Elorda Smith and Everton Goulbourne v R
| Jurisdiction | Jamaica |
| Judge | McIntosh JA |
| Judgment Date | 28 September 2012 |
| Court | Court of Appeal (Jamaica) |
| Docket Number | RESIDENT MAGISTRATE'S CRIMINAL APPEAL NO 8/2011 |
| Date | 28 September 2012 |
[2012] JMCA Crim 49
JAMAICA
IN THE COURT OF APPEAL
The Hon Mr Justice Panton P
The Hon Miss Justice Phillips JA
The Hon Mrs Justice Mcintosh JA
RESIDENT MAGISTRATE'S CRIMINAL APPEAL NO 8/2011
Miss Deborah Martin for appellant Goulbourne
Elorda Smith not appearing or represented
Loxly Ricketts for the Crown
CRIMINAL LAW - Corruption - Corruptly accepting sum of money to forbade prosecution - No case submission - Judge erred in not dealing properly with voice identification
Elorda Smith and Everton Goulbourne were convicted in the Resident Magistrate's Court for the parish of Westmoreland on 21 February 2011, the former for the offence of corruptly accepting ‘the sum of $45,000.00 from Jerome Dalling as a reward in order to forbade [sic] the prosecution of the said Jerome Dalling for an alleged breach of the Larceny Act’ and the latter for the offence of corruptly soliciting the sum of $50,000.00 from the said Jerome Dalling for the same purpose, contrary, in each case, to section 14(1) of the Corruption Prevention Act (the Act). After the guilty verdicts were entered Elorda Smith was sentenced to pay a fine of $250,000.00 while Everton Goulbourne was sentenced to pay a fine of $200,000.00, each with an alternative of six months imprisonment at hard labour if the fines were not paid.
Both appellants filed notice and grounds of appeal on 25 February 2011 challenging the learned Resident Magistrate's decision. However, after filing his notice and grounds of appeal, Mr Smith took no step in furtherance of his appeal.
Jerome Dalling (hereafter the complainant) gave evidence of an incident which took place, he said, between 1 April and 17 May 2007, at about 6:30 to 7:30 pm, in Savanna-la-mar, Westmoreland. He had parked his minibus on the roadway and eventually went into his aunt's hairdressing shop on the said road, leaving a few passengers in the bus, one of whom was his girlfriend. While in the shop he observed a white jeep with the appellant and Mr Smith aboard. They were known to him as police officers and he recognized the jeep they were travelling in as a government vehicle which he had seen before. Observing that it had stopped in front of his bus, the complainant said he left his aunt's shop and walked towards the bus, whereupon he was summoned by Mr Smith who remained seated in the jeep. The complainant said Mr Smith then questioned him about ownership of the bus and requested the vehicle documents, which he produced.
The complainant further testified that after Mr Smith perused the documents he handed them to the appellant who then approached him and engaged him in conversation for about 15 minutes. The appellant told him that the licence plates on the vehicle bore letters that had not yet been issued and indicated that the minibus was going to be seized by the police. Thereafter the appellant requested the keys for the vehicle and drove it away. According to the complainant Mr Smith then gave him the appellant's cellular telephone number as well as his own number. The vehicle documents were never returned to him.
Later that evening he went to the Savanna-la-mar Police Station and spoke to two police officers there concerning the matter but no statement was recorded from him. He said from the night of the incident and during the weeks that followed, he exchanged telephone calls with the appellant and with Mr Smith. He was able to recognize the voice of the appellant as he had heard it before and when it was suggested to him in cross-examination that he did not know the appellant's voice he responded, ‘I know Mr Goulbourne very well. I know his voice. I speak to him face to face not only on the phone.’ It was his testimony that during one of the telephone conversations with the appellant he was told that he was facing 10 charges but when he asked what those charges were, the appellant did not respond. The complainant further testified that the appellant then requested payment of $50,000.00 to ‘drop the charge’ but he told the appellant that he did not have $50,000.00. This request was subsequently pursued by Mr Smith in several telephone conversations with the complainant in which Mr Smith told him that time was running out for the payment of the $50,000.00. Eventually, the complainant handed over the sum of $45,000.00 to Mr Smith and later made a report at the police Anti-Corruption Branch in Kingston.
Among the other witnesses called by the prosecution was the investigating officer, Sergeant Redway, who gave evidence of the requirement to make entries in the appropriate station diaries and property registers by officers involved in the recovery of stolen vehicles or seizure of vehicles. He testified that in the instant case, there was an entry in the station diary at the Frome Police Station (exhibit 2) to the effect that: (i) the minibus was examined by forensic experts and confirmed to be a vehicle reported stolen on 15 June 2006; (ii) it was recovered on 2 April 2007 and (iii) it was handed over, at the request of an insurance company, to its insured.
At the close of the prosecution's case the attorney who then represented the appellant Goulbourne unsuccessfully submitted that the prosecution had failed to make out a prima facie case against him and the appellant was called upon to answer the charge. He elected to give evidence on oath in which he confirmed his participation in the seizure of the complainant's minibus, sometime in April of 2007. However, he denied having any subsequent conversations with the complainant and produced copy telephone bills for his cellular telephone service during the period April and May 2007 as evidence that no calls were made from his cell phone to the complainant's cell phone as alleged. The appellant also testified that he had no discussions with his co-accused Elorda Smith about collecting money from the complainant.
The prosecution objected to the attempt by the appellant's attorney to have the copy documents admitted into evidence on the basis that there was no evidence as to their authenticity and there was the possibility that they might have been subjected to tampering. However, although disagreeing with defence attorney's submission that they were admissible as an exception to the hearsay rule, the learned Resident Magistrate nevertheless admitted the copy documents as exhibit 7. These documents were later shown to the complainant who admitted that he did not see recorded on them any calls being placed to his cell phone from the appellant's cell phone.
In cross-examination the appellant said he learnt that the minibus was reportedly a stolen vehicle 13 days after its seizure but took no steps to contact the complainant in this regard. He also testified that he had made no entry in the station diary either at the Frome or the Savannah-la-mar police stations concerning the seizure of the minibus. He thought that Mr Smith had done so.
The appellant filed a total of 11 supplemental grounds of appeal on 2 May 2012 and these formed the basis of the arguments advanced on his behalf. They are set out below in their entirety.
‘1. That the Learned Resident Magistrate (LRM) erred in not upholding the No Case Submission made on behalf of the Appellant: -
The submissions were that:-
(i) the evidence of the Complainant had not met an acceptable threshold to form the basis for voice identification,
(ii) the contradiction in the evidence between what the Complainant said and the telephone records was such that the Complainant was so manifestly discredited that the Appellant ought not to have been called upon to answer to the charge.
2. That the LRM erred when she found as a fact, having regard to the evidence, that the Appellant departed from his duty when he failed to charge the Complainant or return the motor vehicle in circumstances where there was uncontradicted evidence that:-
(i) the vehicle had been given to the legal owner BCIC,
(ii) that the Complainant for the larceny had no interest in pursuing the criminal matter or,
(iii) that the Complainant Dalling was not considered a suspect to the larceny or receiving of the vehicle.
3. That the LRM erred when she found as a basis for rejecting the admission of Dalling that he did not see his phone numbers on the copy bills presented to him, that “calls to Goulbourne were on a private number” (see pg. 130 of the record). That the evidence of the Complainant was that numerous calls were placed to and from the Appellant's cellular phone and his, and that the Appellant had also called from a private number (see pgs. 12-13 of the record).
4. The LRM erred in finding that Exh. 2 did not indicate who made the entry on the 2 nd May, 2007, when the entry states on the face of it that it was made by the Appellant Goulbourne. She further erred in finding that the entry did not state how the bus came to be in the custody of the Police; it states “it was recovered on April 2007”.
5. The LRM erred in finding that the Appellant “ab initio” departed from known duties and rules of the Police (see pg. 132 of the record) in circumstances where: -
(i) Sgt. Gray gave evidence about his investigations into the initial larceny,
(ii) there is evidence that the vehicle was returned to the legal owner, and,
(iii) there was uncontradicted evidence from the appellant Smith that the Complainant was never viewed by them as a suspect for any offence.
6. The LRM erred in finding that “Smith said that it as [sic] his intelligence and investigations which led to the arrest of Mr. Bitter “Last February”, and that this was “incredible”, “untruthful”, and “an attempt at damage control” (pg. 132 of the record) when the evidence...
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