Cavenna Ellis v HM the Queen
| Jurisdiction | Cayman Islands |
| Judge | Mr. Justice Patrick Brooks |
| Judgment Date | 12 June 2019 |
| Year | 2019 |
| Court | Grand Court (Cayman Islands) |
| Docket Number | SUMMARY COURT APPEAL NO SCA0017 of 2018 |
The Hon. Mr. Justice Patrick Brooks (Ag)
SUMMARY COURT APPEAL NO SCA0017 of 2018
IN THE GRAND COURT OF THE CAYMAN ISLANDS
Appellant in person
Ms. Toyin Salako for the Crown
Ms Cavenna Ellis was tried in the Summary Court before Her Honour Magistrate Gunn, for the offences of theft and making a false document. The learned magistrate, after a protracted trial, convicted Ms Ellis of both charges, on 26 February 2018. On 1 June 2018 the learned magistrate sentenced Ms Ellis to imprisonment of three years and nine months on each count.
Although Ms. Ellis was represented by counsel at the trial, she has sought to represent herself in this appeal. She has appealed against both the convictions and the sentences. Her appeal is made pursuant to section 165 of the Criminal Procedure Code (2013 Revision). She contends that her trial was unfair in that:
Ms Ellis also contends that the learned magistrate erred in her findings of fact, which were adverse to Ms Ellis, and failed, in passing sentence, to take into account important aspects of the Social Enquiry Report which highlighted factors that should have been used in mitigation of the sentences.
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(a) the prosecution withheld documents that were important to her case; and
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(b) counsel who appeared for her at the trial, mishandled the case, failed to follow her instructions in important aspects of her case, and otherwise acted unprofessionally in the conduct of the case.
In advancing her appeal, Ms Ellis applied for certain documents to be admitted as fresh evidence for the purpose of demonstrating the correctness of her assertions against the prosecution and learned defence counsel. This court heard the application, reviewed the relevant material, and reserved its ruling for delivery at the time of handing down its judgment in the appeal.
It is in the following order that this judgment will consider
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(i) the case for the prosecution;
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(ii) the case for the defence;
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(iii) the learned magistrate's findings;
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(iv) the complaint against defence counsel;
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(v) the complaint against the prosecutor;
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(vi) the application for fresh evidence;
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(vii) the complaint about the learned magistrate's findings; and
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(viii) the complaint against sentence.
Ms Ellis was, between 2010 and the first half of 2013, employed to Westel Limited, which trades under the name “Logic”. The company will be referred to, hereafter, as Logic. She held various roles at Logic, including Office/Payables Administrator. The prosecution's case against her is that, between the months of April and June 2013, she removed the cash portion from the majority of Logic's bank deposits, and lodged only the non-cash portions. She facilitated that exercise by unlawfully preparing and using false lodgement slips in place of those prepared by Logic's cashiers. After the lapse of several days, or sometimes weeks, Ms Ellis would, each day, lodge to Logic's account, the exact amount of cash, in the exact denominations, that she had previously taken out of a day's deposit. The subsequent cash lodgements were financed, the prosecution alleged, from her continual removal of the cash from later deposits.
The result of that mode of operation was that, for a period of weeks, it only appeared to Logic that the bank was late in crediting Logic's account with the cash portion of the respective lodgements. Eventually, however, the tardy accounting was ordered investigated. Ironically, Ms Ellis' direct supervisor, Ms Shannon Oberpriller, tasked Ms Ellis with the investigation. It was then that Ms Ellis confessed to Ms Oberpriller about the dishonest scheme. She made a later confession to other senior management personnel.
Despite Ms Ellis' confession and offer to repay the money, Logic fired her and called in the police. In an interview that was conducted under caution, Ms Ellis also confessed to the dishonest scheme to Detective Constable Sherry Francella, who was assigned to investigate Logic's complaint. The interview was recorded. The transcript of the interview was admitted into evidence after a voir dire, or trial within a trial.
The total amount removed from the various lodgements, between May and June 2013, is CI$57,872.99, of which CI$20,102.76 was replaced as part of the delayed lodgement scheme. Logic's eventual loss is CI$37,770.23.
Ms Ellis' case, at the trial, was that she was not the perpetrator of the scheme. She contended that she:
She contended that the flaw in the prosecution's case was demonstrated by the fact that the scheme continued during the time that she was on vacation from work. She opined that the case against her was the product of a conspiracy between Logic's senior management and Detective Francella.
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(a) was not the only person who made lodgements;
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(b) did not have access to Logic's safe, where lodgements were kept overnight, prior to delivery to the bank;
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(c) was not the author of the false replacement lodgement slips;
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(d) was on vacation at a time when the anomalies commenced;
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(e) did not make any confession to anyone at Logic; and
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(f) only made the confession to Detective Francella under duress, having been previously threatened by the officer.
The learned magistrate accepted the prosecution's case. She found that no one else had the opportunity to carry out the thefts. She found that Ms Ellis had hatched and executed the dishonest scheme. The learned magistrate also found that Ms Ellis had made multiple voluntary and true confessions of her guilt.
Ms Ellis fired her first salvo of complaints in the direction of counsel who appeared for her at the trial. As part of her attack, she sought to show, by exhibiting e-mail correspondence that, according to her, she and defence counsel were at loggerheads and that despite her attempts to have the legal aid authorities remove him from her case, he steadfastly refused to yield.
The e-mail correspondence does not support her in this regard. The documents show that defence counsel always indicated his willingness to be relieved of the case. A belated decision by the authorities to remove him was, however, reversed when he advised them, still offering no opposition to being replaced, that the only thing outstanding in the case was the learned magistrate's verdict. He was, however, replaced for the sentencing.
Ms Ellis next complaint against counsel was in respect of the calling of a potential witness, Ms Monica Peddie-Boothe. Ms Ellis wished to have called Mrs Peddie-Boothe to prove that Ms Ellis had no access to Logic's safe, where the lodgements were kept, awaiting being carried to the bank. The correspondence shows that defence counsel did contact the witness. Ms Peddie-Boothe was, however, overseas and was unavailable to attend court in person. Nonetheless, she was willing to testify by video link. Despite that indication, she was not called.
It is noted, however, that the evidence that Ms Peddie-Boothe was required to provide, was not being contested by the prosecution. Indeed, the learned magistrate in her outline of the prosecution's case recognised, at paragraph 5 of her judgment, that Ms Ellis did not have access to the safe. 1 The failure to call Mrs Peddie-Boothe was, therefore, not detrimental to Ms Ellis' case.
The next complaint against defence counsel is that, in his correspondence with Ms Peddie-Boothe, he told her “the intricacies of the allegations made against [Ms Ellis]”. 2 The complaint was first made directly to counsel by Ms Ellis' husband, who was very supportive of her, and was involved in the preparation of her defence throughout the entire proceedings. Learned counsel justified his actions to Ms Ellis, through her husband. He quite properly explained the need, in preparing a witness, to give a context to the witness in order to discover the evidence that the witness is likely to give when being cross-examined.
As part of the complaint against defence counsel, Ms Ellis also contended that he failed to diligently pursue the prosecution about the production of certain documents, namely:
His failure to do so, she contended, hampered an effective cross-examination of the prosecution witnesses.
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(a) Logic's lodgement and banking information for the month of April 2013; and
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(b) a copy of her most recent form of contract with Logic, especially with regard to her vacation leave entitlement.
When this court pointed out to her, during her oral presentation, that the documentation for April 2013 was eventually produced, Ms Ellis contended that they were, by then, no longer relevant. As far as her vacation leave entitlement is concerned, she accepted that
Ms Ellis' also had a complaint about a familiarity between defence counsel and the prosecutor. She argued that it was prejudicial to her case. Allied to this complaint was an agreement between the prosecutor and defence counsel that closing submissions would be submitted in writing rather than made orally. Ms Ellis contends that she was entitled to have had her case conducted in open court.
The general complaint reflects a misguided perception by some lay clients that opposing counsel should be enemies rather than just opponents. In respect of the specific complaint about the submissions, it is...
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