Peart (Omar) v R

• Jurisdiction: Jamaica
• Judge: HARRISON JA
• Judgment Date: 20 December 2010
• Judgment citation (vLex): [2010] 12 JJC 2002
• Court: Court of Appeal (Jamaica)
• Date: 20 December 2010

[2010] JMCA Crim 76

IN THE COURT OF APPEAL

BEFORE:

THE HON MR JUSTICE HARRISON, JA THE HON MR JUSTICE MORRISON, JA THE HON MRS JUSTICE M c INTOSH, JA (Ag)

OMAR PEART

v

R

Oswest-Senior Smith for the appellant

Miss Claudette Thompson for the Crown

CRIMINAL LAW - Illegal possession of firearm - Robbery with aggravation - Leave to appeal - No case submission - Identifiction

HARRISON JA

1 The appellant was convicted in the High Court Division of the Gun Court held at King Street, Kingston on an indictment charging him for illegal possession of firearm and robbery with aggravation. On count one, which charged him with illegal possession of firearm, he was sentenced to seven years imprisonment at hard labour and on count two, which charged him with the offence of robbery with aggravation, he was sentenced to 12 years imprisonment at hard labour. The sentences were ordered to run concurrently. On 30 July 2010 the appeal was allowed, the convictions quashed and a verdict and judgment of acquittal entered. We promised then to put our reasons in writing, so this is a fulfillment of that promise.

2 The single judge granted leave to appeal as there was a "confrontation identification of the applicant".

3 The case for the prosecution in a nutshell is as follows. The complainant was robbed of her gold chain on 1 November 2003, at about 7:45 am. She testified that the appellant held her up at gun point along Spanish Town Road whilst she was walking with a friend and was heading to Tools Hardware where she worked. Her handbag was also taken from her but it was left behind after the man fled with her chain. She said that the incident had lasted for about five minutes and that during that period of time she was able to see the assailant's face. She retrieved her handbag with cash intact and went to Hunts Bay Police Station where she made a report. Prior to the incident, the person who held the gun at her was not someone that she had known.

4 On 2 November 2003, at about 11:45 am she received certain information whilst she was at her work-place, which caused her to go to the Hunts Bay Police Station. After speaking to the investigating officer at the door of the CIB office she pointed out the appellant to the police as the man who had robbed her.

5 Constable Gary Richards, the investigating officer, was stationed at Hunts Bay Police Station at the time of the incident. The complainant, he said, had attended the station on 1 November 2003, and made a report to him. He commenced investigations and on 2 November 2003 at about 11:30 am he went to 118 Hagley Park Road based on certain information he had received. The appellant was held and taken to the station. He said that while he was at the station, the complainant came there and pointed out the appellant as the man who had robbed her. He was arrested and charged with the offences of illegal possession of a firearm and robbery with aggravation. When he was cautioned he said, "Officer, is a man send mi".

6 Constable Richards disagreed under cross-examination that he had taken the appellant to Tools Hardware after he was held. He also denied that he had called the complainant and her friend to the police car and had asked the complainant if the appellant was the man who had robbed her. He agreed with counsel that it was he who had placed the appellant in the CIB room. He also agreed that on 2 November 2003, when the complainant came to the station, he had spoken to her inside the CIB room when he knew that the appellant was in that room. He said he had taken no steps to prevent the complainant from entering the CIB room at the time that the appellant was in there.

7 A no case submission was made at the close of the case for the prosecution. The gist of the submission was that there was a confrontation between the appellant and the complainant and that since the appellant was not known to her prior to the incident, an identification parade ought to have been held. The learned trial judge rejected this submission and called upon the appellant to answer to the charges.

8 The appellant made an unsworn statement from the dock and asserted that he did not use any firearm and did not rob the complainant. He also denied that he used the words attributed to him by Constable Richards when he was cautioned after arrest.

9 The sole ground of appeal urged on behalf of the appellant was formulated in this way:

"The convictions herein are respectively, impugnable, as the means of identification which was sine qua non to the Prosecution's Case was contrived and not impartially and/or objectively garnered as it emanated from an impermissible confrontation between the Witness/Virtual Complainant and the suspect/Appellant."

10 Mr Senior-Smith for the appellant argued that when one examines the evidence adduced by the prosecution, the convictions are impugnable as the means of identification which were absolutely essential to the prosecution's case were deliberately created rather than arising spontaneously and impartially. He submitted that in the circumstances, the confrontation was impermissible between the complainant and the appellant. He therefore submitted that the learned trial judge had fallen into error in not acceding to the no case submission.

11 Miss...