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Burglar loses appeal against conviction

A man jailed for a home invasion in which he accidentally shot his partner in crime has lost an appeal against his conviction.

Josef Smith, 28, was found guilty last year of aggravated burglary and discharging a firearm in connection to an incident in 2014. While he was sentenced to serve 14 years, he subsequently launched an appeal to introduce new evidence.

During his trial, the court heard that on the evening of May 14 two men wearing full-face helmets entered a home on North Shore Road, Hamilton Parish. One — Smith — was wielding a firearm.

The men took two mobile phones from the three people inside the house, but as they went to leave the firearm discharged. Police later found a trail of blood leading out of the house.

A short time later, Umdae Woolridge brought Taariq Clarke, who had suffered a gunshot wound to his left forearm, to King Edward VII Memorial Hospital.

Clarke initially told officers he had been shot while travelling along Vesey Street but later confessed that he had been injured while involved in the armed robbery.

Woolridge was jailed for two years and ten months after he pleaded guilty to burglary, while Clarke was imprisoned for 7½ years after pleading guilty to aggravated burglary.

However, according to a Court of Appeal judgment delivered yesterday, defence lawyer Elizabeth Christopher raised questions about how the weapon was discharged, and the judge's directions to the jury on the accident.

While Clarke had stated in an affidavit that Smith had struck a victim with the firearm itself before the weapon went off, a statement from the victim — which did not go before the jury — stated clearly that he was never struck with the weapon.

Ms Christopher argued that the judge invited the jury to accept that the victim had been struck by the weapon when he should have said that there was no support for the claim, however the appeal panel found that the matter was fairly put before the jury.

And while Ms Christopher proposed that the discharge of the weapon was not “willed” by Smith, in the judgment the panel found that there was no evidence the gun was fired independently of Smith's will. They noted the defendant did not give evidence during the trial and that his case had been that he did not participate in any burglary.

The panel wrote: “The appellant took the gun with him into the burglary. At some point he took the safety catch off or, if in the unlikely event the weapon had no safety catch, he had it in his possession, loaded and in a condition that pressure on the trigger would cause it to discharge.”

While Smith has also appealed against his sentence, the panel wrote that there were no mitigating factors and the only point seriously argued by Ms Christopher was the disparity between the sentences of Smith and Clarke.

The panel wrote that while Smith had previous convictions and had denied the offence throughout the trial, Clarke pled guilty, had not been the gunman, assisted police and gave evidence against Smith.

“Clarke's plea to aggravated burglary was tendered on the basis that, notwithstanding his initial lack of knowledge of the presence of a firearm, when the firearm was produced he failed to withdraw and continued to participate in the offence,” the panel concluded.

“There is nothing in our view in the disparity argument and the appeal against sentence must also be dismissed.”

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Published August 04, 2016 at 9:00 am (Updated August 04, 2016 at 2:52 pm)

Burglar loses appeal against conviction

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