Legal Scoop | The robber as your witness

The recent Court of Appeal case of R v Shanor Bertram is another interesting one. Shanor Bertram appealed against his conviction in the High Court Division of the Gun Court held at St Ann’s Bay for the offences of illegal possession of firearm, illegal possession of ammunition and robbery with aggravation. He was sentenced to 10 years, five years and 12 years imprisonment, respectively.

Background

The brief facts of the case are as follows. On Saturday, January 25, 2014, about 9 a.m., a woman and her young son got into a taxi at Priory in St Ann. Only the driver and a male passenger were in the vehicle. When the taxi got to the vicinity of Chukka Cove, the male passenger produced a gun, pointed it at the woman and demanded her possessions. At the same time, the driver held on to the lock on the door where the son was seated. This prevented the young man from opening the door. The driver told him not to move.

The gunman took the woman’s cellular phone and also her purse containing $20,000. The driver asked the gunman if he could release them. The gunman said yes and the driver allowed them to leave. The car then drove off.

As soon as they got out of the car, they saw a police car. The son made a report to the police and the police’s vehicle drove off in the direction of the taxi. The woman and her son went to the St Ann’s Bay Police Station where they later saw the police bring in the two men. They identified the men, as well as the cell phone and purse to the police.

When the police arrested and charged them, they both denied being involved in any robbery

Bertram was identified as the driver of the taxi and Duane Salmon as the gunman. Salmon later pleaded guilty to the charges and was sentenced to seven years imprisonment for illegal possession of firearm, five years for illegal possession of ammunition and 10 years for robbery with aggravation.

In the Court below

At the trial, Bertram, the driver, gave evidence on his own behalf. He admitted to driving the taxi but denied being a part of the robbery. He told the court that a man chartered his car in Montego Bay to go to Ocho Rios to pick up some money from someone. Before reaching Ocho Rios, they turned around because the passenger said the person had moved. They were heading back to St James when he decided to pick up the woman and her son. He did not know that the man had a gun and when the man produced the gun he became afraid. He obeyed when the man, after robbing the woman and her son, knocked him on his leg and told him to drive.

Interestingly, Salmon gave evidence to support Bertram. He told the court that his sole purpose for chartering the taxi was to rob someone in St Ann. He abandoned the plan because there was “too much police on the road”. He said shortly after the woman and her son were picked up, he told the driver to stop and then brandished the gun. He also said he could not drive and he was going to wait until they were at a lonely road before he robbed the driver.

Both men were convicted and sentenced; however, the actual robber was given a lighter sentence than the taxi driver.

Court of Appeal

When the matter came up for appeal, Bertram’s lawyer argued that there was not enough evidence to convict her client. She said the sole question for the court to answer was whether Bertram was a participant, an innocent bystander, a potential victim, or a pawn in the commission of the offence. She said the only evidence against Bertram from both mother and son is that he did something to prevent the young man from opening the door. According to her, there was no evidence that he did or said anything to assist in the robbery. The evidence was not enough to prove beyond a reasonable doubt that Bertram was involved in the robbery, counsel argued.

The lawyers from the Director of Public Prosecutions Office countered that argument. They pointed out that not only did the driver hold on to the door, but he ordered the young man not to move. Bertram also asked the gunman if it was time to let them off, and he was the one who ordered them to leave. They also provided the court with decided cases, both from the United Kingdom and locally, dealing with law on joint criminal enterprise.

The Court of Appeal concluded that the trial judge, having seen and heard the witnesses and having arrived at her conclusion, they would only interfere if she was plainly wrong. They were in no position to say she was. The conviction and sentence were, therefore, upheld.

It turned out that Bertram had a previous conviction for illegal possession of firearm, wounding with intent and robbery with aggravation.

The Court of Appeal said that the fact that Salmon pleaded guilty and Bertram’s previous convictions meant that it was not unfair to give Salmon a lesser sentence. Bertram’s counsel argued that he played a lesser role than the gunman and should not be more harshly punished. However, the Court of Appeal held firm, contending that the role played by Bertram of driving the taxi to attract unsuspecting victims was almost as egregious as the actions of the robber.

Conclusion

An admitted robber may not be your most compelling witness as far as witnesses go.

- Shena Stubbs-Gibson is an attorney-at-law and legal commentator. Send feedback to shena.stubbs@gleanerjm.com, Twitter:@shenastubbs. The column is printed every other week.