Powell (Julian) v R
| Jurisdiction | Jamaica |
| Judge | MORRISON, J.A. |
| Judgment Date | 16 April 2010 |
| Neutral Citation | JM 2010 CA 59 |
| Judgment citation (vLex) | [2010] 4 JJC 1604 |
| Court | Court of Appeal (Jamaica) |
| Date | 16 April 2010 |
CRIMINAL LAW - Illegal possession of firearm - Indecent assault - Leave to appeal - Credibility
The applicant was convicted in the High Court Division of the Gun Court on 3 December 2007, after a trial before Donald McIntosh J, of the offences of illegal possession of a firearm and indecent assault. He was sentenced to 10 years imprisonment on the first count and 3 years imprisonment on the second count, both sentences being ordered to run concurrently.
The applicant's application for leave to appeal was considered by a single judge of this court and refused on 29 June 2009, on the basis that what was in issue in the case was the question of credibility, in respect of which the trial judge had accepted the complainant's version of what had occurred on the night in question in preference to the applicant's, and that the judge was fully entitled to do this on the evidence which had been adduced. The applicant has, as is his right, renewed his application for leave to appeal before this court.
The case for the prosecution was that at approximately 8:30 pm on 2 November 2007, the complainant was walking towards her home in the Boscobel Heights Housing Scheme in the parish of St. Mary, when she was held up at gunpoint by the applicant, who was known to her before. The applicant spoke to her, with a gun pointed towards her belly, saying "mi waan talk to yuh, a long time me a tell you seh mi waan to fuck you". Thereupon, the applicant indecently assaulted the complainant by fondling her vagina, with his left hand, while still holding the gun in his right hand pointing towards her belly. As she stood there in fear, the applicant then said to her "Yuh si how mi get yuh scare now, tru' yuh si mi wid mi gun".
Just then, a gentleman also on his way home approached and, as he walked past, the applicant put the gun in his waist and started walking towards a shop ahead of them. Frightened, the complainant asked the applicant if he wanted her to get him a beer from the shop, to which offer he replied positively, telling her that he wanted a "Matterhorn" as well. She went into the shop and purchased these two items, came back out onto the street and handed them to him, whereupon he turned to her and said "memba my girl, nuh tell nobody what happen, else mi a goh kill yuh", before walking off into the housing scheme. On the day following this incident, the complainant made a report of it to the police.
No issue of identification arose at the trial, as the applicant, in an unsworn statement from the dock, agreed that he and the complainant did encounter each other on the evening in question (implying that they had been in an intimate relationship), that she had offered to buy him something at the shop and that she had brought him back a beer and two "Craven A" cigarettes. However, he denied pointing a gun at her and also denied putting his hand "under her dress", as she had alleged.
As already indicated, the trial judge rejected the applicant's defence and accepted the complainant as a witness of truth, with the result already described at para [1] above.
Mr Hines, who appeared for the applicant in this court, did not seek to challenge the judge's acceptance in general terms of the complainant's version of what had taken place that evening. However, he did take issue with the finding that the applicant was at the material time in unlawful possession of a firearm. This is how he framed the single ground of appeal filed on the applicant's behalf:
"1. That the learned Judge erred in that he failed to demonstrate that he was satisfied beyond reasonable doubt that the applicant was in unlawful possession of a...
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