Salesman (Charles) v R
| Jurisdiction | Jamaica |
| Judge | MCINTOSH, J.A. (Ag) |
| Judgment Date | 11 June 2010 |
| Neutral Citation | JM 2010 CA 84 |
| Judgment citation (vLex) | [2010] 6 JJC 1104 |
| Court | Court of Appeal (Jamaica) |
| Date | 11 June 2010 |
CRIMINAL LAW - Illegal possession of firearm - Shooting with intent - Leave to appeal - Identification evidence - Inconsistent
The applicant, Charles Salesman was convicted in the High Court Division of the Gun Court on 12 September 2006, for the offences of illegal possession of a firearm and shooting with intent. The following day, 13 September 2006, he was sentenced to serve concurrent terms of 8 years imprisonment for each offence.
On 15 December 2008, some twenty-six months later, Mr. Salesman applied for leave to appeal his conviction and sentence and, as the application was woefully out of time, he also applied for an extension of time within which to file his application.
The single judge of this court who first considered his applications on 7 August 2009, granted him an extension of time to 5 January 2009, but refused him leave to appeal.
Thereafter, Mr. Salesman pursued his right to renew his application before the full court and was represented by attorney-at-law, Mr. B. E. Frankson, who had also appeared for him at his trial. We heard his application on 3 and 4 March 2010 and on 16 April 2010 we gave our decision, dismissing the application and affirming his convictions and sentences. We ordered that his sentences commence on 13 December 2006 and promised to give written reasons for our decision at an early date. We now fulfill that promise.
THE EVIDENCE
The prosecution's case rested on the evidence of its sole eyewitness, the complainant, George Reid, who testified that sometime shortly before mid-night on 12 February 2005, as he was driving his Toyota Corolla motor car to his home in Greater Portmore, St. Catherine, with his fianc é;e, he observed two men on foot, turning onto the road on which he was travelling and walking in his direction. He was able to see them as the intersection was well lit by a street light. They were walking in his direction and when he first saw them they were an estimated 50 to 55 feet away from him. He could see how they were dressed — one, later identified as the applicant, wore a tight creamish-looking long-sleeved polo shirt, tight jeans pants and blue and white sneakers. His hair was in a canerow which went all the way to the back. The other man was wearing tight blue jeans pants, white sneakers and a long-sleeved plaid shirt which he wore outside of his pants.
It seemed to Mr. Reid that they were dressed for a party and that aroused his suspicion as he observed no activity of the kind in the area. On reaching near to them, he looked at them and their eyes met because they were also looking at him. The one with the canerow hair style, identified as the applicant, was actually walking in the street and was within an estimated 6 to 7 feet of him. It seemed that Mr. Reid's attention was particularly drawn to him because he was doing a kind of jig in the road. He said:
"I was able to look at him from his face to his foot because I was driving very slowly at the time when I saw him."
When asked why he was driving slowly he said:
"Normally when I see anybody on the street at that time I tend to want to observe them and then try and make a determination as to what to do afterwards as to just pass or turn around, whatever."
Some fifteen seconds after reaching to his gate he was accosted by the applicant who came from around his fence, in a slight trotting motion, to the front of his vehicle. The applicant was then about two feet from him with a firearm in his hand which he, as an ex-army man, was able to recognize as a 9mm pistol. The applicant fired a shot at him and he returned the fire with his licenced firearm, then drove away immediately to the end of the road.
There was a second encounter when he turned the vehicle around and was then facing the applicant who was right in front of his gate, about an estimated 75 feet away from him. The applicant was still armed and was joined by the other man who was armed with what seemed to him to be a submachine gun. They opened fire at him, hitting his vehicle at some point and after waiting until they came close together in the middle of the road, almost under the street light, he returned the fire and they fled. He saw the applicant stop beside a parked car, about 100 yards away, fire a shot in the air and then continue running. The area was well-lit from the street light and light from nearby houses.
He made a report to the police and, on their arrival, investigations were carried out at the scene after which a statement was recorded from him at the Portmore Police Station. About 12 days later, 24 February 2005, he attended an identification parade and was able to point out the applicant as one of the two men involved in the incident that night.
Mr. Reid's evidence of the lighting conditions was supported by the investigating officer, Detective Inspector Carl Malcolm, who described the scene as being properly lit when he went there that night. There he had met Mr. Reid whom he did not know before and was shown a green 1995 Corolla motor car with what appeared to be bullet holes in the windscreen and an indentation at the top which, in his opinion, may also have been caused by a bullet.
He left the scene for the Spanish Town Hospital some minutes to 2:00 a.m. and there he saw two injured men, one of whom he identified as the applicant. He observed that the applicant had a wound to his left hand which was bleeding, that he had plaited hair and that he was neatly dressed in shirt, jeans and white sneakers. He asked the men how they received their injuries but got no response and he left them being treated by hospital medical staff to return to the Portmore Police Station. Then, at about 8:00 a.m., the applicant was taken to the station, by which time Mr. Reid had already left.
In cross-examination, Inspector Malcolm said he collected spent shells from the scene and was not aware of any swabbing of the hand or hands of the applicant for the presence of gunshot residue nor had he ever seen the results of any such test. However, the prosecution's case concluded with evidence from Constable Derron Wright who testified that he had swabbed the hands of the applicant at the request of Woman Detective Corporal Thompson. This he had done at the Spanish Town Hospital but he was not privy to the results of the swabbing test.
When questioned about factors which may lead to an imperfect result, he said that severe washing with an uncontaminated liquid will impact on the ability to recover gunshot residue and, no doubt, the prosecution posed that question in the context of Detective Malcolm's evidence that the injured hand of the applicant was bloody and being treated when he left him at the hospital. Constable Wright was not asked about the time that the swabbing was done, save to say that he was on duty at the area 5 Scene of Crime Unit in the early morning hours of February 13, 2005 and that he went first to the crime scene that morning, then to the Portmore Police Station and then to the hospital.
The applicant gave sworn evidence in which he told the court that he was a 40 year old father of twelve children who has been working in the personnel division of Matrix Engineering Company since 19 October 2005. He also does mechanic work and coaches the Rivoli Juvenile Football Team for which he played professionally from 1981 until his retirement in 1999. He also assists on the Executive Board. That very night of 12 February 2005, at about 10:15 p.m., he had been at a party on Rivoli Avenue, where he was one of the guests of honour. He left the party at about 11:00 to 11:50 p.m. with two other men and they stopped at a stall on March Pen Road in St. Catherine where he purchased "a spliff and a rizzler".
At the very time when the complainant spoke of being shot at by him, the applicant said he himself was shot and injured by the occupants of a white car which had pulled up beside him as he stood by the stall preparing to put his purchases to use and after he was shot, he ran. His attire was different from that described by Mr Reid as he was wearing a blue short-sleeve checkered shirt, sky blue baggy pants and blue and white sneakers. His hair was done in a kind of rope twist all the way to the back and hanging down at the back.
The injury he received was to his right hand (not the left hand as the prosecution maintained) and he had sought medical attention at the Spanish Town Hospital where he was taken by one of the Rivoli team managers who happened to be passing by. Officers from the Spanish Town Police Station had come to the hospital and, while he was awaiting treatment, officers from the Portmore Police Station had attended and had caused his hands to be swabbed.
After treatment he was taken to the Portmore Police Station, arriving there at about ten minutes past three the next morning. He was put to sit in a room in which there were about ten other persons, only one of whom he recognized. That was a female police officer named Miss Thompson. Then he was taken through the CIB office where "they" took his shirt after which he was taken to the Booking Room where he was strip-searched and put in a cell. "It was then minutes to 4: 00 or 4:00 am". Later that morning, between 7:30 to 8:00 o'clock, he was removed from the cell and taken through the CIB office to a little room where he was questioned by the police and, after facing an identification parade, some days later, he was subsequently charged with the offences for which he was convicted. He had not seen Inspector Malcolm at all until when he was charged.
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Christopher Lewis v R
...thereto before the jury, such as the lack of fingerprint evidence, inter alia . We wish to state as we did before in the case of Charles Salesman v R [2010] JMCA Crim 31, in addressing the issue of the absence of photographs and swab test results, in a matter heard by a single judge in the ......