Good character or not, security guard loses appeal

A security guard who was sentenced seven years ago to a total of eight months’ imprisonment for shooting and wounding a customer has lost his appeal against his convictions and sentences.

The shooting incident took place at the office of the National Water Commission (NWC) in Portmore Mall, St Catherine in January 2014.

Vassell Douglas, the appellant, was convicted on March 24, 2017 of illegal possession of firearm and wounding with intent. He was sentenced on April 6, 2017 to eight months’ imprisonment at hard labour on each count. The judge ordered that the sentences should run concurrently.

Vassell has already served the sentences as he was not on bail pending appeal. The sentences are deemed to have commenced on April 6, 2017 when they were imposed, the Court of Appeal ruled.

The general outline of the facts was that the appellant was an armed plainclothes security guard assigned to the NWC. On January 3, 2014, while on duty, an incident occurred between himself and a male customer who had visited the office to complain about damage done to a pipe at his premises by NWC workers.

Shot in left arm

The customer 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 customer and asked him to calm down and lower his voice. The customer refused and was asked to leave the office. Soon after an altercation ensued between both men which resulted in the customer being shot in his left arm by the appellant.

During the trial, the customer who was the complainant admitted he was talking loudly. He said he did not touch anyone or push anyone in the building during the incident. The complainant was shot in the left arm and was hospitalised for about one week. He testified at the trial in the Gun Court that when he was shot he only had his cellular phone in his hand.

Vassell said in an unsworn statement at his trial that on the day of the incident, he approached the complainant several times and told him to calm down. He said on one occasion, the complainant pushed him and slapped him in his face. He said he observed the complainant taking out a ratchet knife and advancing towards him and he fired one shot because he was fearful for his life.

Witnesses for the defence said the complainant was behaving boisterously. One witness said she saw the complainant reaching for his waist but did not see a knife.

Several grounds of appeal were argued, one of which was that the judge erred in not upholding the no-case submission. It was also argued that the judge failed to demonstrate that she had shown any regard for the issue of self-defence. Vassell did not appeal against sentence.

Attorney-at-law Deborah Martin who represented Vassell submitted that the judge’s failure to address the appellant’s good character denied him of the benefit of having his defence considered against the background as to whether he had the propensity to commit the offences for which he was tried.

The Crown conceded that the appellant was entitled to a good character direction, in relation to the propensity limb. However, Senior Deputy Director of Public Prosecutions Sharon Milwood-Moore (now acting puisne judge) and Crown Counsel Christina Porter, argued that considering all the circumstances, it was inevitable that the appellant would have been convicted of the offences and consequently there was no substantial miscarriage of justice.

By a majority decision, Justice Frank Williams and Justice Georgiana Fraser, in dismissing the appeal on February 23, said what was clearly illustrated by the authorities was that ‘the absence of good character direction is not necessarily fatal to a conviction, even where such a direction is warranted”. The court said it found no basis for interfering with the trial judge’s finding of guilt.

Justice Nicole Foster-Pusey dissented.

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