Bovell-Swanson v R
| Jurisdiction | Cayman Islands |
| Judge | (Henderson, J.) |
| Judgment Date | 05 November 2010 |
| Court | Grand Court (Cayman Islands) |
| Date | 05 November 2010 |
(Henderson, J.)
A. Akiwumi for the appellant;
J. Masters, Senior Crown Counsel for the Crown.
(1) Jones v. Carter, [1956] Crim. L.R. 275, applied.
(2) Malcolm v. D.P.P., [2007] 1 W.L.R. 1230; [2007] 3 All E.R. 578; [2007] 2 Cr. App. R. 1; [2007] Crim. L.R. 894; [2007] EWHC 363 (Admin), referred to.
(3) Matthews v. Morris, [1981] Crim. L.R. 495, applied.
(4) Pearson (C.) v. R., 2000 CILR 413, applied.
(5) Piggott v. Sims, [1972] Crim. L.R. 595; [1973] R.T.R. 15, followed.
(6) R. v. Cook, ex p. D.P.P., [2001] Crim. L.R. 321, referred to.
(7) 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, applied.
(8) R. v. Ghosh, [1982] Q.B. 1053; [1982] 3 W.L.R. 110; [1982] 2 All E.R. 689, referred to.
(9) R. v. KohnUNK(1979), 69 Cr. App. R. 395; [1979] Crim. L.R. 675, applied.
(10) R. v. Lucas, [1981] Q.B. 720; [1981] 3 W.L.R. 120; [1981] 2 All E.R. 1008; (1981), 73 Cr. App. R. 159, referred to.
(11) R. v. McKennaUNK(1956), 40 Cr. App. R. 65, followed.
(12) R. v. MunneryUNK(1990), 94 Cr. App. R. 164, applied.
(13) R. v. Ngan, [1998] 1 Cr. App. R. 331, referred to.
(14) R. v. Williams, [2001] 1 Cr. App. R. 23; [2001] Crim. L.R. 253, referred to.
(15) Tuck v. Vehicle Inspectorate, [2004] EWHC 728 (Admin), referred to.
(16) Walker v. R., 2006 CILR N[27], referred to.
Criminal Procedure Code (2006 Revision), s.70: The relevant terms of this section are set out at para. 30.
Penal Code (2006 Revision), s.235(1):
‘A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and “thief” and “steal” shall be construed accordingly.’
s.236(1): The relevant terms of this sub-section are set out at para. 39.
s.238(1): The relevant terms of this sub-section are set out at para. 7.
Criminal Law-theft-property belonging to another-bank balance property belonging to account-holder (as chose in action) and can be stolen pursuant to Penal Code (2006 Revision), s.238(1) if account in credit or within agreed overdraft limit-cannot be stolen if account overdrawn beyond limit since account-holder then has no action in debt against bank and therefore no chose in action
Criminal Procedure-prosecution case-additional evidence-court may allow prosecution to re-open case after formal closure to resolve technical objection to evidence, e.g. if evidence of identity of owner of stolen property omitted-in favour of re-opening that omitted evidence always available and defence submissions not started-not determinative that re-opening would preclude successful no-case submission-discretion to allow re-opening but only to be exercised rarely and in interests of justice
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 an acting executive director of a Cayman charity. In fulfilling this role, she would write cheques on behalf of the charity and then present them to members of the board of directors for signature; she did not herself have authority to sign them. She was trusted to the extent that the cheques she presented would not be questioned. She wrote three cheques to herself (using her maiden name), and subsequently spent the proceeds. None of the board of directors was aware that the name on the cheques was her maiden name. 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, and it had been further agreed that the cheques would be made out to her maiden name in order to conceal this arrangement from the other board members, who would not have approved of it. The chairman denied that any such agreement had been made.
The appellant was tried in the Summary Court for theft from the charity contrary to s.235(1) of the Penal Code (2006 Revision). 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 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.
On initial appeal, the Grand Court (Henderson, J., in proceedings noted at 2010 (1) CILR N [3]) found that (a) the Crown, at the magistrate”s invitation, had amended the charges to allege theft of a chose in action; and (b) this was procedurally irregular, since the amendments had not been reduced to writing, nor had the appellant been re-arraigned. The convictions were set aside and a re-trial ordered. The Crown appealed from this decision. The Court of Appeal (Chadwick, P., Mottley and Conteh, JJ.A.) allowed the appeal on the ground that the charges had not in fact been amended, and remitted the matter to the Grand Court for further consideration.
The appellant submitted to the Grand Court that she had had no case to answer at the conclusion of the Crown”s initial submissions, since (a) it had not been demonstrated that the charity”s account was in credit or within an agreed overdraft limit at the time the cheques were presented for payment; and (b) it had therefore not been established that the value of the cheques was ‘property’ capable of being stolen within the meaning of s.238(1) of the Penal Code. She further submitted that the magistrate erred in law in allowing the Crown to re-open its case and adduce further evidence showing that the account was in credit when the cheques were presented, since (c) the case did not fall within an established exception to the general rule that the prosecution must adduce all of its evidence before closing its case; (d) English case-law suggesting that a court could allow the prosecution to re-open its case in order to resolve a technical objection to its evidence had been decided after and in the light of the English Police and Criminal Evidence Act 1984, and therefore had no application in the Islands; (e) in allowing the prosecution to re-open its case, the magistrate removed the possibility of the appellant”s successfully submitting that there was no case to answer, thereby prejudicing her case; and (f) s.70 of the Criminal Procedure Code (2006 Revision) eliminated any discretion the magistrate might have had to permit the Crown to re-open its case by providing that, on a successful submission that there was no case to answer, ‘the court shall acquit the accused.’ In addition, she submitted that (g) the evidence was insufficient to prove the alleged acts of theft; (h) the magistrate should have given herself a Lucas warning, a special direction concerning the required standards of honesty in the law of theft, and a direction to consider the appellant”s potential defence of claim of right pursuant to s.236(1) of the Penal Code; (i) the magistrate placed insufficient weight on the evidence pertaining to the appellant”s good character; and (j) the magistrate was wrong to ‘reverse’ the good character direction by stating that it was ironic that the appellant”s good character enabled her to commit the theft by gaining the charity”s trust.
The Crown submitted in reply that the magistrate had acted reasonably, since (a) although the appellant had no case to answer at the end of the Crown”s initial submissions, English case-law from both before and after the Police and Criminal Evidence Act 1984 suggested that a court could allow the prosecution to re-open its case in order to resolve a technical objection to its evidence-and in particular in a case such as this in which evidence was omitted concerning the identity of the owner of the relevant property; (b) it was in favour of allowing the Crown to re-open its case that the omitted evidence had always been available to the prosecution; (c) the defence having not yet begun its submissions, any prejudice caused by allowing the Crown to re-open its case was minimal; (d) any prejudice to the appellant in the form of losing the chance to make a successful no-case submission had not been determinative in similar English cases; and (e) s.70 of the Criminal Procedure Code did not eliminate the magistrate”s discretion to allow the prosecution to re-open its case, given that many of the Code”s provisions used the word ‘shall’ without intending to be exhaustive or remove established discretions. The Crown further submitted that (f) since the magistrate had not believed the appellant”s claim that the cheques represented additional remuneration agreed between her and the chairman of the board, the evidence was sufficient to justify a conclusion that she was guilty; (g) given the magistrate”s factual findings, a verdict of guilty was inevitable and it would therefore have been inappropriate for the magistrate to give herself a Lucas warning, a special direction concerning the standards of honesty in a theft case, or a direction to consider the appellant”s possible defence of claim of right pursuant to s.236(1) of the Penal Code; (h) in considering the relevance of the appellant”s good character to her credibility as a witness and propensity to offend, the magistrate directed herself in accordance with the law; and (i) her statement that there was an irony in the appellant”s good character”s having enabled her to commit the theft by gaining the charity”s trust was in no sense a ‘reversal’ of the good character direction.
The court considered the circumstances in which an accused”s withdrawal of funds from another”s bank account, e.g. by writing a cheque from that account to himself or...
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Bovell-Swanson v R
...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 ......