Santina Berry v R

• Jurisdiction: Jamaica
• Court: Court of Appeal (Jamaica)
• Judge: F Williams, J.A.
• Judgment Date: 27 March 2026
• Neutral Citation: JM 2026 CA 23
• Year: 2026
• Docket Number: Suit No.: Criminal Appeal COA2022CR00015

Santina Berry

and

R

JM 2026 CA 23

F Williams, J.A.

Suit No.: Criminal Appeal COA2022CR00015

Court of Appeal

Appearances:

Paul Gentles for the appellant.

Miss Claudette Thompson, Director of Public Prosecutions, and Miss Nailah Bishop for the Crown.

BACKGROUND

F Williams, J.A.

1 In this matter Miss Santina Berry (‘the appellant’) was, on 20 May 2021, convicted on both counts of an indictment which charged her with illegal possession of firearm (count 1) and robbery with aggravation (count 2) after a trial by a judge alone (‘the learned judge’) in the High Court Division of the Gun Court held at King Street in the parish of Kingston. The case against her was to the effect that, on 7 April 2018, she and three others (two men and another woman), at gunpoint, robbed the virtual complainant of a motor car being driven by him as a taxi in the parish of Kingston. Convicted of the offences, she was sentenced on 18 March 2022, to three years' imprisonment on each count, with the sentences ordered to run concurrently.

2 It was the Crown's case that, although she was not herself in physical possession of the firearm, she was at first observed by the virtual complainant to be standing and interacting with the other persons who were a part of the common design in a manner that led him to form the impression that they were two couples. Further, after they all boarded the taxi together, the man who sat on the right rear seat behind the virtual complainant asked him to stop and let him off, and he complied. The other man, who was sitting at the rear in the middle, pulled a firearm and pointed it at the virtual complainant. When the virtual complainant protested, the appellant then shouted the following words at him: “Shut up yuh mouth and nuh do nothing funny, nutten”. Those words, the virtual complainant said, were uttered in an angry tone. The virtual complainant exited the taxi, and the man who had requested the stop, then re-entered the taxi, sat in the driver's seat and drove the taxi away with all the other persons aboard, whilst the driver (the virtual complainant) ran away.

3 The virtual complainant's further evidence was that there was a noticeable lack of alarm or concern on the part of the women in the taxi when the firearm was drawn and pointed at him. He later saw the appellant at the police station, where he pointed her out to the police as one of the occupants of the car at the time the offences were committed.

4 The appellant denied that she had been present in the taxi, stating that she was in Portmore, Saint Catherine, at the time. However, at the trial, she admitted that she was present but denied that she had used the words attributed to her by the virtual complainant. In respect of her first denying that she had been present in the taxi at the material time, she explained that by saying that she had been warned and threatened not to go to the police by the men, whom she denied knowing. She also denied being a part of any common design.

5 The learned judge analysed all the circumstances and found them sufficient to make a finding that the appellant was a part of a joint enterprise to rob the virtual complainant of the taxi, thus arriving at verdicts of guilty in respect of the two offences. Her conduct, he found, was sufficient to amount to assistance or encouragement to the men in the commission of the crime.

6 The delay between the conviction and the sentencing was caused by the somewhat unusual route that the matter took after the recording of the conviction. Having found the appellant guilty, the learned judge then attempted to refer the matter to this court as a case stated, pursuant to sections 55 and 56 of the Criminal Justice Administration Act (‘the Act’). On initially referring the matter to this court as a case stated, and again after sentencing the appellant, the learned judge granted her bail pending the hearing of the matter in this court. Page 168, lines 14–19 of the transcript discloses the learned judge's formulation of the question for the consideration of this court thus:

“So what we are going to be doing now, is getting the Court of Appeal … to decide this question as to whether the words that i found that you said in all the circumstances are sufficient to make you liable for these offences.” (Emphasis added)

7 In the learned judge's sentencing remarks, it is stated that when the matter initially came before this court, it was directed that it be sent back for the learned judge to complete the trial by sentencing the appellant. That was done. A single judge of this court, in remitting the matter for it to be completed, did so on the basis that it had not properly been placed before this court as a case stated. There were two reasons for that ruling: (i) that the proposed question was one of fact, instead of (as required by the Act) one of law; and (ii) the referral was not made by way of a signed case stated, as the Act also requires. The case stated procedure was, therefore, brought to an end at that point. No further attempt was made to again refer it to this court after the sentencing of the appellant was completed.

8 The appellant having been sentenced, filed a criminal form B1 dated 25 March 2022, challenging both her conviction and sentence. This was done on the following grounds:

• “(a) Verdict unreasonable having regards [sic] to the evidence.

• (b) The learn [sic] trial judge failed to have proper regard to the case from the defence.

• (c) Sentence excessive.”

9 With that background, the matter proceeded before us as any regular appeal would.

SUMMARY OF SUBMISSIONS

FOR THE APPELLANT

10 On the appellant's behalf, Mr. Gentles made several submissions, which may be summarised as follows:

• (i) The learned judge erred when he found that the appellant was a party to a common design to rob the virtual complainant of the car.

• (ii) It was not established on the Crown's case that the appellant knew that the culprit in the back seat was armed with a firearm.

• (iii) The learned judge erred when he found that the words that he determined that the appellant had uttered were uttered to aid and/or abet the commission of the offences.

• (iv) The words that the learned judge found were uttered were at best ambiguous, as they could have been uttered in a desperate attempt to avoid a shooting in the car by invoking submission by the virtual complainant (citing Derek Bentley v. R (1999) Crim LR 330).

• (v) The interpretation that best suits the defence should have been the preferred version of interpretation (citing R v. Pearlina Wright [1988] 25 J.L.R. 221).

FOR THE CROWN

11 On the Crown's behalf Miss Bishop made submissions that may be summarised as follows:

• (i) The main issue in the case was credibility, which went to the jury mind of the learned judge, sitting alone, and there was no error on his part.

• (ii) The evidence satisfied the requirements of section 20(5)(a) of the then Firearms Act (citing R v. Clovis Patterson (unreported), Court of Appeal, Jamaica, Supreme Court Criminal Appeal No. 81/2004, judgment delivered 20 April 2007).

• (iii) The evidence in the case supported the finding that the appellant acted pursuant to a common design (citing R v. Jogee and Ruddock v. The Queen [2016] U.K.P.C. 7).

• (iv) The words found by the learned judge to have been used by the appellant did not stand by themselves but were accompanied by other conduct that, in the circumstances, together amounted to evidence of a common design.

• (v) The appellant has failed to establish that the verdict is so against the weight of evidence that it is unreasonable and insupportable (citing Craige Williams v. R [2026] J.M.C.A. Crim 1).

DISCUSSION

12 It is common ground that, in addition to a consideration of the law relating to common design, credibility was the main issue in the case.

13 A summary of the law relating to common design that is relevant to this case may be seen in paras. 1, 9 and 10 of the case of R v. Jogee and Ruddock v. The Queen [2016] U.K.P.C. 7 (‘ Jogee’). They read as follows:

• “1. In the language of the criminal law a person who assists or encourages another to commit a crime is known as an accessory or secondary party. The actual perpetrator is known as a principal, even if his role may be subordinate to that of others. It is a fundamental principle of the criminal law that the accessory is guilty of the same offence...