Sadiki Heslop v R
| Jurisdiction | Jamaica |
| Judge | Fraser JA |
| Judgment Date | 10 December 2021 |
| Neutral Citation | JM 2021 CA 135 |
| Docket Number | SUPREME COURT CRIMINAL APPEAL NO COA2019CR00008 |
| Court | Court of Appeal (Jamaica) |
[2021] JMCA Crim 48
IN THE COURT OF APPEAL
The Hon Miss Justice P Williams JA
The Hon Mr Justice Fraser JA
The Hon Mrs Justice Dunbar-Green JA (AG)
SUPREME COURT CRIMINAL APPEAL NO COA2019CR00008
Richard Small for the applicant
Ms Patrice Hickson for the Crown
On 13 December 2018, the applicant Sadiki Heslop and his co-defendant Leiton Shirley were both found guilty of illegal possession of firearm and illegal possession of ammunition, in the High Court Division of the Gun Court. They were tried by Straw J, the learned trial judge (‘LTJ’), as she then was. On 20 December 2018 the applicant was sentenced to imprisonment for six years and 11 months for each offence. The sentences were ordered to run concurrently. He seeks leave to appeal against his conviction and sentence.
The prosecution's case is that, on 17 August 2017 at about 3:00 am, Sergeant Troy Irons and Inspector Rohan Ritchie were on mobile patrol. They stopped a Range Rover motor vehicle on Lincoln Avenue, off Maxfield Avenue in the parish of Saint Andrew. The left rear door of the Range Rover opened and the applicant exited and began shouting, “Mi a police, Mi a police”. The applicant gave his name when asked, but was unable to provide his identification card for inspection, as he indicated it was expired and at home. When asked by Sergeant Irons if he had a firearm in his possession, he said yes. He was then asked where it was and he indicated it was in the motor vehicle. While he was being escorted to the motor vehicle, he appeared hesitant to accompany the two policemen back to it.
When they got to the motor vehicle, two females were observed sitting in it; one in the right rear passenger seat and another in the right front passenger seat. A male, later identified as Mr Shirley, was sitting in the driver's seat. Sergeant Irons observed a silver and black firearm with attached magazine, on the left rear passenger seat. The firearm was later found to contain one round of ammunition. The magazine was empty. When asked by Sergeant Irons if this was the firearm he was speaking about, he replied, “Mek mi level wid yuh. Mek mi level wid yuh”. Sergeant Irons immediately stopped and cautioned him and he responded, “A di driva slip it gi mi. A di driva said fi give mi because mi a di police to control the situation. Mi nuh waan lose mi work”.
When asked, all four persons said they did not have a firearm license.
When cautioned, Mr Shirley's response was, “A 2 yout wi drop off on di lane, one a dem left it in here”. The two females, when cautioned both said, “Mi never know seh gun when ina di car”. They were all informed of the offences of illegal possession of firearm and illegal possession of ammunition and arrested. They were then escorted to the Hunt's Bay Police Station. On 22 August 2017, after a question and answer interview, the applicant was informed that he was now jointly charged with Mr Shirley and the two females for illegal possession of firearm and illegal possession of ammunition. When cautioned he made no statement.
The applicant gave sworn evidence. His case was that on 17 August 2017 at 3:00 am, he, a police officer, was in the company of Mr Shirley and two females off Maxfield Avenue in the Kingston Corporate Area. He was seated in the back of the Range Rover behind the driver. The vehicle was being driven by Mr Shirley. The vehicle turned onto Lincoln Avenue and the applicant heard a siren and saw blue lights flashing. Immediately, Mr Shirley pulled to the left of the road, stopped and “reached round and put a gun on the back seat and asked if he could deal with it for him”. The applicant indicated he was never in possession of the gun. He exited the vehicle with his hands in the air and on seeing Sergeant Irons with his rifle pointing, advancing to the Range Rover, he shouted “Mi a police” and proceeded to identify himself as Sadiki Heslop. He gave his number — 13510, his rank — Constable and his assigned police station.
When asked if he had a firearm in his possession he said he told the officer no, he had none in his possession but that one was in the vehicle. He was asked for his ID to which he replied, he left it at home as it had expired. When asked if he had a permit he said he told the officer that “it's my friend just put it on the backseat”.
He stated he was then placed in handcuffs and the officer retrieved the firearm. The other occupants were asked to exit the vehicle. He was taken to the Hunts Bay Police Station. He said on 22 August 2017 a question and answer was conducted.
At the commencement of the hearing before this court, Mr Richard Small, on behalf of the applicant, made an application to adduce fresh evidence of a note/letter (‘letter’) written by Mr Shirley. After hearing and considering evidence and submissions, we refused the application and promised to give the reasons for the refusal, in our decision on the appeal. We now do so.
The letter was brought to the attention of the LTJ and counsel for the applicant, who also appeared below, after the applicant was convicted and sentenced. The terms of that letter are as follows:
“Good Day my lady From the first day I came to court I wanted to Plead Guilty But I was Instructed by my lawyer to Plead not Guilty. Mr. Sadiki Heslop did Not know anything about the gun in the car He know about it when we were pull over by the police on August 17, 2017 about 3:00 am it was me, Sadiki an two female in the car my lady I am the one who know about the Gun in the car I am sorry for wasting your time and the court time. my lady, am asking you for some leinecy please for a Next Chances to show you and my love one's that I wont make this mistake again I have 3 kids two girls and one boy my son is 13 years of age and is going to high school and my oldes 1 daughter is 5 she is going to primy school and the smallest one is going to base school, am asking you For some leinecy on me please my lady.
X [Signature affixed] 20/12/2018
X Leiton D, Shirley”
Had it been allowed into evidence, counsel for the applicant had intended to rely on that letter to support an additional ground of appeal, calling for a review of the soundness of the verdict returned against the applicant. That call would have been on the basis that, had the letter been available before verdict, it would have caused the LTJ to reconsider the issues before her, may have altered the position taken by the Crown and affected additional submissions advanced on behalf of the applicant.
By affidavit of the applicant sworn on 24 January 2019, to which the letter was exhibited, the letter was placed before the court for review and consideration. Apart from the documentary evidence of the letter itself, the court also heard oral testimony from Mr Shirley, its purported author, and from Mr Hugh Thompson, attorney-at-law, counsel who appeared for Mr Shirley at trial.
Mr Shirley, in sworn testimony, indicated that he was jointly charged with the applicant and convicted of illegal possession of firearm and illegal possession of ammunition. At trial, he was represented by Mr Hugh Thompson and the applicant by Mr Richard Small. He said he gave the letter to Mr Thompson on the morning that he
was to be sentenced. He indicated that he authored the letter and he stood by its contents. He stated that the sworn evidence to the contrary that was tested on crossexamination in his trial, “was lies” and he was sorry about that. He also stated that he was wrongly advised by his lawyer, as he had wanted to plead guilty, but his lawyer said that he should not. He denied that there was any fear that caused him to write the letterIn his sworn testimony, Mr Thompson indicated that he was the erstwhile attorney-at-law for Mr Leiton Shirley. That he appeared for him at his trial in 2018 when he was jointly charged with the applicant Sadiki Heslop, for the offences of illegal possession of firearm and illegal possession of ammunition.
He indicated that he received the letter in question from his client Mr Leiton Shirley after the judge had given her verdict on 20 December 2018 and he noticed that there was some shuffling and talking in the dock, which seemed to have irritated the court. Mr Thompson said he advised the court that his client wanted to hand him a note or a letter, and asked if he could take it. The judge gave him permission to collect it and hand it up to her. He read it before handing it up.
Mr Thompson stated that it was a “diabolical lie” that Mr Shirley had wanted to plead guilty but he told him to plead not guilty. Mr Thompson indicated that he took instructions from Mr Shirley and, at all material times, Mr Shirley pleaded his innocence from day one and wanted to proceed to his trial. Mr Thompson further stated that there came a time when Mr Shirley started complaining to him that he was coming under pressure from [the applicant] to change his plea to guilty. Mr Thompson outlined that he told Mr Shirley that his position was that, “you have given me certain instructions but you are entitled to change your plea at any time before the trial or even during the trial”. Mr Thompson indicated that Mr Shirley was adamant that he was not changing his plea as, “he was not guilty of any offence as he was not aware that there was a firearm in the vehicle at the time when the vehicle was stopped”. Mr Thompson said, “He was pellucid about that”.
He was cross-examined by Mr Small. He agreed that on the day the letter was produced, the LTJ had said to him words to the effect that, she saw his client had been trying to get his...
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