James Forbes v R
| Jurisdiction | Jamaica |
| Judge | Pusey JA |
| Judgment Date | 26 February 2021 |
| Neutral Citation | JM 2021 CA 21 |
| Docket Number | RESIDENT MAGISTRATE'S CRIMINAL APPEAL NO 2/2016 |
| Court | Court of Appeal (Jamaica) |
[2021] JMCA Crim 10
IN THE COURT OF APPEAL
THE HON Miss Justice Phillips JA
THE HON Mr Justice F Williams JA
THE HON Mr Justice Pusey JA (AG)
RESIDENT MAGISTRATE'S CRIMINAL APPEAL NO 2/2016
Mrs Jacqueline Samuels-Brown QC, Hugh Wildman, Miss Linda Wright and Miss Marsha Samuels for the appellant
Mrs Sharon Milwood-Moore and Miss Ashtelle Steele for the Crown
Pusey JA (AG)
The traffic stop is for many the most frequent exposure to the police force. Most motorists have faced the inconvenience of being ticketed for a motor vehicle offence. That process is normally uneventful. However, one such interaction with the police led to a series of events which culminated in the arrest and charge of former Senior Superintendent of Police (SSP), Mr James Forbes (the appellant), with attempting to pervert the course of justice. The appellant was tried and convicted for that offence. He was sentenced to pay a fine of $800,000.00, or in the alternative, to serve six months' imprisonment. The fine was paid.
An appeal was lodged challenging the appellant's conviction and sentence. The appeal raised issues relating to whether the elements of the offence of attempting to pervert the course of justice had been proved; the correctness of the rejection of a submission of no case to answer on the appellant's behalf; the consideration of the reliability and credibility of the prosecution and defence witnesses; the exclusion of admissible evidence favourable to the appellant's defence; and the adequacy of good character directions.
A review of the facts is necessary to determine the issues raised by the appellant in this appeal. This takes place below.
The appellant was jointly charged with Mr David Bruce Bicknell (General Manager of Tankweld Limited) with attempting to pervert the course of justice. The particulars of that offence, as stated on the indictment, are that on 13 April 2012, in the parish of Saint Andrew, the appellant and Mr Bicknell:
“… attempted to pervert the course of public justice by participating in a meeting at NCB Towers, 2 Oxford Road, whereby an agreement was arrived at to dispose of a criminal matter concerning [Mr Bicknell] that was to be placed before the Court on [18 April 2012] to wit: A Breach of the Corruption Prevention Act, intending that the course of justice should thereby be perverted.”
The matter was tried before Her Honour Mrs Stephanie Jackson-Haisley, Resident Magistrate (now called Judge of the Parish Court, pursuant to the 2016 amendment to the Judicature (Resident Magistrates) Act, renamed the Judicature (Parish Courts) Act)), as she then was. It took place at the Corporate Area Parish Court, on various dates between 11 June 2013 and 15 May 2014. The prosecution adduced evidence from eight witnesses: Sergeant (Sgt) Jubert Llewellyn, Sgt Dellon Lewis, Sgt Dernale Morris, Corporal (Cpl) Sara Davis, SSP Radcliffe Lewis, Inspector (Insp) Rohan Reid, Commissioner of Police (CP) Lucius Thomas (retired), and Assistant Commissioner of Police (ACP) Selvin Haye. The appellant gave sworn evidence and called one witness: Deputy Commissioner of Police (DCP) Linval Bailey.
On 9 April 2012, at about 8:30 am, Sgts Llewellyn, Lewis and another police officer were conducting spot checks along the Sir Florizel Glasspole Highway in the parish of Kingston. A motor vehicle being driven by Mr Bicknell was stopped as he was alleged to have been travelling over the prescribed speed limit (80 km per hour in a 50 km per hour zone). During an ensuing exchange between Mr Bicknell and Sgt Llewellyn, Mr Bicknell informed Sgt Llewellyn that he was late in taking his daughters to the airport. Sgt Llewellyn requested Mr Bicknell's motor vehicle documents. Mr Bicknell responded that Sgt Llewellyn “shouldn't bother [to] write the ticket because I can take care of you”. Among the documents handed to Sgt Llewellyn were two $1,000.00 notes. Sgt Llewellyn informed Mr Bicknell of the presence of the two notes and enquired of Mr Bicknell as to the purpose of the two notes. Mr Bicknell said “[i]s okay officer, you can have them”.
Sgt Llewellyn used both statements to conclude that Mr Bicknell was offering him a bribe. He immediately reported the matter to Sgt Lewis in the hearing and presence of Mr Bicknell. Sgt Lewis approached Mr Bicknell, told Mr Bicknell of his intention to charge him for the alleged breach of the Corruption Prevention Act, and apprehended him. A traffic ticket was issued to Mr Bicknell for exceeding the speed limit.
Mr Bicknell was taken to the Traffic Headquarters of the Jamaica Constabulary Force (JCF) at Elleston Road in the parish of Kingston. He was arrested, charged, and bailed in the sum of $50,000.00 with a surety to attend the Corporate Area Parish Court on 18 April 2012. The two $1,000.00 notes were photocopied, and Sgt Lewis placed both notes in an envelope and sealed it. SSP Lewis assisted in making an entry in the station diary documenting these events (a fact also confirmed by Sgt Morris). Upon Mr Bicknell's departure from Traffic Headquarters, Sgt Lewis placed a copy of Mr Bicknell's bail bond, the envelope with the two $1,000.00 notes, the photocopy of these notes, the recommendation (for the surety) and a CR12 form on a file, intending the same to be submitted to the court on its completion.
After Sgt Llewellyn's encounter with Mr Bicknell, he stated that he had “started receiving a number of phone calls”. He indicated that he was “getting phone calls practically right throughout”, so much so, that he had to “turn off [his] phone”.
On 12 April 2012, Mr Daryl Vaz (a Member of Parliament) visited Sgt Llewellyn at the Transport and Repairs Division of the JCF, along Tom Redcam Drive in the parish of Kingston. They had a conversation that lasted for about 10 minutes. Although the details of that conversation were not elicited in the appellant's trial, it is mentioned here as it formed a part of the fresh evidence that was adduced in this appeal. Mr Vaz mentioned to Sgt Llewellyn the “state of Mr Bicknell's health and said [Mr Bicknell] was not well enough to survive prison and that a conviction would ruin his status as a businessman”. Sgt Llewellyn responded that Sgt Lewis was the arresting officer, and he (Sgt Llewellyn) was merely the complainant in the matter. Sgt Lewis also spoke to Mr Vaz on 12 April 2012, but the contents of that conversation were not disclosed.
Upon Mr Vaz's departure, Sgt Llewellyn contacted many persons in search of advice. He first contacted a friend who was also a media practitioner. He also contacted CP Thomas (ret). His friend (the media practitioner) accompanied him to see CP Thomas (ret) at Ewarton in the parish of Saint Catherine. Sgt Llewellyn shared with CP Thomas (ret) the events that had transpired on 9 April 2012. He told CP Thomas (ret) of the possibility that he may have made a mistake in concluding that Mr Bicknell had tried to bribe him and expressed concerns about the possible repercussions for that mistake, including his fear of being sued. To help address these concerns, CP Thomas (ret), with the agreement of Sgt Llewellyn, contacted the appellant (in Sgt Llewellyn's presence) as they both regarded the appellant as a man of impeccable integrity.
On his journey from Ewarton, Sgt Llewellyn received a call from the appellant (whom he had known before). The appellant indicated that he had had discussions with CP Thomas (ret). Arising out of those discussions and pursuant to information from CP Thomas (ret), the appellant proposed to have a meeting the following day (on 13 April 2012), at his office, located at 2 Oxford Road in the parish of Saint Andrew. Sgt Llewellyn testified that the appellant had said that “based on the discussions it was to be a mediation”. The appellant denied having a mediation at his office and indicated that he had merely facilitated a meeting that he did not arrange.
Sgt Llewellyn welcomed the meeting as he saw it as an opportunity to avoid the “backlash” and to correct his mistake as he feared that he may have “jumped to a conclusion too early” with regard to whether Mr Bicknell had attempted to bribe him. However, Sgt Llewellyn expressed his concern to the appellant about “the backlash and the consequences”. Indeed, he asked the appellant, “what of the backlash?” The appellant's responded that “the Commissioner is aware, that Mr Ellington is aware of it and there shouldn't be any problem”. Mr Owen Ellington was then the Commissioner of Police.
Based on explanations given by Sgt Llewellyn throughout his testimony, his primary concern related to the fear of civil action being brought against himself and Sgt Lewis, by Mr Bicknell, arising out of his mistake. He also expressed some anxiety about internal disapproval within the JCF arising out of the meeting. Indeed, Sgt Llewellyn said that he was concerned about the “repercussion [that] would result from participating in that exercise, how it would affect [his] career and also the impact on [his] Senior Colleagues [and the appellant]”. He also indicated that one of his fears about having the meeting materialised, as his senior colleague, the appellant, was charged as a result.
For his own part, the appellant had no concerns about the appropriateness of the meeting, in the light of Sgt Llewellyn's assertion that he wanted to dispose of the matter, as he was mistaken in his conclusion that Mr Bicknell had attempted to bribe him. He also believed that there was nothing improper or illegal about the course of action he was about to embark upon, as he was merely facilitating a meeting.
So anxious was Sgt Llewellyn to correct his mistake, that he visited the appellant's office at 2 Oxford Road, the very evening of 12 April 2012, after journeying from Ewarton. Sgt Llewellyn testified that he had met the appellant...
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