Mark Rodney v R

• Jurisdiction: Jamaica
• Court: Court of Appeal (Jamaica)
• Judge: Dunbar-Green JA
• Judgment Date: 06 May 2022
• Neutral Citation: JM 2022 CA 056
• Docket Number: PARISH COURT CRIMINAL APPEAL NO 6/2018

Mark Rodney

and

R

[2022] JMCA Crim 26

BEFORE:

THE HON Ms Justice P Williams JA

THE HON Mrs Justice Foster-Pusey JA

THE HON Mrs Justice Dunbar-Green JA

PARISH COURT CRIMINAL APPEAL NO 6/2018

IN THE COURT OF APPEAL

Walter Scott QC and Peter Champagnie QC for the appellant

Miss Maxine Jackson and Miss Natallie Malcom for the Crown

Dunbar-Green JA

Introduction

1 Mr Mark Rodney, the appellant, was charged on several informations for breaches of the Corruption (Prevention) Act (‘the CPA’). On 16 March 2016, he was convicted in the Resident Magistrate's Court for the Corporate Area (now the Kingston and Saint Andrew Parish Court) and ordered to pay a fine of $800,000.00 or serve six months’ imprisonment in default of payment on each information. The appellant paid the fines but has appealed against the convictions and sentences.

2 We heard the appeal and agreed with counsel for the appellant that, at the close of the prosecution's case, there was insufficient evidence on which the appellant could be convicted. Accordingly, we made the following orders:

“1. The appeal is allowed.

2. The convictions are quashed and the sentences are set aside.

3. A judgment and verdict of acquittal is entered on each of the informations.”

3 We promised to put our reasons in writing and now do so.

The factual background

4 Between July 2008 and January 2012, the appellant was employed at the National Solid Waste Management Authority (‘NSWMA’), an agency of the Government of Jamaica, which, among its responsibilities, maintains public parks and green areas as well as executes special projects for public and private entities. The NSWMA would sometimes execute projects by engaging sub-contractors. It was a series of these sub-contracted works which led to the appellant being charged.

5 In January 2008, about six months before he began working at the NSWMA, the appellant incorporated a company, General Maintenance and Construction Services Limited (‘GM&CSL’). He removed his name as a director but remained a shareholder in October 2008. That company successfully bid for contracts from NSWMA between June and December 2010. The contracts were executed and the requisite payments made. The problem was that the bids from GM&CSL were received and approved by NSWMA at a time when the appellant was its manager of parks and special projects, with responsibility for overseeing such projects.

6 Consequently, the appellant was charged for use of his public office to obtain an illicit benefit and the improper use of confidential information for his own benefit. The particulars of those charges are as follows.

The charges

[i] Obtaining an illicit benefit

“[The appellant], former manager of the Parks and Garden Division of the [NSWMA] on 31 December 2010, in the parish of St. Andrew in the performance of his public function did an act for the purpose of obtaining an illicit benefit — J$624,300.00 for himself to wit he granted to his [c]ompany General Maintenance and Construction Services LTD the award of contracts and personally benefitted for [sic] work purportedly done by his company [c]ontrary to section 14(1) (b) of the Corruption Prevention Act.” (Information 14009/13)

[ii] Improper use of confidential information

“[The appellant] [b]eing a public servant did improperly use confidential information he obtained in the course of the performance of his functions-to wit his knowledge of the procurement of goods and services at the National Solid Waste Management Authority for his own benefit [in amounts of $624,300.00; $2685,000.00; $924,000.00; $2,422,500.0; $2930,775.00; $3,209,000.00] [c]ontrary to [s]section 14 (6) (a) of the Corruption Prevention Act.” (Informations 17124/14, 17125/14, 17126/14, 17127/14, 17128/14 and 17129/14)

Unsatisfactory record

7 We are constrained to make the observation that the record of proceedings was woefully deficient and generally unacceptable. No original informations were produced; only incomplete copies were furnished by the Office of the Director of Public Prosecutions (‘ODPP’) to supplement the record of proceedings from the Parish Court. The information numbers on the copy informations were inconsistent with the numbers indicated in the notes of evidence as well as in amended notes which were attached to a letter from the judge of the Parish Court (‘the learned judge’), dated 19 October 2021. Nonetheless, we reluctantly decided to use the information numbers in the amended notes of evidence and the charges as set out in the incomplete copy informations, throughout this decision. Among the other serious deficiencies in the record was the absence of parts of the notes of evidence including the no-case submission, reply and ruling, and some exhibits. We will return to these matters later.

The prosecution's case

8 The notes of evidence indicate that the prosecution relied on 11 witnesses including Colonel Allan Douglas whose witness statement was admitted into evidence. That statement, although absent from the original record of proceedings, was later exhibited in a supplemental affidavit, filed by the appellant. The salient aspects of the evidence are summarised below.

Witnesses from the NSWMA

Monica Young

9 Ms Monica Young worked at the NSWMA as a human resource officer. She gave evidence that the appellant was first employed at the NSWMA as an executive assistant to the executive director. He subsequently became the manager for parks and special projects until the termination of his contract in January 2012.

Adrian Grant

10 Mr Adrian Grant succeeded the appellant as manager of parks and gardens. His role included ensuring that the proper procurement guidelines were followed and confirmed after the procurement process was completed. He explained that where an external body engaged the services of the NSWMA, an assessment of the work was done by the business development office and discussed with the relevant project supervisor. If there was no objection, the manager of parks and gardens authorised the project to proceed. A team would then meet to “ratify decisions to do with procurements”.

11 The manager of parks and gardens could authorise a contract for work in the amount of $275,000.00 or less, after receiving three quotations, relevant tax registration numbers and valid government identifications. None of the contested contracts fell in this category. However, contracts exceeding $275,000.00 had to go to the procurement committee, which was chaired by the director of operations, or circulated for a decision by way of round robin, (i.e. an approval arrangement whereby the executive director would seek permission from the procurement committee, “through a memo”, with attached documentation). The executive director had authority to sign off on contracts valued at up to $3,000,000.00 and could seek a procurement decision by round robin. Notwithstanding, both contracts authorised by the manager of parks and gardens and those by the procurement committee had to receive final approval from the executive director.

12 Mr Grant said he sat on the procurement committee in his capacity as manager of parks and gardens, albeit not as a permanent member.

13 Contracts for work would go through a number of steps for approval. First, a standard form contract would be completed. This included the basis on which the contractor was identified. Second, a purchase order was prepared and a purchase requisition signed by the manager of parks and gardens. Third, a purchase requisition was sent to the procurement manager for verification that there was compliance with procurement guidelines. Fourth, the purchase requisition went to the budget and revenue manager who affixed a stamp if payment was provisioned. Fifth, the purchase order and purchase requisition were then sent to the executive director for final authorisation.

14 Payment was made on the contractor's invoice after the supervisor verified that the work was completed satisfactorily. When contracts were approved, the accounting department prepared the cheque for payment.

15 Mr Grant said that as manager of parks and gardens, he was not allowed to enter into contracts with NSWMA, to supply goods or services.

Michael Walters

16 Mr Michael Walters was the NSWMA's director of finance. His evidence about the procurement procedure was broadly similar to Mr Grant's. He explained that purchase orders had to be signed by the executive director but the purchase requisition and the National Contracts Commission (‘NCC’) procurement form were signed by a manager or head of the relevant unit. He stated that he was not aware that an employee could be awarded a contract to supply goods and services to the NSWMA.

17 Under cross-examination, Mr Walters said he had no recollection of seeing an invoice on which the appellant was the sole signatory. He also indicated that payment would be made when the supporting documentation was in order and the purchase order bore the executive director's signature.

Colonel Allan Douglas

18 Colonel Allan Douglas was the NSWMA's director of operations and chairman of the procurement committee, at the material time. In that capacity, he had written to regional managers and regional administrators “regarding the fact that employees of NSWMA were not permitted to do business with the NSWMA”. He stated that the appellant was a consistent member of the procurement committee but said he was not aware that he had an interest in GM&CSL.

19 Colonel Douglas, in his written statement, referred to two NSWA cheques and supporting documents which he said were shown to him by Detective Inspector Carey Lawes. Those cheques were drawn on the National Commercial Bank (‘NCB’) in favour of GM&CSL. The first, dated 23 August 2010 and numbered 1005249, was in the amount of $2,685,000.00. The other, dated 31 December 2010 and numbered 1007434, was in the amount of...