Tara Ball v R
| Jurisdiction | Jamaica |
| Judge | Straw JA |
| Judgment Date | 20 January 2023 |
| Neutral Citation | JM 2023 CA 2 |
| Docket Number | SUPREME COURT CRIMINAL APPEAL NOS COA2019CR00085, 86 & 87 |
| Court | Court of Appeal (Jamaica) |
| Year | 2023 |
[2023] JMCA Crim 2
IN THE COURT OF APPEAL
THE HON Miss Justice Straw JA
THE HON Mrs Justice V Harris JA
THE HON Mr Justice Brown JA (AG)
SUPREME COURT CRIMINAL APPEAL NOS COA2019CR00085, 86 & 87
Keith Bishop and Andrew Graham instructed by Bishop & Partners for the appellant Tara Ball
Ms Karlene Afflick for the appellants Marvin Alexander and Richard Scarlett
Miss Paula Llewellyn QC and Ms Ana-Kaye Scott for the Crown
On 28 June 2019, the three appellants, Miss Tara Ball, Mr Marvin Alexander and Mr Richard Scarlett, were tried and convicted in the High Court Division of the Gun Court for the offences of illegal possession of firearm contrary to section 20(1)(b) of the Firearms Act and robbery with aggravation contrary to section 37(1)(a) of the Larceny Act. Messrs Alexander and Scarlett were sentenced to nine years and seven months' imprisonment for the offence of illegal possession of firearm and 11 years and seven months for robbery with aggravation. Miss Ball was sentenced to nine years and three months' imprisonment for illegal possession of firearm, and 11 years and three months' imprisonment for robbery with aggravation.
Each appellant sought permission to appeal against their convictions and sentences. On 14 April 2021, a single judge of this court granted each leave to appeal against their convictions, noting that there were several issues that required further examination by this court. On the issue of the sentences, the single judge expressed the view that the learned trial judge had considered the relevant factors and that the sentences did not appear to be manifestly excessive. Nonetheless, the appellants, in addition to pursuing their respective appeals, also renewed their applications for leave to appeal against their sentences and were allowed to argue the appropriateness of the sentences during the course of the appeal. As such, this court will also consider whether the sentences imposed should stand.
The complainant, a taxi driver, and the sole witness for the Crown, testified that he was held up and robbed at gunpoint of his Toyota Corolla motor car by the three appellants and another man. His evidence was that on 3 July 2008, he was working as a taxi driver with Miracle Taxi Service. At about 2:00 pm that day, while he was in Westport, which is situated in Portmore, Saint Catherine, he received a telephone call from a female who requested a charter for 11:45 pm that night from Debbie Avenue, Edgewater in Portmore, Saint Catherine. On arrival at the location that night, he saw a female standing at the side of the road with three males. The female waved at him, and as a result, he stopped his vehicle, unlocked the doors and the female and three males entered the car. The female sat in the front passenger seat, and the three males sat at the back. The female then told him that they were going to Norbrook in Saint Andrew. They agreed on $2,000.00 for the fare, and he drove off.
It took him 30 minutes to arrive in Norbrook. When they got to Norbrook Drive, on approaching a ditch in the road, he slowed down. He then felt a blow to the back of his head, on the left side. This blow caused him to swerve a little to the right, and he was able to see a hand with a black gun right beside his face. He estimated the hand with the gun to be about 4 or 5 inches from his face.
Immediately after receiving the blow, the vehicle came to a halt. This, according to the complainant, was as a result of the female passenger pulling up the hand brake. She also then proceeded to “pop down the speed sensor”. One of the males then said, “hey boy, me want dah cyar yah”. The three men then came out of the vehicle, and one of them pulled him out of it and put him face down on the ground. They then deliberated on what to do with him. Among the words the complainant heard the men say was, “Don't buss it Marvin”. Upon hearing this, the complainant rolled over to the edge of the road and into a culvert. He then heard the doors of the car being closed and the vehicle driving off.
Not long after, he exited the culvert and made his way back toward Constant Spring. He eventually went to a gas station at Constant Spring, where he was able to stop a police vehicle that was passing. He made a report to the police, and they requested the particulars and description of his vehicle, which he gave them. They then took him to the Constant Spring Police Station, where he gave a statement. Within an hour of being at the police station, he saw the police take the female and two of the males to the station. He said that upon seeing them, he pointed them out to the police officer that was taking his statement, as the persons who stole his vehicle. They were attired in the same clothing that they were wearing, whilst in the vehicle with him.
The appellant, Marvin Alexander, gave sworn evidence. He told the court that on 3 July 2008, he was at work at 26 Duke Street, Downtown Kingston, with co-appellant Richard Scarlett. On that date, he was carrying out work as a building and tiling contractor. He said he was at that location until about 11:00 pm or 12:00 am, after which he went to a ‘dance’ that was held at the intersection of Laws Street and Barry Street, also in Downtown Kingston. He and Mr Scarlett attended the dance, and they left at around about 1:00 am or 2:00 am. They walked along Orange Street to Paradeand took a taxi that was destined for Portmore, Saint Catherine. However, they did not make it to Portmore, as a dispute developed between themselves and the taxi driver about the fare to be paid. As a result, according to Mr Alexander, he and Mr Scarlett were booted from the taxi after the taxi driver stopped the vehicle along Marcus Garvey Drive, close to the wharf, and accosted them with a machete.
After the taxi left, they then began walking toward Portmore. Mr Alexander testified that a short while later, he heard explosions sounding like gunshots. He and Mr Scarlett started walking faster. He saw blue lights flashing in the distance ahead of him, and then a vehicle drove up to them from behind. Someone said, “none a oonu no move”. He then observed that it was a police vehicle that had driven up to them. He jumped back with his hands in the air. The police ordered them to lie on the ground, which they both did. They were searched and later told to get up. Mr Alexander said that he took off his shirt and had it in his hand because there was a rubbish heap on which he had laid on the ground. They were then handcuffed and put in the back of the police vehicle. He told the court that he did not know why he was arrested.
They were taken to the Constant Spring Police Station. It was about 3:13 am when they arrived at the station. They were taken to the CIB room, where there were three persons. Whilst inside the room, he was told that he was going to be charged for robbery, and the police asked him where was the gun. He said the police told him that he had robbed the man who was sitting with a female officer in a corner of the room, around a desk. He said that the CIB room was not far from the entrance door at the station.
In response to the allegations by the police of robbery, he called one of his employers and asked her to call Mrs Valerie Neita Robinson, an attorney-at-law. He said that he did not know the man that they alleged he had robbed. This man was the complainant. He went on to tell the court that he did not rob anyone and he did not have a firearm at any time. He also stated specifically, when asked by his counsel, that he did not rob anyone, nor did he have a gun on 3 July 2008.
Under cross-examination, he denied all of the suggestions put to him that he had participated in the commission of the offences. He also denied seeing Miss Ball before 4 July 2008 and being in her company on the night of the incident. He said that she was taken to the CIB room after he and Mr Scarlett were already there. He denied that they were all apprehended together.
Mr Scarlett, like Mr Alexander, also gave sworn evidence. His account was similar to Mr Alexander's in that he also asserted that on 3 July 2008, he worked with Mr Alexander doing tiling work on a building at 26 Duke Street. He stated, however, that he left work at about 5:00 pm and returned to Portmore to get ready for the same ‘dance’ referenced by Mr Alexander. He then left Portmore at about 9:00 pm to head back to Kingston and met up with Mr Alexander at 26 Duke Street. They left out together to go to the dance at about 11:00 pm. However, Mr Scarlett could not recall the time that they left the dance to go home.
Mr Scarlett also gave an account of a confrontation between himself and Mr Alexander on the one hand, and the taxi driver, with whom they endeavoured to travel back to Portmore, on the other hand. The outcome of that confrontation was that they were left stranded along Marcus Garvey Drive and proceeded toward Portmore on foot. They were then apprehended by the police whilst walking along Marcus Garvey Drive and taken to the Constant Spring Police Station.
Mr Scarlett stated further that whilst he and Mr Alexander were at the police station, in what he believed to be the CIB room, the police pointed at them and said in the presence of the complainant, “a dem that, a dem that”. He said that his hands were swabbed, and the police accused him of stealing a car.
In relation to Miss Ball, he stated that she came into the CIB room about 20 minutes after he and Mr Alexander and that this was the first time he saw her. He testified categorically that he did not know Miss Ball before that night and denied that she was one of his associates. He also stated that she was pregnant at that time. He denied...
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