Clive Rowe v R

• Jurisdiction: Jamaica
• Court: Court of Appeal (Jamaica)
• Judge: Brooks JA
• Judgment Date: 03 February 2012
• Neutral Citation: JM 2012 CA 10
• Docket Number: RESIDENT MAGISTRATE'S CRIMINAL APPEAL NO 28/2011
• Date: 03 February 2012

[2012] JMCA Crim 2

JAMAICA

IN THE COURT OF APPEAL

Before:

The Hon Mrs Justice Harris P (Ag)

The Hon Miss Justice Phillips JA

The Hon Mr Justice Brooks JA

RESIDENT MAGISTRATE'S CRIMINAL APPEAL NO 28/2011

Between

Clive Rowe

and

R

Leroy Equiano for the appellant

Mrs Paula-Rosanne Archer-Hall for the Crown

CRIMINAL LAW - Corruption - Corruptly soliciting money - Corruption Prevention Act - Whether evidence sufficient to warrant a conviction - Whether the decision of the magistrate against the evidence

Brooks JA

1 We heard Mr Clive Rowe's appeal on 20 January 2012. At that time we made the following orders:

These are our reasons.

• a. appeal dismissed;

• b. conviction and sentence are affirmed;

• c. the time already served shall be taken into account;

• d. the appellant shall serve the remaining sentence commencing on 20 January 2012;

• e. reasons to follow.

2 On 12 July 2011, the appellant Mr Rowe was convicted for the offence of corruptly soliciting money contrary to section 14 (1) (a) of the Corruption Prevention Act. He was then a constable in the Jamaica Constabulary Force. The relevant part of the information on which he was charged stated that he:

‘…did corruptly solicited [sic] monies from Rohan Green being a gift, favour, promise or advantage for himself or another for ommitting [sic] to prosecute the said Rohan Green for an alleged Breach of the Road Traffic Act in the performance of his public function as a member of the Jamaica Costabulary Force.’

After finding him guilty, the learned Resident Magistrate for the Corporate Area Criminal Court sentenced him to serve nine months imprisonment at hard labour. Constable Odean Grant, who had been charged with a similar offence, along with Mr Rowe, was acquitted after a successful submission that he had no case to answer.

3 Mr Rowe has appealed against his conviction and sentence. The essence of his appeal against the conviction was that the decision of the learned Resident Magistrate was against the weight of the evidence.

4 The evidence adduced by the prosecution at the trial, which was accepted by the learned Resident Magistrate, concerned events which occurred on 29 July 2009. At about 9:30 p.m. that day, Mr Rohan Green was driving his motor vehicle in the vicinity of the Canadian Embassy in the parish of Saint Andrew. After crossing an intersection controlled by traffic lights, he was stopped by police officers travelling in a police service vehicle. They accused him of disobeying the red light.

5 One of the officers asked for his documents. The words said to have been used by that officer, were ‘give me your documents and your licence, I going gi [sic] you six tickets’. After some further discussion between Mr Green and the officer, the discussion, relevant to the charge, took place. Mr Green's evidence in this regard may be conveniently set out in full:

‘He said to me where you going and I said Hope Road and he repeat himself and I said I don't understand what you mean. I said where you going. I said I just tell you where I going and I don't understand what you mean. Then I said to him ‘alright I going straight’ then he repeat and I said I going straight and then him turn to me and said to me ‘make me tell you what I mean, you going left or you going right. Then he said to me, ‘are you American or yuh is a Jamaican? You nuh know whe [sic] left or right mean’. Then he said to me, ‘make me tell you what left or right mean’. Left mean you a left a money and right mean if me fi write the ticket’.’

6 Mr Green also testified that he told the officer that he had no money. The officer then hissed his teeth and told the second officer to deal with Mr Green. The second officer negotiated for Mr Green to go and get $2,000.00 and return to give to him. After Mr Green had agreed to fetch the money, that second officer handed back the documents to Mr Green but then retrieved them in order to keep them until Mr Green had returned.

7 Mr Green said that he left the scene in his car, telephoned another police officer whom he knew (a Special Constable Burrows), got the money from an ATM, met with Special Constable Burrows and went back to the scene with him.

8 On their arrival at the location, neither the officers nor their car was there. Mr Green said that he made enquiries at various police stations to try and retrieve his documents but the documents were at none of those locations. He did not know any of the officers before. The next morning he made a complaint to the Anti Corruption Unit.

9 Detective Inspector Clive Brown testified that it was he who received Mr Green's complaint and had a statement, by Mr Green, recorded. That was at about 10:15 a.m. on 30 July 2009. By midday of that day, Det. Insp. Brown was at the Half Way Tree Police Station investigating the complaint. As a result of information received there, he went to the Papine Police Station where he spoke to an Inspector Grant, checked the station diary, made copies of certain entries in the diary and searched a certain police vehicle which had returned to the police station while he was there. Mr Green's documents were not found.

10 On 31 July, Det. Insp. Brown returned to the Papine Police Station where he interviewed Mr Rowe and Constable Grant. His evidence in that regard was, ‘I informed them of the allegations and cautioned them individually, Clive Rowe said ‘Boss me no know wey yu [sic] a talk bout me no stop nobody’ Constable Grant did not made [sic] any statement’. Det. Insp. Brown said that he then arrested both constables and took them into custody.

11 On 5 August 2009, Inspector Ricardo Myers conducted identification parades in respect of each constable. The witness on the parades was Mr Green. He told Insp. Myers that he was there to ‘identify the police who took my driver's licence and my car papers’. Mr Green pointed out Mr Rowe on his parade but did not identify Constable Grant on his. After holding the parades, Inspector Myers communicated with Det. Insp....