Bovell-Swanson v R

• Jurisdiction: Cayman Islands
• Judge: (Chadwick, P., Forte and Campbell, JJ.A)
• Judgment Date: 31 May 2011
• Court: Court of Appeal (Cayman Islands)
• Date: 31 May 2011

Court of Appeal

(Chadwick, P., Forte and Campbell, JJ.A)

BOVELL-SWANSON

and

R.

A. Akiwumi for the appellant;

J. Masters, Senior Crown Counsel, for the Crown.

Case cited:

(1) R. v. Francis, [1990] 1 W.L.R. 1264; [1991] 1 All E.R. 225; (1990), 91 Cr. App. R. 271; [1990] Crim. L.R. 431, considered.

Legislation construed:

Criminal Procedure Code (2006 Revision), s.70: The relevant terms of this section are set out at para. 23.

Criminal Procedure-prosecution case-case to answer-decision on whether case to answer arises only after all prosecution evidence heard-if permission granted to re-open case and adduce further evidence, time for deciding whether case to answer arises only after further evidence heard-acquittal under Criminal Procedure Code (2006 Revision), s.70 only required if no case to answer

The appellant was charged in the Summary Court with theft contrary to s.235(1) of the Penal Code (2006 Revision).

The appellant worked as the acting executive director of a Cayman charity. In this capacity, she would write cheques on behalf of the charity and present them to members of the board of directors for signature; she did not herself have authority to sign them. She improperly wrote three cheques to herself (using her maiden name), and subsequently spent the proceeds. She claimed that the cheques represented additional remuneration in return for consultancy services as agreed orally between herself and the chairman of the board of the charity, which the chairman denied.

The appellant was tried in the Summary Court for theft. At the end of the Crown”s submissions, she submitted that (a) the charges were defective in that they failed to allege theft of a chose in action; and (b) since there was no evidence that the charity”s account was in credit or within an agreed overdraft limit at the time the cheques were presented for payment, she had no case to answer. The Chief Magistrate allowed the Crown to re-open its case to adduce further evidence establishing that the account was in credit at the time the cheques were presented, and subsequently convicted the appellant.

The Grand Court (Henderson, J.) allowed her appeal against conviction on the basis (a) that she had been convicted on ‘amended’ charges without any formal amendment by the Crown; and (b) she had not been re-arraigned, contrary to the requirements of the Criminal Procedure Code, s.74. The Grand Court therefore ordered a re-trial without considering the further grounds of appeal before it.

The Court of Appeal allowed the Crown”s appeal, finding that there had been no breach of the Criminal Procedure Code, s.74, and remitted the matter to the Grand Court for the determination of the further grounds which had been before it.

The Grand Court (Henderson, J.) dismissed the remaining grounds of appeal against conviction and sentence, holding that (a) although at the time the Crown concluded its initial submissions, the accused had no case to answer, the Chief Magistrate was entitled to allow the Crown to re-open its case to adduce further evidence; (b) the Criminal Procedure Code, s.70 did not eliminate the Chief Magistrate”s discretion to allow the Crown to re-open its case if there were a technical objection to its evidence; (c) the evidence was sufficient to prove the acts of theft; and (d) the Chief Magistrate had directed herself correctly. The proceedings are reported at 2010 (2) CILR 213.

On further appeal, the appellant submitted that (a) the Grand Court had erred in failing to consider, properly or at all, the effect of the Criminal Procedure Code, s.70; (b) in the absence of a prima facie case an acquittal under s.70 was mandatory; (c) whilst the Chief Magistrate may permit the Crown to re-open its case, her acceptance of defects in the Crown”s case implied that she had concluded that the Crown had not established a prima facie case; and (d) the sentence was manifestly excessive.

The Crown submitted in reply that (a) the Grand Court had correctly considered s.70 to be inapplicable to the appeal, as the Chief Magistrate had correctly postponed the decision about whether a prima facie case against the appellant had been established until after the Crown had re-opened its case; (b) the Chief Magistrate had clearly concluded that, at that stage, a prima facie case had been established; and (c) the sentence was not manifestly excessive given the nature of the appellant”s crime and defence.

Held, dismissing the appeal:

(1) The court would uphold the appellant”s conviction. Although s.70 of the Criminal Procedure Code required the court to acquit an accused if the Crown failed to establish a prima facie case against her, the Chief Magistrate”s acceptance that the evidence was defective at the close of the Crown”s initial case was not a conclusion that the Crown had failed to establish a prima facie case. She had a discretion to...