Shaw v R
| Jurisdiction | Jamaica |
| Judge | Sinclair-Haynes, J.A. |
| Judgment Date | 23 March 2018 |
| Neutral Citation | JM 2018 CA 29 |
| Court | Court of Appeal (Jamaica) |
| Docket Number | Parish Court Criminal Appeal No 5/2017 |
| Date | 23 March 2018 |
Court of Appeal
Morrison, P., Mcdonald-bishop, J.A., Sinclair-haynes J.A.
Parish Court Criminal Appeal No 5/2017
KD Knight Q.C. and Able-Don Foote instructed by Knight Junor and Samuels for the appellant
Mrs Natiesha Fairclough-Hylton for the Crown
Criminal Law — Offences contrary to Corruption Prevention Act - Appeal against conviction — Whether evidence adduced was insufficient to establish the offences charged — No case submission — Appeal against sentence — Whether sentence was manifestly excessive.
The failure of Mr Rupert Barrington Blackwood to declare to customs at the Norman Manley International Airport that he was carrying US$16,000.00 led to the arrest of Mr Michael Shaw, a customs officer. Mr Shaw (the appellant), was charged for two offences for acting contrary to section 14(1)(a) of the Corruption Prevention Act. The particulars of the first offence charged on information number 2014/7050 were:
“Being a public servant to wit, a customs officer, corruptly accepted US $2,000 [sic] from Barrington Blackwood to do an act in the performance of his public function, to wit: returned US $16,000 of [sic] Barrington Blackwood which had been detained at customs by the said Michael Shaw.”
He was also charged on a second information number 2014/7051, the particulars of which were as follows:
“That [be]ing a Public Servant, to wit, a customs officer, corruptly solicited US$1,400.00 from Barrington Blackwood to do an act in the performance of his public function, to wit return US $16,000.00 which had been detained at Customs by the said Michael Shaw.”
He was convicted by Her Honour Mrs Grace Henry McKenzie and sentenced to eight months imprisonment on both informations with sentences ordered to run concurrently. Being utterly aggrieved by the learned parish judge's decision, he has appealed to this court and filed the following grounds of appeal:
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“1. The evidence adduced by the prosecution was insufficient to establish the offence charged.
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2. The sentence imposed was manifestly excessive.
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3. The learned Trial Judge fell into error when she failed to uphold the submission of No case to answer.”
The following supplemental grounds were also filed on his behalf:
At the hearing of the appeal, leave was granted to the appellant to file two additional supplemental grounds of appeal as follows:
“4(b) Having regard to grounds 4 and 4(a) above, the verdict is unreasonable and/or unsafe.”
“5(a) The learned parish judge failed to treat Mr Blackwood as an accomplice; failed to warn herself of the dangers of convicting on his uncorroborated evidence.”
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“4. The Learned Trial Judge failed to properly assess the evidence of the Complainant in circumstances where he was the sole witness capable of establishing the ingredients of the of the offence and his evidence was substantially discredited by admitted untruths as to render the same manifestly unreliable.
4(a). The Learned Trial Judge failed to take into consideration in assessing Mr, Blackwood's evidence the cumulative effect of the several untruths upon his veracity.
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5. The Learned Trial Judge erred in rejecting the Defendant's evidence considering the totality of evidence before her rendering the verdict unreasonable and unsupportable having regard to the evidence.”
We heard his appeal on 29 and 30 January 2018 and on 16 February 2018, we quashed his conviction, set aside the sentence, and entered a judgment and verdict of acquittal. We promised reasons for our decision and this is a fulfilment of that promise.
Six witnesses testified on behalf of the Crown. Only one, Mrs Aldith Wright-Douglas, who was the appellant's supervisor at the material time, was present at the point in time the offence was allegedly committed. The others were formal witnesses.
Mr Blackwood arrived at the Norman Manley International Airport on a flight from the United States on 24 February 2014. Accompanying him were four pieces of luggage. The appellant searched the luggage. An envelope which contained the money was detected by the appellant in the attached case. According to the complainant, the money was in two envelopes which were visible upon opening the case.
It was the complainant's evidence that he told the appellant that the envelopes contained US$10,000.00 but the appellant told him that it was more. He was instructed by the appellant to close the suitcase and accompany him. He was taken to a room where he saw the appellant's supervisor. The appellant told him that he would confiscate the money because he should have declared the amount of money he was carrying on the customs form. He did not respond.
The supervisor, Mrs Aldith Wright-Douglas, approached them and she also told him that they would confiscate the money and that he would have to return with proof of its source to have it returned. He told her that he did not have any more money so “might as well [they put him] back on the plane”. The supervisor instructed the appellant to give him $500.00 of the money and he did.
At that juncture, they began “doing a lot of paper work”. The supervisor remained but she was in “a little boothe right next to where [they] were”. The appellant, the complainant said, was writing and having him sign and “was going back and forth to his supervisor”. He was unable to hear what the appellant said when he was ‘going back and forth’ to the supervisor.
The appellant returned and completed the paper work. After which the appellant told him:
“We can talk yuh know.”
His response, however, was:
“After all those paper work?”
The appellant, he said, told him not to “worry about it”. It was also the complainant's evidence that he was “kind of felt happy” when the appellant said that they could talk. He understood the appellant to mean that they could negotiate and that “he wanted some of the money”.
The complainant then instructed the appellant to “take five hundred dollars ($US500.00) out of [his] money and give [him] the rest”. The appellant however told him that:
“Five hundred dollars [was] too small, the supervisor want some too”
and asked him if “[he] couldn't even offer seven hundred dollars (US$700.00) each”. It was at that juncture that he, the complainant, told the appellant to take US$2,000.00 and “give him the rest”.
The monies comprised of 100 and 50 dollar bills. The appellant counted the 100 dollar bills; took US$2,000.00; returned the balance to him, and placed the money in his bag. The complainant told the supervisor, while she was sitting in her boothe, that, “It was nice doing business with [her]” and he “walked out”. According to him, he told her that, “[b]ecause she was hanging down her head and not even looking at [him]”.
He described the supervisor's booth as “pretty close” with two sides. He explained that her booth did not have a glass enclosure and he expressed the opinion that:
“Obviously she heard everything which was going on.”
The only time the complainant said he spoke with the supervisor was when she instructed the appellant to give him the $US500.00. It was his evidence that although he provided the appellant and the supervisor with his annuity statement, which was proof of the source of the money, they behaved as if they did not wish to see it and both told him they were going to confiscate the money.
Under cross-examination, he testified that he had three pieces of luggage and his attache' case. It was his evidence that upon his arrival, he filled out an immigration form and the information he provided was true and correct. He however admitted that he lied when confronted with his statement on which he had falsely declared that he was not carrying over US$10,000.00 or its equivalent.
He also admitted lying that he did not have a cellular phone when he was specifically asked if he had. The cellular phone and the cash were discovered when he was asked to place his luggage on the table for examination. He admitted being upset when the discovery was made and because of that he told the appellant that:
“Of all the time [he had] been travelling to Jamaica it [was] the first time [he] had been treated in [that] way.”
He further admitted that after the appellant had searched the three bags which he placed on the table, he, the appellant, pointed to the attache case which he had kept on the trolley and told him that he wanted to see it. He denied that his jacket was covering the attache' case at the time the request was made. The complainant also admitted lying on the customs form that he had three pieces of accompanied luggage when in fact he had four. It was also his evidence that it was an error.
He agreed that when the appellant told him that he did not declare the money, his response was that “[he] was not aware it was enforced in Jamaica that much”. He also agreed that the appellant told the supervisor that he was found with money, which he did not declare.
He accepted that whilst the documents were being photocopied, he was complaining about how badly he was being treated. He further accepted that the appellant told him that if he provided proof of the source, the money would have been released.
Under cross-examination, he agreed that he was given $500.00 but he claimed it was not for hotel and car rental. According to him, he had an apartment in Jamaica so he would not have said that. He asserted that he was given the sum because he did not have any more money.
He admitted being told that the balance would be detained until he provided proof as to its acquisition. He also agreed that it was at that point in time, he showed Mrs Wright-Douglas the annuity statement. He, however, denied showing the statement to Mrs Wright-Douglas and the appellant at the same time. He insisted that he first showed...
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