“In the light of this unbroken chain of authority, it appears to
us that in the instant case the question of the admissibility of
the communications data obtained by the [designated person
under the ICA] from [the telecommunications provider] falls
to be dealt with entirely on the basis of its relevance,
irrespective of the admitted imperfections in the way in which
the evidence was obtained….We therefore hold that the
evidence was properly admitted by [the judge at first
instance], as was [the] evidence, which was primarily based
on the data thus provided by [the telecommunications
provider].”
[141] It cannot be ignored, however, that Donald Phipps v R was decided before the
promulgation of the Charter. Despite that difference, the reasoning by Morrison JA in
considering the aspect of the freedom of expression enshrined in the then, section 22(1)
of the Constitution, is applicable, in the context of the environment governed by the
Charter. Section 22, since repealed, dealt, in part, with the freedom from interference with
a person’s means of communication. It also provided for derogations from that freedom
in certain conditions, including public safety. The section stated:
“22. – (1) Except with his own consent, no person shall be
hindered in the enjoyment of his freedom of expression, and
for the purposes of this section the said freedom includes the
freedom to hold opinions and to receive and impart ideas and
information without interference, and freedom from
interference with his correspondence and other
means of communication.
(2) Nothing contained in or done under the
authority of any law shall be held to be inconsistent
with or in contravention of this section to the extent
that the law in question makes provision—
(a) which is reasonably required—
(i) in the interests of defence, public
safety, public order, public morality or
public health; or
(ii) for the purpose of protecting the
reputations, rights and freedoms of other
persons, or the private lives of persons
concerned in legal proceedings, preventing
the disclosure of information received in
confidence, maintaining the authority
and independence of the courts, or
regulating telephony, telegraphy, posts,
wireless broadcasting, television or other
means of communication, public exhibitions
or public entertainments; or
(b) which imposes restrictions upon public officers,
police officers or upon members of a defence
force.” (Emphasis supplied)
[142] The provisions of the Charter, in this context, are similar to the aim expressed in
the repealed section 22. Section 13(3)(j)(iii) addresses the issue of the privacy of
communication. It guarantees to all persons in Jamaica, the right to “protection of privacy
of other property and of communication”.
[143] There is no gainsaying the importance of the right to privacy. It is said to be “a
basic prerequisite to the flourishing of a free and healthy democracy” (paragraph [38] of
the judgment of Côté J in R v Jones 2017 SCC 60, [2017] 2 SCR 696). The right is,
however, not absolute. It is guaranteed by the Charter, only to the extent that it does
“not prejudice the rights and freedoms of others” (section 13(1) of the Charter). The right
may also be curtailed “only as may be demonstrably justified in a free and democratic
society” (section 13(2)). Two observations may be made about the relevant provisions of
the Charter:
a. there seems to be a reversal of the onus of proof as
regards constitutionality, in that the Charter places the
onus on the party seeking to assert justification of the
curtailment; and
b. there is no provision which exempts previously existing
law from the entitlement to the right to privacy.
[144] The term, “only as may be demonstrably justified in a free and democratic society”,
was carefully considered by Edwards JA (Ag, as she then was) in Al-Tec Inc Ltd v James
Hogan and others [2019] JMCA Civ 9. The learned judge of appeal, albeit in a different
context, identified the bases on which legislation should be tested to determine if it had
satisfied that criterion. She said at paragraph [164] of her judgment:
“The right to be heard not being an absolute right, a rule
limiting the right may not be unconstitutional, if it is
demonstrably justifiable in a free and democratic society. How
is it determined whether a restriction is demonstrably
justifiable? There are essentially five central criteria which
must be met. See R v Oakes [1986] 1 SCR 103; Defreitas
v Permanent Secretary of Ministry of Agriculture,
Fisheries, Lands and Housing [1998] 3 WLR 675; Huang
v Secretary of State for the Home Department [2007] 2
AC 167; R v Secretary of State for the Home
Department [2014] UKSC 60. These criteria in summary are
that:
(1) there must be a sufficiently important objective in
making the restriction;
(2) the measures used must be carefully designed to
achieve that objective and must be rationally
connected to that objective;
(3) the means used should be the least drastic so that
it impairs as little as possible, the protected rights
or freedoms;
(4) the effect should not be disproportionate; and
(5) the interests of society must be balanced against
those of individuals and groups.”
[145] It is unnecessary, for these purposes, to decide if the provisions of the ICA satisfy
the five criteria that Edwards JA identified. That is because the provisions of the ICA were
not followed in the instant case. The observations made by Morrison JA in Donald Phipps
v R, in finding that the ICA had not been proved to be unconstitutional, may, however,
fairly be said to be applicable despite the introduction of the Charter. The cases that he
cited support a finding of justification.
[146] It is also unnecessary to use the five criteria, which Edwards JA identified, to
analyse the common law principle of admissibility of evidence, based on relevance. The
criteria do not necessarily apply to the sphere of the court’s discretion concerning the
admission of material into evidence.
[147] In this context, the observations of the Privy Council in Herman King v The
Queen (1968) 10 JLR 438, upon which Morrison JA relied, in part, in Donald Phipps v
R, are relevant. Their Lordships held that, in the absence of a constitutional provision to
the contrary, the court is entitled to exercise its discretion to admit into evidence, material
obtained in breach of a Constitutional right. The headnote to the report is reflective of the
Privy Council’s decision. It states in part:
“…although there was no legal justification for the search, this
was not a case in which the evidence had been obtained by
conduct of which the Crown ought not to take advantage. The
court had a discretion whether or not to admit the
evidence and this discretion was not taken away by
the protection against search of persons or property
without consent enshrined in the Jamaican
Constitution. In the circumstances there was no ground for
interfering with the way in which the discretion had been
exercised. Kuruma Son of Kaniu v R [[1955] AC 197]
applied.” (Emphasis supplied)
[148] Their Lordships’ comment was made in the context of the common law approach
to the admission of material into evidence. It would also, no doubt, be extended to regular
legislative provisions. In this regard, it should be noted that a telecommunications provider
in this country is permitted to disclose details of the private communication of its
subscribers in certain circumstances. These include an obedience to a request made “for
the purpose of the investigation or prosecution of a criminal offence” (section 47(2)(b)(i)
of the Telecommunications Act). That provision would assist a court in deciding whether
to exercise its discretion to allow telecommunication information (such as that in issue in
this case) into evidence.
[149] It is also important to note that there is an important difference between the
relevant juridical approach in this country, as opposed to Canada and the United States
of America, to failures to observe constitutional rights. In the United States of America,
there exists the exclusionary rule and its offspring, preventing the admission into evidence
of “the fruit of the poisonous tree”. Those rules are rigidly applied (Nardone v United
States, 308 U.S. 338, 60 S. Ct. 266, 84 L. Ed. 307 (1939) and Wong Sun v United
States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963)). In Canada, a similar
approach is taken to restricting the admission into evidence of items obtained in breach
of constitutional rights (R v Jones 2017 SCC 60, [2017] 2 SCR 696 and R v Marakah
2017 SCC 59, [2017] 2 SCR 608). The Canadian Constitution does, however, allow the
courts of that country to exercise a discretion, in certain circumstances, to admit into
evidence material that has been secured in breach of a right (section 24(2) of the Canadian
Charter of Rights and Freedoms).
[150] The Constitution of this country, subsequent to the advent of the Charter, does
not contain a provision similar to section 24(2) of the Canadian Charter of Rights and
Freedoms. Section 24(2) specifically allows a court of that country the discretion to exclude
material, which is obtained in breach of a Charter right, if admission of that material would
bring the administration of justice into disrepute. Section 24 states:
“24.(1) Anyone whose rights or freedoms, as guaranteed by
this Charter, have been infringed or denied may apply to a
court of competent jurisdiction to obtain such remedy as the
court considers appropriate and just in the circumstances.
(2) Where, in proceedings under subsection (1), a court
concludes that evidence was obtained in a manner that
infringed or denied any rights or freedoms guaranteed by this
Charter, the evidence shall be excluded if it is
established that, having regard to all the
circumstances, the admission of it in the proceedings
would bring the administration of justice into
disrepute.” (Emphasis supplied)
In the absence of such a constitutional or legislative stipulation, the courts of this country
are entitled to exercise the discretion referred to by their Lordships in Herman King v
The Queen.
[151] Based on the above analysis, the constitutional point, raised by the appellants in
respect of JS2, fails.
[152] The remaining issue in respect of JS2 is the complaint that JS2 ought not to have
been admitted into evidence because its integrity was questionable. The complaint, both
at the trial and in this appeal, is that in the absence of JS1, the integrity of JS2 cannot be
verified. JS1 was intended to be a standard by which the integrity of JS2 could be tested.
[153] Mr Simmonds’ evidence at the voir dire, was that JS1 was intended to be the
“control copy” CD, which was designed for the use of the court. JS2 was intended to be a
“working copy” CD, that the police would be able to use in their work. He said that he
marked the case into which he placed JS2, but did not mark the CD itself. He was unable,
just by looking at the physical CD, to distinguish JS2 from any other CD. He agreed with
a suggestion in cross-examination that JS2, by itself, was a “document” that cannot be
substantiated. He did, however, look at the contents of JS2 and recognised the files that
he had placed on the CD, which he had prepared and handed over to the police. He did
so by reference to a serial number that he had ascribed to those files.
[154] In the presence of the jury, Mr Simmonds stated that it was possible for an
unscrupulous person to “recast” the data from the original CD that he created, put the
data on a new CD and present that CD to the court, passing it off as his work. He
nonetheless identified information on the CD that he had prepared.
[155] The importance of JS2, as mentioned above, is that Corporal Brown used it to:
a. analyse the call data record;
b. identify and merge the incoming and outgoing calls;
c. sort the calls by date and numbers of interest;
d. create a spread sheet which he used, based on the
content of the communication and the crossreferencing of the calls, to attribute names and aliases
to the various persons sending and receiving
communication; and
e. prepare both a soft copy (on CD) and hard copies of
the spread sheet.
Importantly, Corporal Brown testified that, in creating the spread sheet, he did not alter
JS2 or the data received.
[156] This aspect of the admissibility issue, however, raises a question of fact. It was a
matter for the discretion of the judge whether Corporal Brown’s evidence was such that
it was capable of being believed by the jury. Guidance for this point may be found in the
decision of Galbraith v R [1981] 1 WLR 1039. Although that case dealt with the decision
of whether there was a case for the defence to answer, the principle of assessing whether
evidence is sufficient for the jury to consider it, is common to both. The relevant principle
in that decision is that, barring unfairness, if the acceptance of the prosecution’s case
depends on the reliability of the evidence produced, the issue is one for the jury to resolve.
[157] In this case it cannot be said that the admission of the evidence concerning JS2
was unfair or such that a jury could not properly rely upon it. The judge, having admitted
JS2 gave the jury extensive directions in respect of this aspect of the evidence. Those
directions will be addressed below.
[158] The complaint about the admission of JS2 must also fail.
The judge’s directions to the jury on the technology issues
[159] Learned counsel for the appellants complained that the judge’s treatment of exhibit
14C in his summation to the jury was inaccurate and grossly inadequate.
[160] They specifically condemned a direction, which in their submission, is “completely
antithetical to the very principles governing the integrity of the exhibits as laid down in
Damian Hodge v R, and to the ‘golden thread’ which has always run through the
common law”, that is, the burden and standard of proof that is applicable in criminal cases.
The submission is hinged upon the appellants’ thesis that exhibit 14C could only be
considered as a composite and that it is improper, given the interference with the exhibit
14C instrument, to consider the individual items of data on it. That issue has already been
decided above.
[161] Nonetheless, learned counsel for the appellants also stated that the judge did not
inform the jury of the importance and consequences of the discrepancies in Sergeant
Linton’s evidence when examined in the light of his evidence that the data on exhibit 14C,
including the date-stamping, could have been manipulated by someone who has those
skills.
[162] Allied to that complaint, is the submission by learned counsel that the judge, in his
summation to the jury, failed to remind them of an important inconsistency in the evidence
of Sergeant Linton. The inconsistency concerned the date that Sergeant Linton started his
forensic examination of the exhibit 14C instrument. Learned counsel submitted that the
inconsistency raised a strong inference of improper interference with the data on exhibit
14C and that the judge failed to communicate that inference to the jury.
[163] In his various written statements prior to the start of the trial, and even in his
examination in chief, Sergeant Linton asserted that he started his examination of exhibit
14C on 22 October 2011. In cross-examination, he was, however, obliged to accept that
the relevant video file was accessed on 14 October 2011. He then testified that he started
his forensic examination on 14 October 2011, and that his previous assertions, concerning
starting on 22 October 2011, were mistaken.
[164] Learned counsel for Mr Palmer further submitted that the judge failed to inform
the jury of the danger in acting upon evidence which had been shown to have been
compromised. The voice notes were especially targeted in this submission. Instead of
identifying the danger of manipulation of the data, learned counsel submitted, the judge
“repeatedly reminded the jury that the voice [in the voice notes] was still the voice of Mr
Palmer, [thereby] suggesting that nothing short of the appearance of a different voice
could make the impeached exhibits unworthy of their consideration” (page 10 of the
Supplementary Grounds and Skeleton Arguments- Core Bundle 2A – Tab I and page 52
of the written submissions on behalf of Mr Palmer and Mr St John).
[165] Learned counsel argued that the judge failed to make it clear to the jury that the
data evidence was in fact compromised and that the jury ought, at the least, to be very
wary of acting on that evidence.
[166] The message containing the graphic description of what had become of Mr Clive
Williams, and how his body had been disposed of, was the topic of a number of
submissions. That message, it will be recalled, was a BB message on the SD card in the
exhibit 14C instrument. It will be referred to below as “the chop up message”. It is, for
convenience only, repeated below:
“’tween me and you a chop we chop up di boy ‘Lizard’ fine,
fine and dash him weh enuh. As Long as yuh live dem can
neva find him.” (Vol VI, pages 3402-3403 of the transcript).
[167] Firstly, learned counsel highlighted a discrepancy in respect of the date that the
chop up message was sent. Sergeant Linton testified that it was sent on 19 August 2011.
Learned counsel submitted that much uncertainty surrounds the creation of the chop up
message and whether it had been modified.
[168] In the written submissions on behalf of Mr Campbell, it was submitted that
Sergeant Williams had, in cross-examination, changed his testimony to say that the chop
up message had been created on 6 July 2011; 42 days before Mr Williams’ disappearance
(paragraph 74 of the written submissions). Learned counsel submitted that the judge
should have directed the jury to disregard the chop up message as being totally irrelevant
to the case.
[169] Mr Buchanan, on behalf of Mr Campbell, also argued that there was evidence that
the chop up message could have been created on 30 September 2011 at 12:54 (paragraph
14 of his speaking notes).
[170] These uncertainties as to the date the chop up message was created, it was
submitted, were not brought to the attention of the jury. Learned counsel submitted that
the omission is unfair to the appellants.
[171] Learned counsel for Mr Campbell also submitted that the judge confused the
evidence about the chop up message with evidence about a discrepancy concerning
another message. The confusion, learned counsel submitted, gave the “chop up” message
a legitimacy that it did not deserve.
[172] Learned counsel for the Crown submitted that the judge did bring all the relevant
issues to the attention of the jury. Mr Brown argued that the judge accurately gave the
jury instructions on:
a. the burden of proof;
b. the breaks in the chain of custody and their
consequences;
c. the respective integrity of exhibit 14C and JS2;
d. inconsistencies and discrepancies in the evidence and
their consequences;
e. the credibility of Sergeant Linton as an expert witness;
and
f. expert evidence generally.
[173] Mr Brown submitted that there was no discrepancy in respect of the chop up
message. Learned counsel argued that a distinction must be drawn between the date of
the creation of the file containing the message, the date on which the message was sent
and the date that the file was accessed. He argued that it is important to distinguish
between the file and the message. The relevant dates he said were:
a. 6 July 2011 – date of the creation of the file (Vol VII,
page 3789 of the transcript);
b. 19 August 2011 – date that the chop up message was
sent (Vol VI, page 3402 of the transcript);
c. 18 October 2011 – date that the file was accessed (Vol
VII, page 3792 of the transcript).
[174] Learned counsel submitted that there was no evidence that the date and time
stamp for the chop up message was changed. The reliability of the evidence, he submitted,
was a matter for the consideration of the jury.
[175] In analysing these contending submissions, it must be noted that the judge, as is
usual in most summations, accurately gave the jury general directions in respect of:
a. the credibility of the witnesses (Vol IX, page 4720 of
the transcript);
b. the burden and standard of proof (Vol IX, pages 4728-
9, 4909 and 5139 of the transcript);
c. inferences (Vol IX, pages 4725 and 4731 of the
transcript);
d. inconsistencies and discrepancies (Vol IX, page 4729
of the transcript);
e. expert witnesses (Vol IX, page 4923 of the transcript);
and
f. the significance of proof of the chain of custody of the
exhibits (Vol IX, pages 4942 and 4944 of the
transcript).
He again mentioned some of these general directions in the context of specific directions.
It cannot, therefore, be ignored that the general directions were given and the jury is
expected, indeed is presumed, to continuously bear them in mind.
[176] The judge did direct the jury on the defence’s robust challenge to Sergeant Linton’s
credibility. The judge reminded the jury that the defence contended that Sergeant Linton
was a charlatan; a trickster who had corruptly manipulated the text messages and the
video, which he said that he found on the exhibit 14C instrument (Vol IX, pages 5001 and
5034 of the transcript). In doing so, the judge raised with the jury the issue of whether
Sergeant Linton, whose evidence was critical to the technology evidence, could be relied
upon. He is recorded at page 5001 as saying, in part:
“…but the messages, you bear in mind, were these
concoctions or were they extracted from the device as stated
by Sergeant Linton?”
[177] As part of Sergeant Linton’s credibility concern, the judge brought to the jury’s
attention the discrepancy in Sergeant Linton’s testimony as to when he commenced his
forensic examination of exhibit 14C. Not only did the judge remind the jury of the
differences in Sergeant Linton’s evidence in that regard, he also reminded them of the
accusation that Sergeant Linton was lying in order to cover up an improper interference
with the exhibit 14C instrument while it was in police custody (Vol IX, page 5022 of the
transcript). Learned counsel’s complaint, in this regard, about the summation, is
unfounded.
[178] Learned counsel’s complaint about the issue of the time-stamps is also unfounded.
The judge is recorded, at Vol IX, pages 5022-5023 of the transcript, as addressing that
issue. He reminded the jury of Sergeant Linton’s testimony that the time-stamps are
capable of being altered. The judge put that testimony in the context of the challenge by
the defence. He reminded them of the cross-examination of Sergeant Linton and that the
issue of the validity of the data was highlighted. The judge quoted the cross-examination,
in part, at page 5023:
“The question again, you remember I had asked you at the
very beginning of my cross-examination about you saying that
if the phone was left up to unauthorised persons the data
taken from it would have been virtually worthless?”