Bertolino v R

• Jurisdiction: Cayman Islands
• Judge: (Harre, J.)
• Judgment Date: 26 October 1990
• Court: Grand Court (Cayman Islands)
• Date: 26 October 1990

Grand Court

(Harre, J.)

BERTOLINO

and

R.

R. Small and D. Murray for the appellant;

I. Archie, Crown Counsel for the Crown.

Cases cited:

(1) Aqui v. Pooran MaharajUNK(1983), 34 W.I.R. 282, followed.

(2) Bookers Stores Ltd. v. Mustapha AllyUNK(1972), 19 W.I.R. 230, observations of Lord Morris of Borth-y-Gest applied.

(3) Helner v. R., 1984–85 CILR 171, dicta of Summerfield, C.J. applied.

(4) M. v. Cain, English Court of Appeal, The Times, December 15th, 1989, unreported, dicta of Lord Donaldson of Lymington, M.R. applied.

(5) Practice Direction (Submission of No Case), [1962] 1 W.L.R. 227; [1962] 1 All E.R. 448, applied.

(6) R. v. Carroll, Supreme Court of Jamaica, Cr. App. No. 38/89, unreported.

(7) Reid v. R.UNK(1978), 27 W.I.R. 254, followed.

(8) Selvanayagam v. University of the W. Indies, [1983] 1 W.L.R. 585; [1983] 1 All E.R. 824; (1983), 34 W.I.R. 267, observations of Lord Scarman applied.

(9) Smith (A.E.) v. R., 1988–89 CILR 162, followed.

(10) Watt (or Thomas) v. Thomas, [1947] A.C. 484; [1947] 1 All E.R. 582, dicta of Lord Thankerton applied.

Criminal Procedure-appeals-matters of fact-appellate court only to reverse magistrate”s findings of fact if apparent from record that conclusions unreasonable because conflicts, improbabilities, inconsistencies in evidence not adequately addressed

Criminal Procedure-retrial-discretion to order retrial-principles and factors to be considered by appellate court

The appellant was charged in the Magistrate”s Court, George Town with the theft of jewellery from his former employer.

The appellant had been a craftsman in a jewellery-making establishment. He left that establishment and started his own business in competition. He was charged with the theft of several items of finished and unfinished jewellery after his former employer claimed that jewellery belonging to him was being sold at an outlet supplied by the appellant. The appellant”s premises were searched and several similar items were seized.

At the trial the evidence on the identification of the allegedly stolen items and consequently the credibility of the appellant and the witnesses, namely the employer and his wife, were crucial to a determination of ownership of the items. The appellant”s defence was that he had not stolen any of the jewellery but had made some of the items on his own premises, using the expertise that he had acquired

from his former employment (consequently the style of craftsmanship would be similar and sometimes indistinguishable from that represented in the jewellery which actually belonged to his former employer) and the other items were rejects that his employer had told him to throw away.

On the matter of identifying the jewellery, the Summary Court (Douglas, Snr. Magistrate) preferred the evidence of the employer whom it concluded was able to identify his jewellery without any doubt or hesitation. In response to the appellant”s claim that some of the jewellery had been rejects, the court concluded that his employer did not appear to be a generous man and so would have been unlikely to have given the items to the appellant as gifts. It accordingly rejected as not credible the claim made by the appellant. There was also a conflict of evidence between the employer and the police officers who conducted the investigation which was never addressed by the court and certain unfavourable inferences which it made with regard to the appellant”s possession of castings were not explained even though there was evidence that the employer had never reported these items as missing to the police. The appellant was accordingly convicted and sentenced.

On appeal, the appellant submitted that the conviction should be quashed and the sentence set aside because the magistrate had failed, inter alia (a) to warn himself of the need for care in reviewing and assessing the evidence of the former employer because of his personal interest in the outcome of the case; and (b) properly to assess the evidence in coming to his findings of fact concerning the identification of the items, the credibility of the Crown witnesses and his own defence and had instead partly determined the issue of his credibility on the basis of a defence he had not raised, i.e. that his employer had given him the rejects.

Held, allowing the appeal and ordering a retrial:

(1) Since the magistrate had had the advantage of seeing the witnesses before convicting the appellant and he had not in fact misdirected himself, the court could only reverse his findings of fact if it were satisfied that that advantage could not sufficiently explain or justify his conclusions. It appeared from the record that there were conflicts, improbabilities and inconsistencies in the evidence which the magistrate should have shown that he had addressed even if only that they were present in his mind when stating his final conclusion; it was not necessary that he should make explicit findings on every piece of disputed evidence. Specifically, in drawing inferences unfavourable to the appellant, the magistrate should have indicated that he had considered and rejected other possible inferences. In the event, not only had he had failed to take into account all that he should have, including the actual defence raised by the appellant, but he had purported to reject a defence that had not been raised. Consequently, the court would set aside the conviction and sentence and order a new trial (page 116, line 28 – page 117, line 35; page 120, lines 17–29; page 122, lines 8–20; page 122, line 41 – page 124, line 22).

(2) A retrial was justified on the application of the following principles and on consideration of the following factors (although they were not exhaustive): (a) it was incompatible with the basic principle that the prosecution had to prove its case that it should adduce evidence which was insufficient to justify a conviction by any reasonable jury which had been properly directed; (b) it was just and in the public interest that persons who were guilty of serious crimes should not escape being brought to justice because of some technical blunder by the judge in the conduct of the trial or in his summing-up to the jury; (c) the decision to order a new trial should be made after taking into account (i) the seriousness and prevalence of the offence; (ii) the expense and length of time involved in a,fresh hearing; (iii) the ordeal suffered by an accused person on trial; (iv) the length of time that would have elapsed between the offence and the new trial; (v) the probability that evidence in support of the defence on the first trial would not be available at the new trial; and (vi) the strength of the case for the prosecution (page 124, line 38 – page 125, line 17).

HARRE, J.: Carlo Bertolino was convicted by the Summary
Court on two charges of theft of the property of Eugene
Christian, the proprietor of a business called First Cayman Arts.
The first charge related to pieces of black coral jewellery and the
40	second to coral beads, ivory and unfinished jewellery. Bertolino”s
defence was that he did not steal any of the jewellery but that he

and his brother made it on their own premises, making use of the
expertise which they had each acquired as employees of Mr.
Christian; and that the coral beads and ivory were simply things
which Mr. Christian had told him to throw away.
5	About 300 items were found at the premises of the Bertolino
brothers, together with some manufacturing equipment. Although
the equipment was not the subject of any charge, Mr. Christian
claimed that some of it was his as well as the jewellery found. In
addition, some finished items of jewellery which he claimed were
10	his were seen by Mr. Christian displayed in a retail outlet called
Ruth Clarage which he visited. The evidence on identification of
items which was given by Mr. Christian and his wife, and
consequently their credibility, was therefore crucial.
There were seven grounds of appeal. They dealt, among other
15	things, with what was said to be the failure of the learned
magistrate to review and deal with certain matters in his
judgment. It was submitted that he failed properly to assess the
evidence in coming to his findings of fact concerning the
identification of the goods, the credibility of the Crown”s
20	witnesses and the defence of the appellant; failed to warn himself
of the need for care in reviewing and assessing the evidence of
both Eugene Christian and his wife because of their interest in the
outcome of the case; failed to review the competing claim of the
defence which sought to show that the opinion evidence of Mr.
25	Christian could not be relied upon because the skill of creation
was passed on from their employer to the appellant and his
brother and therefore there would be striking similarities in the
styles such as to make it difficult to say with any certainty that the
goods were the property of Mr. Christian; failed to review the
30	unusual nature of the identification of the goods or to direct
himself on the potential dangers inherent in such identification;
and failed to review the conflict between Mr. Christian”s evidence
of identification of the goods and his wife”s evidence of such
identification.
35	I was consequently invited to make some general observations
on the matters which a trial judge sitting alone is required to set
out in his judgment and the circumstances in which it is
permissible for an appeal court to review a decision of a trial
judge on a question of fact. This I now do.
40	The question of what are the minimum requirements of a
judgment was considered by Collett, C.J. and Schofield, J. in

their judgment dated September 29th, 1988 in Smith (A.E.) v. R.

(9). They reviewed ss. 51,

...