Oliver Johnson & Karl Roberts v R
| Jurisdiction | Jamaica |
| Judge | Phillips JA |
| Judgment Date | 24 May 2019 |
| Neutral Citation | JM 2019 CA 36 |
| Date | 24 May 2019 |
| Year | 2019 |
| Court | Court of Appeal (Jamaica) |
[2019] JMCA Crim 20
PARISH COURT CRIMINAL APPEAL NO 3/2017
The Hon Mr Justice Morrison P
The Hon Miss Justice Phillips JA
The Hon Miss Justice P Williams JA
Kimani Brydson for applicant Oliver Johnson
Kemar Robinson for applicant Carl Roberts
Miss Paula Llewellyn QC, Director of Public Prosecutions, Mrs Natiesha Fairclough Hylton and Miss Natalie Malcolm for the Crown
Criminal Law - Corruption — Appeal against conviction — Whether judge erred in failing to uphold a no-case submission in light of the consistencies and discrepancies in the case — Evidence — Admissibility — Prejudicial evidence — Identification evidence — Dock identification — Whether judge heard in feeling to warn herself on the danger of dock identification.
The appellants, Mr Oliver Johnson and Mr Karl Roberts, were members of the Jamaica Constabulary Force. They were jointly charged on two informations, contrary to section 14(1)(a) of the Corruption Prevention Act, with corruptly accepting $19,000.00 and soliciting $50,000.00 from Mr Curtis Gardner, as a gift or advantage for themselves for not prosecuting Mr Gardner for the offence of possession of ganja. They were tried and convicted before Parish Court Judge, Her Honour Mrs Grace Henry-McKenzie, who, on both counts, sentenced Mr Johnson to nine months imprisonment at hard labour and Mr Roberts to six months imprisonment at hard labour. These sentences were ordered to run concurrently.
The appellants lodged an appeal against their convictions and sentences. We heard this appeal on 17, 18 and 19 January 2018. Counsel for the appellants submitted that the appeals in respect of convictions and sentences should be allowed and their sentences set aside on the basis that: (i) there were several significant and material inconsistencies that had rendered the Crown's case tenuous and manifestly unreliable; (ii) prejudicial information was led that could not have been sufficiently cured by any warning given by the learned Parish Court Judge; (iii) the learned Parish Court Judge failed to properly direct herself with regard to whether there was indeed a joint enterprise; and (iv) the learned Parish Court Judge failed to properly apply the principles relating to identification.
Crown Counsel, Miss Natalie Malcolm, after proffering arguments on the inconsistencies and discrepancies, prejudicial information and joint enterprise, ultimately conceded that she could not proffer an appropriate or adequate response with regard to the issue of identification. She made this concession on the basis that, in her view, there was indeed, in the summation by the learned judge, a disregard of the principles relating to identification. Crown Counsel therefore agreed that the appeals against the appellants' convictions and sentences ought to be allowed and their sentences quashed.
On 19 January 2018, having found that the grounds relating to inconsistencies and discrepancies, and the inadequacy of the identification evidence, had merit, we therefore allowed both appeals, quashed the convictions, set aside the sentences, and entered judgments and verdicts of acquittal for both men. We promised to give our reasons for this decision in writing. These reasons fulfil that promise. The delay in providing the same is deeply regretted.
Mr Gardner testified that on 3 February 2008, at about 8:00 am, he and his girlfriend Miss Jessica Hutchinson were at his home located at 2 Mais Avenue, Duhaney Park in the parish of Saint Andrew. He also has a shop located to the back of the house. Whilst there, both appellants, who were police officers, and whom he had known before, came to his house. Mr Gardner said that Mr Johnson indicated that they had received information that there was a firearm inside his house. He testified that he allowed the appellants to search his house and his shop to the back. Both appellants, he stated, found 10 bags of ganja, in small packages valued at $20.00 each, and $14,000.00 inside the shop, and they also found firecrackers inside the house. Mr Johnson then informed Mr Gardner that he would charge him with the offence of possession of ganja and placed him inside the police service vehicle.
Mr Gardner indicated that, when he was placed in the police service vehicle, Mr Johnson was the driver and Mr Roberts sat in the front passenger seat. He then embarked upon a circuitous journey with both appellants to various areas in Saint Andrew. Mr Gardner said that his friend, Mr Lansford Powell, also called “Boogie”, arrived at some point, and drove behind the police service vehicle in order to ascertain what was happening to him. During that journey, Mr Gardner testified that Mr Johnson asked him “what can [he] can do to help [himself]”, told him that the $14,000.00 he had found inside the shop “was not enough to share” for both appellants, and said that they required $50,000.00. Mr Gardner's evidence was that he interpreted that to mean that they wanted him to pay money in order to avoid being charged for possession of ganja and the firecrackers. While on that journey, Mr Gardner made several calls to friends, including a call to Mr Powell, in an attempt to secure a loan to pay money to both appellants. However, he was only able to borrow $5,000.00 from a neighbour upon his return to Duhaney Park, which he gave to Mr Johnson.
While in Duhaney Park, Mr Gardner's evidence was that Mr Johnson said that since they had already received $19,000.00 (the $14,000.00 found inside the shop and the $5,000.00 Mr Gardner had borrowed), a balance of $31,000.00 remained. He testified that Mr Johnson had given him a cellular number through which he could be contacted. Mr Gardner stated that he did not call Mr Johnson that day, and so the appellants retuned the next morning. Mr Johnson then made enquiries of him as to why he did not call, and stated, in Mr Roberts' hearing and presence, that he required the balance of the money which he expected to be paid by 3:00 pm that day, failing which “[Mr Gardner] would know how it goes”. Mr Gardner said that in his view that statement was a threat. He stated that ultimately he was never charged with possession of ganja and the firecrackers, and further that the $19,000.00 was not willingly given to the appellants, but was done to avoid being charged for possession of the ganja and the firecrackers. The bag containing the ganja and the firecrackers was returned to him. He also said that throughout his entire ordeal, Mr Roberts was present but said nothing.
Based on this perceived threat, Mr Gardner, acting on advice, spoke to Detective Senior Superintendent Cornwall Ford of the Flying Squad at the Central Police Station and gave him a statement. Based on instructions given to him by Detective Senior Superintendent Ford, he visited the Hunts Bay Police Station, where he spoke to a police officer named “Cowboy” and gave two police officers a statement.
Mr Gardner's credibility was severely challenged under cross-examination. He was questioned with regard to his bad character, as he had previously been deported from the United States of America. Many inconsistencies and discrepancies in his evidence were highlighted and identified, relating to, inter alia, how the $14,000.00 was found; at what time did Mr Powell arrive; whether his girlfriend Miss Jessica Hutchinson was present; and the number of statements he gave to the police.
Mr Powell testified on the Crown's behalf. He indicated that, when he had visited his friend Mr Gardner's house on the date in question, he saw a police service vehicle at the gate. He went inside Mr Gardner's house where he saw him with two police officers whom he had not known before. Nobody else was in the house with Mr Gardner at the time. Mr Powell stated that the men he saw there that day were not the appellants, and further that when the police left with Mr Gardner, he “didn't see them with anything in their hands”. He said that he drove behind the police service vehicle in which Mr Gardner was travelling because Mr Gardner was his friend, “and if he was going to station, something must went down and [he, Mr Powell] wanted to know”. He also accepted that while on the journey Mr Gardner had called him on his cellular phone and spoke to him. He later saw Mr Gardner in Duhaney Park speaking to two police officers for about 5–10 minutes. He later drove off.
Under cross-examination Mr Powell stated that he was aware that Mr Gardner had “kept a dance which was turned off by officers”, and that Mr Gardner had mentioned that incident to him more than once. He also testified that Mr Gardner had a girlfriend that worked at a Shell Gas Station, but he had not seen her at Mr Gardner's house on the day in question.
Corporal Winston Harding, the investigating officer, testified that he had received instructions and a file to conduct an investigation into the said matter. Only three statements were on the said file, one from Mr Gardner and one from each accused. He recorded a statement from Mr Powell, but not from Mr Gardner's girlfriend, because he was unable to find her. The appellants were charged in September 2011, and no identification parade was held. Under cross-examination he indicated that, after making several enquiries, no evidence was unearthed showing that Mr Gardner had given a statement to Detective Senior Superintendent Ford.
No-case submissions were made by counsel in respect of both appellants. They contended that since the central issue in the case was one of credibility, and Mr Gardner's evidence was filled with material discrepancies and inconsistencies, the Crown's case was tenuous and manifestly unreliable and that no jury properly directed could rely on it. The learned Parish Court Judge ultimately ruled that there was a case to answer but, before doing so, she...
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