R v Andre Bryan and Others

• Jurisdiction: Jamaica
• Judge: Sykes CJ
• Judgment Date: 14 February 2022
• Year: 2022
• Court: Supreme Court (Jamaica)
• Docket Number: HCC 134/18 (1), CACT2019CR00212 AND CACT2019CR00279

Between

Regina

and

Andre Bryan and Others

[2022] JMSC CRIM 02

HCC 134/18 (1), CACT2019CR00212 AND CACT2019CR00279

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CIRCUIT COURT

EVIDENCE — COMPUTER GENERATED EVIDENCE — SECTION 31G OF THE EVIDENCE ACT — EVIDENCE NECESSARY TO SATISFY SECTION 31G

Jeremy Taylor QC, Senior Deputy Director of Public Prosecution, Claudette Thompson, Senior Deputy Director of Public Prosecution, Sophia Rowe, Assistant Director of Public Prosecutions, D Green

Lloyd McFarlane, Cheryl Richards, and Nicholas Kellyman for Andre Bryan

Shannon Clarke and Anike Kelly for Kevaughn Green

Kimani Brydson and Ayanna Campbell for Tomrick Taylor, Daniel McKenzie, and Owen Ormsby

Walter Melbourne for Damaine Elliston

Abina Morris and Patrice Riley for Kalifa Williams and Chevoy Evans

Denise Hinson and Kamesha Mittoo for Michael Whitely, Brian Morris, and Donavon Richards

Gavin Stewart and Shadday Bailey for Pete Miller

Akuna Noble for Dwight Hall

Cecile Griffiths Ashton for Carl Beach

Keith Bishop, Andrew Graham, and Jannoy Pinnock

Esther Reid and Davorna Wilson for Tareek James and Rivaldo Hylton

Alexander Shaw and Aston Spencer for Stephanie Christie, Andre Golding, and Andre Smith

Lynden Wellesley and Evan Evans for Fabian Johnson and Ted Prince

Roxane Smith and Deandra Bramwell for Jahzeel Blake and Jermaine Robinson

Zara Lewis and Carole Phillips for Roel Taylor

John Jacobs, Jodi Kay Anderson and Shavene Spence for Rushane Williams

Mikhail Lorne for Kemar Harrison

Sasha Kay Shaw for Joseph McDermott

Dianna Mitchell and K Atkinson for Jason Brown

Courtney Rowe, Jodi Kay Anderson and Shavene Spence for Marco Miller

Kemar Robinson for Dwayne Salmon

Cecil J Mitchell and Paul Gentles for Ricardo Thomas

IN OPEN COURT

Sykes CJ

The ultimate issue

1 The critical question for determination is whether the prosecution has proved beyond reasonable doubt that the recordings made on the three mobile phones by the witness is admissible under section 31G of the Evidence Act. It is common ground between the prosecution and the defence that the three mobile phones alleged to have been used by one of the witnesses in the case to record conversations between himself and persons said to be members of a criminal organisation of which he was a member is a computer within section 31G (7) of the Evidence Act.

2 There are transcripts said to have been produced by police officers who listened to the recording along with the witness. The transcripts are not documents produced by the computer but produced by the police having listened to, it is claimed, to the recordings said to have been made by the witness.

3 This trial commenced on September 20, 2022. There have been many days of hearing. The dates for the purposes of this decision will be the date of the submissions on this aspect of the case (February 10, 2022) and the date of delivery of the reasons for decision (February 14, 2022).

Computer generated evidence in Jamaica

4 The admissibility of computer generated evidence (CGE) is governed by section 31G of the Evidence Act. This provision repealed and replaced the previous section 31G. The previous section 31G, as is the current provision, was designed to mitigate the worst effects of Myers v DPP [1965] AC 1001 which was applied in Jamaica R v Homer Williams (1969) 11 JLR 185 and R v Margaret Heron (1983) 20 JLR 56. The essence of these decisions was that unless the maker of the document could be called then it was inadmissible regardless of how reliable the means were of producing the document. It will be recalled that in Myers, there is absolutely no doubt about the reliability of the records but no one could possibly identify the specific person who made the records that were relevant in that case. The impact of Myers and its progeny was that CGE was not admissible because in many instances the actual maker of the document could not be identified and even if identified the CGE may have been the product of multiple computers or the computer may have contributed its own stored up knowledge to the final input.

5 Jamaica began taking steps to mitigate these problems in 1995 when the Evidence Act was amended. The amendment introduced section 31 A – J and these provisions provided the comprehensive code for admitting CGE. The provisions reflected a distrust of CGE. The mountain to climb to get to the summit of admissibility was like climbing Mount Everest with only a backpack. Subsequent judicial interpretation of the statute confirmed the cumbersome nature of the provisions. This was exemplified by McNamee v R RMCA 18/2007 (July 31, 2008) and Robinson and another v Henry and another [2014] JMCA Civ 17. It should therefore not be surprising that in the twenty-year career of these provisions not many criminal cases in which there was reliance on them reached the Court of Appeal.

6 The repealed section 31G is produced so that nature of the problem with the provision can be appreciated. The repealed section 31G reads:

• 31G. A statement contained in a document produced by a computer which constitutes hearsay shall not be admissible in any proceedings as evidence of any fact stated therein unless –

  • (a) at all material times—

    • (i) the computer was operating properly;

    • (ii) the computer was not subject to any malfunction;

    • (iii) there was no alterations to its mechanism or processes that might reasonably be expected to have affected the validity or accuracy of the contents of the document;

  • (b) there is no reasonable cause to believe that—

    • (i) the accuracy or validity of the document has been adversely affected by the use of any improper process or procedure or by inadequate safeguards in the use of the computer;

    • (ii) there was any error in the preparation of the data from which the document was produced;

  • (c) the computer was properly programmed;

  • (d) where two or more computers were involved in the production of the document or in the recording d the data from which the document was data from which the document was derived –

    • (i) the conditions specified in paragraphs (a) to (c) are satisfied in relation to each of the computers so used; and

    • (ii) it is established by or on behalf of the person tendering the document in evidence that the use of more than one computer did not introduce any factor that might reasonably be expected to have had any adverse effect on the validity or accuracy of the document.

7 The mere reading of these provision indicates why there were so few successful applications for computer generated evidence to be admitted. Even in civil cases where the standard of proof is on a balance of probabilities, unless there was agreement between the parties there were not many cases in which reliance was placed on CGE.

8 Parliament again took up the challenge in 2015 and enacted a new section 31G which reads in relevant part:

• 31G. (1) Subject to the provisions of this section, in any proceedings, a statement in a document or other information produced by a computer shall not be admissible as evidence of any fact stated or comprised therein unless it is shown that —

  • (a) there are no reasonable grounds for believing that the statement is inaccurate because of improper use of the computer; and

  • (b) at all material times the computer was operating properly, or if not, that any respect in which it was not operating properly or was out of operation was not such as to affect the production of the document or the accuracy of its contents.

9 This new section 31G is, in essence, section 69 of the Police and Criminal Evidence Act (PACE) 1984. What is cited below is the relevant parts of section 69 as it was in 1984. The original section 69 was repealed by the Youth Justice and Criminal Evidence Act 1999. Section 69 provided in the relevant portion that:

• (1) In any proceedings, a statement in a document produced by a computer shall not be admissible as evidence of any fact therein unless it is shown—

  • (a) that there are no reasonable grounds for believing that the statement is inaccurate because of improper use of the computer and;

  • (b) that at all material times the computer was operating properly or, if not, that any respect in which it was not operating properly or was out of operation was not such as to affect the production of the document or the accuracy of its contents; and

  • (c) that any relevant conditions specified in rules of court under subsection (2) below are satisfied.

• (2) Provision may be made by rules of court requiring that in any proceedings where it is desired to give a statement in evidence by virtue of this section such information concerning the statement as may be required by the rules shall be provided in such form and at such time as may be so required.

10 The adoption of the now repealed section 69 was deliberate. At the time of the 2015 amendment to the Evidence Act, the House of Lords had considered the provision in two important cases. It may reasonably be concluded that the legislature was suggesting that the interpretation adopted by the House of Lords was to be adopted or at the very least, should be considered when interpreting the new section 31G.

11 The two cases are DPP v Shephard [1993] AC 380 and DPP v McKeown [1997] 2 Cr App R 155. In Shephard, the defendant was convicted of theft. The evidence against her came from a store detective who testified that she had examined the store's till rolls (that is paper rolls used in cash registers) of the date on which the theft was alleged to have occurred and there was no record of the items found in the defendant's possession being purchased. It was agreed that for the evidence in relation to the till rolls to be admitted, section 69 (1) (b) (section 31G (1) (b) of the Jamaican statute) had to be satisfied.

12 The defendant's appeal was dismissed. The Court of...