Marlando Rowe v R

• Jurisdiction: Jamaica
• Court: Court of Appeal (Jamaica)
• Judge: Straw, J.A.
• Judgment Date: 29 July 2025
• Neutral Citation: JM 2025 CA 61
• Year: 2025
• Docket Number: COA2025BA00004

Marlando Rowe

and

R

Straw, J.A.

COA2025BA00004

Court of Appeal

Appearances:

Hugh Wildman for the appellant.

Malike Kellier and Ms Jameila Simpson for the Crown.

ORAL JUDGMENT

BACKGROUND

Straw, J.A.

1 The appellant, Marlando Rowe, a police officer, was initially charged with the offence of unauthorised possession of ammunition and brought before the Clarendon Parish Court. He was granted bail in respect of that charge. Subsequently, he, along with five others, was charged with four unrelated offences. Namely, receiving stolen property, engaging in a transaction that involves criminal property, facilitating the use of criminal property and possession of criminal property. The appellant was brought before the Kingston and St Andrew Parish Court (Criminal Division) in respect of those offences and was refused bail. The appellant's bail in the Clarendon Parish Court was also revoked, arising from the additional charges.

2 The appellant appealed to the Supreme Court for a review of both decisions concerning bail, that is, the refusal and the revocation. Mott Tulloch-Reid, J. (‘the learned judge’) heard the appeals and concluded that the decisions of the two Judges of the Parish Courts should not be disturbed. She, accordingly, refused the application to review bail. The appellant now seeks to appeal the decision of the learned judge.

3 The preliminary issue for this court's consideration is whether this court has the jurisdiction to consider a further appeal from a ruling of a Judge of the Supreme Court who considered an appeal concerning bail. The parties were invited to make submissions on this preliminary issue.

SUBMISSIONS

4 For the appellant, counsel Mr Wildman contended that this court is empowered to consider a further appeal. He relied on section 10(3)(d) of the Bail Act, which he asserted was applicable with respect to the revocation of the appellant's bail and that arising from that revocation, section 12(1)(b)(i) of the Bail Act was triggered, thereby giving this court jurisdiction. With respect to the refusal to grant bail, counsel contended that section 11 of the Bail Act was applicable, as the appellant was in custody and the court before which he first appeared had the jurisdiction to review that custody. Bail having been denied on that first appearance, the appellant was permitted to appeal to a judge in chambers in the Supreme Court, which he did. The appeal having been refused, the appellant was permitted to appeal to a judge of this court under section 12(1)(b)(ii) of the Bail Act.

5 By contrast, Ms Simpson, on behalf of the Crown, contended that the appellant has no further right of appeal to this court, in the circumstances. Reference was made to the previous Bail Act (the Bail Act, 2000), and it was asserted that, under that Act, both a defendant and the prosecution had the right to appeal a decision concerning bail, once. This position remained unaltered by the new Bail Act. As such, section 12 of the new Bail Act gives a defendant a right to appeal from a decision of a Judge of the Parish Court to a Judge in Chambers of the Supreme Court only. The appellant, having exercised this right, cannot now seek a further review. In making these submissions reliance was also placed on extraneous documents, namely: (1) a statement made, on 5 October 2022, by the Minister of Legal and Constitutional Affairs, Mrs Marlene Malahoo Forte KC, MP, in the tabling of the Bail Bill, 2022; (2) the relevant report of the Joint Select Committee of Parliament dated 18 July 2023; and (3) the Hansard for a sitting of the Senate on 6 October 2023. Counsel for the Crown also referred to the case of Huey Gowdie v. R [2012] J.M.C.A. Crim. 56 in which the appellant was refused bail in both the Parish Court and the Supreme Court but was granted bail in the Court of Appeal. It was submitted that the case was an anomaly and that the Crown did not object to bail being granted.

DISCUSSION

6 In determining this issue, the appropriate starting point is the Bail Act, 2023 (hereinafter referred to as ‘the Act’) and, in particular, sections 12(1) and (2), which provide as follows:

“12.—(1) The defendant concerned may, in accordance with any applicable rules of court, appeal to—

• (a) a Judge of the Supreme Court in Chambers, In respect of a decision made by a judge of the parish court—

  • (i) and referred to in section 7(4)(a) or 10(3); or

  • (ii) upon a review conducted under section 11;

• (b) a Judge of the Court of Appeal in Chambers, In respect of a decision made by a judge of the supreme court—

  • (i) and referred to in section 10(3); or

  • (ii) upon a review conducted under section 11.

(2) Where bail is granted to a defendant by a Judge of the Parish Court or a Judge of the Supreme Court pursuant to this Act, the prosecution may, in the manner set out in subsection (3), appeal to a Judge of the Court of Appeal in Chambers, in respect of the decision.” (Emphasis supplied)

7 Sections 7(4)(a), 10(3), and 11 are. Therefore. relevant to a determination of the nature of the appeals that were brought in this case.

8 Section 7(4)(a) concerns the extension of a defendant's release on bail in the case of a defendant who was arrested or detained but not charged for an offence. It would, therefore, be inapplicable to the present case, as the appellant has been charged with offences in both instances.

9 Section 10(3) provides:

• “(3) Where A deciding official—

  • (a) grants or refuses bail;

  • (b) imposes conditions in granting bail;

  • (c) varies any conditions of bail; or

  • (d) revokes bail,

the reasons for the decision shall be given in accordance with subsection (4).” (Emphasis supplied)

10 Sections 11(1), (2) and (4) provide as follows:

“11.—(1) A decision by a constable or a justice of the peace on the matter of bail to a defendant shall be reviewed by a Judge of the court having jurisdiction to try the offence concerned or before which the defendant first appears (as the case may be)

• (a) on the defendant's first appearance in court in relation to the offence;

• (b) in the case of a refusal to grant bail or a decision to impose any condition in granting bail, on an application by the defendant on any ground specified in subsection (2);

• (c) in the case of a decision to grant bail or the failure to impose a particular condition in granting bail, on an application by the prosecution on any ground specified in subsection (2).

(2) The grounds referred to in subsection (1) are—

• (a) there has been a change in circumstances affecting the matter since the previous decision in respect of bail; or

• (b) there are facts applicable to the matter which were not available to the deciding official at the time when the decision was made.

(3) …

(4) On a review under this section, the Judge—

• (a) may affirm the decision reviewed, grant or refuse bail to the defendant, impose conditions on bail granted to the defendant, or remove or vary any condition of bail imposed on the defendant;

• (b) in the case of a review under subsection (1), may revoke bail granted to the defendant; or

• (c) in any case where section 7(1) applies (unconditional release of defendant arrested or detained but not yet charged), shall make such order as the court considers appropriate.” (Emphasis supplied)

11 Based on the foregoing, and so far as relevant to this case, it is apparent that a defendant has a right of appeal to the Supreme Court in respect of: (1) a decision by a Judge of the Parish Court refusing bail, imposing conditions on the grant of bail, varying bail conditions or revoking bail (section 10(3)); and (2) a review conducted by a Judge of the Parish Court where a decision was previously made concerning bail by a constable or a Justice of the Peace (‘JP’) and where the Judge of the Parish Court either affirms the decision of the constable or JP, refuses bail, imposes conditions on the grant of bail, varies any condition of bail or revokes bail (review under section 11). Likewise, a defendant has a right to appeal to the Court of Appeal in respect of a decision made by a...