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COMMONWEALTH of the BAHAMAS in the COURT of APPEAL Mccrapp COMMONWEALTH OF THE BAHAMAS IN THE COURT OF APPEAL MCCrApp. No. 15 of 2018 B E T W E E N RENRICK BOWE Appellant AND THE COMMISSIONER OF POLICE Respondent BEFORE: The Honourable Mr. Justice Isaacs, JA The Honourable Madam Justice Crane-Scott, JA The Honourable Mr. Justice Jones, JA APPEARANCES: Mr. Miles Parker, Counsel for the Appellant Mr. Algernon Allen, Jr. with Ms. T’Shura Ambrose, Counsel for the Respondent DATES: 16, 23 February 2018; 18 September 2018; 15 November 2018; 26 February 2019; 1 April 2019; 30 May 2019; 13 June 2019; 4 December 2019 ****************************************** Criminal appeal – Stealing by reason of employment – Attempted stealing by reason of employment – Unauthorised use of a computer – Admissibility of computer evidence – Whether evidence insufficient – Whether report from a computer should have been deemed inadmissible and excluded as hearsay - Whether sentence unduly severe – Section 66 of the Evidence Act The appellant commenced his employment with the Bank of The Bahamas (B.O.B.) in June 2013 as a manager in the Information Technology Department. His duties included oversight of B.O.B.’s Euro-Net system which, among other functions, controls the ATM. Between January and February 2015 unauthorised withdrawals were made from four of B.O.B.’s clients’ accounts at different branches amounting to $21,000.00. The card numbers linked with the unauthorised ATM withdrawals were identical to two ATM test cards assigned to the appellant in February 2014. The appellant was dismissed by B.O.B., arrested and charged for the offences of stealing by reason of employment, attempted stealing by reason of employment and unauthorised use of a computer. Following a trial the appellant was convicted and sentenced to 3½, 2 years and 2 years, respectively; the sentences were to run concurrently. The appellant was also required to pay $21,000 in full before the completion of his sentence; in default he would be required to serve an additional year in prison. The appellant now appeals his convictions and sentences. Held: appeal dismissed; convictions and sentences affirmed. An Audit Report was produced by running a query on the Bank’s Euro-Net platform for information on the appellant’s access to the bank’s computer system not in line with his job. The appellant’s counsel argued that the magistrate ought not to have admitted the report as it was inadmissible hearsay and not in compliance with section 66 of the Evidence Act. The Court is of the view that the information contained in the Audit Report was recorded by the computer without human intervention. As such it could not be classified as hearsay and the magistrate properly admitted it. Counsel for the appellant argued that there was insufficient evidence before the magistrate to convict him. Having reviewed the evidence the Court is of the view that there was enough evidence to support the magistrate’s findings that the appellant was guilty of the charges. Furthermore, there is nothing to suggest that the magistrate took irrelevant matters into consideration or that there were any issues of fairness that affected the trial. Relative to whether the appellant’s sentence was unduly severe, the maximum sentence possible on the stealing was ten years, the sentence imposed was three and a half years. Based on the sizeable discount it can be inferred that the magistrate must have considered the appellant’s good character. Dookran & another v The State [2007] UKPC 15 considered R v. Beck [1982] 1 W.L.R. 461 applied R v Cooper [1969] 1 Q.B. 267 considered Regina v. Minors; Regina v Harper [1989] 1 WLR 441 applied ______________________________________________________________________________ J U D G M E N T ______________________________________________________________________________ Judgment delivered by the Honourable Mr. Justice Jones, JA: 1. Magistrate Samuel McKinney ("the magistrate") convicted Renrick Bowe ("the appellant") on thirteen (13) counts of stealing by reason of employment, five (5) counts of attempted stealing by reason of employment and five (5) counts of unauthorised use of a computer. The magistrate sentenced the appellant to 3½ years on each count of stealing by reason of employment; 2 years on each count of attempted stealing by reason of employment; and 2 years on each count of unauthorised use of a computer. All sentences to run concurrently. In addition, the appellant is to pay $21,000.00 in full before completing his sentence or another 2 one year in prison. The appellant now appeals his convictions and sentences. The appellant challenges the conviction based on the insufficiency of evidence before the magistrate to convict him and the sentence being unduly severe. Background 2. The Bank of The Bahamas ("B.O.B.") hired the appellant in June 2013 as a manager in its Information Technology Department. His responsibility included the support of all information technology applications at B.O.B. and security to the bank’s information technology systems including the Euro-Net system. The Euro-Net system stores B.O.B.’s data and controls the ATM, Visa, pre-paid, and gift cards issued by the bank. 3. Between January and February 2015 someone made unauthorised ATM withdrawals from four B.O.B. clients’ savings accounts at different branches amounting to $21,000.00. The card numbers linked with the unauthorised ATM withdrawals were identical to two ATM test cards assigned to the appellant in February 2014. After a series of meetings with the appellant B.O.B. dismissed him from its employment. The appellant was later arrested and charged for the offences connected to the withdrawals from the ATM machines. The appellant pleaded not guilty to the charges and after a trial the magistrate found him guilty on all counts. Grounds of Appeal 4. The appellant filed the following grounds of appeal: “a) That inadmissible evidence was wrongly admitted by the magistrate and there was not sufficient evidence to sustain the decision; b) That under all the circumstances of the case the decision is unsafe or unsatisfactory; c) That the decision was unreasonable or could not be supported having regard to the evidence; d) That the decision of the magistrate was based on a wrong principle or was such that a magistrate viewing the circumstances reasonably could not properly have so decided. e) That the sentence was unduly severe.” Issues 5. The questions raised by the appellant in summary are as follows: a) Was the "Audit Report" admissible evidence? b) If it was, was there sufficient evidence before the magistrate to uphold the appellant’s conviction? 3 c) Is the appellant’s conviction unsafe or unsatisfactory? d) Is the sentence of 3½ years imposed by the magistrate unduly severe in the circumstances? Analysis and Discussion (a) Was the "Audit Report" Admissible? 6. Renae Ijeoma (“Ms Ijeoma”), the appellant's supervisor, placed into evidence the Audit Report consisting of Exhibits “RI-1” through “RI- 4”. She was in part responsible for producing the Audit Report and she checked the computer to find out if it functioned at the time she sought the report. Ms Ijeoma produced the report in a joint session with a Canadian consultant. They produced the Audit Report by running a query on the bank’s Euro-Net platform for information on the appellant's access to the bank's computer system not in line with his job. 7. Miles Parker ("counsel for the appellant") contended the magistrate ought not to have admitted the Audit Report as it was hearsay and inadmissible evidence. He said it did not comply with s.66 of the Evidence Act 1996 which provides that: “66. (1) Subject to section 67 a statement in a document shall be admissible in any criminal proceedings as evidence of any fact stated therein of which direct oral evidence would be admissible if- (a) the document is or forms part of a record compiled by a person acting under a duty from information supplied by a person (whether acting under a duty or not) who had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with in that information; and (b) any condition relating to the person who supplied the information which is specified in subsection (2) is satisfied. (2) The conditions mentioned in paragraph (b) of subsection (1) are - (a) that the person who supplied the information – (i) is dead or by reason of his bodily or mental condition unfit to attend as a witness, (ii) is outside The Bahamas and it is not reasonably practicable to secure his attendance, or 4 (iii) cannot reasonably be expected (having regard to the time which has elapsed since he supplied or acquired the information and to all the circumstances) to have any recollection of the matters dealt with in that information; (b) that all reasonable steps have been taken to identify the person who supplied the information but that he cannot be identified; and (c) that, the identity of the person who supplied the information being known, all reasonable steps have been taken to find him, but that he cannot be found.” 8. Counsel for the appellant contends that it was in fact the Canadian consultant and not Ms Ijeoma who ran the queries on B.O.B.’s computer system. He said the Canadian consultant sought the queries and put together the Audit Report which Ms Ijeoma printed and handed to B.O.B.’s Loss Prevention Department. Counsel for the appellant argued that the absence of the Canadian consultant to give evidence before the court without explanation is non- compliance with s. 66 of the Evidence Act 1996. 9. Steyn J in Regina v. Minors; Regina v Harper [1989] 1 WLR 441 recognised the usefulness of computer evidence when he said: “The law of evidence must be adapted to the realities of contemporary business practice.
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