Russell Robinson v R

• Jurisdiction: Jamaica
• Judge: P Williams JA
• Judgment Date: 20 December 2016
• Court: Court of Appeal (Jamaica)
• Docket Number: SUPREME COURT CRIMINAL APPEAL NO 80/2011
• Date: 20 December 2016

[2016] JMCA Crim 34

JAMAICA

IN THE COURT OF APPEAL

Before:

The Hon Mr Justice Brooks JA

The Hon Mrs Justice Mcdonald Bishop JA

The Hon Miss Justice Williams JA (AG)

SUPREME COURT CRIMINAL APPEAL NO 80/2011

Russell Robinson

and

R

Mrs Valerie Neita-Robertson, Dwight Reece, Miss Kimberly Whittaker and Courtney Rowe instructed by Robertson and Company for the applicant

Jeremy Taylor and Gavin Stewart for the Crown

P Williams JA (AG)

1 On 29 November 2010 Mr Russell Robinson, the applicant, was arraigned in the High Court Division of the Gun Court on an indictment containing 19 counts. The first 18 counts charged him with offences of illegal possession of firearm and the 19 ^th with illegal possession of ammunition. After a trial that lasted 13 days over several months, the applicant was convicted on all counts on 20 July 2011. On 26 July 2011, he was sentenced to 15 years imprisonment at hard labour on each of the first 18 counts and to 10 years imprisonment at hard labour on count 19 and the court ordered that these sentences should run concurrently.

2 The applicant applied for permission to appeal against conviction and sentence on 18 October 2011, on the following grounds:

• “(1) Misidentify by the witness:- that the prosecution witness wrongfully identified me as the person or among persons who committed the alleged crime.

• (2) Unfair Trial: — that the evidence and testimonies upon which the learned trial judge relied on to convict me lacks facts and credibility, thus rendering the verdict unsafe in the circumstance.

• (3) Lack of Evidence:- That the prosecution's witnesses presented to the court conflicting and contrasting testimonies which calls into question the sincerity of the evidence was presented to link me to alleged crime.

• (4) Miscarriage of Justice:— That the learned trial judge erred in law when refused to upheld [sic] the no case submission as presented by Defence Attorney.”

3 The application was first considered on paper by a single judge of this court. On 17 April 2015 the learned single judge extended the time for filing the application for leave to appeal and refused the application. The learned single judge ordered that the applicant's sentence should commence on 7 September 2011. As is his right, the applicant renewed the application before the court itself.

4 When the matter came on for hearing, the applicant, with the leave of the court, replaced the original grounds filed with the supplemental grounds as follows:

• “1. The learned trial judge erred in law in failing to uphold the submission of no case to answer by the Defence at the close of the Crown's case. That this resulted in a substantial miscarriage of justice.

  That in assessing the evidence had the learned trial judge considered the whole case as it stood at the close of the crown's case and had he examined the Prosecution's case at its highest and take into account the evidence which was self contradictory and out of reason and all common sense he would have been led to the conclusion that the case was tenuous and suffering from inherent weakness.

• 2. The learned trial judge failed to identify, examine and analyse the several major inconsistencies/discrepancies and to assess the effect of the weakness in the crown's case caused by these inconsistencies/discrepancies. He failed to demonstrate how he resolved them in coming to his determination that he accepted the crown's witnesses as credible.

  The learned trial judge in finding the witnesses truthful failed to direct his mind to the flawed credibility of those witnesses due to the numerous inconsistencies.

• 3. The learned trial judge failed to give himself any or any adequate directions to the propensity and likelihood of having committed the offence when assessing the evidence of the Applicant/Appellant's character.

  That this non-direction amounted to a mis-direction in law and resulted in the applicant/appellant not having a fair trial.

• 4. The learned trial judge erred in ruling that counsel for the defence was not allowed to ask pertinent and relevant questions; in doing so he prejudiced the case for the defence and rendered the Defendant an unfair trial.

• 5. That the learned trial judge gave no directions at all on inferences. That his failure to direct his mind to inferences and how to deal with them indicates that the facts of the case did not raise issues in relation to the Law of circumstantial evidence.

  That this non-direction amounted to a mis-direction.”

The Crown's case

5 The prosecution relied on 14 witnesses to prove its case. The narrative they presented commenced at the Elleston Road Police Station at about 3:00 am on 4 February 2010. On the premises of this station, the armoury and stores for the Jamaica Constabulary Force are located. On that morning, Constable Keneal Forde and Corporal Michelle Campbell were two of the officers on duty at the station.

6 Constable Forde was patrolling the premises shortly after 3:00 am, when he came upon two men who he recognised as workers at the stores. One man, upon being confronted by Constable Forde, made a call on his cellular phone. Shortly thereafter the applicant came up. Constable Forde had known the applicant for some two years prior to that morning and had often seen him at the stores. The applicant explained his presence on the compound at that time as being to collect gun oil and some oil from the generator for his bus. He pointed to a white Hiace bus parked in front of the stores but outside of the perimeter fence for the stores. He indicated that the two men were there to assist him.

7 After leaving the men, Constable Forde returned to the guard room of the station. About 15 minutes later, the applicant came to the back door and Constable Forde spoke with him. Corporal Campbell heard Constable Forde speaking with someone and then saw someone walking away from the back door. She recognised that person as being the applicant who she had known for over 12 or 13 years.

8 At about 3:15 am Sergeant Dorrell White, Corporal Kamoi Miller, Constable Oral Clark and District Constable Garnett Taylor were patrolling along Mountain View Avenue in a marked police service vehicle. Sergeant White was the driver. A man was observed with what appeared to be a firearm in one hand. The man was approaching the service vehicle when he suddenly turned and ran through some premises in the direction of Munster Road. Sergeant White drove down Mountain View Road and turned on to Munster Road with a view to apprehending this man.

9 While travelling along Munster Road the officers saw a green Toyota Corolla motor car parked on the right hand side of the road in the vicinity of No 14 Munster Road, under a street light. Two men were seen standing beside this motor vehicle. The men were recognised as being David and Morris, auxiliary workers at the stores at the Elleston Road Police Station. Upon the approach of the police service vehicle, Morris was observed walking briskly across the road to the premises at No 14 Munster Road.

10 Sergeant White eventually stopped the police service vehicle at the gate to those premises. A fat man was seen at the gate. This man later gave his name as Garnet Pellington. The applicant was seen coming from the rear of the premises. Sergeant White had known the applicant for about five years and had been accustomed to seeing him sometimes three times a day at the canteen behind the guardroom at the Elleston Road compound or at the stores and armoury. Corporal Miller knew the applicant for about four years.

11 Sergeant White enquired of the applicant as to the reason for the presence at those premises. The applicant explained that he was there to help his friend deal with a dispute. He indicated Mr Pellington was the friend. Sergeant White noticed that the applicant was “sweating heavily”. He also noticed that the gate on which Mr Pellington was resting was vibrating. He formed the opinion that Mr Pellington was causing the vibrations due to the fact the he was shaking and concluded that this must have been because Mr Pellington was nervous.

12 The officers then re-entered the service vehicle and drove off. Sergeant White stopped the vehicle about a chain from the premises. After speaking with his team members, Sergeant White called Superintendent Michael Bailey who was at the time the Superintendent in charge of the Kingston Eastern Police Division. As a result of the conversation Sergeant White turned back to No 14 Munster Road. As they approached the premises, the applicant and the two men, Morris and David, were seen getting into the green Toyota Corolla motor car which then drove off in the direction heading to Mountain View Avenue.

13 Sergeant White stopped the police service vehicle at the gate of No 14 Munster Road. He decided to call for assistance given the volatile nature of the area. Within five minutes, Inspector Linford Forsythe and a party of police personnel arrived at the location.

14 Sergeant White entered the premises and called out “Fatman, Fatman”. Mr Pellington answered and permitted Sergeant White to enter the premises along with other officers. A search was conducted in the house. Sergeant White found a firearm in a black plastic bag in a shoe box inside a wardrobe in one of the rooms.

15 Upon exiting the house, Sergeant White was standing outside, still on the premises with Mr Pellington when the applicant, Morris and David were seen standing on the road in front of the premises. Some seven to ten minutes had passed since they had been seen driving away in the green Toyota Corolla motor car.

16 The applicant approached Sergeant White and asked him “Whitey how yuh a mash up di ting man”. Sergeant White responded “no, it's not your thing anymore, a firearm is recovered so step aside let me carry out the function”. At that point the applicant pointed to a white Toyota Hiace bus which was...