Randy Blake v R

• Jurisdiction: Jamaica
• Judge: Brown JA
• Judgment Date: 05 July 2023
• Neutral Citation: JM 2023 CA 85
• Docket Number: SUPREME COURT CRIMINAL APPEAL NO 43/2017
• Court: Court of Appeal (Jamaica)

Randy Blake

and

R

[2023] JMCA Crim 29

Before:

THE HON Mr Justice F Williams JA

THE HON Mr Justice D Fraser JA

THE HON Mr Justice Brown

SUPREME COURT CRIMINAL APPEAL NO 43/2017

IN THE COURT OF APPEAL

Criminal Law — Identification — Credibility — Sentence — Illegal Possession of Firearm — Illegal Possession of Ammunition — Shooting with Intent

Obika Gordon for the applicant

Miss Paula Llewellyn KC, Director of Public Prosecutions and Ms Carolyn Wright for the Crown

ORAL JUDGMENT

Brown JA

1 The applicant was convicted on an indictment charging him with illegal possession of firearm, illegal possession of ammunition and shooting with intent, before Thompson-James J (‘the learned judge’), in the High Court Division of the Gun Court on 10 March 2017. On 13 April 2017, he was sentenced to concurrent terms of imprisonment of seven, two and 19 years respectively.

2 A single judge of this court considered, and refused, his application for leave to appeal against his conviction and sentence. This is, therefore, the renewed application for permission to appeal against conviction and sentence.

3 The applicant listed what amounts to five grounds of appeal in his application for leave to appeal (see Criminal Form B1). Those grounds are reproduced immediately below:

“1. Misidentity by the Witness: that the prosecution witness wronglfully identified me as the person or among any persons who committed the alleged crime.

2. Lack of Evidence: That the prosecution failed to present to the court any ‘Concrete’ piece of evidence (Material, Forensic or Scientific) to justified [sic] and substantiate the alleged charges preferred against me by the Police, which eventually led you[sic] my conviction.

3. Conflicting Testimonies: That the prosecution witness presented to the court conflicting and contrasting testimonies which amount to purjury[sic], thus call in to question the soundness of the verdict.

4. Unfair Trial: that the evidence and testimonies upon which the learned trial judge relied on for the purpose to [sic] convict me lack facts and creditability thus [rendering] the verdict unsafe in the circumstances.

B. that the court failed to recognize the fact that I was wrongfully arrested, accused and charged for no justifiable reason, I was just an innocent by stander [sic] going about my business when I was arrested.

5. Miscarriage of Justice: that the prosecution failed to recognised [sic] the fact that I had nothing [to] do with the alleged crime for which I was wrongfully convicted for [sic].”

Before summarizing the submissions, it is pertinent to provide a background to the events which led to the applicant's conviction.

Background

4 On 21 March 2014, at about 8:35 pm, the police were on mobile patrol along Beeston Street in the parish of Kingston, in a marked double cab Hilux pick-up. The applicant and another man were observed walking towards the service vehicle, each with a firearm in his hand. Both the applicant and the other man fired upon the police. The police returned the gunfire and both men ran, at a point going in different directions. The applicant was chased and eventually held, while the other man escaped.

Submissions for the applicant

5 Mr Gordon, in his skeleton submissions, frankly conceded that, having carefully examined the transcript of the evidence and the summation, there is no basis upon which to pursue this application, either in respect of the conviction or the sentence. In learned counsel's opinion, the learned judge comprehensively reviewed the evidence, correctly isolated the relevant issues as identification and credibility and applied the applicable law. In his oral arguments, Mr Gordon informed the court that he has the applicant's written authorization to proceed in the manner conveyed by his submissions. Mr Gordon disclosed further, although this information was not contained in an affidavit, that the applicant confirmed to him his admissions in the social enquiry report that he was in possession of the illegal firearm and fired at the police.

Submissions for the Crown

6 Ms Llewellyn KC for the Crown did not demur. King's Counsel agreed that the central issue was identification and submitted that the learned judge closely considered the circumstances in which the identification of the applicant was made. King's Counsel also highlighted that the learned judge directed herself on the weight to be given to the applicant's unsworn statement, the grounding of the court's jurisdiction, the legal issue of possession and the chain of custody.

Discussion

7 We have carefully considered the above submissions against the backdrop of our own perusal of the transcript of evidence and the learned judge's summation. Having done so, we find Mr Gordon's concession well-made and, accordingly, cannot fault the learned King's Counsel for agreeing with it. The issues which called for the learned judge's resolution were: (a) primarily, the correctness of the identification of the applicant; and (b) secondarily, the credibility of the witnesses for the prosecution.

8 In respect of the overarching issue of identification, it has long been established that where the case for the prosecution depends wholly or substantially upon the correctness of visual identification, which the defence alleges to be mistaken, the judge should warn the jury of the special need for caution before convicting in reliance upon that evidence: R v Turnbull [1977] QB 224. Both sides have agreed that the learned judge warned herself after the fashion of the guidelines in R v Turnbull, and scrupulously examined the circumstances under which the identification of the applicant was made. There is clearly no merit in the ground that the applicant was misidentified by the witnesses.

9 We now turn to consider the collateral or secondary issue. The learned judge highlighted and considered the inconsistencies in the evidence of the case for the prosecution. Sitting alone, it was her province to consider and determine the credibility of the witnesses. We can find no fault in her resolution of the inconsistencies. That there...