Petro Evans v R

• Jurisdiction: Jamaica
• Court: Court of Appeal (Jamaica)
• Judge: Dukharan JA
• Judgment Date: 31 July 2014
• Neutral Citation: JM 2014 CA 78
• Docket Number: CRIMINAL APPEAL NO 28/2012
• Date: 31 July 2014

[2014] JMCA Crim 37

JAMAICA IN THE COURT OF APPEAL RESIDENT MAGISTRATES'

Before:

The Hon Mr Justice Morrison JA

The Hon Mr Justice Dukharan JA

The Hon Mrs Justice McIntosh JA

CRIMINAL APPEAL NO 28/2012

Petro Evans

and

R

Sean Kinghorn instructed by Kinghorn and Kinghorn for the appellant

Miss Maxine Jackson and Mrs Tracy-Ann Robinson for the Crown

CRIMINAL LAW - Simple larceny - Whether judge erred in failing to uphold no-case submission - Whether the identification of the accused was poor - Whether the ingredients of the offence of simple larceny were proved

Dukharan JA

1 The appellant was charged on an indictment containing one count of simple larceny. He was tried and convicted in the St Catherine Resident Magistrate's Court by Her Honour Miss Ann-Marie Nembhard. On 4 May 2011 he was sentenced to nine months imprisonment at hard labour. Verbal notice of appeal was given and bail offered in the sum of $150,000.00 with surety pending the appeal.

2 On 22 February 2013, we heard arguments, after which we dismissed the appeal, with sentence to commence from the above date. At that time, we promised to put our reasons in writing at a later date. These are our reasons.

3 On 21 November 2008, at about 7:45 pm, the complainant, Mr Christopher Harrison, was working as a conductor on a National Transport Cooperative Society (NTCS) bus numbered 90, along with Mr Alfred Smith. The bus was being operated as a public passenger vehicle and was owned by Mr George Robinson, a retired police officer.

4 The said bus was stopped by a team of three police officers, who were on mobile patrol, of which the appellant was a member. The complainant recognised the appellant as a police officer who had prosecuted him for breaches of the Road Traffic Act earlier in the same month of November 2008. The appellant also recognised the complainant from the same prior incident and informed the complainant when the bus was stopped, that a warrant was issued for his arrest as he had not attended court. The appellant then informed the complainant that he would be taking him to the Waterford Police Station.

5 The complainant was instructed to enter the police service vehicle, and he complied. He was seated in the rear of the vehicle beside the appellant on the trip to the police station. The appellant then asked the complainant ‘what he could do to help himself’. The appellant then reached into the shirt pocket of the complainant, removed a sum of money (about $15,100.00), counted it, and only returned $100.00 and commented that it was three of them (police officers). The appellant instructed the complainant to tell his boss that he, the complainant, would work and pay it back. The complainant was taken to the Caymanas Police Station instead of the Waterford Police Station. The documents for the bus were handed back to the driver.

6 The complainant made a report and gave a statement in relation to the incident at the Ruthven Road Police Station in Kingston on 22 November 2008, as well as at the Anti-Corruption Branch. The appellant was subsequently arrested and charged.

7 In an unsworn statement from the dock, the appellant denied taking any money from the person of the complainant, nor did he see anyone collecting or taking money from him. He said that on the day in question he was on patrol with other officers at about 7:00 pm when he observed a Toyota Coaster bus travelling in the opposite direction overtaking a line of traffic and the driver, driving carelessly. The police vehicle chased the bus and the driver was signaled to stop. He said he recognised the conductor (complainant) as someone he had arrested before but who did not turn up for court. He told one of the other officers of his observation and that a bench warrant was outstanding for the complainant. The appellant was then placed in the back of the police vehicle. He was subsequently released at the Caymanas Police Station and the documents for the bus given back to the driver who was warned for prosecution.

8 Mr Kinghorn, for the appellant, sought and was granted leave to amend the grounds of appeal to read as follows:

• ‘(i) The learned trial judge [sic] erred in law in not upholding the Submission of No Case to answer made by the Appellant's Attorney as;

  • (a) The Crown failed under the 2 ^nd limb of R v Galbraith to establish a prima facie case

  • (b) The identification of the Accused and the alleged actions of the theft on the part of the Accused was [sic] so poor that the Accused should not have been called upon to answer.

  • (c) The Crown failed to prove the requisite ingredients of the offence of Simple Larceny, namely that, “a person steals, who, without the consent of the owner, fraudulently and without a claim of right made in good faith, takes and carries away anything capable of being stolen with intent, at the time of such taking, permanently to deprive the owner thereof”. The Crown has failed to prove either directly or circumstantially that the sum in question was taken “without the consent of the owner”.

• (ii) The learned trial judge [sic] erred in law in concluding that the numerous discrepancy [sic] in the evidence presented by the Crown were not fundamental and did not go to the root of the Crown's case.

• (iii) The learned trial judge [sic] erred in law in treating as unimportant and irrelevant the discrepancy in the Crown's case as to how much money the Complainant [sic] has in his possession at the [sic] at the time of the alleged Larceny.

• (iv) The learned trial judge [sic] erred in law in not addressing her mind to the fact that the Complainant had an interest to serve in fabricating a story against the Appellant.

• (v) The sentence is excessive in all the circumstances of this matter.’

9 Mr Kinghorn argued all the grounds together. He submitted that the learned Resident Magistrate erred in law in not upholding the submission of no case to answer at the end of the prosecution's case. Counsel submitted that a prima facie case was not established as required under the 2 ^nd limb of R v Galbraith 1981 73 Cr App R 124, [1981] 2 All ER 1060. The identification of the appellant and the alleged actions of theft were so poor that the prosecution failed to lead sufficient evidence to establish a prima facie case against him.

10 Counsel further submitted that the evidence presented by the prosecution was tenuous, inherently weak and replete with inconsistencies, for example, how much money the complainant allegedly had in his possession when he was stopped by the police. Counsel submitted that the evidence presented by the prosecution in this regard was fraught with discrepancies and uncertainty. He further argued that that area of the evidence was particularly important because the prosecution presented no corroborative evidence of the amount of $15,100.00 which the...