Willard Williamson v R

• Jurisdiction: Jamaica
• Judge: McDonald-Bishop JA,Brooks JA
• Judgment Date: 01 May 2015
• Neutral Citation: JM 2015 CA 50,[2015] JMCA Crim 8
• Docket Number: RESIDENT MAGISTRATES' CRIMINAL APPEAL NO 15/2014
• Court: Court of Appeal (Jamaica)
• Date: 01 May 2015

Willard Williamson

and

R

[2015] JMCA Crim —

Before:

The Hon Mr Justice Brooks JA

The Hon Mrs Justice McDonald-Bishop JA (AG)

The Hon Mrs Justice Sinclair-Haynes JA (AG)

RESIDENT MAGISTRATES' CRIMINAL APPEAL NO 15/2014

JAMAICA

IN THE COURT OF APPEAL

CRIMINAL LAW - Corruption - Appeal against conviction and sentence - Solicitation - Audio evidence heard at trial - Whether verdict unreasonable and can be supported by evidence - Whether trial judge erred in failing to warn herself as to the caution needed in relying on voice recognition evidence - Whether there was a miscarriage of justice as a result of non-disclosure - Public interest immunity - Credibility - Evidence Act, s. 31D

Bert Samuels for the appellant

Mrs Kamar Henry-Anderson for the Crown

Brooks JA

1 I have read, in draft, the respective judgments of my learned sisters McDonald-Bishop JA (Ag) and Sinclair-Haynes JA (Ag). The judgment of McDonald-Bishop JA (Ag) is consistent with my view of the appeal. I agree with her conclusion for the reasons given by her. Her opinion has been so comprehensively expressed that there is nothing that I can usefully add.

McDonald-Bishop JA (AG)

2 The appellant, Mr Willard Williamson, a former constable of the Jamaica Constabulary Force, was on 14 April 2014, convicted in the Resident Magistrate's Court for the parish of Saint Elizabeth by Her Honour Mrs Sonya Wint-Blair for breach of section 14(1)(a) of the Corruption Prevention Act. The single information on which he was charged, and to which he had pleaded not guilty, alleged, essentially, that he being a public servant corruptly solicited $15,000.00 from Mikisha Heywood being a gift for himself to discontinue court proceedings instituted against her for driving without a driver's licence and without motor vehicle insurance. On 14 May 2014, the learned Resident Magistrate sentenced him to four months imprisonment at hard labour. He has appealed against his conviction and sentence.

The evidence at trial: an overview

The prosecution's case

3 The prosecution relied on the testimony of five witnesses: Miss Heywood, the virtual complainant, and four police officers who were, at all material times, attached to the Anti-Corruption Branch of the Jamaica Constabulary Force. The primary evidence on which the appellant was convicted, however, was adduced from Miss Heywood and Detective Corporal Damien Hinds, through whom audio recordings of conversations between the appellant and Miss Heywood were tendered in evidence. The evidence of the other witnesses did not advance the case for the prosecution in any material way and so will not be treated as relevant for present purposes.

4 The essence of the relevant evidence led by the prosecution is outlined as follows. On 18 March 2009, at about 11:00 pm, Miss Heywood was driving a motor car, owned by her boyfriend, Damion Walker, along the Petersville main road in the parish of Westmoreland when she was stopped by the appellant and Constable Raymond Johnson who were on traffic duties along that roadway. She did not know the appellant before but she knew Constable Johnson as “Raymond”. They discovered that she was driving without a driver's licence and apprehended her for breach of the Road Traffic Act. They took her along with the motor car to the White House Police Station for processing. While there, Damion Walker was contacted and he attended the station.

5 Miss Heywood was eventually processed by Constable Johnson who served summons on her, upon the instruction of the appellant, for her to attend court to answer to the charges of driving without a driver's licence and without motor vehicle insurance. She was released after she was served with the summons but the motor car was detained on the instruction of the appellant.

6 On the following morning, Damion Walker went back to the police station and collected the motor car while Miss Heywood remained at home. He later telephoned her while she was home and spoke to her. She later received a call from the appellant on her cell phone. He identified himself to her and after speaking with him, she called Constable Johnson because of the earlier conversation she had with the appellant. After she spoke to Constable Johnson, she called back the appellant, having received his number from Damion Walker. She said she asked him, “how comes he told me that Raymond was the one who wanted the money which wasn't the truth”. He told her that Raymond wanted the money. They then started to discuss “when he was going to get the money” (page 32 of the record).

7 He requested $15,000.00 from her in order to prevent her from having to go to court because she indicated that she had to leave the island before the court date. They both discussed the matter and it was her understanding that the $15,000.00 was for that purpose. She agreed to pay the sum but not on the date he asked her to do so. She indicated a difficulty she had in finding that amount of money quickly. A date was discussed between them for payment of the money, which she could not recall but she had an option to choose between two dates given to her by the appellant. He also told her that the payment would have had to be made after 5:00 pm. On the date she wanted to pay, he said he did not work that day. They agreed to meet on Tuesday, 7 April 2009 but she was not able to make that meeting. She tried to contact him on 6 April 2009 to tell him that she could not make the meeting but was unable to do so.

8 Not being able to contact the appellant, and clearly not satisfied with the situation, Miss Heywood contacted the Anti-Corruption Branch and as a result of discussions with officers there, a “sting” operation was devised to be carried out on 7 April 2009. The plan for the operation was to have Miss Heywood meet with the appellant on the basis that she was paying the money over to him. As part of the operation, there was to be a covert recording of their telephone conversations agreeing to meet and, also covertly, both an audio and video recording of their meeting. She was, during the course of the meeting, to hand over previously marked currency notes to the appellant and when that was completed, she was to give a prearranged signal.

9 In the telephone conversation recorded between the appellant and Miss Heywood on 7 April 2009, Miss Heywood indicated the meeting spot to be at a location in Black River, St Elizabeth and the appellant agreed to meet her there. Importantly, she stated in that conversation that she did not then have the entire sum of $15,000.00; that she only had $10,000.00 at the time but that she expected her brother to bring the other $5,000.00 by the time the appellant arrived. There was no demurral or expression of surprise from the appellant to that statement. His response was, simply, “[o]kay”.

10 Some time later, the appellant arrived at the agreed location. He remained in his car while she stood at the driver's door of the car speaking to him. Thereafter, there was a discussion between them and he opened his car door in order to leave the vehicle to continue to speak with her. At that point the operation went awry. While the door to the driver's side was open, Miss Heywood mistakenly gave the prearranged signal that she had handed over the money to him, when in fact she had not done so. The police officers involved in the operation swooped down on the appellant in response to her pre-mature signal and the money, accidentally, fell on the driver's seat. The appellant, therefore, did not take any money from her.

11 In response to the questioning of the police at the location, the appellant denied any knowledge of the money, which was retrieved from the car. He was subsequently arrested and charged.

12 The recorded conversations between the appellant and Miss Heywood relied on by the prosecution were the subject of significant objection by learned defence counsel, who argued at the trial that they were inadmissible for a number of reasons and requested disclosure of the devices that were used in the recording of them. Those matters formed the subject matter of rulings by the learned Resident Magistrate who admitted the recordings and refused the application for disclosure.

The appellant's case

13 In his defence, the appellant gave sworn testimony and relied on the testimony of Darlon Rutherford and the written statements of Damion Walker that were tendered in evidence by virtue of section 31D of the Evidence (Amendment) Act upon the application of the defence. Damion Walker was off the island at the time of the trial.

14 The appellant did not join issue with the prosecution's case as to the circumstances leading to the issuance of the summons to Miss Heywood and the arrival of Damion Walker at the police station. He testified that Miss Heywood was processed by Constable Johnson at the police station on the night in question and that he did not speak to her.

15 He stated that Miss Heywood attended the police station on the following morning while he was there. She then engaged him in a conversation about sex and, among other things, expressed admiration for his physique while touching him. They exchanged cell phone numbers and she left.

16 He spoke on the phone with Miss Heywood after that day. She had called him two days later speaking about the ‘ticket’ she received from Constable Johnson and her not wanting to go to court. He explained to her, then, the consequences of her going as well as not going to court. She again contacted him days later indicating that she wanted to see him and he agreed to see her. They met and again engaged in sexually explicit conversation and on one occasion she actually hugged him. She also attended a police youth club meeting on his invitation.

17 On the Friday before the sting operation, he heard from her again and she told him that she was stressed out about the...