By Barbara Gayle,
Staff Reporter
A MAN who complained that he was denied a fair trial because his lawyer did not carry out some of his instructions, one of which was that he wanted to give evidence on oath, has lost his appeal against his convictions of illegal possession of firearms and ammunition.
The Court of Appeal held that the appellant Richardo Whilby had an unfettered opportunity to say whatever he wished in his unsworn statement.
"Is he now wishing that this court should believe that, had he given evidence on oath, that sworn evidence would have been so remarkably different as to have had an impact on the verdict? This is entirely farfetched," the court held last week.
The court said also that "the defence was founded on a strictly technical legal issue which was whether or not Whilby could be said to be in possession in law. Therefore, his giving evidence on oath would have had no effect on the ultimate verdict".
The Court of Appeal, comprising Mr. Justice Ian Forte, President of the Court of Appeal, Mr. Justice Clarence Walker and Mr. Justice Howard Cooke (acting), dismissed his appeal against his convictions and set aside his 10-year prison term for illegal possession of firearms and ammunition. The court substituted five years imprisonment on each count, to run concurrently. He will serve only five years imprisonment.
Mr. Whilby, a Jamaican citizen, arrived at the Sangster International Airport in Montego Bay on November 28, 1998. On December 2, 1998, before returning to the US, he went enquire about luggage which had been sent to him. The luggage which was addressed to Mr. Whilby was subsequently located and a key was obtained (not from Mr. Whilby) and the luggage was opened. The luggage contained a Glock 9mm pistol and a magazine containing five rounds, a Smith and Wesson 9mm pistol with two magazines and a further three rounds. There was also a bullet proof vest and women's clothing.
Mr. Whilby was questioned by the police and he admitted that the guns and ammunition belonged to him. He was asked what was the purpose of getting the two firearms into the island and he replied "I was robbed twice in Kingston".
In an unsworn statement at his trial, he said that he and his girlfriend were to come to Jamaica together to sort out a problem which involved his "babies' mom". However, because of his girlfriend's working schedule she was unable to travel with him. She was to come sometime after but in the meantime she had sent her luggage.
The court said that at the trial there was no challenge to the accuracy of Mr. Whilby's responses to the police. There was no challenge as to the admissibility of that aspect of the evidence being presented by the prosecution, the court said.
"A reading of the transcript indicated that the approach of the defence led by Mr. Roy Fairclough was to contest the case on the basis that in the circumstances Whilby could not be said to be guilty of possession in law. This approach is quite understandable given the overwhelming factual evidence which confronted Whilby. Excerpts from the no case submission made by Mr. Fairclough demonstrates the thrust of the defence."
Mr. Whilby had also complained that he had instructed Mr. Fairclough to call as defence witness, the two customer service agents who had taken him to the Customs area where the luggage was found. He said he instructed him to challenge the police-interview document with questions and answers. He said he had told his lawyer he wished to give evidence on oath as he was innocent of the charges made against him.
Mr. Fairclough responded in an affidavit that his assessment of the matters which were in issue at the trial did not include the evidence which could have come from the customer service agents.
