Cop on scamming charge loses bail appeal

A police constable implicated in a multimillion-dollar smishing scam of elderly bank customers is to remain behind bars after losing his bid to have the Court of Appeal review a Supreme Court decision refusing him bail.

The Court of Appeal, in a decision last Thursday, ruled that it has no authority to hear a further bail challenge brought by Constable Marlando Rowe, declaring that the lawman has already exhausted his legal right of appeal under the new Bail Act.

Rowe, who is among six persons charged in connection with the over J$14 million scam, had sought to overturn a ruling by Supreme Court Judge Tania Mott Tulloch-Reid, who upheld earlier decisions by two parish court judges.

However, in a written judgment, the Court of Appeal made it clear that Rowe had already used his legal right of appeal under the newly enacted Bail Act and that the legislation does not permit a second-level challenge in such cases.

“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,” the panel ruled. “This court does not have any jurisdiction to embark upon a further consideration.”

Rowe, 35, who was assigned to the Clarendon division, was first arrested and charged with unauthorised possession of ammunition and was granted bail in the Clarendon Parish Court.

SIX PERSONS CHARGED

However, he was later charged, along with five others, including a telecommunications sales representative, a security guard, and a cashier, in connection with an alleged cyber-enabled fraud that targeted an elderly National Commercial Bank (NCB) customer.

The accused were all charged under the Proceeds of Crime Act and the Larceny Act, following an investigation by the Major Organised Crime and Anti-Corruption Agency (MOCA).

They are accused of stealing US$45,000 and J$7.4 million through a smishing operation, a type of cyberattack involving fraudulent text messages designed to trick victims into surrendering sensitive personal and financial information.

Following the additional charges, Rowe was brought before the Kingston and St Andrew Parish Court, where bail was denied. His initial bail in the Clarendon matter was also revoked.

Rowe’s attorney, Hugh Wildman, had argued that the Court of Appeal was empowered to consider a further appeal under Section 12(1)(b)(ii) of the Bail Act, 2023. He maintained that the legislation allowed the Court of Appeal to review decisions by a Supreme Court judge where bail had been denied or withdrawn.

However, Crown attorneys Malike Kellier and Jamelia Simpson contended that Rowe had no further right of appeal to the appellate court.

“Section 12 of the new Bail Act gives a defendant a right to appeal from a decision of a judge of the Parish Court to a judge in chambers of the Supreme Court only. The appellant, having exercised this right, cannot now seek a further review,” Simpson argued.

They cited the legislative intent behind the Bail Act and referenced prior case law, including the 2012 matter of Huey Gowdie v R, noting that although the Court of Appeal granted bail in that instance, it was an anomaly, and the Crown had not opposed the application.

ONE OPPORTUNITY TO APPEAL

The court agreed that Rowe had only one opportunity to appeal to the Supreme Court as the initial decision came from a lower court. The appellate court clarified that its involvement would only be triggered if the Supreme Court itself had made the original decision on bail.

Even if it had the jurisdiction, the panel noted that there would be no justification to overturn the previous rulings. The judges indicated that they had reviewed all relevant affidavits and submissions and found no error in the decisions made.

“I would have been unable to identify any basis to interfere with the determination of the learned judge of the Supreme Court regarding her refusal of the application to review the bail,” the judge wrote.

Furthermore, the judgment stated, “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, this would have been stated in the act.”

Rowe and his five co-accused – security guard Shamar Cammock, Flow sales rep Kimmor Peters, electrician Nemoy Rodney, customer service rep Glenecia Smith, and cashier Zowan Foster – are all expected to reappear in the Kingston and St Andrew Parish Court on October 22.

MOCA has indicated that the accused are believed to be part of a broader organised cybercrime ring and that their arrests represent significant progress in the agency’s efforts to dismantle such operations.

tanesha.mundle@gleanerjm.com