Wayne Samuels v R

• Jurisdiction: Jamaica
• Judge: Brooks JA
• Judgment Date: 22 February 2013
• Neutral Citation: JM 2013 CA 18
• Docket Number: SUPREME COURT CRIMINAL APPEAL NO 89/2010
• Court: Court of Appeal (Jamaica)
• Date: 22 February 2013

[2013] JMCA Crim 10

JAMAICA

IN THE COURT OF APPEAL

Before:

The Hon Mr Justice Morrison JA

The Hon Mr Justice Dukharan JA

The Hon Mr Justice Brooks JA

SUPREME COURT CRIMINAL APPEAL NO 89/2010

Wayne Samuels

and

R

Everton Bird for the applicant

Mrs Sharon Millwood-Moore for the Crown

CRIMINAL LAW - Illegal possession of firearm - Robbery with aggravation - Shooting with intent - Illegal possession of ammunition - Whether the trial judge misdirected herself on the facts of the case

Brooks JA

1 This is an application by Mr Wayne Samuels for leave to appeal against his conviction, which occurred in the High Court Division of the Gun Court on 12 May 2010. The presiding judge was McDonald J, who sat without a jury. As a result of that conviction Mr Samuels was sentenced, on 4 August 2010, to imprisonment at hard labour for seven years, for the offence of illegal possession of a firearm, 10 years imprisonment for each of two separate counts of robbery with aggravation, 12 years imprisonment for shooting with intent and four years imprisonment for illegal possession of ammunition. All the sentences were ordered to run concurrently.

2 A single judge of this Court refused Mr Samuels' application for permission to appeal, but Mr Bird, in his usual comprehensive and elegant style, renewed the application on Mr Samuels' behalf. Mr Bird urged us to set aside the convictions on the basis that they were unsafe.

3 On 25 January 2013, we announced our decision to refuse the application for permission to appeal and ordered that the sentences be reckoned as having commenced on 4 November 2010. At that time, we promised to put our reasons in writing. We now fulfil that promise.

4 At the time of hearing the application, we granted Mr Bird permission to abandon the grounds of appeal filed by Mr Samuels and to argue four supplemental grounds in place thereof. The essence of the grounds argued by Mr Bird was as follows:

Ground 1

The learned trial judge erred on the facts and was wrong in law in arriving at [her findings of fact].

Ground 2

The learned trial judge erred and consequently misdirected herself on the facts and was wrong in law in [accepting the evidence by the prosecution that the applicant made a voluntary admission of having participated in the crimes in issue].

Ground 3

The learned trial judge misdirected herself on the applicable law and was wrong on the facts in rejecting the submission of no case to answer made by the defence counsel on behalf of the [applicant].

Ground 4

Failure of the learned trial judge to make any or any sufficient reference to, or comment on, obvious weaknesses, contradictions and inconsistencies in the case for the prosecution and the irregularities associated with the manner in which the prosecuting counsel chose to conduct it…have the effect that the verdict handed down by the learned trial judge cannot be supported…as the aforementioned shortcomings in the process of the trial had the result that the [applicant] did not receive a fair trial.

We shall examine the issues raised by each ground in turn. Before doing so, however, it is necessary to outline the respective cases that were presented at the trial.

The case for the prosecution

5 On 14 December 2012 the Nelson family, of a Portmore address in the parish of Saint Catherine, collected a family member at the Norman Manley International Airport and drove home. On entering their yard at about 1:00 am, they were pounced upon by two men, at least one of whom was armed with a firearm. The men robbed them of money and other valuables and drove away in Mr Nelson's blue Honda CRV motorcar.

6 Mr Nelson promptly made a report to the police, and a transmission was made on the police communication system concerning the robbery.

7 At about 2:30 that morning, a police mobile patrol spotted the Honda CRV along Burke Road in Spanish Town and chased it. The chase took them along Old Harbour Road where the Honda ran off the road and crashed into an embankment. This was in the vicinity of Sydenham Villas, also in the parish of Saint Catherine. The police car stopped behind the Honda and the two police officers aboard, alighted. They noticed that two persons were in the Honda. The police were still beside their vehicle when the driver of the Honda alighted from that vehicle.

8 As he alighted, the driver pointed a gun in the direction of the police officers and opened fire. The officers took cover and returned the fire. The driver of the Honda fell to the ground, and the firearm fell from his hand. One of the police officers, Corporal Gladstone Allen, went to where the driver was, took up the firearm and, leaving the driver where he lay, injured, went to assist the other police officer, Corporal Dalton Gordon (who was then a constable), with the other occupant of the Honda.

9 While the police officers were engaged with the other occupant, the driver got up and fled the scene. He made good his escape. The other occupant, Mr Wesley Walters, was taken into custody. He led the police to an address at Saint John's Road, where some of the Nelsons' property was recovered.

10 At about 5:00 the same morning, a police party, including Corporals Allen and Gordon, went to Sydenham Villas, mentioned above, where Mr Samuels was found lying in a yard suffering from gunshot injuries. He was wearing clothing identical in description to that worn by the man who had alighted from the Honda and fired at the police officers. Both officers identified Mr Samuels as the man who had fired at them. Mr Samuels was taken to the hospital, where, on the following day, and after being cautioned, he admitted to having robbed the family.

11 The Nelsons were summoned to the Bridgeport Police Station that morning. There, at about 7:00 o'clock, they identified their possessions that had been stolen earlier. Those items had been retrieved from the Honda as well as from the premises at Saint John's Road.

12 An identification parade was held for Mr Walters and Mrs Nelson identified him as one of the robbers. No parade was held for Mr Samuels. While Mrs Nelson was giving testimony at the trial she pointed Mr Samuels out as being one of the robbers. It was during the course of that testimony that Mr Walters pleaded guilty to the firearm and robbery charges. Mr Samuels was called upon to answer the charges against him, after an unsuccessful no-case submission which was made on his behalf.

The case for the defence

13 Mr Samuels made an unsworn statement in his defence. He stated that on the morning in question he was just a passerby, visiting his girlfriend, when he heard a loud explosion sounding like a gunshot. He said that he felt something hit him. He, thereafter, fell to the ground and lost consciousness because he was bleeding very badly. He woke up in the hospital. He, of course, knew nothing about the robbery or the shoot-out with the police. He stated that he did not give any statement to the police admitting participation in a robbery. He called no supporting witness.

Ground 1 The learned trial judge erred on the facts and was wrong in law in arriving at her findings of fact

14 In ground one of his grounds of appeal, Mr Bird made a detailed dissection of what, he said, were discrepancies and inconsistencies in the respective testimonies of Corporals Allen and Gordon. The thrust of his submissions, in that regard, was that there was no sound basis on which the learned trial judge could have believed the testimonies of those officers.

15 A major portion of Mr Bird's submissions in respect of this ground dealt with inconsistencies between Corporal Allen's written statement and his evidence in chief. The most significant of those inconsistencies concerned the time at which Corporal Allen retrieved the firearm. That inconsistency had a significant impact on the issues of identification and credibility. Mr Bird submitted that the basis on which the learned trial judge believed the oral testimony of Corporal Allen was fragile. We do not share that view. The learned trial judge demonstrated that she considered the evidence and made her finding accordingly. After identifying the inconsistency, the learned trial judge said in her summation (set out at pages 561–2 of the record):

‘The evidence before the court is what is given in the witness box and not what the witness said on a previous occasion, this is not evidence unless the witness admits that that is the truth. There is a difference in the sequence of the taking up [of] the gun as to whether Corporal Allen took up the gun before the man ran as stated in Court or after the man ran as stated in his statement. I accept the evidence of Corporal Allen that he took up the gun before the man ran. Corporal Allen testified that after he took up the firearm, he looked at the accused man for five seconds and then went across to Constable [sic] Gordon. Corporal Allen admitted that this five second observation is not recorded in his statement. His explanation for this omission is that he had no guidance that he should have written it in the statement, he is not an investigator, he is more an office-type officer, he said it had to do with knowledge, how to include that, he had no knowledge. Having seen and heard this witness I believe him when he says that he looked at the accused lying on the ground for five seconds .’ (Emphasis supplied)

16 That extract, and particularly the portion emphasised, demonstrates that, not only did the learned trial judge identify the inconsistency and accept the explanation given for it, but she went on to explain that the witness' demeanour assisted her in arriving at her conclusion. The portion of the summation, which has been emphasised above, highlights the reason for this court being slow to disturb findings of fact by the tribunal entrusted with...