Richard Anderson v R

• Jurisdiction: Jamaica
• Judge: Brooks JA
• Judgment Date: 16 March 2012
• Neutral Citation: [2012] JMCA Crim 7
• Date: 16 March 2012
• Court: Court of Appeal (Jamaica)
• Docket Number: SUPREME COURT CRIMINAL APPEAL NO 25/2009

[2012] JMCA Crim 7

JAMAICA

IN THE COURT OF APPEAL

Before:

The Hon Mr Justice Dukharan JA

The Hon Mrs Justice Mcintosh JA

The Hon Mr Justice Brooks JA

SUPREME COURT CRIMINAL APPEAL NO 25/2009

Richard Anderson

and

R

CRIMINAL LAW - Illegal possession of firearm - Robbery with aggravation - Rape - Abduction - Leave to appeal - Identification evidence - Whether the sentence was excessive

Brooks JA

1 On 22 December 2008, the applicant, Mr Richard Anderson, was convicted in the High Court Division of the Gun Court for the offences of illegal possession of firearm, robbery with aggravation, abduction and rape. On 6 February 2009, he was sentenced, in respect of these convictions, to 10, 5, 10 and 15 years imprisonment, respectively. The learned trial judge ordered that the first two sentences should run concurrently, as should the last two. He ordered, however, that the last two sentences should run consecutively to the first two. The result was that the applicant would serve a total of 25 years. The learned trial judge described the circumstances of the commission ofthese offences as ‘absolutely outrageous’. On hearing the prosecution's case in this matter, few would disagree with that assessment of the crimes.

2 The applicant applied for leave to appeal against the convictions and sentences but was refused leave by a single judge of this court. He has renewed his application before us. Mr Senior-Smith, on his behalf and with our permission, abandoned the original grounds of appeal. He argued instead, four supplemental grounds.

3 Learned counsel, with commendable sensitivity, provided a concise summary of the prosecution's case. It is repeated here, with only the omission of the victim's name:

‘The prosecution's witness [Ms J] detailed a course of almost unspeakable sexual assault visited upon her by three (3) assailants on the 20 ^th day of July, 2006. [Ms J] was by all measures safely ensconced in the comfort of her sister's home in the Seville Heights area of Saint Ann about 11 p.m. on July 20 ^th , 2006. The attackers invaded the house using the witness' sister's boyfriend as a decoy and route to entry after they forced him at gunpoint to call requesting the opening of the door.

In an ordeal that lasted to the break of dawn, [Ms J] suffered forced sexual acts as well as further physical violence and intimidation, at her sister's house as well as in an isolated area in the bushes off the main road in the Seville Heights community, where the marauders had taken her.

For several hours she was subjected to sheer physical and mental terror as the three (3) gun-wielding miscreants exacted their whims and fancies….’

4 One of the gunmen had a distinctive characteristic. He suffered from a severe stutter. Despite that defect, he was the most assertive of the three, was the one whoapparently spoke the most and the one who gave directions. At an identification parade, held on 16 August 2006, Ms J identified the applicant as one of the gunmen. At the trial, she identified him as the one who had the stutter. When called upon to answer the prima facie case, the applicant exercised his right to remain silent.

5 Without conceding that the applicant stutters, one of the major thrusts of Mr Senior-Smith's submissions to this court was that there was insufficient lighting for Ms J to identify her attackers. He argued, against that background, that it was only after listening to the men speaking in the line-up, at the identification parade, that she pointed out the applicant. Learned counsel submitted, therefore, that the ‘claimed identification was thus not a product of a recall of facial features’.

6 Learned counsel also criticised aspects of the learned trial judge's summation. The grounds of appeal are set out in full below:

‘1. The evidence of Identification was inadequate in terms of the Turnbull Guidelines, and as a result the Applicant lost the protection of the law which occasioned unsustainable convictions.

2. The lighting reportedly provided by a cellular phone and an almost full moon, was deficient in terms of identifying an assailant who was unknown to the witness before.

3. The learned Court respectfully fell irretrievably into error when he opined in the summation (P 219) that the Applicant/Accused having elected to remain silent, the Court then, could “see no reason when having examined the logic and structure of the Police Officer's evidence to doubt his word that he conducted the parade in the manner that he has identified”.

4. The sentences imposed were manifestly excessive.’

Grounds one and two may be conveniently dealt with together, as they both address the issue of the adequacy of the opportunity for viewing the assailants. Grounds three and four will, thereafter, be dealt with in turn.

Ground One: The quality of the identification evidence.

Ground Two: The adequacy of the lighting.

7 The circumstances of Ms J's opportunity to view these gunmen may conveniently be assessed in accordance with the guidelines set out inR v Turnbull (1976) 63 Cr App R 132 (1976) 63 Cr App R 132; [1976] 3 All ER 549. Firstly, she did not know them before. Secondly, while they were in the house, they wore masks. It appears also that only the light of a television assisted the vision during that time. Thirdly, as mentioned before, Ms J was able to see these men, their general physical appearance, from just after 11 pm to just about daybreak the following day. She was able to see them at close quarters for the entire time.

8 Fourthly, she testified that they had removed their masks by the time that they had taken her to the isolated area, which has been mentioned above. There was then nothing covering the faces of any of the men. At that location, she was ‘face to face’ with the gunman with the stutter for about three to four hours (page 54 of the transcript). There was nothing preventing her from seeing him (page 60). When he first approached her for sex, upon reaching that location she was face to face with him for five minutes (page 58). She was then looking at him (page 112). This was behind the vehicle in which she had been transported from the house. She also saw his entirebody as they sat talking side by side inside that vehicle. At that time, she was able to see his face, although not ‘a direct stare’, for about 10 minutes (page 62). She was able to see his face when it was illuminated, while he used a cellular telephone for about two to three minutes (page 53). She said that she also saw his face while she used the light from a cellular telephone to search for some money in the vehicle (page 51).

9 Fifthly, this was, to say the least, a terrifying time for Ms J. She was crying for some of the time (page 100). Tears were running at some point and at other times she was sobbing. At one stage, she was vomiting in revulsion, at what she was being forced to do.

10 Finally, the matter of the lighting must be specially assessed. Firstly, her testimony was that the roof light and dashboard lights of the vehicle assisted her to see the faces of the men. She said the vehicle, which had belonged to her sister's boyfriend, was giving the men trouble to operate. From time to time, they would turn on the roof light ‘to sort of operate the vehicle and switch it back off’ (page 87). Secondly, while outside of the vehicle, she was able to see the men by the moonlight. She said, ‘with regards to the moon it was pretty bright, almost a full moon’ (page 53). She testified that it was ‘not dark that I could [sic] accustomed to it, it was night outside with moonlight’ (page 99). With regard to the cellular phone, she said the light on the phone came on when the keys were dialled. ‘It was in front of his face and the lighting of the phone reflected on his face’ (page 53). ‘The phone that [she] had hadlight [sic] enough so that when you press the keys and hold down on it the light bright up so you can search for anything basically’ (page 53). By the time the men decided to leave her, she said, ‘[i]t was now close to morning…[I know] [b]ecause of the light that was shining through, like break of day’ (page 35).

11 Despite what appears to be adequate opportunity to see this gunman, Mr Senior-Smith argued that Ms J's assertion of identification in her testimony ‘was replete with incertitude’. He pointed to a number of points in the transcript in connection with her identification of the applicant at the identification parade:

‘I I.D. as best as possible, I thought , the person fitting the description involved in the rape on the 20 ^th of July’ [pages 48–49].

‘I went into the room and I carefully looked at all nine persons that were on the first parade. I looked as to the description of the person I thought I saw on the 20 ^th and carefully identified him, Mr. Anderson’ [page 49]

‘I identified him as one of the men who abducted me, the stammer man at the crime scene’ [page 49]. (Counsel's emphasis)

Mr Senior-Smith submitted that those passages ‘underline the infirmities in the evidence of identification’. He argued that the learned trial judge did not demonstrate fidelity to the Turnbull principles in his handling of this evidence. In addition, Mr Senior-Smith submitted that the lighting described by the witness was ‘deficient in terms of identifying an assailant who was unknown to the witness before’.

12 Mr Senior-Smith also submitted that Ms J's behaviour, at the identification parade, should have alerted the learned trial judge that she was not relying on a visualrecognition of the gunman. Learned counsel submitted that the ‘claimed identification was thus not a product of a recall of facial features’. He stressed the following portion of the transcript as demonstrating the force of his submission:

‘…I...