R v Spencer (Ashan)
| Jurisdiction | Jamaica |
| Judge | MORRISON, J.A. |
| Judgment Date | 10 July 2009 |
| Neutral Citation | JM 2009 CA 63 |
| Judgment citation (vLex) | [2009] 7 JJC 1004 |
| Court | Court of Appeal (Jamaica) |
| Date | 10 July 2009 |
JAMAICA
IN THE COURT OF APPEAL
CRIMINAL LAW - Illegal possession of firearm - Robbery with aggravation - Sentencing
Introduction
The applicant and Mr Tysuir Lloyd were convicted on 19 January 2007, after a trial before Norma McIntosh J in the High Court Division of the Gun Court, of the offences of illegal possession of firearm and two counts of robbery with aggravation. The applicant was sentenced to five years imprisonment at hard labour for illegal possession of firearm and to seven years imprisonment on each of the counts of robbery with aggravation. The sentences on the robbery counts were ordered to run concurrently, but consecutive to the sentence for illegal possession of firearm.
The facts
On 18 January 2006, at approximately 8:00 pm in the evening, Mr Christopher Ballentine was standing at the gate of his home in Meadowbrook Estate in the parish of St Andrew. With him was his friend, Mr Baldwin Walker, who was leaning on his parked car, a Toyota Corolla registration no. 1205 DZ. These two gentlemen, who were within touching distance of each other, were, according to Mr Ballentine, "just there talking". The area was illuminated by two street lights which were nearby. While standing there, they saw two men coming "around the corner" about one gate away from where they were and one of the men came directly to Mr Ballentine and held him up with a gun. The other man also had a gun, which he pointed at Mr Walker. After a brief struggle, Mr Ballentine's cellular telephone was taken from him by one of the men and both men then drove off in Mr Walker's car. Both men wore caps, with which, according to Mr Ballentine, they attempted to cover their faces.
The police were immediately notified and the following day, after a twenty minute car chase in the south-western section of the city, the applicant and another man were apprehended as they alighted from a white Toyota Corolla motor car, registration no. PB 7673, in the vicinity of Nanse Pen on the Spanish Town Road. This car was in due course identified by Mr Walker as the same Toyota Corolla that had been taken from him by the two men at Mr Ballentine's gate on the evening of 18 January 2006.
On 25 January 2006 and on 4 February 2006 Mr Ballentine attended identification parades, at which he identified the applicant and Mr Lloyd respectively as the men who had taken his cellular phone and Mr Walker's car on 18 January 2006. Both men were charged with illegal possession of firearm and robbery with aggravation.
The applicant in his defence challenged the evidence identifying him as one of the robbers and set up an alibi. In an unsworn statement, he stated that on the evening of 18 January 2006 he was at home with his mother between 6:00 p.m. and 10 p.m., having his hair washed, blow dried and oiled. When this operation was finished, he went to his own bedroom with his girlfriend. On the following day, he was asked by a friend to run an errand in the friend's car for Mr Lloyd, who was another friend, and it was while he was so engaged, driving his friend's car accompanied by Mr Lloyd, that he had a "slight accident" with another car on Spanish Town Road which led ultimately to his arrest. The applicant's mother gave evidence in which she supported his alibi that he was with her at the material time, having his hair washed, blow dried, oiled and, she added, twisted.
Both the applicant and Mr Lloyd were convicted and sentenced, as already noted.
This is a renewed application for leave to appeal, a single judge of the court having on 12 May 2008 refused leave. Mr Lloyd, who also applied for leave to appeal, is no longer before this court, his matter having been disposed of separately before the commencement of the hearing of this matter.
On behalf of the applicant, Mrs Samuels-Brown sought and was granted leave to argue five supplemental grounds of appeal, which were as follows:
"1. The Learned Trial Judge ought not to have called upon the Appellant to answer the charges as at the end of the prosecution's case the evidence of identification was so weak and tenuous as to fall short of establishing a prima facie case against the appellant and/or it was dangerous to proceed further with the case.
2. The Learned Trial Judge failed to apply the mandatory warning relative to identification evidence to the facts of the case; in that the Learned Trial Judge failed to have regard to the patent weaknesses in the identification evidence vis a vis the Appellant, being, inter alia:
a) The brief opportunity for observation
b) The position of the assailant (later identified as the Appellant) relative to the witness identifying him.
c) The difficult circumstances under which identification took place.
d) The discrepancy between the evidence of the two prosecution witnesses as to the description of the assailant.
3. The Learned Trial Judge cast doubt on and rejected the alibi defence of the Appellant on bases which were non-evidential and/or speculative. Accordingly the Learned Trial Judge fell into error and the Appellant did not receive a fair trial.
4. The Learned Trial Judge failed to apply the law regarding alibi evidence to the case in that having found that the Appellant's alibi was false the Learned Trial Judge, ipso facto, treated this as strengthening the prosecution's case. As a consequence the Appellant's chances of acquittal were impaired and/or he did not receive a fair trial.
5. In sentencing the appellant the Learned Trial Judge erred in law as a separate sentence ought not to have been imposed for the offence of illegal possession of a firearm; alternatively the sentence ought to have been ordered to run concurrently with the other sentences."
Grounds 1 and 2 both raise issues as to the identification of the applicant and were taken together by Mrs Samuels-Brown, who submitted that Mr Ballentine had had no more than a fleeting glance and no full or frontal view of the robbers, who were in any event wearing caps at the material time. She submitted further that at the end of the prosecution's case the only evidence against the applicant other than the weak identification evidence was the evidence of his having subsequently been found in possession of the stolen car, which could not by itself amount to prima facie evidence of larceny. It was incumbent on the prosecution to "adduce evidence of circumstances of the possession which tend to establish guilt." To do otherwise, Mrs Samuels-Brown contended, "would amount to a reversal of the burden of proof and accordingly a breach of the constitutional protection of [the] presumption of innocence."
But even if there was a case to answer, Mrs Samuels-Brown submitted further, "the weaknesses in the [identification] evidence remained live at the end of the case" and it could not be demonstrated that the judge had applied the warning which she gave herself to the evidence and those weaknesses. In those circumstances, there being no other evidence to establish guilt beyond a reasonable doubt, the applicant was entitled to an acquittal.
Mrs Samuels-Brown also took grounds 3 and 4 together, both having to do with the trial judge's treatment of the applicant's alibi. The submission was that the judge "unfairly cast doubts" on the defence of alibi on bases that were "non-evidential and/or speculative". Further that the judge erred in treating her rejection of the alibi as false as a factor which strengthened the prosecution's case against the applicant.
On ground 5, Mrs Samuels-Brown submitted that the trial judge had erred in ordering that the sentences on counts 2 and 3 should run consecutively to the sentence on count 1, the offences having all arisen from the same set of facts. In these circumstances, she submitted, the sentences ought to have been ordered to run concurrently.
Finally, in her written submissions, Mrs Samuels Brown also made submissions on the grounds of appeal originally filed by the applicant himself, which were as follows:
"(a) Misidentity by the witness — the prosecution witnesses wrongfully identified me as the person or among any persons who committed the alleged crime.
(b) Lack of Evidence — I was exposed to the witnesses prior to the identification parade by the police. The prosecution failed to present any form of material evidence to support the charges of robbery with aggravation.
(c) Miscarriage of Justice — the learned trial judge should not have allowed such unreliable and poor quality evidence as reason for conviction.
(d) Conflicting testimonies — that the prosecution witnesses presented to the court conflicting testimonies which amounts to perjury thus calls into question the soundness of the verdict."
Mrs Samuels-Brown submitted that the judge had overlooked or explained away weaknesses in the prosecution's case, in particular with regard to the evidence of identification and the applicant's complaint that he had been exposed by the police to the witnesses prior to the identification parade.
Miss Smith for the Crown submitted that there had been sufficient evidence to establish a prima facie case against the applicant and that the prosecution was entitled to rely on the doctrine of recent possession in this regard. She directed our attention to a number of passages in the summing up to make the point that the judge "did demonstrate that she applied the law to the facts relative to the identification evidence". The judge had, Miss Smith submitted further, delivered a "reasoned summation" and she was fully entitled to have regard to the evidence of the applicant's recent possession of the stolen...
To continue reading
Request your trial
-
Ronique Raymond v R
...the Prosecution witness said he was.’ 26 However, Miss Austin disagreed with Mr Bailey's submission and referred us to the case of Ashan Spencer v R SCCA No 14/2007, a judgment of this court delivered by Morrison JA on 10 July 2009, as supportive of her submission that the rejection of a fa......
-
Wayne Samuels v R
...established that culpability for the robbery cannot be based solely on a finding of recent possession of the goods that were taken ( Ashan Spencer v R SCCA No 14/2007 (delivered 10 July 2009)). It has also been established that recent possession cannot establish facts central to the offence......