Legal updates and commentary
Clive Rowe v R
Summary: The appeal against conviction and sentence of a former policeman on corruption charges was dismissed. The Jamaican Court of Appeal reiterated that it will only overturn the findings of a Lower Court “where those findings are so against the weight of the evidence as to be obviously and palpably wrong.”
 JMCA Crim 2
Resident Magistrate’s Criminal Appeal No. 28/2011
Before: The Hon Mrs, Justice Harris P (Ag), The Hon Miss Justice Phillips JA, The Hon Mr. Justice Brooks JA
The appellant Rowe, at the time a constable in the Jamaica Constabulary Force, was convicted on 12 July 2011 for the offence of corruptly soliciting money contrary to section 14 (1) (a) of the Corruption Prevention Act.
The virtual complainant, Rohan Green, reported that while driving his car, he was stopped by two policemen. He said one asked for his documents and asked him his direction, explaining that:
“Left mean you a left a money and right mean if me fi write the ticket.”
Mr. Green said he had no money, and would leave to get it. When he came back, he did not see the policemen. He reported the matter to the Anti-Corruption Branch.
The matter was investigated, and Rowe and another policeman, Constable Odean Grant, were charged.
Mr. Green identified Rowe but not Grant in identification parades. He later made dock identification of both men.
Rowe made an unsworn statement in which he admitted to an encounter with the virtual complainant, but denied the allegation against him. He did not call any witnesses.
Rowe was convicted in the Resident Magistrate’s court but Constable Grant was acquitted after a successful no-case submission.
Grounds of appeal were that:
1. The evidence lead [sic] by the Crown was not sufficient to warrant a conviction.
2. The decision of the Learned Resident Magistrate was against the weight of the evidence.
The judgment was delivered by Brooks JA.
The Court of Appeal alluded to the well-known principle that :
“…this court will not overturn the findings of a tribunal of fact unless those findings are so against the weight of the evidence as to be “obviously and palpably wrong” (see Joseph Lao v R (1973) 12 JLR 1238.)
In this case, the Court of Appeal found no reason to reject the findings of the Resident Magistrate. According to Brooks JA, her judgment was:
“…well reasoned. She reminded herself of the appropriate burden and standard of proof for criminal prosecutions and after rejecting Mr. Rowe’s account, she went back to examine the Crown’s case. She considered the omissions which were exposed by cross-examination and found that there was no material discrepancy in Mr. Green’s testimony. After that analysis, she found that Mr. Green and the other witnesses for the Crown were credible and she accepted their testimony as true.”
The Court reiterated that the RM had seen and heard the witnesses, and was the tribunal of fact.
The Court also rejected counsel’s submission that a successful no-case submission on behalf of one accused prevented her from convicting the other, noting that the issue of identification “loomed large in the case against Constable Grant” but that “identification was not an issue in the case against Mr. Rowe, he having placed himself on the scene.”
“The issue to be resolved by the learned Resident Magistrate turned on the credibility of the witnesses that she saw and heard. The evidence that was placed before her was sufficient to establish that the offence, for which Mr. Rowe was charged, had been committed. The witnesses were not discredited in cross examination. As the tribunal of fact, her findings could not be said to be obviously and palpably wrong. In fact, they were, in our view quite reasonable.”
Two things are clear from this judgment. The actions of the trial judge are critical. This no doubt sounds trite, but of course, many cases have been overturned on appeal because of inadequate directions or summation by a trial judge. The Court of Appeal found no reason to overturn the conviction or interfere with sentence in this case because the Resident Magistrate made no mistakes that would open the door for a successful appeal.
The case therefore hinged on the credibility of the witnesses, and since that is always best assessed by the trial judge who has had the chance to see and hear the witnesses, and assess their demeanour, an appellate court will be loath to overturn a conviction in such a case.