Oswald James v R

• Jurisdiction: Jamaica
• Judge: Phillips JA
• Judgment Date: 30 April 2021
• Neutral Citation: [2021] JMCA App 7
• Docket Number: RESIDENT MAGISTRATE'S CRIMINAL APPEAL NO 1/2013
• Year: 2021
• Court: Court of Appeal (Jamaica)

IN THE COURT OF APPEAL

BEFORE:

THE HON Miss Justice Phillips JA

THE HON Miss Justice P Williams JA

THE HON Miss Justice Straw JA (AG)

RESIDENT MAGISTRATE'S CRIMINAL APPEAL NO 1/2013

APPLICATION NO 235/2016

Oswald James

and

R

Michael Williams for the applicant

Leighton Morris and Miss Kelly-Ann Gilles for the Crown

Phillips JA

1 Having lodged an unsuccessful appeal against his conviction and sentence for the offence of fraudulent conversion, Mr Oswald James (the applicant) filed a notice of application, seeking to reopen his appeal to adduce fresh evidence indicating alleged bias on the part of the Resident Magistrate (now called Judge of the Parish Court) before whom he was tried. After hearing the application and reviewing the affidavits and other documents filed in relation thereto, on 10 November 2017, we made the following orders:

“1. The application by the applicant Oswald James for permission to re-open the appeal no 1/2013 to adduce fresh evidence is hereby refused.

2. The applicant has not demonstrated that the integrity of the earlier litigation process had been critically undermined by bias and/or corruption of the process in any way in the court below.

3. The conviction and sentence of the applicant by the learned [Judge of the Parish Court] on 19 March and [20] April 2012, respectively, and affirmed by this court on 9 May 2014 stands.”

2 The reasons for our decision were promised and are stated below. We recognise that there has been considerable delay in delivery of these reasons. We wish to convey our sincere apologies and deep regret for the same.

Background

3 The applicant (who was then an attorney-at-law) was retained by Mr Carl Lewis, a financial advisor who resides in Toronto, Canada, to facilitate the purchase of property. The sum of US$337,500.00 was given to the applicant as a deposit on the purchase price. The purchase failed to materialise. Despite numerous efforts and requests made by Mr Lewis for the return of his money, only US$100,000.00 was paid. Mr Lewis did not give the applicant any permission to use his money or to invest it, and yet the applicant had used it to engage in many expensive undertakings. The applicant acknowledged his failure to return the money in a letter dated 13 May 2008, where he gave a written undertaking to return the balance owed by 30 July 2008. That promise was never kept. A report was subsequently made to the police.

4 The applicant was charged with fraudulent conversion, in that, he fraudulently converted US$237,500.00 that had been entrusted to him by Mr Lewis, for his own use and benefit, or the use and benefit of some other person. The trial occurred on various dates between 14 March 2011 and 20 April 2012, before Her Hon Mrs Lorna Shelly- Williams (as she then was), Judge of the Parish Court for the Corporate Area. The applicant was subsequently convicted and sentenced to two years' imprisonment.

5 The applicant lodged an appeal against his conviction. This court found that his grounds of appeal relating to non-disclosure; the credibility of the witnesses; and whether the offence of fraudulent conversion had been proved were without merit. On 9 May 2014, the appeal was dismissed, and the applicant's sentence was affirmed.

The application to re-open the appeal

6 Two years and seven months later, on 19 December 2016, the applicant filed a notice of application, which was amended on 10 March 2017, in which he sought the following orders:

“That he be granted leave to reopen the appeal to adduce ‘fresh evidence’ to demonstrate that the integrity of the earlier litigation process has been critically undermined by bias and/or corruption of the process at the Court below or in the alternative that the Court finds that the integrity of the earlier litigation process has been critically undermined by bias and/or corruption of the process at the Court below and set aside his conviction as being unsafe in the circumstance.” (Underlined as in original)

7 The application was filed on grounds that there was fresh evidence that revealed bias, which had not been placed before this court when it heard the appeal, and which had not been known to the applicant during or after his trial. It was the applicant's contention that the evidence of this alleged bias, once established, exposed the risk that he would have been subjected to substantial injustice during his trial.

8 The applicant deponed to five affidavits in support of his application. They were filed on 19 December 2016, 2 March 2017, 6 March 2017, 20 June 2017, and 1 September 2017. He deponed that prior to his release from prison he had received information not known to him at the time of his trial and appeal. Based on that information, he conducted investigations which revealed that the learned Judge of the Parish Court, before whom he was tried, and her husband, were passengers on American Airlines flight 331 which crash-landed at the Norman Manley International Airport on 22 December 2009. He also learned that the learned Judge of the Parish Court and her husband were among the 20 plaintiffs in a claim for damages, in respect of personal injury, filed against American Airlines dated 14 September 2011.

9 The applicant deponed, citing articles from the Jamaica Gleaner and the Jamaica Observer, that the firm of attorneys-at-law, Wilson Franklyn Barnes, practising in Jamaica, had partnered with Slack & Davis LLP, a firm of lawyers based in Texas, United States of America, to represent the passengers involved in the plane crash. Mr Delano Franklyn, a senior partner in the firm Wilson Franklyn Barnes, had conduct of that matter. The applicant deponed that in or about January 2010, he was informed by Mr Hugh Wilson, a partner in Wilson Franklyn Barnes, that the learned Judge of the Parish Court had visited the offices of Wilson Franklyn Barnes in relation to her personal injury claim and had discussions with Mr Franklyn.

10 The applicant stated that based on his investigations, the learned Judge of the Parish Court would have had some degree of familiarity with Mr Franklyn and his firm, as they were both 1995 graduates of the Norman Manley Law School. Of significance too, he deponed that Mr Franklyn had received no remuneration from the learned Judge of the Parish Court or her husband, in respect of their personal injury claim against American Airlines.

11 During the applicant's trial before the learned Judge of the Parish Court, he was represented by Mr Brian Barnes of the same firm, Wilson Franklyn Barnes. The firm also represented him in a number of other related matters before the Disciplinary Committee of the General Legal Council and the Court of Appeal. The applicant indicated that aside from representation, the firm was possessed of his instructions and other confidential information. The applicant further deponed that he had a cordial relationship with Mr Franklyn over the years, and when he had cause to attend the firm's offices and saw Mr Franklyn, they would extend pleasantries, and on occasion, he gave Mr Franklyn a “status update” of his on-going trial before the learned Judge of the Parish Court.

12 It was the applicant's contention that the learned Judge of the Parish Court “knew or ought to have known that the firm of attorneys that represented her also represented [him]; the party before her”. He indicated that the name “Wilson Franklyn Barnes” appeared on all the written applications, submissions, documents, and written correspondence from Mr Barnes to the court relating to the case before the learned Judge of the Parish Court. He deponed that there “was a clear and unambiguous statement” to the learned Judge of the Parish Court that the firm was acting on his behalf, as the appearance of the firm was stated on the record in the judicial review and appeal proceedings. In accounting for the absence of the firm's name on the notes of evidence, the applicant stated in his affidavit filed 20 June 2017, that the firm's name was somehow excluded, as he “verily recall[s]” that on 11 July 2010, when the learned Judge of the Parish Court had fixed his trial date, Mr Barnes had introduced himself as “Brian J. Barnes, instructed by Wilson Franklyn Barnes”.

13 The applicant said that there had been no disclosure to him by the learned Judge of the Parish Court, at any time before, during or after his trial, that she and her husband had also been represented by Slack & Davis, which had partnered with Wilson Franklyn Barnes, the same firm that had conduct of his defence. He further emphasized that this association had not even been disclosed to him during his subsequent appeal to this court, or his application for special leave to appeal to the Judicial Committee of the Privy Council. He deponed that that association ought to have been disclosed to him and his counsel, so that an application could have been made for the learned Judge of the Parish Court to recuse herself on the basis of a potential “conflict of interest, lack of impartiality and or bias”.

14 The applicant deponed that his counsel, Mr Barnes, had never brought to his attention the connection between the firm and the learned Judge of the Parish Court, which (the applicant) assumed was because Mr Barnes “had no actual knowledge” of that connection. He further deponed that before and during his trial, there was “acrimony” between Mr Barnes and Mr Franklyn. The acrimony, he deponed, developed into a lack of communication between the parties, and which ultimately resulted in Mr Barnes' physical relocation from the firm and the establishment of two separate firms, “Barnes & Associates” and “Wilson Franklyn”. The applicant stated that this acrimony was further evidenced by his perceived lack of invite of Mr Barnes to Mr Franklyn's wedding, on 17 December 2011, a conclusion he deduced from certain photographs of Mr Franklyn's wedding, exhibited to the applicant's...