R v Blake

• Jurisdiction: Jamaica
• Court: Court of Appeal (Jamaica)
• Judge: Watkins, J.A.
• Judgment Date: 21 October 1977
• Neutral Citation: JM 1977 CA 37
• Docket Number: Criminal Appeal No. 122 of 1976
• Date: 21 October 1977

Court of Appeal

Watkins, J.A.; Rowe, J.A.;(Ag)

Criminal Appeal No. 122 of 1976

R.

and

Blake

Appearances:

Mr. Richard Small and Mr. Roy Fairclough for the appellant

Mr. Soares for the crown.

Criminal Law - Appeal vs conviction (Firearms)

Watkins, J.A.

1 The appellant was convicted by White J. on July 7, 1976, in the High Court Division if the Gun Court on two counts of a three-count indictment which charged him respectively with illegal possession of a firearm and of ammunition on February 18, 1976. At the end of the case for the crown and after a no-case submission by counsel for the appellant, the third count for shooting with intent was withdrawn. After hearing arguments on April 27 and 28 we ordered that the application for leave to appeal be treated as the hearing of the appeal, that the appeal be allowed and that the convictions and sentences be set aside. We promised to put our reasons in writing and now do so.

2 This appeal raised three points of law, one concerning a matter of evidence and procedure, the other affecting the power of this court to disturb a finding of fact by a trial judge based upon the credit of a witness and the third concerning proof of ammunition.

3 Evidence led by the prosecution was to the effect that on the night of February 18, 1976 a party of security forces were on foot patrol in the Lyndhurst Road area of St. Andrew. Constables Lawrence and Wilson and Private Barrington Clarke were members of the party. From Lyndhurst Road they walked north into and up Elgin Road, and having proceeded along this latter road to the vicinity of a club called “Three Sisters” they saw a person who later turned out to be appellant; coming down Elgin Road and some thirty-five or forty yards away from them. As the appellant saw them he turned about and quickened his steps. The party shouted “‘Police” whereupon the appellant begun to run. As he ran he took a firearm from his waist and looking back over his shoulder he discharged it in the direction of the police party. Private Barrington Clarke replied with two shots from his rifle but, the appellant continued to run for a further five or six yards and then fell. The police party reached where he fell within four or five minutes and there they saw him still clutching in his right hand a weapon which the ballistic expert described as a .25 calibre semi-automatic pistol. In it were three .25 calibre automatic unexpended cartridges (Exh. 3) which in the words of the ballistic expert “were not capable of being fired from a firearm as their primers have deteriorated with age.” Apprehended and charted by Constable Wilson, the appellant is said to have said “Officer, beg you a chance.

4 Save in one most important respect, the case for the appellant was quite the opposite of that of the crown. The appellant did not give sworn evidence but from the dock he stated, so far as material, that on the night in question he vas walking down Elgin Road. As he approached the intersection of this Road with Lyndhurst Road, a taxi filled with members of the Security Forces, including those already named, swiftly came around the intersection into Elgin Road, doors wide open. He was nearly hit down. However, he jumped out of the why and started, to run. He heard two explosions behind him. He felt a burning in his right shoulder and he fell to the ground. Soldiers and police began to beat and to kick him about, demanding “where the gun that you have, boy.” The soldiers and police carried him up Elgin Road to the club “Three Sisters” where a soldier enquired of the mangeress if she had seen the appellant there with a gun. She said “no”. He next saw a soldier come into the premises of the club saying that he had found a gun. Finally he was carried off to a Command Post in Trench Town where he was again beaten and a soldier stuck him near his eye with a rifle. The appellant all along vehemently denied possession of a firearm or of ammunition on that night or that he discharged a firearm at anyone.

5 The medical evidence was illuminating. As to gunshot wounds Dr. Dundas said that the appellant had a badly comminuted fracture of the upper third o f the right humerus and a comminuted fracture of the outer third of the right clavicle. The entry wound was that in the arm, the exit wound, that in the clavicle, and from all appearances the appellant was shot from the side. In addition to these gunshot wounds the appellant had not only multiple abrasions to his jaws and face, but also a clinical fracture beneath his left eye. When Dr. Dundas saw the appellant his left eye was haemorrhaging and to a question from Mr. Fairclough he replied:–

“I have the conjunctional picture of a man being shot and falling with that, the severity of the injury to the shoulder from pain alone it is more than likely he would have let go what he had in his hand, although all the powers of holding per se within the forearm were not seriously affected, then it is quite unlikely that a man would have had something in his hand and be able to hold on with it after falling with that degree of discomfort that he had experienced.”

6 On this same subject the following exchanges in cross-examination took place between crown counsel and the Doctor:–

Mr. Soares: ‘Doctor, you said that the patient had apparently been shot from the side. It is not possible that he would have been shot, most unlikely, the injury occurred during the course of running because that part of his shoulder would not be behind.

A: I Didn't say could not, I said it is unlikely that he had been shot from behind in the course of running.

Q: Could the injury occur while running if he turned?

Mr. Small: As far as I know there is no evidence in this case in relation to that.

His Lordship: Just a moment. This is what the constable said.

Mr. Small: M'Lord, is this evidence-in-chief?

His Lordship: No, cross-examination. This was in the afternoon session. I am just going to read a long passage. “Immediately before I saw accused pull something from his waist” - his hand would then have been in motion - “he pushed his hand into his waist, pulled something and fired; he ran as far as the intersection of Elgin Road. The soldier fired about two minutes after the man had fired.” The mind is not running between these two times when the accused is alleged to have fired and when the soldier was alleged to have fired and when the soldier was alleged to have fired - he turned around and fired and he said ‘immediately after that he was running’ between the period of time - ‘……. away from the soldier, I cannot recall the distance.’ So apparently there is no evidence there that when he got shot he was actually turning.

Mr. Soares: As Your Lordship pleases. (To witness) Doctor, you said it is unlikely that one could hold on to an object with the degree of discomfort that would have been suffered, would be felt, after he had been shot if he had fallen, it is not unlikely but it is not impossible?

A. Definitely not.”

7 The only witness who gave evidence for the crown, apart from the ballistic expert, was Constable Wilson. Private Barrington Clarke whom count 3 alleged had been shot at could not be located, and was not called. In the circumstances Constable Wilson became the central figure around whose credibility the case for the crown revolved. That case was pregnant with discrepancies and inconsistencies which needed to be explained and clarified before a conclusion unfavourable to the appellant could beyond reasonable doubt be arrived at. There were the injuries other than the gunshot wounds which the appellant had undoubtedly received. The police testimony accounted only for the gunshot wounds. Did the appellant receive the others in the circumstances he had described, namely in the course of being coerced by the police to tell them where the firearm was which he denied that he had. Was it at that time that the appellant had received the injury to his left eye at the instance of the soldier? Next the prosecution's case was that the firearm was found still clutched in the hand of the appellant filled by the bullets of Private Barrington Clarke. The Doctor's evidence was that though this was possible it was most unlikely. Then there was the matter of the sealed envelope containing the exhibits which noted the charges of illegal possession of the firearm and of the ammunition but omitted the charge of shooting at Private Barrington Clarke. Finally there was the matter of the point (intersection of Elgin and Lyndhurst Roads) at which the appellant, struck by bullets discharged by Private Clarke, had fallen, the only matter indeed on which both prosecution and defence had agreed. Whilst this location fitted with the story told by the appellant, it was wholly impossible on the account of the prosecution, as we shall soon see.

8 In his summation of the case the learned trial judge had this to say:–

“I have taken into account the submissions made by Mr. Small in pointing out what he says are discrepancies in the witness' evidence that is the witness Police Constable Wilson and also the court takes into account the inability of the constable to recall distances and I note his estimate of time, from time to time during his evidence, and I have to decide whether these are so vital that they can be said to undermine the crown's case and make it impossible for me to say that I am...