Shaun Cardoza v R

• Jurisdiction: Jamaica
• Judge: F Williams JA
• Judgment Date: 26 May 2023
• Neutral Citation: JM 2023 CA 60
• Docket Number: SUPREME COURT CRIMINAL APPEAL NOS 16 & 17/2017
• Court: Court of Appeal (Jamaica)

Shaun Cardoza

Lathon Hall

and

R

[2023] JMCA Crim 19

Before:

THE HON Mr Justice F Williams JA

THE HON Miss Justice Straw JA

THE HON Miss Justice Edwards JA

SUPREME COURT CRIMINAL APPEAL NOS 16 & 17/2017

IN THE COURT OF APPEAL

Credibility — Witness' testimony conflicting with statement — Visual identification evidence — Inconsistencies, discrepancies and omissions — Good-character direction

Mrs Caroline Hay QC and Neco Pagon for the applicant Shaun Cardoza

Anthony Williams and Miss Shannan Clarke for the applicant Lathon Hall

Adley Duncan and Miss Alice-Ann Gabbidon for the respondent

F Williams JA

Introduction

1 This is a renewed application for leave to appeal convictions and sentences following a refusal of leave by a single judge of appeal on 9 April 2019. The applicants were convicted for the offences of illegal possession of firearm and wounding with intent on 25 November 2016 and, on 16 February 2017, they were each sentenced to 10 years' imprisonment for the former offence and 15 years' imprisonment for the latter, both at hard labour and to run concurrently.

2 They were tried by a judge alone (‘the learned judge’) in the Circuit Court Division of the Gun Court for the parish of Clarendon, holden at May Pen, on allegations that the applicants, on the morning of 25 February 2015 in the parish of Clarendon, were in possession of firearms, which they used to shoot and wound the virtual complainant, André Carr (‘Carr’), thereby intending to kill him or cause him really serious harm.

Summary of the Crown's case

3 The evidence given by Carr was to the effect that he had been in the company of the two applicants in Effortville, Clarendon, from the night of 24 February 2015, to the following morning, smoking and drinking, when he left to go home in their company and that of another man whom he referred to as “Three Star”. As they walked along a shortcut, with him in front of the others, they opened gunfire at him, injuring him. He fell and returned fire with a pistol with which he was armed, and ran off. He ran to the house of one Ingrid, where he left the firearm and was taken to the May Pen Hospital by a taxi driver. He was treated there and transferred to the Kingston Public Hospital (‘KPH’), from which he was discharged after a few days.

4 Carr was not a licensed firearm holder, and, at the time he gave his testimony, was serving a sentence of some five years for the illegal possession of the firearm he used in the incident.

5 He testified that he had known the applicant Cardoza for many years, they having attended May Pen Primary School together, and later saw him during their high school years. His testimony in relation to the applicant Hall was that he had known him for about a month before the incident; but would sit and drink with him, Cardoza and others on many occasions over that month, before the incident. He also testified that, the night before the incident, he had been picked up in St Andrew by someone driving a car that Cardoza had sent for him and taken to Effortville, where he met with Cardoza, Hall and others.

6 Detective Sergeant Fletcher Grayson, the investigating officer, testified that he had spoken with Carr on 27 February 2015 at the KPH and taken a statement from him as to how he became injured and came to be in the hospital. At that time, he was investigating a case of illegal possession of firearm. In April of the same year, he again spoke with Carr at the office of the May Pen Criminal Investigation Branch and commenced investigation into a case of wounding with intent committed against Carr. He took a statement from Carr at that time. Det Sgt Greyson testified that he had in fact taken three statements from Carr. Additionally, he further gave evidence of leading a team of police personnel on an operation in Ackee Walk, Saint Andrew on 8 May 2015, and arresting the two applicants at that time. He charged them on 13 May 2015, after identification parades were held, with the offences that are the subject of this appeal. He also denied suggestions put to him that Carr had absconded (and not been discharged) from the KPH.

Summary of the learned judge's decision

7 The learned judge found the main issue in the case to be credibility. He also found that identification was important. The credibility issue arose mainly from the fact that Carr was shown in cross-examination to have given, in his first statement to the police, dated 27 February 2015, an account that was significantly at odds with the evidence he gave at the trial. That statement (which was the first of three statements he gave to the police) was admitted in evidence as exhibit 1. There were three main areas of divergence between his statement and his evidence. In summary, the divergences were as follows: (i) In his statement, he stated that he was shot by two men whom he did not name and whom he did not give the impression that he had known before; whereas at trial he named the applicant Cardoza, the applicant Hall (whom he referred to as ‘Ras’) and Three Star, as the persons who shot him. (ii) In his statement, he indicated that the shooting had occurred at an intersection; whereas in his testimony, he stated that it had occurred whilst they were walking through a shortcut. (iii) In his statement, he gave the impression that the incident was a chance encounter in which he just happened upon the unknown men who shot him; whereas he testified at trial that he had known the men who shot him for some time and, as they all walked through the shortcut, he kept looking at them, as he did not trust them.

8 In essence, the learned judge appears to have rejected Carr's first statement in its entirety. His reason for doing so was his acceptance of the reason advanced by Carr for giving in his first statement a different account from that stated at trial: that is, that he was in fear of the applicants and someone he referred to as “their don”. The learned judge also found the identification evidence to have been good, despite one part of the identification being made in what he acknowledged to be “harrowing circumstances”.

The applicants' cases at trial

Cardoza

9 At their trial, both applicants gave unsworn statements. In his unsworn statement, Cardoza stated that one day (around 10 March, 2015), whilst at a shop operated by his girlfriend in Ackee Walk (Saint Andrew), he was approached by Carr, who had on bandages, and who asked him whether he had attended May Pen Primary School. He stated that, on another occasion, Carr told him that he had escaped from KPH, was wanted by the police but was being put out by his girlfriend's family, with whom he was staying, and asked Cardoza to help him by providing him with somewhere to hide from the police. Cardoza said that he told Carr that his stepfather was a corporal of police who would kill him (Cardoza) should he do something like that. He, therefore, could not help. Cardoza further said that he next spoke with Carr whilst in custody for the offences at the May Pen Lockup, and that Carr told him that the reason why he (Carr) was “doing this” was that he (Cardoza) and his friend refused to put him up, causing him to be imprisoned for seven years on a gun-possession offence; and that he and his friend would, therefore, have to “do some of the time” with him.

10 Cardoza further stated that he had not run afoul of the law since being charged for “a ganja spliff” at age 16 and he was then 30. He also said: “I am a law-abiding citizen, I work to provide food and work to provide my kids wants and needs” (page 129, lines 10–12 of the transcript).

Hall

11 The applicant Hall, for his part, stated that he knew nothing about how Carr got shot. His first time in Clarendon, he said, was when he was arrested for these charges and taken there, and he had no idea why Carr would “do or say something like this”. He also stated that where he lives, he sells fried chicken and chips.

The appeal

12 In seeking to challenge their convictions and sentences, the applicants each filed an application for permission to appeal (form B1) dated 24 February 2017. The grounds set out therein were the same in each case and read as follows:

“1. Misidentity by the witness — that the prosecution witness wrongfully identified me as the person or among any persons who committed the alleged crime.

2. Lack of evidence — that the prosecution failed to present to the court any “concrete” piece of evidence (material, forensic or scientific) to link me to the alleged crime.

3. Unfair trial — that the evidence and testimonies upon which the learned trial judge relied on [sic] for the purpose to [sic] convict me lack facts and credibility thus rending [sic] the verdict unsafe in the circumstances.

4. Conflicting testimonies — that the prosecution witness presented to the Court conflicting and contrasting testimonies which amount to perjury, thus call [sic] into question the soundness of the verdict.

5. Miscarriage of justice — that the prosecution failed to recognise the fact that I had nothing to do with the alleged crime for which I was wrongfully convicted of [sic].”

13 On behalf of Cardoza, Mrs Hay QC sought leave to argue supplemental grounds. Though not, as is usually done, applying to abandon the original grounds, she advanced no arguments in relation to them. The following are the supplemental grounds that she was permitted to argue:

Supplemental grounds of appeal

Cardoza

Ground 1:

“The learned Judge failed to sufficiently analyse and treat with the primary issue of credibility from the sole eyewitness given its manifest unreliability. This failure led to material misdirection or non-direction occasioning the Applicant's convictions. The convictions are unsafe and by that miscarriage of justice they ought to be quashed and the sentences set aside”.

Ground 2:

“The learned Judge's treatment of the Applicant's unsworn statement was inadequate...