Mark Williams & Kevin Shirley v R
| Jurisdiction | Jamaica |
| Judge | F Williams JA |
| Judgment Date | 11 February 2022 |
| Neutral Citation | JM 2022 CA 18 |
| Docket Number | PARISH COURT CRIMINAL APPEAL NO COA2019PCCR00016 |
| Court | Court of Appeal (Jamaica) |
[2022] JMCA App 3
IN THE COURT OF APPEAL
THE HON Mr Justice F Williams JA
THE HON Mr Justice Brown JA (AG)
THE HON Mr Justice Laing JA (AG)
PARISH COURT CRIMINAL APPEAL NO COA2019PCCR00016
MOTION NO COA2020MT00011
Hugh Wildman and Ms Indira Patmore for the applicants
Ms Kathy-Ann Pyke and Mrs Sarahope Cochrane-Spencer for the Crown
By this application, the applicants sought this court's conditional leave to appeal to Her Majesty in Council. They wished to appeal from this court's decision dismissing their appeal in the matter of Mark Williams & Kevin Shirley v R [2020] JMCA Crim 25. The applicants, who were convicted on 3 May 2019, had appealed against that conviction and their sentence (imposed on 6 September 2019) in the Parish Court for Saint Catherine, for the offence of simple larceny. The applicants were each fined $250,000.00 with the alternative of serving three months' imprisonment at hard labour.
Having heard submissions on 17 January 2022, we made the following orders on 21 January 2022:
“i. The applicants' application for conditional leave to appeal to Her Majesty in Council is refused.
ii. Costs to the respondent to be agreed or taxed.” These are our promised reasons for making those orders.
In a nutshell, the case against the applicants was to the effect that, whilst serving members of the Jamaica Constabulary Force (‘the JCF’), they, along with two civilians, stole 227 board feet of wood, to the value of $39,725.00, the property of Tulloch Estates Limited (‘the company’) located in the parish of Saint Catherine. The managing director of the company gave oral evidence and presented video and photographic evidence of seeing all four men beside a cedar tree that had just been felled, on the company's property that could only have been accessed by vehicles by the opening of a gate. The two applicants were seen packing into the bed of a police pick-up truck, wood that was being cut from the tree by one of the civilians with a chainsaw, as the other civilian moved freely about.
The defence advanced was that the applicants, whilst on mobile patrol, had stopped and gone onto the property, which they thought belonged to China Harbour Engineering Company (‘CHEC’) on observing the men with the chainsaw by the recently-felled tree. They were in the process of having the men load the wood into the pick-up truck with a view to taking the wood and the men to the police station in order to investigate to whom the wood belonged – their suspicion being that it belonged to CHEC. The company's managing director arrived on the scene and accused them of being complicit in the stealing of the wood, which they denied. They left the premises and reported the matter to CHEC and their superiors. At all material times, they honestly believed that they were doing their duty as policemen.
The panel of this court that heard the appeal, upheld the convictions and sentences, finding no error on the part of the learned Parish Court Judge.
Being dissatisfied with that decision, the applicants, by notice of motion dated 1 June 2020 and filed 2 June 2020, sought conditional leave to appeal to the Judicial Committee of the Privy Council. Their application was made pursuant to sections 110(1)(c) and 110(2)(a) of the Jamaica Constitution Order in Council 1962 (‘the Constitution’), as they assert (at page 3 of their notice of motion):
“a) That the questions involved final decisions in criminal proceedings, on questions as to the interpretation of the Jamaican Constitution.
b) That the questions involved in the appeal are by reason of their great general public importance or otherwise, ought to be submitted to Her Majesty in Council.”
The following are the grounds on which the application is based, as set out in the notice of motion:
“a) Whether the hearing of the Applicants appeal against conviction and sentence, which was heard by the Court of Appeal, on the 26 th of May 2020, in camera by way of the Zoom platform, constitutes a breach of the Applicants' constitutional right guaranteed under Section 16 (3) of the Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act 2011.
b) Whether the hearing of the Applicants' appeal against conviction and sentence, which was heard by the Court of Appeal, on the 26 th of May 2020, in camera by way of the Zoom platform, constitutes a breach of the Separation of Powers doctrine which is enshrined in the Jamaican Constitution.
c) Whether a Police Officer, who is charged with a criminal offence in the Parish Court, in circumstances where he has asserted that at the time the offence is alleged to have been committed, he honestly believed that he was executing his duties, pursuant to Section 13 of the Jamaica Constabulary Force Act, is entitled to have that specific defence considered by the Presiding Judge in considering whether the Police Officer is guilty of the offence with which he is charged.
d) Whether the Applicants, being Police Officers, were entitled, as a matter of law, to have the question of honest mistake of fact specifically considered by the learned Parish Court Judge, when the Applicants asserted, in their unsworn statements from the Dock, that they did not know, at the time of the alleged commission of the offence, that they were on property belonging to the Complainant, while executing their function as police officers, pursuant to Section 13 of the Jamaica Constabulary Force Act, and not to commit a criminal offence as alleged by the Crown.
e) Whether an accused, who had given an unsworn statement in the course of a criminal trial and asserted his good character, which was supported by sworn testimony from other witnesses, is entitled to have the full good character direction considered by the Presiding Judge in assessing the evidence given by the Crown and the Defence.
f) Whether a failure by the Parish Court Judge to properly give a full good character direction in the circumstances of this case, resulted in the Applicants being deprived of a fair trial, resulting in a miscarriage of justice.”
The applicants contended that the hearing of the appeal by way of the Zoom platform on 26 May 2020 was done in camera, rather than in public, and is in breach of their constitutional right guaranteed under section 16(3) of the Charter of Fundamental Rights and Freedoms (‘the Charter’). That section, so far as is relevant, reads as follows:
“All proceedings of every court and proceedings relating to the determination of the existence or the extent of a person's civil rights or obligations before any court or other authority, including the announcement of the decision of the court or authority, shall be held in public.”
They also contended that it constitutes a breach of the separation of powers doctrine enshrined in the Constitution. Their submission (recorded at paragraph 32 of their written arguments) was that “there is no provision of the said Charter, which justifies the Court of Appeal convening the said appeal via the Zoom meeting platform (‘Zoom’) to exclude the public from the proceedings”. Section 16, it was submitted, is an entrenched provision. The right granted by that section, it was further submitted, could not have been properly suspended without the declaration of a state of public emergency and there was no such declaration. The fact that the executive had enacted the Disaster Risk Management Act (‘the DRMA’) in an effort to combat the COVID-19 pandemic is insufficient to abridge the fundamental right set out in the Constitution, it was argued. Accordingly, counsel argued that the grounds addressing the...
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