The Tribune

THE Court of Appeal has quashed the conviction and sentence of a man previously found guilty of conspiring to rob John Bull’s flagship store due to “prejudicial evidence” produced during trial and the judge’s permission of an “unsafe” out-of-court statement against the appellant.

Court of Appeal Justices Dame Anita Allen, Jon Isaacs and Stella Crane-Scott, in a recent ruling, quashed Jonathan Armbrister’s 25-year sentence, referring to a confession made by the co-accused outside of court proceedings, as well as evidence of Armbrister’s “bad character” being “blurted out” by a police witness.

Armbrister was sentenced to 25 years’ imprisonment on November 7, 2012 after a jury found him guilty of conspiracy to commit armed robbery for the role he allegedly played in the brazen May 22, 2011, armed robbery of John Bull’s flagship store on Bay Street.

The perpetrators smashed the store’s showcase with a hammer and stole a number of Rolex watches. The hammer was left behind at the scene.

According to the ruling, Armbrister’s appeal, filed just days after his sentencing on November 20, 2012, asserts that during the summing-up, the trial judge directed the jury that in relation to Armbrister’s conspiracy count, the confession statement of Armbrister’s co-accused was admissible against Armbrister.

According to quotes from the trial’s transcript outlined in the Court of Appeal ruling, the trial judge referred to a “confession” which one of Armbrister’s co-accused, David Collins, gave to police which implicated Armbrister as the mastermind behind the armed robbery.

The ruling further notes how the trial judge directed the jury to view Collins’ statement, advising them that according to the “rule of law”, an “out-of-court statement” made by one defendant – in this case made during an interview and/or confession to police– is “not evidence against any other defendant”.

Justice Isaacs noted that the judge’s directions up to that point were “unobjectionable”, and that “had the judge stopped at that point no complaint could have been made about her directions to the jury on this ground”.

However, the Court of Appeal ruling noted how the judge went on to say how the “normal rule” she referred to is “subject to an exception”, which she said in the circumstances was one of conspiracy. She said the law as it stands, is that “evidence which implicates one of the defendants, can be used against the other, but there must be some other independent evidence coming from other witnesses”.

However, Justice Isaacs noted that two factors must be present to the court before the out of court statement of one co-accused can be regarded as evidence against another: evidence proving the existence of the conspiracy must be first adduced; and “the statement must have been made in furtherance of the common design”.

“The second factor identified above is absent in the present appeal,” Justice Isaacs noted. “Collins’ alleged confession does not fall within the category of a statement made in pursuance or furtherance of the conspiracy. At the time of its making, the conspiracy had already concluded. In the premises, we find favour with this ground.”

The ruling further noted that while the COA judges are unable to say whether the jury acted on the judge’s direction, they are “satisfied its mention renders this conviction unsafe.”

The COA ruling also said there is “some merit” to the submission that evidence of Armbrister’s bad character, which was “blurted out” by police witness Superintendent Fernander, “ought to have led the judge to discharge the jury.”

According to the ruling, the officer’s evidence was that while leaving the Tyler Street residence where the stolen Rolex watches said to have been stolen were found, Armbrister’s cousin shouted: “Jonathan, you on your own. You get yourself in problems again.

The COA ruling noted that it was “unfortunate” that the cousin’s words were heard by the jury, particularly “in circumstances where they may have been uttered by Superintendent Fernander purposely, in view of the scrupulous care taken during the voir dire (to determine whether or not statements allegedly made by the appellant and his co-accused were obtained voluntarily) to avoid them being mentioned.”

“His decision to reveal the cousin’s utterance may be viewed as deliberate in the circumstances,” the ruling continued. “In the face of this it was incumbent on the learned trial judge to discharge the jury. Failure to do so was a material error; as such this ground, too must succeed.”

The COA ruling also noted Armbrister’s appellate submissions that his trial was invalidated by the preferment of a newly filed indictment meant to reflect certain amendments granted by the judge.

Just before the close of the Crown’s case, an application was made by the Crown to amend the information in the VBI to reflect that Jasper Curry, one of the co-accused, was no longer a defendant, as well as to correct the name of the virtual complainant from “Marshall” to “John Bull.” Despite objections by the defense to the proposed amendments, the judge granted the request.

The trial thus continued against Armbrister and Collins on the basis of the amended information in the VBI and the jury ultimately rendered its verdicts based on that information.

However, Armbrister, via his attorney Jerone Roberts, took the position that the trial judge was required to endorse the amendments on the existing indictment, pursuant to section 150(2) of the Criminal Procedure Code (CPC) and that she failed to do so.

Thus, Armbrister’s submission was that as there was no endorsement on the amended indictment, there was no valid VBI before the jury and the trial, and that in the circumstances the trial was a “nullity”.

However, the COA ruling found no merit in that submission, stating that there was “a valid information in existence and it was not rendered invalid by the lack of an endorsement of the amendment order”.