R v Boothe et Al

• Jurisdiction: Jamaica
• Court: Court of Appeal (Jamaica)
• Judge: Rowe, P.
• Judgment Date: 09 March 1987
• Neutral Citation: JM 1987 CA 19
• Docket Number: Resident Magistrate's Criminal Appeal No. 6 of 1987
• Date: 09 March 1987

Court of Appeal

Rowe, P.; Carey, J.A.; White, J.A.

Resident Magistrate's Criminal Appeal No. 6 of 1987

R

and

Boothe et al

Appearances

Delroy Chuck for the appellants.

Kent Pantry and Marlene Harrison for the Crown.

Criminal law - Appeal against conviction — Shop breaking with intent — Ground of appeal in respect of appellant T — No evidence of shop breaking — Counsel concedes evidence establishes attempted shop breaking — In respect of appellant B grounds of appeal: Statements recorded without caution; conviction unsafe; miscarriage of justice. Evidence permitted inferences of fact that showed guilt on attempted shop breaking with intent — Verdict of guilty of attempt substituted — Appeal against sentences allowed — Sentences 18 months, with hard labour.

Rowe, P.

1 Lane Supermarket is situated at 26 Constant Spring Road in Saint Andrew. It is a large supermarket and it employs security guards to guard the premises at night. On the 13th December, 1985, at 1:20 a.m. the security guard on duty at the supermarket was a Mr. Christie and he observed during one of his rounds that there were four men on the roof of the supermarket and they were seen by him to be cutting the zinc of the roof. He called, he said, to these men and the reply he received from the roof was the shout, “Shoot de boy”. He thereupon did not wait to be shot, but he fired some shots towards the men who were on the roof and they scampered away. He made a report to the police and when the police came they made observations, and they saw spots of fresh blood in an area which suggested that someone on the roof had been shot. Mr. Christie, the security guard, observed that the men in fleeing had left a sheet of zinc cut, as also cutting tools, an ordinary saw, a hammer and a hooker, something which I imagine was to be used to pull nails and things of that sort. Those tools were available at trial.

2 On realising that it was possible that somebody had been shot, the police began to make investigations. In the meantime, however, a report was received from the Medical Associates Hospital and a police officer went to that hospital and there he saw the appellant Thomas. He identified himself to the appellant Thomas and enquired of Thomas how it is that he had been wounded because Thomas was seen to be suffering from a gunshot wound in the left side of his abdomen. Thomas reply to the police officer was, “A de one Stephen mek me get shot, and him left me and gone.” The police officer after making further enquiries took the appellant Thomas to the home of the appellant Stephen Boothe on Derrymore Road and according to the evidence given at trial when the police went to the home of Stephen Boothe they knocked and the door was opened by the appellant Boothe. Thomas said, pointing to Boothe, “See him there officer,” and the appellant Boothe is said to have replied, “whey me do?” to which the appellant Thomas replied, “Is yu mek me get shot and yu gone back a yu bed?” The evidence is that to this accusation Boothe remained silent. The police officer arrested Boothe and charged him with shop breaking with intent. He cautioned Boothe and Boothe is alleged to have said, referring to the appellant Thomas, “Me tell yu sey to tell them sey that yu get shot at Westminster Road.” Thomas repeated his accusation, “A yu mek me get shot.”

3 The evidence for the prosecution further was that when the manager of the Lane Supermarket visited the supermarket on the following day he found that a sheet of zinc was lifted from the roof, and below that lifted sheet the board which covered the ceiling was lifted but the board underneath was intact.

4 The learned resident magistrate heard the defence. That of the appellant Thomas was that he was on his way home on the night in question, that he was held up while walking along Westminster Road by a young man with a gun, that the man demanded money of him, that...