A police constable, who is one of six people charged last December by the Major Organised Crime and Anti-Corruption Agency (MOCA) in relation to a multimillion-dollar smishing scam of an elderly National Commercial Bank customer, has failed in his bid to get the Appeal Court to overturn a Supreme Court decision which upheld a refusal of bail and a bail revocation ruling by two lower courts.

According to court documents, Constable Marlando Rowe was initially charged with the offence of unauthorised possession of ammunition, taken before the Clarendon Parish Court and was granted bail in respect of that charge. Subsequently Rowe and five others were charged with four unrelated offences — receiving stolen property, engaging in a transaction that involves criminal property, facilitating the use of criminal property and possession of criminal property.

He was taken before the Kingston and St Andrew Parish Court (Criminal Division) in respect of those offences and was refused bail. Arising from those additional charges, his bail in the Clarendon Parish Court was also revoked.

Rowe appealed to the Supreme Court for a review of both decisions; however, Supreme Court Judge Justice Tania Mott Tulloch-Reid, after hearing the matter, concluded that the decisions of the two judges of the parish courts should not be disturbed and refused the application to review bail.

Rowe, represented by attorney Hugh Wildman, took his fight to the Appeal Court for its review of that decision.

The Appeal Court, after hearing submissions from both Wildman and the prosecution — represented by Assistant Director of Public Prosecutions Malike Kellier and legal counsel for MOCA Jameila Simpson — refused the appeal.

Rowe’s attorney had argued that the Appeal Court was empowered to consider a further appeal based on section 10(3)(d) of the Bail Act, which he asserted was applicable with respect to the revocation of his client’s bail. According to Wildman, arising from that revocation, section 12(1)(b)(i) of the Bail Act was triggered, thereby giving the Appeal Court jurisdiction to intervene.

With respect to the refusal to grant bail, Wildman contended that section 11 of the Bail Act was applicable, as Rowe was in custody and the court before which he first appeared had the jurisdiction to review that custody. He said with bail having been denied on that first appearance, his client was permitted to appeal to a judge in chambers in the Supreme Court, which he did. Wildman said that appeal having been refused, Rowe was permitted to take his case to the Appeal Court under section 12(1)(b)(ii) of the Bail Act.

But the prosecution contended that Rowe had no further right of appeal in the circumstances, noting that despite there being a new Bail Act, it remained true that a defendant has a right to appeal from a decision of a judge of the parish court to a judge in chambers of the Supreme Court only. Prosecutors contended that Rowe, having exercised this right, cannot now seek a further review.

The Appeal Court, in ruling on the matter, which was heard on three days between July 1 and 29, said in its view, had Parliament intended that a defendant who has exercised his right of appeal against a decision of a judge of the parish court to a judge of the Supreme Court should have a second right of appeal to a judge of the Court of Appeal, it would have been stated in the Act.

According to the Appeal Court, a statement by Minister of Legal and Constitutional Affairs Marlene Malahoo Forte in Parliament in October 2022, while tabling the Bail Act also proved “useful in demonstrating that there is only one right of appeal”.

“The statement from the minister, together with section 12(1) of the Act, indicate that an appeal by a defendant from a decision of a judge of the parish court must be made to the Supreme Court, whereas an appeal by a defendant from a decision of a judge of the Supreme Court must be made to a judge of the Court of Appeal. Appeals by the prosecution must be made to a judge of the Court of Appeal,” the court said in its ruling.

According to the court, there was a notable absence of “any stated intention to allow a defendant appealing a decision of a judge of the parish court to have two avenues open for an appeal, that is, to the Supreme Court as well as the Court of Appeal”.

“The circumstances of this case demonstrate, therefore, that when the appellant appealed to the Supreme Court in respect of both decisions of the judges of the parish court [to refuse bail on the one hand and to revoke bail on the other], he had exercised his right to appeal under section 12(1)(a)(i) of the Act in both instances. No right was exercised under section 12(1)(a)(ii) as neither of the judges of the parish courts engaged in a review of a decision made by a constable or JP pursuant to section 11 of the Act.

“This is also apparent from the reasons provided by Her Honour Sanchia Burrell in respect of her decision refusing bail. In the result, the appellant has exhausted his right to appeal and the decision of the learned judge is final,” the Appeal Court said.

The court said in the final analysis it declined “to determine a further appeal on the issue of bail as the appellant has already exercised his right to appeal to the Supreme Court and the Act does not grant a further right of appeal to this court”.

“This court does not have any jurisdiction to embark upon a further consideration. Appeal refused as the court has no jurisdiction to determine the matter,” it stated.