Tyrone Headley v R
| Jurisdiction | Jamaica |
| Judge | P Williams JA |
| Judgment Date | 05 November 2019 |
| Neutral Citation | JM 2019 CA 88 |
| Court | Court of Appeal (Jamaica) |
| Docket Number | SUPREME COURT CRIMINAL APPEAL NO 67/2016 |
| Date | 05 November 2019 |
[2019] JMCA Crim 33
IN THE COURT OF APPEAL
THE HON Miss Justice Phillips P (AG)
THE HON Mr Justice F Williams JA
THE HON Miss Justice P Williams JA
SUPREME COURT CRIMINAL APPEAL NO 67/2016
K D Knight QC and Miss Tessa Simpson for the appellant
Miss Paula Llewellyn QC and Miss Paula-Sue Ferguson for the Crown
Criminal Law - Illegal possession of firearm — Illegal possession of ammunition — Appeal against conviction — Evidence — Admissibility — Whether hearing of out of court statements from the prosecution by the judge was prejudicial — Whether judge failed to properly assess evidence in totality — Whether judge failed to direct himself on the issue of lies — Appeal against sentence — Whether sentence was manifestly excessive in the circumstances.
Between 20 and 21 July 2016, the appellant, Tyrone Headley, was tried and convicted in the High Court Division of the Gun Court holden at King Street on an indictment containing two counts. The first count charged him with the offence of illegal possession of firearm and the second with illegal possession of ammunition, both contrary to section 20(1)(b) of the Firearms Act. On 28 July 2016, he was sentenced to imprisonment at hard labour for 12 years and five years on counts one and two respectively. The sentences were ordered to run concurrently. His application for leave — to appeal was considered on paper by a single judge of this court and was refused in relation to his conviction but was granted in relation to his sentence. Before us, he renewed his application for leave to appeal the conviction while pursuing the appeal against the sentence.
There are some facts in this case that are undisputed. On 8 August 2015 at about 6:48 am, Corporal Tyrone Daley and Constables Nichol Sharpe and Horace Brooks were on patrol in a police service vehicle, travelling along Hagley Park Road in Kingston. Corporal Daley was the driver. They heard a radio transmission that caused them to proceed to the Cockburn Pen area.
The appellant's case was that he was at a party in the Cockburn Pen area when he heard shots being fired. He quickly got into a blue Honda Civic with four other men aboard, in an effort to leave the area. The officers intercepted and stopped this vehicle. After the men exited the vehicle on the instructions of the police officers, a 9mm Smith and Wesson pistol with 10 cartridges was found on the floor at the rear of the vehicle.
The issue at trial was therefore whether, in all the circumstances, the police officers were correct in having deemed the appellant as being the person in possession of the firearm.
The prosecution relied on two witnesses to provide the details as to what transpired that morning. Constable Sharpe and Corporal Daley testified as to what occurred after the Honda Civic was stopped. Constable Sharpe said he quickly alighted from the police vehicle and “observed the three males in the back, in the rear of the motor vehicle, shuffling”. He instructed the person sitting at the rear passenger seat on the right side to put both hands through the window, open the door, and exit the car.
The appellant was the person sitting there and he complied with the instructions. Constable Sharpe asked him if he had anything illegal or offensive to declare and he answered “no”. Constable Sharpe searched the appellant and whilst doing so the appellant identified himself as a police officer and produced an identification card.
Upon completing the search, Constable Sharpe testified that he asked the other men to exit the motor car. After all the occupants were out of the vehicle, Constable Sharpe moved closer to the vehicle and looked directly into it. At this time all the doors of the vehicle were open. Constable Sharpe said that as he was looking through the driver's door at the right side he looked to his left and saw the appellant trying to get back into the rear of the motor vehicle through the rear right door. At just about this time, Constable Sharpe sighted the firearm “on the floor of the vehicle; in the middle of the rear of the vehicle”. He held on to the right shoulder of the appellant to prevent him from entering the vehicle.
Constable Sharpe then enquired of the appellant, who was the owner of the firearm and the appellant indicated that it was his licensed firearm. The appellant was unable to provide an explanation as to why the firearm was on the floor of the motor car. The appellant was also unable to produce the licence for the firearm, which he said that he had left at his home.
Constable Sharpe said he then called Corporal Daley's attention to the firearm. Corporal Daley retrieved it from the vehicle and inspected it. After inspecting the firearm, Corporal Daley indicated to the appellant that it was not a licensed firearm and cautioned him. The appellant responded, “Squaddy, mi know seh a nuh licence [sic] gun but you can jus' buss mi”.
Constable Sharpe under cross-examination agreed that the appellant also at that time said “Squaddy, nuh loud up di ting, suh man”. He however denied that the first thing the appellant had said upon exiting the motor car was “Officah, mi ah police. Ah me fire di shot dem”.
Constable Sharpe accepted that at some point the other occupants of the motor car had been in the immediate vicinity of where the appellant was. He also agreed that when they went to the Hunts Bay Police Station after the incident, he observed that one of the five men, who had been in the motor vehicle, was then missing. He agreed that only the appellant had travelled in the vehicle he was in to the station and the other four men had travelled in a separate service vehicle.
Constable Sharpe initially denied making any enquires regarding the whereabouts of the fourth man. After he was shown his statement, he accepted that he had recorded there that when they got to the police station, he “made enquiries regarding the whereabouts of the fourth [man] and was told that he was missing”. He accepted that, when he said that, he was speaking the truth.
Corporal Daley's account of what transpired that morning was largely consistent with the account given by Constable Sharpe. He however said he was the one who shouted instructions to the men to exit the vehicle with their hands up. He said he was searching the persons who had exited the left side of the Honda Civic while, on his instructions, Constable Sharpe searched the ones who had exited on the right.
Corporal Daley said that when he completed his search of the men, he went to the side where Constable Sharpe and the appellant were. Constable Sharpe showed him the firearm on the floor of the vehicle. He said before he went into the motor car to retrieve the firearm, the appellant had said, “Harvey a my gun, a mi licensed gun”. When asked for the licence or permit for the firearm, the appellant said he left it at his yard. After examining the firearm, because of its condition, Corporal Daley informed the appellant that he did not believe that it was a licensed gun. The appellant responded, “Yes, Harvey, a true you a talk mi a beg you a blight [sic], police to police”.
Corporal Daley explained how other police officers arrived on the scene and were tasked with the responsibility of escorting the other four men from the vehicle to the Hunts Bay Police Station. He and Constable Sharpe escorted the appellant, who was placed in their service vehicle, whilst the other men were placed in another service vehicle. On arrival at the police station, he observed that only three men arrived there in the other service vehicle.
Under cross-examination, Corporal Daley described his feeling upset when he realised that one of the occupants of the Honda Civic was missing. He got no satisfactory answer as to the whereabouts of this man. Corporal Daley said that the man was the first person he had searched and that the man had been sitting beside the driver. He denied suggestions that the man exited from the back of the car.
Also under cross-examination, Corporal Daley admitted that the appellant had also said, “Corporal, a true a nuh licenced [sic] gun”. This Corporal Daley said was said after he had examined the firearm and at a time when the other police officers had come on the scene.
Detective Sergeant Nicholas Prendergast, who at the time was a detective corporal, was the officer who arrested and charged the appellant. He testified that after receiving the report from Corporal Daley and Constable Sharpe, he cautioned the appellant and asked him, if there was any truth to what the officers had reported. He testified that he “told him that the officer said that a gun was recovered from a Honda Civic motor car and he told the police that it was his licenced [sic] firearm”, to which the appellant responded ‘yes’.
Detective Sergeant said he then cautioned the appellant and asked if he had a licence or permit to be in possession of this firearm. The appellant responded, “Straight up, me tell the police a mi licenced [sic] gun, because gun find in a car with a man a straight charge”.
Under cross examination, Sergeant Prendergast accepted that the appellant had told him that “he was in a car with four other men and one of them fired shots and that one, was the one that walked away from the scene”. However, Sergeant Prendergast explained, this was what the appellant said when a “document was being done” some two days later, on 10 August 2015.
The appellant gave sworn evidence. He testified that on 8 August 2015 he was at a party in the Cockburn Pen area in the company of two friends. After he heard the gunshots, he boarded the Honda Civic motor car with four other men. He explained that he was familiar with the men but knew the name of only one, Kimani Brown, who he regarded as a...
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