Seian Forbes and Tamoy Meggie v R

• Jurisdiction: Jamaica
• Judge: Brooks JA
• Judgment Date: 16 May 2014
• Neutral Citation: JM 2014 CA 88
• Court: Court of Appeal (Jamaica)
• Docket Number: CRIMINAL APPEAL NOS 61 and 62/2012
• Date: 16 May 2014

Seian Forbes Tamoy Meggie

and

R

[2014] JMCA App 12

Before:

The Hon Mr Justice Morrison JA

The Hon Mr Justice Brooks JA

The Hon Ms Justice Lawrence-Beswick JA (Ag)

CRIMINAL APPEAL NOS 61 and 62/2012

JAMAICA

IN THE COURT OF APPEAL SUPREME COURT

CRIMINAL LAW - Illegal possession of firearm - Burglary - Robbery with aggravation - Buggery - Shop breaking and larceny - Improper identification - Alibi defence - Inadequate evidence - Character evidence - Unfair trial

Miss Velma Hylton QC and Mrs Jacqueline Samuels-Brown QC for the applicants

Miss Meridian Kohler and Alwayne Smith for the Crown

Brooks JA

1 Messrs Seian Forbes and Tamoy Meggie were both convicted on 18 June 2012 in the High Court Division of the Gun Court where they had been tried for the offences of illegal possession of a firearm, burglary, robbery with aggravation, buggery and shop-breaking and larceny. Mr Forbes was acquitted of the charge of buggery but was convicted on all the other charges. Mr Meggie was convicted of all the offences. On 22 June 2012, they were both sentenced to various terms of imprisonment. The details of the sentences are not relevant for these purposes.

2 They have both applied for permission to appeal against their convictions and sentences. In pursuance of their applications, both have also applied for permission to adduce fresh evidence before the court. It is their application to adduce fresh evidence, with which this judgment is concerned. Before examining the application in detail, however, an outline of the circumstances of the commission of the offences and the initial investigation by the police would be helpful.

Factual Background

3 On 10 February 2010, sometime between 8:30 and 9:00 pm the complainant was at her home in the parish of Clarendon when two men broke into the house by kicking open the front door. She said that she recognised them as they entered as being persons that she knew before as ‘Tammy’ and ‘Jay’. They, however, covered their faces as soon as they entered the house. She said that Tammy had a gun and Jay was armed with a knife.

4 The men then tied her up and blindfolded her. They ransacked the house and, upon failing to find any money, asked her for the keys to the bar that she operated nearby. She surrendered the keys to them. When the ordeal ended sometime later that night the complainant had been robbed and buggered, and her bar had been broken into and looted of several bottles of liquor.

5 The police were summoned and two police officers, Constable Jason Ricketts and Corporal Zena Harrison, attended at the complainant's home, did preliminary investigations and took her to the hospital where she received medical treatment. Other police investigations continued on the following day and beyond. The investigations led to the arrest and charge of Messrs Forbes and Meggie as well as a third man, Mr Kemar Gayle.

6 All three were arraigned in the High Court Division of the Gun Court which was held in Mandeville on an indictment charging them for the offences mentioned above. They all pleaded not guilty, but during the trial before Simmons J, Mr Gayle pleaded guilty to four of the offences and the prosecution offered no further evidence on the counts of robbery with aggravation and buggery. The trial continued in respect of Messrs Forbes and Meggie and resulted in their respective convictions.

The grounds of appeal

7 In order to place the application for permission to adduce fresh evidence in context, it would assist in noting the supplemental grounds of appeal that have been filed on behalf of the applicants. They, with the permission of the court, replaced the original grounds filed by the applicants (described therein as ‘the appellants’) and are as follows:

• ‘1. The evidence as to the identification relative to the two appellants have [sic] been so discredited and/or rendered unreliable that the appellants ought not to have been convicted on the said evidence; whereupon there has been a miscarriage of justice.

• 2. In her summing up the learned trial judge failed to have regard to and/or to demonstrate that she took into account patent weaknesses in the identification evidence, whereupon the appellants' chances of acquittal was [sic] impaired.

• 3. The learned trial judge failed to apply the law as it relates to alibi evidence tendered on behalf of the appellants whereby the appellants' chances of acquittal was [sic] impaired.

• 4. The learned trial judge erred in convicting the appellants as she ought to have accepted the evidence of alibi tendered on behalf of the appellants and thereby find [sic] them not guilty.

• 5. There has been no evidence tendered to support the charge of robbery with aggravation as set out in count 3 of the indictment and accordingly verdicts of not guilty ought to have been arrived at with respect to both appellants on this count.

• 6. The learned trial judge erred in convicting the appellant, Tamoy Meggie of the offence of buggery as there was no evidence or not sufficient evidence to support the charge.

• 7. The appellants were deprived of the benefit of the law relative to character evidence in that the learned trial judge failed to apply the said law to the evidence and rejected evidence of character in the absence of any or any sufficient basis for doing so.

• 8. The fact of discovery of the co-accused, Kemar Gayle's fingerprints on a cup found in the virtual complainant's house, the absence of any fingerprints of any of the appellants on any part of or item found in the virtual complainant's premises and the guilty plea of the co-accused Kemar Gayle while the trial proceeded are all matters that the learned trial judge ought to have taken into account in the appellants' favour and as supportive of their defence and/or innocence. The learned trial judge failed to do so whereby their chances of acquittal was [sic] impaired.

• 9. The learned trial judge erred in finding the appellants guilty as there is no evidence that they acted in concert with Kemar Gayle whose guilty plea was accepted by the learned trial judge.

• 10. The summing up is unbalanced and/or unfair as the learned trial judge has overlooked inconsistencies and weaknesses on the prosecution's case disregarded evidence favourable to the defence and rejected the appellants' defence for reasons which are inadequate and/or unsupportable in law.

• 11. The appellants did not receive a fair trial as material which impacted on the credibility of the prosecution's case and which was in the possession of the prosecution and as well [sic] was not available to the appellants during the trial.

IN THE PREMISES THERE HAS BEEN A MISCARRIAGE OF JUSTICE RELATIVE TO BOTH APPELLANTS (sic).’ (Capitals as in original)

Several of the grounds, especially ground 11, speak to the issue of the credibility of the prosecution's case. That issue would, undoubtedly, be affected by any evidence which called into question the credibility of the main witnesses for the prosecution.

The application to adduce fresh evidence

8 The evidence that Messrs Forbes and Meggie seek to place before the court is in respect of two aspects of the case. The first is in respect of the identity of the individuals involved with Mr Gayle in the commission of the offence and the second concerns whether the complainant told the police, when they first attended her home, the names of her attackers. The application seeks the admission into evidence of the following documents:

• ‘(i) Extract from the Station Diary of the Porus Police Station being entry number 27 made on February 11, 2010 by Constable J. Ricketts.

• (ii) Statement made by Detective Sergeant Owen Hyatt, [in] the form of a note handed to Queen's Counsel Velma Hylton and as referred to in her affidavit sworn to on July 16, 2012 and affidavit of Lorenzo Eccleston sworn to on September 25, 2013.

• (iii) Statement of Kemar Gayle dated June 22, 2012 and referred to in affidavit of Lorenzo Eccleston dated September 25, 2013.

• (iv) Evidence contained in the affidavits of Queen's Counsel Velma Hylton sworn to on June 21, 2012, July 16, 2012 and July 31, 2012.’

9 The aspect concerning the complainant's identification of the attackers would be addressed, the applicants say, by an entry made in the station diary of the Porus Police station made by Constable Ricketts on 11 February 2010, that is, the day following the incident. The aspect of the application concerning the persons involved in the crimes is addressed in Mr Gayle's statement and testimony to this court. These are to the effect that Messrs Forbes and Meggie were not involved in the offences committed against the complainant, and that his accomplices were men other than these applicants. He also made a statement to that effect to the investigating officer in the case, Detective Sergeant Owen Hyatt.

10 Miss Velma Hylton QC was counsel for the applicants at the trial and her affidavits mainly speak to what Mr Gayle told her during and after the trial. Mr Lorenzo Eccleston is a member of Mrs Samuels-Brown's office staff. His affidavit merely exhibits these various statements and affidavits. He has no first-hand knowledge of these matters.

11 After hearing submissions in respect of the application for the admission of the fresh evidence, the court decided to look at the diary entry and to hear Mr Gayle's testimony for what they were worth ( de bene esse ).

The evidence

a. The diary entry

12 The court was informed that Constable Ricketts was no longer a member of the police force. The entry in the station diary, in his handwriting, was produced, in his stead, by Sergeant Robert Young, the sub-officer in charge of the Porus Police Station. He testified that all occurrences, including the movement of personnel, are recorded in the station diary. Entries in the diary should be as accurate...