Wilberforce Mattison v R
| Jurisdiction | Jamaica |
| Judge | Dukharan JA |
| Judgment Date | 20 December 2012 |
| Neutral Citation | JM 2012 CA 118 |
| Docket Number | SUPREME COURT CRIMINAL APPEAL NO 75/2009 |
| Court | Court of Appeal (Jamaica) |
| Date | 20 December 2012 |
[2012] JMCA Crim 57
JAMAICA
IN THE COURT OF APPEAL
The Hon Mrs Justice Harris JA
The Hon Miss Justice Dukharan JA
The Hon Mr Justice Hillips JA
SUPREME COURT CRIMINAL APPEAL NO 75/2009
Gladstone Wilson for the applicant
Mrs Karen Seymour Johnson and Broderick Smith for the Crown
CRIMINAL LAW - Illegal possession of firearm - Shooting with intent - Whether judge should have recused herself after admitting her acquaintance with key witness
The applicant was convicted and sentenced in the High Court Division of the Gun Court held in Kingston on 8 July 2009, for the offences of illegal possession of a firearm and shooting with intent. He was sentenced to 10 years and 14 years imprisonment respectively with sentences to run concurrently.
An application for leave to appeal conviction and sentence was considered on 28 December 2010 by a single judge of this court who refused leave. This is a renewal of that application.
We heard arguments on 8 and 10 March 2011 and reserved our decision to 15 April 2011 when we dismissed the application, with sentences to commence from 8 October 2009. We promised to put our reasons in writing, and this we now do.
The relevant facts of the prosecution's case are that on 13 June 2007, at about 11:00am, a team of 10 police officers went to 2 Dennis Avenue in Gregory Park, St Catherine. They were divided into two teams. One team which included Corporal Steven Taite approached the premises from the front, while the other team approached the premises from the rear and included Corporal Rodney Matthews and District Constable Jason McKay. The team which approached the premises from the rear walked along a lane that was at the back of the premises.
On the arrival of the police team that went to the front, two men including the applicant were seen standing in the yard. Corporal Taite shouted at the men who pulled guns from their waistbands, pointed them in the direction of the officers and fired at Corporal Taite and his team. The fire was returned in the direction of the men who ran off in separate directions. The applicant ran towards the rear of the premises. The other man was subsequently discovered suffering from gunshot injuries with a firearm beside him.
While at the back of the premises, Corporal Matthews and District Constable McKay saw the applicant running towards them from the direction of the front of the premises where they had heard explosions. Corporal Matthews observed a firearm in the hand of the applicant. Both officers were alongside a fence outside the premises when they saw the applicant. As the applicant reached near the officers he fired the firearm in their direction. The officers took cover while Corporal Matthews returned the fire. The applicant managed to escape. The applicant was subsequently apprehended and pointed out on an identification parade where he was charged for illegal possession of firearm and shooting with intent.
District Constable McKay testified that he knew the applicant before the date of the incident as he used to see him from about the year 2000 at the stables at Caymanas race track. On the date of the incident he said the applicant came as close as 10 feet from the fence where he was. He was able to see him for about 10 seconds and saw his face and entire body. Corporal Matthews pointed out the applicant on an identification parade.
The defence of the applicant is one of denial. He denied that he had a gun or that he shot at the police.
Mr Wilson abandoned the original grounds of appeal except ground 5, which reads ‘that the verdict was unreasonable having regard to the evidence’. He sought and was granted leave to argue the following supplemental grounds:
‘1. That the learned trial Judge failed to establish that she had jurisdiction by using the evidence of Corporal Taite which was later rejected-to dismiss three (3) of (5) counts on the indictment.
2. That the Learned Trial Judge in her summing up disregarded important elements of the evidence which showed significant difficulties of identification brought out in [sic] cross-examination of both Matthews and McKay. This lack of thorough judicial treatment denied the appellant [sic] of a fair and balanced consideration of the evidence in this case.
3. Although there is no evidence that Cpl. Matthews indicated exactly where he was standing in the lane before and during the shooting (although asked), the learned Trial Judge invited the witness to identify from a photograph taken from inside the yard where he said he was looking over the fence from outside.
4. The evidence of Cons. McKay does not comport with Count 5 on the Indictment.
5. …
6. That the learned trial judge should have voluntarily recused herself from trying the case after admitting knowing a key witness and his family in circumstances where the evidence of the said witness was expressly accepted to convict the appellant [sic]. It is this specific action of the judge that could lead to the perception that judicial bias was present.’
Mr Wilson sought to argue grounds 1, 3, 4, 6, 2 and 5 in that order.
‘1. That the learned trial Judge failed to establish that she had jurisdiction by using the evidence of Corporal Taite which was later rejected-to dismiss three (3) of five (5) counts on the indictment.’
It was submitted by Mr Wilson that the learned trial judge failed to establish that she had jurisdiction when she rejected the evidence of Corporal Taite on three counts on the indictment in which a firearm was used. She also rejected the evidence of identification of the applicant by Corporal Taite.
The applicant was originally charged on an indictment containing five counts, which were as follows:
-
(1) illegal possession of firearm,
-
(2) illegal possession of ammunition,
-
(3) shooting with intent,
-
(4) illegal Possession of firearm,
-
(5) shooting with intent.
The prosecution was relying on two shooting incidents close to each other involving the applicant. In relation to counts 1 to 3, the learned trial judge stated at page 303 of the summation:
‘… having looked at Corporal Tate's [sic] evidence, I find that as regards that incident at the front involving Corporal Tate and he said the other officer, Morgan was with him and he said two men shot at him. I am not satisfied so that I feel sure that he was being [sic] able to make an accurate and true identification of this accused man. And that is as regards Corporal Tate [sic], because he was the witness who spoke about what was happening in the shooting at the front of the premises. So in relation to counts 1, 2 and 3, I find the accused man not guilty in relation to those three counts of the Indictment.’
The applicant, however, was convicted on the remaining two counts.
It is clear that this appeal relates to the shooting incident involving Corporal Matthews and District Constable McKay. It is therefore the evidence given by these police officers that would be relevant to the learned trial judge in deciding whether she had jurisdiction to try the offences in question. The learned trial judge, in her summation, recounted the evidence given by both officers and concluded that she in fact had jurisdiction to try the matters. This is what the learned trial judge said at pages 285 - 286 of the transcript:
‘So that, in relation to Counts 1, 2 and 3 I have evidence to satisfy me that I have jurisdiction in relation to Counts 4 and 5. The evidence of Corporal Matthews and District Constable McKay is that the accused man shot at them and as he shot at them he ran at the back of the premises. They said that they saw the firearm in his hand and they said that they heard loud explosions near to the police officers and they said that this object was pointed at them and they heard loud explosions sounded [sic] like gunshots. So that in those circumstances I am satisfied that I have jurisdiction to try the Counts as well as Counts 4 and 5 of the Indictment’ (emphasis added)
The fact that the learned judge rejected the identification evidence of Corporal Taite has no effect on this issue. It is therefore our view that this ground has no merit.
It can be seen therefore that the learned trial judge was not satisfied that Corporal Taite was in a position to properly identify the applicant as it related to counts 1, 2 and 3.
‘3. Although there is no evidence that Cpl. Matthews indicated exactly where he was standing in the lane before and during the shooting (although asked), the learned Trial Judge invited the witness to identify from a photograph taken from inside the yard where he said he was looking over the fence from outside.’
On this ground, Mr Wilson submitted that because Corporal Matthews failed to indicate exactly where he was standing in the lane before and during the shooting, the learned trial judge ought not to have invited the witness to identify his location from a photograph tendered as an exhibit.
It was Corporal Matthews' evidence that while he was in the lane at the rear of the premises, he looked over the fence that bordered the property and saw the applicant running towards him and his colleague's direction. He also stated that after the shooting subsided, he chased the applicant down the...
To continue reading
Request your trial