Ronique Raymond v R

• Jurisdiction: Jamaica
• Judge: McIntosh JA
• Judgment Date: 02 March 2012
• Neutral Citation: JM 2012 CA 21
• Court: Court of Appeal (Jamaica)
• Docket Number: SUPREME COURT CRIMINAL APPEAL NO 20/2010
• Date: 02 March 2012

[2012] JMCA Crim 6

JAMAICA

IN THE COURT OF APPEAL

Before:

The Hon Mrs Justice Harris Ja

The Hon Miss Justice Phillips Ja

The Hon Mrs Justice Mcintosh Ja

SUPREME COURT CRIMINAL APPEAL NO 20/2010

Ronique Raymond

and

R

Patrick Bailey , Alando Terrelonge and Miss Kristina Exell instructed by Bailey Terrelonge Allen for the applicant

Miss Annette Austin for the Crown

CRIMINAL LAW - Illegal possession of firearm - Assault at common law - Assault with intent to rape - Whether voice identification of evidentiary value - Defence of alibi

McIntosh JA

1 Ronique Raymond (hereafter ‘the applicant’) was convicted in the High Court Division of the Gun Court on 1 February 2010 for the offences of illegal possession of firearm, assault at common law, robbery with aggravation and assault with intent to rape. He was sentenced that same day to serve two years imprisonment for each of the assaults and 10 and 15 years, respectively, for the offences of illegal possession of firearm and robbery with aggravation. Aggrieved by his convictions and sentences he sought the leave of this court to appeal and, when leave was refused on 4 May 2011 by the single judge who first reviewed his application, he exercised his right to renew it before a panel of three judges. So it was that the renewed application came before us on 11 and 12 October 2011 and, after hearing the arguments, we reserved our decision delivering same on 2 December 2011, wherein we treated the application as the appeal, allowed the appeal, set aside the convictions and entered a verdict and judgment of acquittal. These are the promised reasons for our decision.

The Trial

2 The facts, in brief, are that on 20 June 2009, at about 1:00 pm, the complainant, a student from the parish of Saint Ann, was in Kitson Town in the parish of Saint Catherine, where she had travelled to meet a lady whom she had met via the internet. She was in the company of a friend, S.C. and, following instructions she had received from the lady, she met up with a young man -‘the escort’—who was to accompany them to the lady's location. As they made their way along a short cut a gunman pounced upon them, holding the complainant at the top of her shirt and while holding the gun at the back of her head, forced them further along the short cut. When they reached to a clearing he stopped them and then robbed the complainant of her Nokia 2600 Classic cell phone, a stainless steel ring with two steel grooves in it, a red digital camera with a black camera case and a white battery charger, all of which she had in a black Jansport bag and cash in excess of $4,000.00. He also searched S.C. and took from her a brown wrist watch, two cell phones and a red thumb drive. The escort was also searched but she did not see if anything was taken from him. The complainant said they were all kneeling on the ground with their hands held behind their heads during the robbery.

3 The gunman next called the complainant to stand in front of him, then to kneel and perform oral sex on him and she did as she was told because he was pointing the gun at her. During the entire ordeal which lasted ‘about an hour or two’ she and S.C. (who had undressed as the gunman had instructed) were ordered to perform several acts of a sexual nature, with the gunman, with each other and with their escort. Eventually, the gunman brought the activities to a halt and told them to return to the path from which they had deviated. S.C. dressed and they walked in single file as he had instructed and, when they reached to the main road, they discovered that the gunman was no longer behind them and had disappeared. Their escort took them to his mother's house where S.C. had a shower and the complainant washed/rinsed out her mouth. Then, with the assistance of funds from their escort they took a taxi and made their way back to the parish from whence they had come.

4 The complainant subsequently made a report to the police and investigations led to the applicant being placed on an identification parade where she was the witness. She identified him as the man who had assaulted her on 20 June 2009 and he was arrested and charged with the offences for which he was later convicted.

5 The complainant's testimony was that the applicant wore a handkerchief across his nose during the entire assault which allowed her a view of his eyes only. She also testified that after viewing the men on the parade she had focused her attention on two of them but she had asked that all of them be instructed to hold out their hands and her evidence was that the suspect was asked three times to hold out his hands. This appeared to have been of significance to her as she noted that he was the only one who was requested to do so three times because of his failure to hold out his hands in the way that the others did. Then, after the third effort, she pointed him out as her assailant. She had also asked for the men to speak certain words and she purported to recognize his voice after the utterance though she did not know him before and was hearing him speak for the first time that day.

6 At the time the applicant attracted the attention of the police in their investigation into this matter, he had in his possession a Nokia cell phone which the complainant subsequently identified as her property. Certain other items were found at his home including a ring which the complainant also identified as belonging to her and the learned trial judge accepted that these were indeed among the items which were stolen at the time of the commission of the offences.

7 The prosecution also adduced evidence from the complainant's mother to whom she had related her not soon to be forgotten ordeal; two officers who dealt with her report at the Centre for Investigation of Sexual Offences and Child Abuse (CISOCA), namely Sergeant Lowe-Cox and Constable Kimeisha Smith, the latter visiting the locus in quo with the complainant and subsequently showing her the recovered items; Sergeant Clive Mullings who conducted the identification parade; and Corporal Careen Sutton who arrested and charged the applicant. Nothing turned on the evidence of these witnesses save that the defence sought to highlight the absence from Sergeant Mullings' evidence of any reference to the suspect holding out his hands three times as the complainant testified.

8 The applicant gave sworn evidence in which he denied involvement in the commission of the offences and explained that the cell phone was given to him to sell by a friend whom he called Kevin but whose real name was Everton Stewart. It was given to him in a bag and although he had looked in the bag he was not really able to say what it contained. In cross examination, however, he did admit to signing an inventory of the items as having been removed from his house. He said he had told the police about Kevin, when first accosted in this matter and had taken them to Kevin's house in Kitson Town but Kevin was not found. He said that Kevin was a person who was reporting at the Guanaboa Vale Police Station and that a warrant was then out for his arrest. When asked why he took a bag from such a person, he responded, ‘Well, Your Honour, that is the only thing, that is the only mistake that I do why I am involved in this matter.’

9 The applicant further testified that he was not in the area in question on Saturday 20 June 2009. He went to Kitson Town on the Sunday, which was Father's Day and attended church there. His mother lives in Kitson Town and he would go there whenever she needs him. He would go twice per week, on Wednesdays and Sundays. Crown Counsel then asked, ‘So you said that you were not in Kitson Town on the Saturday’ and he responded, ‘I don't quite remember where I was’. Then he was asked, ‘But you remember that you were not in Kitson Town’ to which he responded in the affirmative.

10 The learned trial judge found that the quality of the complainant's evidence of the identity of her assailant was satisfactory and placed reliance on her evidence of voice recognition, clearly concluding that this, when added to the other evidence adduced by the prosecution, including the finding of the complainant's property in his possession some nine days after the robbery, enabled her to return a verdict adverse to the applicant.

The Appeal

11 Mr Terrelonge sought and was granted leave to abandon the original grounds of appeal filed with the application and to argue instead 10 supplemental grounds which were formulated as follows:

• ‘(1) The Learned Trial Judge erred and misdirected herself, in that she failed to appreciate and failed to warn herself that the testimony of the purported voice identification of the Appellant [sic], by the Complainant, was of no evidentiary value, in that, in eliminating the nine (9) men on the Identification Parade down to two (2), that was, in and of itself, a manifestation of the Complainant's uncertainty as to the identity of the lone gunman whose voice she claimed to have heard at the time of the incident, the subject of the charges below.

• (2) The Learned Trial Judge erred and misdirected herself as to the testimony of [sic] Complainant in relation to the purported identification of the hands of the Appellant [sic], as, the Complainant purported to identify the hand(s) of the Appellant, purely on the basis of the unique circumstance that, according to her, unlike the other men on the Identification Parade, the Appellant was the only person required to hold up his hands three (3) times.

• (3) The Learned Trial judge misdirected herself in failing to caution herself on the manifest contradiction of the Complainant's testimony with that of Sargeant [sic] Mullings (who conducted the Identification Parde [sic]) on the vital issue of the holding out of the hands by the men on the said parade.

• (4) The Learned Trial Judge erred in failing...