R v Duncan (Prince) and Herman Ellis

• Jurisdiction: Jamaica
• Judge: SMITH, J.A:
• Judgment Date: 01 February 2008
• Neutral Citation: JM 2008 CA 8
• Judgment citation (vLex): [2008] 2 JJC 0101
• Court: Court of Appeal (Jamaica)
• Date: 01 February 2008

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR. JUSTICE SMITH, J.A THE HON. MRS. JUSTICE HARRIS, J.A THE HON. MISS JUSTICE G. SMITH, J.A. (Ag.)

REGINA

V

PRINCE DUNCAN

and

HERMAN ELLIS

Oswest Senior-Smith for the Appellants

Lisa Palmer, Senior Deputy Director of Public Prosecutions (Ag.) and Natalie Ebanks, Crown Counsel (Ag) for the Crown

ILLEGAL POSSESSION OF FIREARM - Burglary - Larceny - Rape - Leave to appeal

SMITH, J.A:

1 On the 11 ^th of July, 2003, after a trial in the High Court Division of the Gun Court which lasted some twelve (12) days over the period 6 ^th of February, 2003 to 11 ^th of July, 2003 the appellants, Prince Duncan and Herman Ellis (now deceased), were convicted on an indictment containing four (4) counts - illegal possession of firearm (count 1), burglary and larceny (count 2), rape (count 3) and illegal possession of firearm (count 4). Duncan was convicted of all the offences charged. Ellis was found guilty on counts 1, 2 and 3. A third person, Gawayne Gray, who was jointly charged, was acquitted.

2 Duncan and Ellis were sentenced to ten (10), fifteen (15) and fifteen (15) years on counts 1, 2 and 3 respectively and Duncan to a further (ten) 10 years imprisonment on count 4. They were granted leave to appeal their conviction on count 3 (rape) only. On the 23 ^rd of November, 2007 we dismissed their appeals. We now put our reasons for so doing in writing.

3 Eight (8) witnesses testified for the prosecution. The alleged victim was Mrs. Kamala Dickson, a senior medical practitioner. Dr. Dickson's evidence was that in May 2002, she and her husband, who was ill, occupied a three (3) storey building in Jacks Hill, St. Andrew. They had lived in this house for over twenty-six (26) years. On the night of the 7 ^th of May, 2002 they were at home. With them were a practical nurse and their housekeeper.

4 There were five (5) bedrooms and two (2) bathrooms upstairs. Dr. Dickson had gone upstairs and locked the door at the top of the stairs. Her husband had been put to bed. The nurse and the housekeeper had gone to their rooms. Dr. Dickson went to her bedroom minutes after midnight. She switched on the bedside light and noticed that the louvre window was open. She had earlier secured all the windows and doors. She picked up her nightgown and went to the bathroom. While returning to her bedroom she noticed that the main light had been switched on. On entering her bedroom she saw a suitcase on the bed. It was not there when she left for the bathroom. She then saw two (2) men in the room. "What are you doing here?" she asked. "Where is the money?" they retorted. She told them that the money was in her bag. A third man came from behind the door and grabbed her from behind.

5 He put a pistol in her face and threatened: "Tell me where the money is or I kill you". He repeated this threat. One of them placed a pillow case over her head. They kept asking for 'the money'. In response to their demand she told them where the key for the door at the stairs was kept.

6 The men took her downstairs. They forced her to kneel on the floor with her arms folded in front of her and her head resting on her hands. One of them pulled up her nightdress and had sexual intercourse with her. This sexual assault was repeated. She could not say whether this was done by the same person or another. They then tied her hands and put her to sit on the floor. While she was sitting on the floor, they tied her legs together and pulled her nightdress over her head. It is not necessary to further describe the humiliating treatment to which her assailants subjected her. She heard them moving around, pulling out drawers, shuffling papers and removing things.

7 After they left, Miss Pearson, the practical nurse, came to Dr. Dickson's assistance and untied her. Dr. Dickson went upstairs and observed that the louvre blades were removed from a window in her bedroom. The house, she said was "in shambles". Her bags had been emptied, jewellery and other items were removed from the bedroom drawers, cupboard and wardrobe. The intruders took her television, radio, component set, record player, camera, video cassette recorder, money and other household items. They cut the telephone wires. Dr. Dickson drove to her neighbour's home and from there she telephoned her son, Kwesi Dickson, the police and her gynaecologist. Shortly after she returned home, the police came. Her son had arrived before the police. Dr. Lloyd Goldson, the Gynaecologist, visited her and medically examined her.

8 On the 15 ^th of May, 2002, at about 10:15 a.m., she went to the Papine Police Station and identified, among other things, a bracelet with turquoise at the end, a gold chain with stripe semi-precious stone which she designed, a chain with jade pendant, a pair of gold bangles made in Guyana, a jade and gold bracelet, a Garth Sanguinetti ring with floral design, a silver ring with butterfly, a ring with silver coloured stone (given to her by her father), a silver ring with turquoise, CDs of Mario Lanza, Teacher, Portuguese and classical CDs. These items were identified in the presence of the appellants as things taken from her house on the night of the 7 ^th of May, 2002.

9 Mr. Kwesi Dickson testified that he received a telephone call from his mother at about 4:00 a.m. on the 8 ^th May, 2002, and arrived at her house shortly thereafter. He noticed that some of the louvre blades had been removed from a window in his mother's bedroom. He saw those blades on the ground outside the house. He saw the police take the blades. He was present when the police dusted the blades for finger-prints. He also pointed out a cookie tin to the police and saw the police dust it for finger-prints.

10 Detective Sergeant Wayne Mckenzie testified that on the 9 ^th of May, 2002, at about 4:00 a.m. he, armed with a search warrant, went with other police officers to a house on Scott Level Road in the Jacks Hill area. There, he saw the appellant Duncan sitting on a bed inside a one bedroom house. The police party searched the room but found nothing. They questioned Duncan who took them to an unfinished house behind the bedroom. There, he pointed to a spot on the ground where he said something was buried. By digging, the police extracted from the ground a blue tarpaulin with the ends tied together. The police untied the ends and saw jewellery, a component set, a VCR, a number of CDs, some tools and a black plastic bag. Inside the bag were a firearm and other items. Sergeant McKenzie told Duncan that the household items in the tarpaulin fit the description of those stolen from the Dickson's house down the road. He cautioned Duncan, who said that he "did not do anything, he only helped his Uncle Tony carry them up there and bury them."

11 Detective Sergeant McKenzie enquired of the whereabouts of 'Tony' and was told that District Constable Bogle knew where he lived. The appellant Duncan and the items found at the location were taken to the Papine Police Station. Detective Sergeant McKenzie contacted District Constable Bogle who, at about 6:30 a.m., took a party of policemen to Dallas Castle. Detective McKenzie and the party of police personnel were taken to a house. They surrounded the house. One of them knocked on the door. Someone inside asked, "Who is that?". "Police" was the reply.

12 Detective Sergeant McKenzie looked through a window and saw a man hurriedly taking off chains from around his neck, rings off his fingers and a watch off his left wrist. The man placed these things under a mattress. District Constable Bogle and the police went inside. The man, who was seen through the window, was identified by District Constable Bogle as 'Tony' a.k.a 'Pope' and was later identified as the appellant Ellis. Detective McKenzie raised the mattress and removed the jewellery which Ellis had hidden there. He told Ellis that he suspected that the items of jewellery were stolen from the Dickson's house in Jacks Hill. Ellis replied "Officer, from mi come from prison, a mason work mi a do. A Prince and Drench give mi dem". Ellis and the items recovered were taken to the Papine Police Station and along with Duncan, were handed over to Detective Corporal Anderson.

13 Detective Corporal Michael Anderson testified...