Seian Forbes and Tamoy Meggie v R

• Jurisdiction: Jamaica
• Judge: P Williams JA
• Judgment Date: 10 June 2016
• Neutral Citation: JM 2016 CA 56
• Docket Number: CRIMINAL APPEAL NOS 61 & 62/2012
• Court: Court of Appeal (Jamaica)
• Date: 10 June 2016

[2016] JMCA Crim 20

JAMAICA

IN THE COURT OF APPEAL

SUPREME COURT

Before:

The Hon Mr Justice Morrison P (AG)

The Hon Mr Justice Brooks JA

The Hon Miss Justice P Williams JA (AG)

CRIMINAL APPEAL NOS 61 & 62/2012

Seian Forbes Tamoy Meggie

and

R

Mrs Jacqueline Samuels-Brown QC, instructed by Mrs Velma Hylton QC, the applicants

Miss Paula Llewellyn QC, Director of Public Prosecutions and Miss Cheryl-Bolton for the Crown

P Williams JA (AG)

1 Messrs Seian Forbes and Tamoy Meggie, the applicants, along with Mr Kemar Gayle, were tried on indictment in the High Court Division of the Gun Court in the parish of Manchester on 5, 6, 7 and 8 June 2012 by Simmons J. They were tried for the following offences:

• (1) Illegal possession of firearm — contrary to section 20(1)(h) of the Firearms Act

• (2) Burglary — contrary to section 39(1)(a) of the Larceny Act

• (3) Robbery with Aggravation — contrary to section 37(1)(a) of the Larceny Act

• (4) Buggery — contrary to common law

• (5) Shop breaking — contrary to section 40 of the Larceny Act

• (6) Larceny — contrary to section 5 of the Larceny Act

2 On 7 June 2012, Mr Gayle pleaded guilty in respect of the offences of illegal possession of firearm, burglary, shop breaking and larceny. On 8 June, Mr Meggie was convicted on all six counts and Mr Forbes was acquitted on the charge of buggery but was convicted on all other accounts. On 22 June 2012 the applicants were both sentenced to various terms of imprisonment. Sentences between three to 10 years were imposed on Mr Meggie and between three to six years on Mr Forbes with sentences for both men to run concurrently.

3 In July 2012, the applicants applied for permission to appeal against conviction and sentence and at that time indicated their desire to apply for leave to call witnesses on their appeal. They also at that time, filed simultaneous applications requesting that they be released on bail pending the hearing of the applications for leave to appeal on such terms and conditions as this court may deem just in all the circumstances. A single judge of this court considered the applications, however, the transcript of the proceedings was not available then. In the application, affidavits from counsel who had represented the applicants at the trial were presented and submissions were made on behalf of both applicants as well as the Crown. The single judge requested copies of the statements which had been taken in respect of this matter and which were on the file of the offices of the Director of Public Prosecutions.

4 The applications for bail were refused. The applications for leave to appeal the convictions and sentences were adjourned until the production of the transcript. The applicants were advised that once the transcript was available, even in respect of the summation only, all the applications could be renewed, if thought desirable.

5 On 7 March 2013, another single judge of this court considered the renewed applications made when the transcript had become available. It was the view of the single judge that the main issues which arose in the case had been appropriately dealt with by the learned trial judge in full and careful directions to herself. The applications for leave to appeal conviction and sentence were refused. As is their right, the applicants renewed their applications before the court itself. In pursuance of their applications, both also applied for permission to adduce fresh evidence before the court.

The evidence at trial

6 On 10 February 2010 sometime after 8:30 pm, the complainant was at her home in Scott's Pass District in Clarendon. She had just got home from work and was getting ready to have a bath when something on television caught her interest. She sat watching the television, dressed in a shirt alone, with her six year old son who fell asleep with his head in her lap.

7 She then heard a loud sound and the door of her home flew open. Two men entered, one with a gun and one with a knife. She got up and went towards the door, upon hearing the noise, and the men entered and came towards her. The men got within touching distance of her and she could see their faces. There were five lights on in her home, one in the hall where she had been watching television, one in the kitchen nearby, one in a bathroom also close by, one in her bedroom and one in the bedroom of her children.

8 She saw the men's faces for about 30 seconds before they covered their mouths with their T-Shirts and demanded money and gold from her. She responded that she had none and was told by one of the men ‘A four a wi deh yah, if you mek nuh noise you know how it go’. She recognized the two men she saw entering as Tammy and Jay. At the trial she identified Sean Forbes as Jay and Tamoy Meggie as Tammy. She saw Jay with the knife while it was Tammy who had the gun.

9 She testified that she had known Jay for some six months prior to that night. She knew him to be a taxi operator and had on occasion taken his taxi from May Pen. The route he operated she said was from May Pen to Mandeville. She explained that she operated a business near to where she lived, approximately 100 yards away from the house. This business was a bar and restaurant. It was at the restaurant that she said she had come to be acquainted with Jay. He purchased food there almost every night and she had seen him earlier that night at about 8:25 pm. She also knew him to be a selector on a sound system which he operated with Tammy.

10 She knew Tammy to be a police officer and had known him for about 17 years. She would often see him driving a police van transporting prisoners. She knew members of his family. She knew he often stayed at the home of his child's mother who lived approximately half an hour away from where she lived. She remembered speaking to him on one occasion and this had been in relation to the sound system. She knew that Tammy's child's mother was related to Jay.

11 Once inside the house, that night of 10 February, the men demanded money and gold. Tammy held her hand and led her to a chair in the hall and put her to sit down. She was then blindfolded with a handkerchief. She was then asked if she had seen them and she responded ‘mi neva si uno’. She said it was Tammy who did all the talking.

12 She was led into a bedroom, and placed to lie face down on the floor. Her hand and feet were bound and clothes thrown on top of her back. As she lay on the floor, she heard sounds of the place being searched.

13 She was then asked for the keys to the business place next door. Her eyes were uncovered briefly for her to identify the key but she was warned not to look up. She then heard more noises from both inside and outside of the house. Within minutes, she heard Tammy asking her if she was ready for her ‘fuck’. The cord was removed from her feet and she felt something go in her bottom and despite her protest, this assault continued for about eight minutes. She said this thing felt like a penis. She did not see who it was who was assaulting her but it was Tammy who spoke to her during the act.

14 After sometime the men left and her neighbour, Miss Joan Rueben, came in. Miss Reuben testified that she had awoken at about 12:45 am and had seen what appeared to be a phone flashlight in a trench beside the complainant's shop. She then heard a car move off. She made checks which eventually led her to the complainant's house and she knocked on the front door which fell to the ground. She called the complainant but got no response. She went inside and found the complainant lying on her stomach on the floor of the bedroom, with hands and feet bound and with clothes covering her back. Miss Reuben ran out and went and got her boyfriend.

15 They both returned and released the complainant. The police were called. Detective Constable Jason Ricketts and Corporal Zena Harrison were on patrol duties in the area and, upon receiving the report, went to the complainant's home. The complainant was seen on the verandah of her home and she made a report to the officers. She told them of her ordeal and gave them the names of the persons she said were responsible. The officers made observations of the premises and personnel from the Scenes of Crime Unit were contacted.

16 The complainant made checks and noted items missing from both her home and business place. The officers eventually escorted her to the Mandeville Regional Hospital where she was examined and treated by a doctor. This doctor testified that injuries were seen on the complainant's hands, feet and anus. In particular, the injuries seen to her anus were consistent with infliction by blunt force trauma and could have been caused by a penis.

17 Detective Sergeant Bryan Donaldson was the officer from the Area III Scenes of Crime Unit who visited and processed the scene on 11 February at about 8:00 am. He took photographs of the scene, some of which were admitted into evidence. The officer also lifted readable fingerprints from a plastic container found under items of clothing on the floor of a bedroom. He compiled a disc and three backing cards with the developed latent fingerprint impressions.

18 Detective Sergeant Wayne Butler of the automated fingerprints identification section on 25 February 2010 was given these items relating to the latent fingerprint impressions. On 1 February 2012 he was given rolled ink impressions on a CIB 01 fingerprint form bearing the name Kemar Gayle. He then compared both fingerprint impressions and found them to be identical. It was after this evidence was given that Mr Kemar Gayle pleaded guilty to illegal possession of firearm, burglary, shop breaking and larceny.

19 Detective Sergeant Owen Hyatt was the officer who took charge of the investigations into this matter. He testified to receiving the initial report from Detective...