Vassell Douglas v R

• Jurisdiction: Jamaica
• Court: Court of Appeal (Jamaica)
• Judge: G Fraser JA
• Judgment Date: 23 February 2024
• Neutral Citation: JM 2024 CA 20
• Docket Number: SUPREME COURT CRIMINAL APPEAL NO 29/2017

Vassell Douglas

and

R

[2024] JMCA Crim 10

Before:

THE HON Mr Justice F Williams JA

THE HON Mrs Justice Foster-Pusey JA

THE HON Mrs Justice G Fraser JA (AG)

SUPREME COURT CRIMINAL APPEAL NO 29/2017

IN THE COURT OF APPEAL

Criminal Law — No case submission — Self-defence — Summation on inconsistencies and discrepancies — Treatment of defence's case — Whether defendant entitled to good character direction — Wrong section of legislation cited in the statement of offence (the Offences Against the Person Act) — Appellate court's powers of amendment.

Miss Deborah Martin for the appellant

Mrs Sharon Milwood-Moore and Mrs Christina Porter for the Crown

G Fraser JA (AG)

Background

1 The appellant, Mr Vassell Douglas, was charged on an indictment for the offences of illegal possession of firearm (count one) and wounding with intent (count two). The matter was tried in the High Court Division of the Gun Court for the parish of Kingston on various days between 5 July 2016 and 24 March 2017 by a judge of the Supreme Court (‘the learned trial judge’), sitting without a jury. The appellant was convicted of the above-mentioned offences and, on 6 April 2017, was sentenced to eight months' imprisonment at hard labour on both counts. The sentences were ordered to run concurrently.

2 A single judge of this court, in granting the appellant leave to appeal both convictions and sentences, opined that further exploration of and full arguments on the following issues would be useful in determining the matter:

• i. whether there were a number of deficiencies and misdirection as it relates to the issue of self-defence in particular the issue of honest belief,

• ii. whether the learned judge ought to have given a direction on the propensity limb of the good character direction,

• iii. whether, although the learned trial judge identified a number of inconsistencies and discrepancies in the evidence given by the prosecution witnesses, she failed to demonstrate how she resolved them.

• iv. the incorrect section recited in the statement of offence relative to count two of the indictment, and no amendment was sought by the prosecution to rectify the section to substitute section 20 instead of section 21 of Offences Against the Persons Act (‘OAPA’).

• v. the inappropriate sentences imposed by the learned trial judge on both counts of the indictment, having regard to the sentencing guidelines and the 2010 amendment to section 20 of the OAPA.

3 At the hearing of the appeal, counsel for the appellant indicated that the appellant would only be challenging his convictions and not the sentences. Counsel informed the court that the appellant had not been granted bail pending appeal and had served the sentences imposed in respect of both offences. Our understanding of counsel's utterances in this regard, is that, the appellant already served the very short sentences of eight months imprisonment on each count and was released.

4 At the end of the hearing, we reserved our decision and indicated that we would provide same as soon as possible. This is the fulfilment of our promise. We apologize for the delay in providing this decision.

A general outline of the facts

5 The appellant was an armed plainclothes security guard assigned to the National Water Commission office (‘NWC office’) located at the Portmore Mall in the parish of Saint Catherine. On 3 January 2014, while he was on duty there, an incident occurred between him and the complainant named Senator Hylton, who had visited the NWC office on more than one occasion to complain about damage done to his water pipe by NWC workers.

6 The complainant felt that his concerns were not being addressed. As a result, he became upset and began to behave in a boisterous manner. The appellant cautioned the complainant and asked him to calm down and lower his voice. The complainant refused to adhere to the appellant's instructions and was asked to leave the NWC office. Soon after, an altercation ensued between both men which resulted in the complainant being shot in his left arm by the appellant.

The evidence for the prosecution

Senator Hylton

7 On 3 January 2014, the complainant went to the NWC office to make a report about the damage that workers from NWC had caused to a pipe at his home.

8 He had gone earlier in the day, left, and returned near 3:00 pm. None of the customer service agents were paying him any attention and he began to complain loudly. The appellant came over to him, told him to stop making noise in the office, and told him to leave. The complainant responded by asking the appellant “who are you that I should be mindful of”. The appellant insisted that the complainant needed to leave the NWC office. The complainant saw the appellant go over to the customer service desk, take out his phone and appeared to be speaking on it.

9 The appellant then returned to where the complainant was and pushed him in his chest three times with his hands. The complainant said that he was “railing” at the appellant, that is, speaking loudly. He told the appellant “martial arts is [sic] not for aggression, it's for self defence”. The complainant, while at arm's length from the appellant, reached for his phone from his pocket, and had the phone in his right hand, when the appellant pulled his firearm and shot him in his left arm. The phone fell from the complainant's right hand.

10 The complainant testified that he did not push the appellant at any point, and did not, at any time, have anything in hand, apart from his phone. After the appellant shot him, his phone fell and broke into pieces, and the appellant kicked away its pieces. The complainant went to the Spanish Town Hospital where an x-ray was done, and it was revealed that there were broken bones at the point where he was shot in the left arm. He was treated and admitted.

11 He remained in hospital for “[m]aybe a week or so”. While in the hospital, the police came to him and took a report. The complainant stated that he had seen the appellant many times when he went to the NWC office to pay his water bill, however, he did not know what function the appellant played at the office, “just a regular person” he had never spoken with him before the day of the incident.

12 The complainant testified that when the shot was fired, the appellant's gun was pointed at him. The complainant reiterated that he did not touch anyone in the building during the incident.

13 In cross-examination, the complainant stated that he had been trying to have the issue of the damage to his pipes resolved for some time. He followed one of the customer service representatives, Mrs Anderson, when she went out of the NWC office, complaining loudly, but he eventually returned to the office.

14 He agreed that when he returned to the NWC office, he was “cursing” for attention and venting his anger, he felt he was being sent from one person to another “like a pass round donkey”. It was at that point that the appellant approached him.

15 The complainant agreed, when confronted with his statement, that he had not been truthful when he said that he did not know the appellant's function at the NWC office. He knew that the appellant was a security officer dressed in plain clothes. He agreed that he was cursing, to describe how he felt and how the NWC was treating him. He agreed that he told the appellant to call the police, and he saw the appellant using his cellular phone afterwards. The complainant agreed that while the appellant was speaking on his cell phone, he (the complainant) continued to curse about the poor service that was being offered. The complainant testified that when the appellant came to him, and again asked him to leave the premises, in response, he told the appellant “[i]f you name Jung Lue, a me name Carter Wong” and “[m]i nuh fraid a nobody”.

16 He denied that he slapped the appellant in his face, but admitted that after the appellant pushed him, he pushed the appellant. The complainant agreed that when he testified that he had not pushed the appellant, it was untrue. He agreed that he was taller than the appellant, who would reach him somewhere in the region of his chest if they were to stand next to each other. The complainant admitted that in his statement to the police he said, “[h]e then hit at my face with a firearm, I then blocked it with a force so as to hurt him”. He agreed that this was called a “strike block” and that he had stated that he did “Tai Chi Kung Fu”. The complainant stated that the strike block was to prevent himself from getting hurt, and to block the appellant's attack. He agreed that the appellant's initial use of the firearm was to slap him, and this made him even more angry. He thought the whole pushing incident was embarrassing. He agreed that it was after he countered with a strike block, that the appellant stepped back and pulled his firearm. The complainant denied a suggestion that he was pulling a ratchet knife. He also denied that he approached the appellant. He denied that the appellant shouted at him to drop it, and that he refused to do so. He agreed that the appellant fired a single shot at him but was adamant that he did not have a knife. He denied that the appellant fired a shot to stop his approach on him.

17 In re-examination, the complainant agreed that, in blocking the appellant, he had to touch him.

Ms Elizabeth Badhu

18 On 3 January 2014, sometime after 3:00 pm, Ms Badhu was at the NWC office conducting business. She heard and saw the complainant talking very loudly in an angry tone, insisting that he had been in the office for too long and that someone needed to come to talk to him. Eventually, the appellant, whom she knew as the security officer working there, spoke to the complainant asking him to stop the noise and the loud talking, but the complainant continued and insisted that he needed someone to come to speak with him. The...