Terron White v R

JurisdictionJamaica
JudgeV Harris JA
Judgment Date04 February 2022
Neutral CitationJM 2022 CA 16
Docket NumberSUPREME COURT CRIMINAL APPEAL NO 29/2015
CourtCourt of Appeal (Jamaica)

[2022] JMCA Crim 8

IN THE COURT OF APPEAL

Before:

THE HON Mrs Justice McDonald-Bishop JA

THE HON Mrs Justice V Harris JA

THE HON Mr Justice Brown JA (AG)

SUPREME COURT CRIMINAL APPEAL NO 29/2015

Terron White
and
R

Ms Jacqueline Cummings for the applicant

Adley Duncan and Miss Cindi-Kay Graham for the Crown

V Harris JA
1

This court, having considered Mr Terron White's (‘the applicant’) renewed application for leave to appeal his conviction and sentence, and having heard submissions on behalf of the applicant and the Crown, made the following orders on 2 June 2021:

  • “1. The application for leave to appeal conviction and sentence is granted.

  • 2. The hearing of the application is treated as the hearing of the appeal.

  • 3. The appeal against conviction is dismissed.

  • 4. The appeal against sentence is allowed.

  • 5. The sentences of 15 years' imprisonment at hard labour for illegal possession of firearm, 18 years' imprisonment at hard labour for rape and 10 years' imprisonment at hard labour for robbery with aggravation are set aside to allow credit for time served on pre-sentence remand.

  • 6. The following sentences are substituted: on count 1 for illegal of firearm, 13 years and 6 months' imprisonment at hard labour; on count 2 for rape, 16 years and 6 months' imprisonment at hard labour with the stipulation that the applicant shall serve a period of 12 years' imprisonment at hard labour before becoming eligible for parole; and on count 3 for robbery with aggravation, 8 years and 6 months' imprisonment at hard labour.

  • 7. The sentences are to be reckoned as having commenced on 10 April 2015 and are to run concurrently.”

The court promised that written reasons would follow. We now fulfil that promise.

Factual background
2

The applicant was charged on an indictment containing three counts for the offences of illegal possession of firearm (count 1), rape (count 2) and robbery with aggravation (count 3). He was tried in the High Court Division of the Gun Court by George J (‘the learned trial judge’) without a jury. On 12 January 2015, he was convicted of all three offences. On 10 April 2015, the applicant was sentenced to 15 years' imprisonment at hard labour for illegal possession of firearm, 18 years' imprisonment at hard labour for rape and 10 years' imprisonment at hard labour for robbery with aggravation. The sentences were ordered to run concurrently. However, a pre-parole period for the offence of rape was not stipulated by the learned trial judge as provided by section 6(2) of the Sexual Offences Act (‘SOA’).

3

At the trial, the case for the prosecution was that, on the evening of 31 August 2012, at approximately 8:30 pm, the complainant was sitting on her verandah in a community located in Yallas in the parish of Saint Thomas, with three of her five children. At the time of this unfortunate incident, the ages of her children, four girls and one boy, ranged between 16 years old to six years old. Having sent her eldest daughter KB into the house for something, the complainant observed three men walking down the lane towards their home. Eventually, one man passed the house, but she did not see where the other men went. KB returned to the verandah and said something to the other two children (a 12-year-old girl and a nine-year-old boy). Both children immediately ran towards the complainant's bedroom. Upon realising that something was amiss, the complainant ran into the house and closed the door. She then heard male voices coming from her bedroom, saying, “nuh look pon mi, nuh look pon mi, unooh nuh look pon mi”. Another voice said (referring to one of her daughters), “Hey gal, mi a goh kill you”. As the complainant walked into her bedroom, a gun was pointed in her face. She was instructed not to look and to go onto the bed. She noticed two men in the room along with four of her children. The three youngest children were on the bed, KB was behind the door, and she did not know where her third daughter was.

4

The complainant could not see the face of the man who held the gun because he had a handkerchief covering his nose and mouth. Both men also wore caps. While attending to her children on the bed, the man with the gun stood over her and began touching her. She was lying on her stomach when he put his hands on her leg and inserted his finger into her vagina. He then pulled down his pants and pushed his penis into her vagina.

5

At some point, he set his sights on a “chaparrita” (a colloquial word for “bracelet”) which was on one of her hands. He enquired if it was gold, to which she responded that it was silver. The man ordered her to remove the chaparrita, but she was unable to do so. On his instruction, she covered her eyes so that he could remove it himself. The complainant testified that, at this time, she had an opportunity to observe the man's face, with the aid of the light from her television, for approximately 10–15 seconds as she “peeped” through her fingers. She could view his entire face because the handkerchief had fallen from his face and was around his neck. The complainant recognised the applicant as her second cousin, whom she knew “almost all [her] life”. Once the chaparrita was removed from her hand, the applicant pulled the handkerchief over his nose and mouth. He also removed the silver chain she was wearing.

6

The complainant overheard the other man, who was in another room, telling someone to perform oral sex on him. It was her testimony that she pleaded with the applicant, “please nuh mek him rape her, please nuh mek him rape her” (referring to one of her daughters). The applicant then instructed the other man, more than once, to leave that particular girl alone and rape the older girl. Finally, on the third occasion, when he told the other man to “leave the girl alone”, the applicant stood up and walked away. Both men subsequently left. In addition to seeing and recognising the applicant's face, the complainant also testified that she recognised his voice when he spoke.

7

The complainant went to her neighbour and told her what had happened. The incident was reported to the police. When the police arrived, the complainant and her children were taken to the Yallahs Police Station, where she gave a statement and named the applicant as her assailant.

8

Three police officers gave evidence on the prosecution's case. Their testimony can be summarised as follows:

  • (i) Sergeant Sheryl Robinson testified that on the night in question, after receiving the complainant's report, she along with a team went to a dwelling house in Newland District, Yallahs, sometime after 10:00 pm, in search of the applicant. He was not found there, but a message was left with a woman who was at the house;

  • (ii) Detective Constable Shandy Scott conducted the applicant's question and answer interview. She testified that when she cautioned him, the applicant said, “how mi fi rape mi family, a fish fry mi guh and come back when mi hear she [sic] police a look fi mi”; and

  • (iii) Constable Kemar McLeary recorded the applicant's question and answer interview. The document containing the record of the question and answer interview was admitted into evidence as an exhibit.

9

Expert evidence was also adduced from three forensic analysts about DNA (deoxyribonucleic acid) samples retrieved from the complainant and the applicant; they were:

The significance of the evidence of those expert witnesses will be discussed below.

  • (i) Mrs Yeonie Campbell-Simpson, a forensic scientist employed at the Government Forensic Science Laboratory (‘FSL’) and assigned to the biology department;

  • (ii) Dr Judith Mowatt, the director of the FSL; and

  • (iii) Miss Sherron Brydson, the government analyst and deputy director in charge of the biology department at the FSL.

10

At the end of the prosecution's case, counsel for the applicant made a submission of no case to answer, which was rejected by the learned trial judge. The applicant then made an unsworn statement from the dock denying the allegations and raising an alibi. Specifically, the applicant stated that he did not rape anyone and was at a fish fry on the night in question. He also asserted that the articles of clothing admitted into evidence ascribed to him were not his. The applicant claimed that he did not know from whom or where the police officers obtained those items of clothing since he left the police station, after being admitted to bail, in the same clothes he wore when he first went there. No witnesses were called on the applicant's case at trial.

11

At the end of the trial, as indicated previously, the learned trial judge convicted the applicant on all counts of the indictment and sentenced him to several terms of imprisonment (see para. [1] above).

The application for leave to appeal
12

Aggrieved by the outcome of the trial, on 4 May 2015, the applicant applied for leave to appeal against his conviction and sentence. On 31 July 2018, the application was considered and refused by a single judge of this court on the basis that the learned trial judge's directions properly dealt with the issues regarding identification and the DNA evidence in the matter. Additionally, it was determined that, in respect of the sentences, the learned trial judge gave due consideration to the appropriate principles. Finally, notwithstanding her failure to credit the applicant for time spent in custody before the trial, the single judge of this court also found that the sentences imposed were within the normal range.

13

As he is entitled to do, the applicant renewed his application for leave to appeal conviction and sentence before the court. Accordingly, on 21 August 2012, the following supplemental grounds of appeal were filed on the applicant's behalf:

  • “(a) The verdict is unreasonable having regard to the totality of the evidence.

  • (b) The Learned Trial Judge failed to address the fact that the...

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