave to appeal, we dismissed the appeal but determined that the appellant was entitled to some relief on account of the undue delay in the hearing of his appeal. As a result, we made the following orders:
“1. The application for leave to appeal against conviction and sentence is granted. The hearing of the application is treated as the hearing of the appeal.
2. The appeal against conviction is dismissed and the conviction is affirmed.
3. The appeal against sentence is dismissed and the sentence is affirmed.
4. The sentence is to be reckoned as having commenced on 17 July 2015.
5. The appellant, having effectively served his 5-year sentence in respect of the offence of illegal possession of firearm as at 16 June 2020, and having served 6 of 7 years in respect of the offence of robbery with aggravation, in which his early release date has passed, is to be immediately released.
6. It is declared that the right of the appellant under section 16(7) of the Constitution of Jamaica, to be given a copy of the record of the proceedings made by or on behalf of the court, within a reasonable time and the right under section 16(8) of the Constitution of Jamaica to have his case reviewed by a superior court within a reasonable time, was breached by the excessive delay between his conviction and the hearing of his appeal.
7. It is declared that consequent upon the delay the right of the appellant to liberty under section 14(1)(b) of the Constitution of Jamaica was breached from the time he would have become entitled to early release in March 2020 and he, therefore, is entitled to compensation from the date of his application for bail, 25 March 2021, to the date of this order, 30 July 2021.”
At the time, we promised to put our reasons in writing and we do so now.
The evidence against the appellant, led at his trial, was that he had advertised a 1999 “police shaped” Toyota Corolla motor car for sale in the newspaper, indicating a telephone contact. This advertisement was responded to by one of the two complainants in this case. Arrangements were made by the two, via the telephone, to meet with the appellant to view the car. The meeting was to take place at the Hunts Bay Police Station. Having met the two complainants at the police station, the appellant told them that the car was at a car mart and asked them to drive him there. After the relevant identifications were exchanged, they left the police station and proceeded, at the direction of the appellant. The appellant directed them, not to the car mart as agreed, but to an open yard, where a car, not fitting the description of what was advertised, was parked. As soon as the complainants began examining the car, two men approached brandishing firearms, and robbed the complainants of cash, cell phones and other items. One of the complainants told the court that the appellant had participated in the robbery and took money, a phone, a wallet and other items from him. That complainant was told to run, which he did. The other complainant was also robbed of phones, his watch, and keys by the other robbers. After that, he also ran back to the car, and both complainants escaped leaving the appellant with the gunmen. They went straight to the Hunts Bay Police Station and made a report there.
On the day following the robbery, another individual also answered the appellant's advertisement for the sale of the motor car. During his transaction with that person, the appellant was arrested and charged. His house was searched and a cellular phone was found, which was later identified by one of the complainants as the phone stolen from him by the gunmen. Another cellular phone was also found which belonged to the appellant. That cell phone was discovered to have the number which was used in the newspaper advertisement for the sale of the motor car by the appellant. A few days later, one of the complainants attended a video identification parade, where he identified the appellant as the person he had met who was selling the car.
The appellant gave evidence at his trial admitting to placing the advertisement and meeting with the complainants. He said he had parked his Nissan Blue Bird at a yard on Delacree Road to show prospective buyers, and that there had been a mistake in the description of the car in the advertisement. He denied that he was a part of the robbery and claimed that he too was a victim.
At the trial, the prosecution led evidence that, on 18 May 2013, the appellant, along with two other men who were armed with guns, robbed the complainants, Ranique Laing and Warren Minto, at an abandoned premises on Delacree Road, in the parish of Kingston. Cash in the amount of $390,000.00, a Blackberry cellular phone valued at $55,000.00, and other important documents were taken from Mr Laing. A Blackberry cellular phone, a Nokia cellular phone, and a watch, all valued at about $40,000.00, were taken from Mr Minto, along with his wallet, keys, and important documents. The prosecution's case was that the appellant had lured the complainants to the abandoned premises, by arranging to meet with Mr Laing under the false pretence of showing...
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