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

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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

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J U D G M E N T

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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

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?

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

(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. Mainframe computers, minicomputers and microcomputers play a pervasive role in our society. Often the only record of a transaction, which nobody can be expected to remember, will be in the memory of a computer. The versatility, power and frequency of use of computers will increase. If computer output cannot relatively readily be used as evidence in criminal cases, much crime (and notably offences involving dishonesty) will in practice be immune from prosecution…”

10. One of the issues before the court in Minors was whether computer evidence was inadmissible because the requirements of sections 68 and 69 of the Police and Criminal Evidence Act 1984 (the equivalent of s.66 and 67 of our Evidence Act 1996) had not been satisfied. The court said:

“1. At the outset it must be remembered that documentary records of transactions or events are a species of hearsay, which are not admissible unless they come within the scope of a common law or statutory exception to the hearsay rule. For example, at common law certain public documents were

admissible, and proved themselves...But section 68 was designed to create a further exception to the hearsay rule, and does not render inadmissible computer evidence, which is otherwise admissible... Two comments are pertinent. First, to the extent to which a computer is merely used to perform functions of calculation, no question of hearsay is involved, and the requirements of sections 68 and 69 do not apply…”

11. We accept as correct the statement of the learned authors of Archbold 2005 when referring to the use of computers in evidence and the hearsay rule. They said at paras 9-11 to 9-13: “Information obtained from a computer, whether printed out or read from a display, may be divided into three categories. The first is where the computer has been used simply as a calculator to process information: see R. v. Wood (S.W.),76 Cr.App.R. 23, CA, and Sophocleous v. Ringer [1988] R.T.R. 52, DC.

The second category is information which the computer has been programmed to record: see R. v. Pettigrew,71 Cr.App.R. 39, CA (recording of serial numbers of bank notes); R. v. Spiby,91 Cr.App.R. 186, CA (recording of details of outgoing telephone calls from hotel rooms); and R. (O.) v. Coventry Magistrates' Court, The Times, April 22, 2004, DC (computer printout with breakdown of defendant's attempts to enter a website and of charges to be made to his credit card). Apart from the programming, installation and maintenance of the computer, there is no human input in the information produced.

The third category is information recorded and processed by the computer which has been entered by a person, whether directly or indirectly. It is only information from a computer in this third category which is hearsay: to be admissible, it must be brought within one of the exceptions to the rule against hearsay. The computer output in the first two categories is sometimes referred to as "real evidence."[Emphasis added]

12. We think the Audit Report falls into the second category mentioned in Archbold. We accept the Audit Report was in fact direct evidence admissible under s. 37 (a) of the Evidence Act 1996. From the oral evidence of Ms. Ijeoma the computer recorded the activity logs automatically without any human intervention. The role of the Canadian consultant and herself was simply to request information for specific time periods and retrieve the recorded information. The information in the Audit Report is similar to that from a photograph or security camera footage. The Audit Report is simply a printout of the interconnection between the usernames and test cards associated with the suspicious transactions in a given

time frame. In our view the magistrate properly admitted the Audit Report as “real evidence” tendered for the direct observation by the court and not as documentary hearsay within the provisions of s. 66 and 67 of the Evidence Act 1996. 13. The evidence of Ms Ijeoma was relied on by the prosecution at trial to prove the proper functioning of the bank’s computer system and the authenticity of the Audit Report. As the senior manager of information technology responsible for the operations of the computer system at B.O.B., she had expert knowledge of the Euro-Net Platform. She said in evidence that Euro-Net and the computer systems at the bank were functioning properly at the time the queries were done. It was from those queries that the Audit Report was produced, saved into a file, print-outs made and produced in court as Exhibits “RI-1” through “RI- 4”. This ground of appeal fails. (b) If it was, was there sufficient evidence before the magistrate to uphold the appellant’s conviction? 14. Counsel for the appellant contended that Ms Ijeoma was unreliable as a witness as her evidence was self-serving. She had a role in preparing the Audit Report used to convict the appellant. He argued that she was the only other person in B.O.B. with remote access and privileges needed to commit the offences. He pointed out that there was nothing to show that Ms Ijeoma was a suspect and had been eliminated based on evidence. Counsel for the appellant argued that Ms Ijeoma could not be an independent witness in those circumstances. 15. However, there was no evidence suggesting that Ms Ijeoma was a participant or accomplice requiring the magistrate to direct himself to approach her evidence with caution. In R v. Beck [1982] 1 W.L.R. 461 the UK Court of Appeal dealt with the issue of suspect witnesses. The facts are taken from the headnote:

“The appellant, who effectively controlled a business, was tried on a charge of conspiracy to defraud a company financing the business. A co-defendant, who pleaded guilty, gave evidence for the prosecution, and prosecution evidence was given also by three witnesses of the finance company in respect of whom there was no suggestion that they were the appellant's accomplices, but they had an alleged purpose of their own to serve in covering up false representations made, or acceded to, by them in an insurance claim unconnected with the charge against the appellant. The judge directed the jury about the need for corroboration of the evidence of the co-defendant as an accomplice, and the appellant was convicted.

On appeal against conviction on the grounds that the judge should have directed the jury, in relation to the evidence of the three witnesses, as though each were an accomplice since he had a substantial interest of his own to serve in giving evidence…

16. Ackner LJ said at page 469:

“While we in no way wish to detract from the obligation upon a judge to advise a jury to proceed with caution where there is material to suggest that a witness's evidence may be tainted by an improper motive, and the strength of that advice must vary according to the facts of the case, we cannot accept that there is any obligation to give the accomplice warning with all that entails, when it is common ground that there is no basis for suggesting that the witness is a participant or in any way involved in the crime the subject matter of the trial.”

17. The evidence for the prosecution in this case was based on circumstantial evidence. The learned authors of Archbold 2005 at para 10-3 in speaking about circumstantial evidence had this to say: “Circumstantial evidence is receivable in criminal as well as in civil cases; and, indeed, the necessity of admitting such evidence is more obvious in the former than the latter; for, in criminal cases, the possibility of proving the matter charged by the direct and positive testimony of eye-witnesses or by conclusive documents is much more rare than in civil cases; and where such testimony is not available, the jury are permitted to infer from the facts proved other facts necessary to complete the elements of guilt or establish innocence. "It must always be narrowly examined, if only because evidence of this kind may be fabricated to cast suspicion on another…It is also necessary before drawing the inference of the accused's guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference": per Lord Normand in Teper v. R. [1952] A.C. 480 at489, PC. On the other hand, it has been said that circumstantial evidence is often the best evidence. It is evidence of surrounding circumstances which, by undesigned coincidence, is capable of proving a proposition with the accuracy of mathematics. It is no derogation of evidence to say that it is circumstantial: R. v. Taylor, Weaver and Donovan, 21 Cr.App.R. 20”

18. The Euro-Net system at B.O.B. is for card processing. The evidence before the magistrate at trial was that it was the Loss Prevention Department of B.O.B. which directed Ms Ijeoma to run queries on misappropriated funds connected to two test cards issued to the appellant. At the same time, she disabled the appellant’s access in the system and then sought support from a Canadian consultant to assist with querying the Euro-Net Platform on the computer system to see what access the appellant would have had which were not in line with his job functions. The Canadian consultant ran the queries using the Euro-Net system and Ms Ijeoma

watched from her computer screen. The queries produced four reports that were saved in a system folder for review by the Loss Prevention Department. 19. From the evidence the appellant and Ms Ijeoma were the only two persons with "Super Administrator" status giving them the ability to access the card platform of the Euro-Net system remotely. Other managers could log in but were restricted to tasks performed from within the bank. However, the appellant alone signed out for the two test cards used to conduct the unauthorised transactions. 20. Even if, as the appellant contended, the other staff in his department accessed and used his test cards, they did not have the ability to remotely access the Euro-Net system to conduct the transactions. Second, although Ms Ijeoma had remote access, like the appellant, there was no evidence that she had access to the test cards issued to the appellant. From these facts the magistrate found as a fact the appellant's remote access to the Euro-Net system and access to the test cards was strong circumstantial evidence that he committed the offences charged. This is what the magistrate said at page 22 of his ruling:

“According to Ms. Ijeoma, the overall head of the IT department, the defendant’s subordinates could not carry out the fraudulent activities and transactions reflected in the audit log reports. Even if the Defendant’s subordinates had access to the test cards issued to him, neither of them had the profile to link a customer’s savings account to an ATM card, change or create a PIN or access the systems remotely.”

21. The magistrate then recounted the evidence of Ms Davine Rolle:

“None of the branch managers had remote access capability to the systems and therefore; could not link an account to an ATM card or pin such card without being physically present in the bank.

Ms. Davine Rolle testified that the physical property of B.O.B.Thompson Boulevard is protected and monitored by an alarm system. When all staff members leave the building at the end of a workday, the alarm system is armed. Entry into the vault, ABN room and other highly secured areas within the bank is also controlled the coded alarm system.

On a daily basis, the system automatically generates a report for the information of management. These reports set out in detail the time when the alarm code controlling entry and exit activities are set. The correct code has to be re-entered

disarming the alarm system to allow access into the building to begin a new workday or for any other reason.

Upon review of the Thompson Boulevard branch security report for January 26, 2015, the alarm system was not disarmed after it was set and employees had exited the building for that day said Ms. Rolle. She concluded that, when the pinning of card number 5899170002427452 and the linking of account number 5510037781 to this card took place, the alarm systems for that branch had already been set signalling the end of the work day for January 26, 2015, and all employees including Ms. Bethel had already left the building.”

22. Further, the magistrate assessed the evidence from the witnesses for the prosecution and found them to be credible. Here is his assessment of that evidence at page 25 of the ruling:

“The court has had the opportunity to hear and observe all of the witness (sic) as they gave evidence in this case. The witnesses for prosecution were found to be credible and truthful. None of the witnesses were shaken or discredited through the process of cross examination.

The court finds that prosecution proved its case against the defendant to the requisite standard, beyond reasonable doubt. The court finds that Renrick Bowe, the defendant, at the material times possessed the two ATM test cards, which he had requested and received in his capacity as manager of application support and security for systems testing purposes...

Further, the court finds that having those ATM test cards in his possession and with his expertise in information technology, his direct access to B.O.B. computer systems, where data for customers' savings accounts are stored, Renrick Bowe, the defendant, having virtual private network (Remote) capability, knowingly and without authorization used the computer systems of B.O.B. (Card management system and Flexcube) to misappropriate funds totaling twenty-one thousand dollars ($21,000) the property of Bank of the Bahamas to which he had access by reason of his employment.”

23. On the other hand, the magistrate found the appellant's evidence to be unsatisfactory. His assessment appears on page 21 of the ruling:

“In question 18 of his interview, the investigator asked the defendant the whereabouts of the two ATM cards issued to him, which were used to conduct the fraudulent transactions. His response was "I do not know". The defendant expressed lack of knowledge regarding the whereabouts of the two ATM test cards was considered by the court. On page 25 of his evidence in chief, the defendant had this to say about a set of ATM cards he possessed “I left a set of cards at the Carmichael Road Branch for several of my colleagues to come behind me and test; because I took some vacation time which would be in the bank records. I took vacation time during the end of the year and colleagues would have used my card which I left at Carmichael Road Branch. And I left instructions with the manager the loan cards were in a soft white bag in the drawer in that branch. That was the last time I saw or touched those cards’”.

24. The magistrate said that under cross examination, however, the appellant gave another account of the location of the test cards in question. He refers to page 37 line l0 of the appellant’s sworn evidence, where he said:

“And they were secured, they were secured in a lock draw that was behind a lock door that had a combination on it and an alarm system, both at Bank of the Bahamas main branch and at no time did I leave them unlocked or in public space”.

25. The magistrate concluded that the appellant’s account about the location and status of the two test cards issue to him was inconsistent to say the least. The magistrate said that the appellant’s account about the cards moved from:

“I don't know, to they were left in a soft white bag at Carmichael branch, to they were secured in a lock draw, behind a lock door that had combination and an alarm system protecting them at the main branch.”

26. In our judgment 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 and therefore this ground must fail. (c) Was the Magistrate's Ruling Unsafe or Unsatisfactory? 27. Counsel for the appellant referred us to R v Cooper [1969] 1 Q.B. 267 where Widgery L.J. in the Court of Appeal at p. 271 said that: “…the Court must in the end ask itself a subjective question, whether we are content to let the matter stand as it is or

whether there is not some lurking doubt in our minds which makes us wonder whether an injustice has been done. This is a reaction which may not be based strictly on the evidence as such: it is a reaction which can be produced by the general feel of the case as the Court experiences it.”

28. Counsel also referred us to the Privy Council case of Dookran & another v The State [2007] UKPC 15 where they considered unsafe convictions. Lord Rodger of Earlsferry said at para 28: “[28] …Although reference to lurking doubt has been criticised from time to time as an unwarranted gloss on the language of the statute regulating appeal proceedings in England and Wales, it is really just one way in which an appeal court addresses the fundamental question: Is the conviction safe? In the vast majority of cases the answer to that question will be found simply by considering whether the rules of procedure and the rules of law, including the rules on the admissibility of evidence, have been applied properly. Very exceptionally, however, even where the rules have been properly applied, on the basis of the ‘general feel of the case as the Court experiences it’, there may remain a lurking doubt in the minds of the appellate judges which makes them wonder whether justice has been done…”

29. However, in this case, we do not harbour any lurking doubt based on either the evidence or on a subjective feel of the case to cause us to feel that justice was not done in this case. The evidence of the prosecution was based on admissible evidence which pointed to the appellant as the person who committed the offences charged. This ground also must fail. The appellant asked that we consider one final ground on the question of sentence. (d) Was the sentence unduly severe? 30. Counsel for the appellant contends the appellant's sentence was unduly severe and disproportionate and does not consider his good character. In R v John Barrick 1985 7 Cr App R (S) 142 the Court of Appeal of England offered guidelines on sentencing professional persons and employees in breach of trust cases. The facts are taken from the headnote: “The appellant, a man aged 41 of previous good character, was convicted of four counts of false accounting, four counts of obtaining by deception and two counts of theft. The appellant was employed as the manager of a small finance company, and over a period of time stole a total of at least £9,000. Sentenced to two years' imprisonment.”

31. The Lord Chief Justice in delivering the judgment of the court said at page 146:

“Professional men should expect to be punished as severely as the others; in some cases, more severely…It is, we appreciate, dangerous to generalise where the circumstances of the offender and the offence may vary so widely from case to case. In the hope that they may be helpful to sentencers generally, and may lead to a little more uniformity, we make the following suggestions.

In general, a term of immediate imprisonment is inevitable, save in very exceptional circumstances or where the amount of money obtained is small. Despite the great punishment that offenders of this sort bring upon themselves, the Court should nevertheless pass a sufficiently substantial term of imprisonment to mark publicly the gravity of the offence.”

32. The maximum sentence possible on the stealing by reason of employment is ten years. The sentence imposed by the magistrate was three and a half years. In the absence of notes from the magistrate on the sentencing of the appellant, it can be inferred that in giving the custodial sentence he had regard to the appellant’s seniority in the management of B.O.B.; his position of trust with the security of the Euro-Net system of the bank; and his plea of not guilty. The appellant was said to have no previous convictions and received a sizeable discount, on sentence. There is no merit in this ground, and it fails. Conclusion and Disposition 33. For all the above reasons, we dismiss the appeal and affirm the convictions and sentences in the court below subject to the following. The appellant was convicted and sentenced on 16 January 2018 and was granted bail pending appeal by this Court on 23 February 2018. In these circumstances, one month is to be deducted from the appellant’s 3½ year sentence. Therefore, the appellant is required to serve 3 years and 5 months imprisonment with effect from today’s date. In addition, as ordered by the magistrate, the appellant is to pay $21,000.00 in full before completing his sentence or he will be required to serve another year in prison.

______The Honourable Mr. Justice Jones, JA

______The Honourable Mr. Justice Isaacs, JA

______The Honourable Madam Justice Crane-Scott, JA