Alton Rose, Norris Harvey v R
| Jurisdiction | Jamaica |
| Judge | McINTOSH JA |
| Judgment Date | 11 February 2011 |
| Neutral Citation | JM 2011 CA 10 |
| Judgment citation (vLex) | [2011] 2 JJC 1104 |
| Docket Number | RESIDENT MAGISTRATE'S CRIMINAL APPEAL NO 19/2009 |
| Court | Court of Appeal (Jamaica) |
| Date | 11 February 2011 |
JAMAICA
IN THE COURT OF APPEAL
THE HON MRS JUSTICE HARRIS, JA
THE HON MR JUSTICE DUKHARAN, JA
THE HON MRS JUSTICE McINTOSH, JA
CRIMINAL LAW - Monies - Corruptly accepting and soliciting monies - Corruption Prevention Act - Whether the information was defective - Unreasonable verdict - Excessive sentence
At the date of their arrest for offences contrary to section 14 (l)(a) of the Corruption Prevention Act (the Act), the appellants were serving members of the Jamaica Constabulary Force. They were charged on separate informations, in the Resident Magistrate's Court for the parish of Hanover and convicted on 6 July 2009, Alton Rose for the offence of corruptly accepting the sum of $30,000.00 directly from Kevin Green, as a gift for himself or another and Norris Harvey for the offence of corruptly soliciting the sum of $80,000.00 indirectly from Kevin Green, as a gift for himself or another person. The gifts were alleged to be for doing an act in the performance of each appellant's public function, ‘to wit, for releasing from custody the said Kevin Green’ whom the appellant Rose had taken into custody for kidnapping.
That same day each appellant was sentenced to a term of 12 months imprisonment at hard labour after which it appears that each gave verbal notice of appeal as the informations were endorsed with the grant of bail to each, ‘pending appeal’.
The trial commenced on 10 March 2009 and continued on divers days concluding on 6 July 2009, during which time the court heard an opening statement from the Crown and evidence from witnesses for the Crown, then heard evidence from the appellant Rose and an unsworn statement from the appellant Harvey, in their defence.
In short, the Crown's case was that on 27 April 2008 the appellants attended at the home of the complainant Kevin Green and took him to the Green Island Police Station purporting that he would be charged for kidnapping and larceny. Mr Green was a farmer who had earlier reported a case of praedial larceny at the Lucea Police Station, committed at his farm. While at the Green Island Police Station, the appellants solicited money from Mr Green and arrangements were made for the money to be handed over to Rose. Two days later, in a sting operation, the money was handed over and Rose (a corporal of police at the time), was found by a team of police officers from the Anti-Corruption Branch (the ACB) in possession of $30,000.00 which had been marked as part of the operation. After Rose's apprehension, the appellant Harvey, was pointed out on an identification parade and both were subsequently charged following a ruling by the Director of Public Prosecutions.
It is not disputed that the appellants went to the home of Kevin Green on the morning of 27 April 2008 and that Rose made enquiries about Mr Green's admitted visit to the home of one Ricardo Walker, otherwise called Rasta Twin, at about 3:00 o'clock that morning. Neither is there any issue about the reason he gave for so doing, namely that he had taken Rasta Twin to the Lucea Police Station and handed him over there, reporting a case against him of praedial larceny of pumpkins from his farm. But whereas Mr Green's evidence is that Rose told him that he was taking him to the Green Island Police Station to charge him with kidnapping and larceny, Rose, in his sworn evidence, said that he told Mr Green that the trip to the station was to check out his account as he, Rose, was then unable to make contact with the Lucea Police Station to verify that Rasta Twin was there.
What transpired at the Green Island Police Station when they arrived there at about 9:00 o'clock that morning forms the crux of the Crown's case against the two appellants. There is an office at the police station described by Kevin Green as Rose's office. Mr Green disclosed that while in that office Rose sought to impress upon him that he was facing serious charges of kidnapping and larceny which would prove to be a costly matter if it went to court – attracting sums ranging from $400,000.00 to $500,000.00. Mr Green went on to state that Rose told him that it was going to cost him some money and urged him to make up his mind what he wanted to do. When Mr Green enquired what the money was for Rose said it was to compromise the case with Rasta Twin. He stated that no sum was discussed at that time but at one point Rose told him he was to use his own conscience. He further asserted that telephone numbers were exchanged, between Rose and himself, for further communication on the matter.
The meeting in that office was not denied by the appellant Rose but the tenor was entirely different from Mr Green's account. When Harvey and himself arrived at the station, Harvey had made a telephone call to the Lucea Police Station and after speaking to Harvey he, Rose, called Mr Green, his brother Joel Green and his neighbour Bethune Hume (both of whom had also travelled to the station that morning), into the CIB office, took their particulars and told them that he had confirmed that one Ricardo Walker, who was likely to make a report against the Greens, was in custody at the Lucea Police Station. As he did not have an official report from Ricardo Walker he told the Greens that if Ricardo Walker came to the station and made a report action would be taken against them.
Kevin Green, he said, spent about half an hour in the CIB office with him. He denied telling Mr Green that he was going to arrest him for kidnapping and larceny or any other offence and said he was never placed under arrest. He never told Mr Green that he should make up his mind what he was going to do and never told him that he was going to compromise the case with Rasta Twin. He stated that there was no money discussion and that he gave his number to all three men. He gives his number to all persons with whom he comes in contact, as part of his policing strategy.
The Crown pitched its case against the appellant Harvey on the principle of common design, relying on the evidence of Mr Green that when they arrived at the station he and Rose went off together in an office from whence they emerged some ten minutes later, then his standing by as Rose spoke with the Greens telling them about the charges that they were facing and their seriousness. He was also present when Rose spoke about the $400,000.00 to $500,000.00 involved if the matter went to court. Then when the discussions were over with Rose and Kevin Green and his party were leaving, it is Kevin Green's testimony that Harvey called him into an office and used words to him which linked him to all that had transpired with Rose in his absence, in that Harvey told him that ‘I must take care of them because they were going to take care of me’. Kevin Green then told him he was going home to organize himself and Harvey responded ‘alright’ after which Mr Green left.
From his unsworn statement however, Harvey revealed no involvement with Kevin Green after taking him to the station along with his brother and Rose. He stated that he along with the others simply alighted from the vehicle and walked towards the guardroom. He then handed over the keys for the vehicle and his firearm and left the station in his private motor vehicle.
The other area of the Crown's evidence which requires reviewing is related to the apprehension of Rose. Having given the matter some thought, it seems, Mr Green decided to make a report at the Area One police headquarters in Montego Bay, St James. This he did the following day – 28 April 2008 – making his report to Senior Superintendent Paul Ferguson. Under the guidance of the senior superintendent, he made contact with Rose, utilizing the telephone number Rose had provided and was able to arrive at a figure of $80,000.00 with him, as a suitable figure for the ‘compromise’. Thereafter a sting operation involving $30,000.00 was planned with a team of officers from the ACB and on 29 April 2008 Mr Green arranged to meet with Rose to hand over the money to him. This was done in an office at the Green Island Police Station after which Mr Green gave a pre-arranged signal to the ACB team who were strategically positioned at points on the station compound. The team moved in after seeing the signal and apprehended Rose in a passageway in the building. The money which was in his back pants pocket fell to the ground and was retrieved by Corporal Hope Rose who was one of the officers who held him and with whom he struggled while holding on to this back pants pocket. Her hand had actually joined his in that back pocket and it was when their hands were withdrawn from the pocket that the money fell.
On his account, Rose said he received a telephone call from Mr Green on 29 April 2008, telling him that he wanted to speak to him at the Green Island Police Station. Seeing that Mr Green was a possible accused, he had gone to the station to meet with him. When he got there, Mr Green told him that he wanted to speak to him in the CIB office and when they went into the office, Mr Green spoke for about one minute about his farm and about getting plants and seeds from RADA. After his departure, Rose...
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