Helner v R

• Jurisdiction: Cayman Islands
• Judge: Summerfield, C.J.
• Judgment Date: 09 November 1984
• Court: Grand Court (Cayman Islands)
• Date: 09 November 1984

Helner

and

R.

Summerfield, C.J.

Grand Court

Criminal Practice and procedure - Judgment — Form of judgment for purposes of Criminal Procedure Code, s.52(1) written “judgment” in summary trial may be constructed by transcribing shorthand typist's notes supplemented by those of Crown Counsel — magistrate's “reasons for decision” prepared later for purposes of appeal cannot supplant or supplement

Appearances:

N. Hill, Q. C. and A. J. Foster for the appellant;

R. W. Ground, Senior Crown Counsel, for the Crown.

Summerfield, C.J.

1 The appellant was convicted of making a false report of the commission of an offence to a police officer contrary to s.64 of the Police Law.

2 The case for the Crown was that the appellant had instigated three others to fake a kidnapping of the appellant and demand a ransom in the sum of $180,000 from her husband for her release. The three others, Eden Mellad, Clayton Hodgson (the two main witnesses for the prosecution at the trial) and Alex Gomez (who was apparently not available to give evidence at the trial) had been charged jointly with attempting to obtain property by deception. They pleaded guilty and were fined. The allegation was that the appellant approached Gomez to arrange the fake kidnapping to obtain the ransom money from her husband and that Gomez employed Mellad and Hodgson to put it into effect. Why the appellant who, on the Crown version, would appear to have been the leading conspirator in the exercise was not also charged with the more serious offence of attempting to obtain money by deception is not apparent from the record. As it was, she faced the comparatively minor charge under s.64 of the Police Law based on the report she made to Superintendent Dalziel that she had been kidnapped. She was fined the maximum amount as a first offender.

3 There could have been no doubt that she knowingly made the report to Superintendent Dalziel that she had been kidnapped. The only issue at the trial, therefore, was whether that report was false. Inherent in that issue was the question of whether she was a willing participant in the kidnapping, indeed, directing its course; or whether she was in fact truly abducted against her will without any knowledge of any plan for the kidnapping.

4 It can be observed here that kidnapping carries a maximum penalty of life imprisonment (s.207 of the Penal Code). Attempting to obtain property by deception carries a maximum penalty of three years (ss. 223 and 290 of the Penal Code). It could well be, therefore, that being charged with the latter offence would be advantageous and that could be an inducement for a true kidnapper to hold himself out as merely taking part in a fake exercise with a view to obtaining money by deception. The end result turned out favourably for the other three. They were only fined. The possibility of such an inducement does not appear from the record to have been examined.

5 The learned magistrate, when delivering judgment in this case, gave a lengthy analysis of his reasons for reaching his decision. Those reasons do not appear to have been reduced to writing in conformity with s.52 of the Criminal Procedure Code. However, a shorthand typist, assisting the defence, was present when judgment was delivered and took notes of it, or most of it. Her transcription is amplified by notes taken by Crown Counsel who prosecuted. That transcription, supplemented by Crown Counsel's notes, must constitute the judgment of the Court when it was delivered and the appellant was convicted. In my view, this Court cannot look to any other judgment giving reasons for the conviction. The short “reasons for judgment” subsequently prepared cannot supplant or supplement the judgment delivered at the relevant time. There is no statutory provision for supplanting or supplementing a judgment delivered at the time of conviction. The transcription, as amplified by Crown Counsel's notes must, therefore, be treated as the only record of the learned magistrate's judgment in this case.

6 An important point should be made at this stage. If Mellad and Hodgson were telling the truth in substance then they were accomplices and should have been treated as such. Nowhere in the judgment is there any reference to the proper approach to the evidence of an accomplice or any search for evidence which could be treated as corroboration. Of course, if they were not telling the truth in substance they would still be accomplices, but then the whole case for the Crown would collapse.

7 For this reason the evidence of Mellad and Hodgson called for the most careful scrutiny and any inconsistencies and conflicts, or self-contradiction, required careful assessment. This was also important because of their improbable account. One does not easily accept that a happily married woman will fake a kidnap of herself to extract money from hex husband unless there are convincing reasons for believing that she did.

8 The whole episode can be broken dawn into three phases. The first is the initial abduction at the appellant's house in Red Bay. The second covers the detention at an uninhabited house at Prospect during which the demand for the ransom was made. The third covers the appellant's conduct after her release. All occurred within about 12 hours.

9 As to the first phase, the appellant's version was that her two abductors drove into the carport of her house at about 9.00 a.m. and, after some preliminary skirmishing, the taller one grabbed her round the neck from behind and pushed her into the house; he then forced her to the floor and held a knife to her throat while they tied her arms and legs and taped her mouth and eyes, right round her head; they threatened her and ordered her to remain silent; they then carried her to the car and put a light white cover over her head and drove off.

10 The Crown case was that she submitted willingly to the trappings of being bound and taped and that her legs were never tied. Mellad in his evidence-in-chief said that she sat on the ground while they tied her hands and taped her face, after she had told them to get on with it. The question poses itself: Why sit on the ground to participate in a fake tying of her hands and taping of her mouth and eyes? Hodgson said that she bent down and put her hands behind her while they just wrapped a rope around them and she kept it there and that if she had wanted to she could have undone it. That is a fairly glaring inconsistency.

11 In his examination-in-chief Mellad said twice that they carried her to the car. That corresponded with her version, tying in with her explanation that her feet were tied. Under further examination-in-chief he said that they led her to the car and then he went on to say that they did not exactly lead her to the car but walked on either side of her. Hodgson said that she walked to the car. With her eyesight seriously impaired with tape over her eyes some consideration should have been given to whether she could...