Shirley (Demoy) v R
| Jurisdiction | Jamaica |
| Judge | MORRISON, J.A. |
| Judgment Date | 02 July 2009 |
| Neutral Citation | JM 2009 CA 59 |
| Judgment citation (vLex) | [2009] 7 JJC 0203 |
| Court | Court of Appeal (Jamaica) |
| Date | 02 July 2009 |
CRIMINAL LAW - Illegal possession of firearm - Identification evidence
Introduction
At the conclusion of the hearing of this matter on 20 November 2008, the appeal was allowed, the appellant's conviction and sentence were set aside and a verdict of acquittal entered. These are the promised reasons for our decision (with apologies for the delay).
On 20 April 2007, after a trial before Donald Mcintosh J in the High Court Division of the Gun Court for the offences of illegal possession of a firearm and shooting with intent, the appellant was convicted on both counts. He was sentenced to 10 years imprisonment at hard labour on each count and it was ordered that the sentences should run concurrently.
The facts
The case for the prosecution against the appellant was based primarily on the evidence of two eye-witnesses, both of whom were police officers. A third witness, also a police officer, was the investigating officer.
Although the witnesses were not called in this order, the real starting point is to be found in the evidence of Detective Constable Wayne Miller who was on 25 October 2005 doing duty as a school resource officer (in plain clothes) in the Safe School Programme on the North Street campus of Kingston College. At about 8:00 a.m. on that day, he was in the company of the Vice Principal (conducting what he described as "routine checks") when, on the basis of information received, they proceeded to the area of the perimeter wall to the south of the school premises where a group of schoolboys was gathered. While there, Constable Miller heard two explosions and then saw a man come over the south perimeter wall onto the school premises with a pistol in his hand. As a result, Constable Miller immediately activated his two-way radio and called for assistance, after which the gunman went across the back of the school premises to the eastern perimeter wall where he climbed one of two trees in that area. Constable Miller then heard two more explosions from the direction of the trees, whereupon Detective Corporals Reid and Blackwood arrived on the scene, and spoke to him briefly before proceeding in the direction where the gunman was. Constable Miller, who was behind the other two officers, then heard several shots coming from the same direction and when he looked in that direction he observed that the gunman "was firing at us", whereupon his colleagues returned the fire. He then observed the gunman "running towards the southern perimeter wall while we gave chase...[and] then saw him going over the wall."
Constable Miller's evidence was that when he had first seen the gunman coming over the wall he was about 25 metres away from him. According to the Constable, he had a good view of the gunman and was able to determine that he was not wearing a shirt and was dressed in "a dark colour jeans shorts, jeans looking shorts". At the point at which the gunman was seen firing shots at the police officers, he was approximately 50 to 60 metres away and Constable Miller again had a good view of him, because the action was all taking place in "a clear open area". The gunman, he said, had been known to him for about six to seven months before and he had during that period seen him on two occasions, the most recent being some five months before. He was known to Constable Miller only by an alias, which was 'Ageable', and the appellant was identified in court by Constable Miller as this person.
Cross-examined, Constable Miller was invited to refresh his memory from his police statement and agreed with the suggestion that he had not said anything in the statement about the appellant climbing, being in or jumping from a tree at any point. He stated that he was right behind his colleagues while the shots were being fired and that he himself was armed that day, though he did not fire his gun. Although he was in a position to observe the other officers clearly, he did not notice either of their firearms being "jammed".
On the morning of 25 October 2005, Corporal Rohan Reid, accompanied by Corporal Michael Blackwood, were on mobile patrol proceeding in an easterly direction along North Street, when he overheard a radio transmission from Constable Miller. He accordingly proceeded immediately to the Kingston College compound, where himself and Corporal Blackwood were taken by Constable Miller to the rear of the compound and their attention directed to the eastern end of the playfield where a man was seen approximately 60 or 70 metres away, "on the trunk of a tree which was closest to the perimeter wall of the compound". All three officers then proceeded towards this man, who "immediately jumped from the tree with a firearm in his hand, which he pointed in our direction... and fired two shots in my direction". Corporal Reid, who was at this point about 40 to 50 metres away from him, immediately "got flat" and returned fire in the direction of the gunman, who was at this time "now running in the direction of the southern end of the playfield". Corporal Reid got up and went in pursuit of the gunman, who was still firing shots in his direction. On reaching the southern end of the playfield, the gunman climbed into (another) tree and, while climbing from the tree onto the perimeter fence, fired another shot in his direction. As he was about to return the fire, he realised that his firearm had "jammed", as had that of Corporal Blackwood as well. The gunman jumped over the perimeter fence and made good his escape, despite a subsequent general search of the area by Corporal Reid and his colleagues.
Corporal Reid's estimate of the duration of the entire incident was one and a half minutes, during which time he had a clear view of the gunman's "whole body from his face right down". Even when the gunman was running and firing shots in his direction, Corporal Reid testified, he had a clear view of his face and body and had had an unobstructed view of his face for more than 10 seconds. He recognized the gunman as someone whom he had known for some three years previously and whom he had seen on several occasions (including an occasion in which he had had to transport him to the hospital when he was shot and injured by some men in the area). He too knew the gunman only by the alias 'Ageable' and he also identified the appellant at trial as that person.
Cross-examined, Corporal Reid estimated the distance between the two trees as 150 to 170 metres and the height of the southern perimeter wall at about 14 feet. He denied a suggestion put to him by counsel for the defence that he had told the investigating officer that the incident had in fact taken place on the compound of St George's College, prompting an intervention from the trial judge for the purpose of advising counsel that, while Kingston College did have a perimeter fence to the south, St George's College on the other hand, which bordered North Street on the south, had none.
Both Constable Miller and Corporal Reid gave evidence of having made a report later on the morning of 25 October 2005 to Detective Sergeant Vinnell Samuels at the Kingston Central Police Station. Sergeant Samuels testified that as a result of having received this report he commenced investigations, with a person, also known to him as 'Ageable', as the object. In October 2006 he received information that led him to the Kingston Central Police Station lock-up, where he saw and spoke to the appellant, cautioned, arrested and charged him for the offences of illegal possession of firearm and shooting with intent, arising out of the incident at Kingston College on 25 October 2005. When Sergeant Samuels was cross-examined, it turned out that during the course of...
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