Court name
Court of Appeal of Turks and Caicos Islands
Case number
CR-AP 32 of 2010

Samuels v. The Crown (CR-AP 32 of 2010) [2011] TCACA 2 (15 July 2011);

Law report citations
Media neutral citation
[2011] TCACA 2
Coram
Zacca, P
Ground, JA
Mottley, JA

IN THE COURT OF APPEAL                                                                                   NO. CR-AP-32/2010

TURKS & CAICOS ISLANDS

BETWEEN:

CARLTON SAMUELS

Appellant

- and -

THE CROWN

Respondent

BEFORE:

The Rt. Hon. Edward Zacca                        -             President

The Hon. Elliott Mottley                              -             Justice of Appeal

The Hon. Richard Ground                           -             Justice of Appeal

Dates of Hearing:              4 July 2011; 15 July 2011

Mr. Noel Skippings for the appellant; and

Mr. Evans Welch for the respondent.

JUDGMENT

1.             The appellant was tried by a Judge and Jury on an amended indictment which contained two counts of uttering a forged document; two counts of forgery; two counts of false accounting; and one count of theft. On 5 August he was found guilty by the Jury on the uttering, forgery and false accounting counts, but acquitted of the theft. He now appeals against those convictions.

2.             The original indictment had contained 32 counts, being one of theft of $83,294.79, while the remaining counts were for forgery etc., relating to 14 discrete transactions over a period from 26 April 2007 to 17 July 2008. It was not an easy document to follow, as the transactions were not arranged chronologically. However, by the time of trial it had been reduced severely to the theft count and two specimen transactions on 23 February and 3 April 2008, for each of which the full triad of uttering/forgery/false accounting was charged. However, the theft charge remained in the full amount covering all the transactions in the original indictment.

3.             The factual background is that the appellant was the manager of the Trading Post tourist gift shop at Margaritaville in the cruise ship facility on Grand Turk. The allegation was that he set out to systematically defraud his employer by discarding original sales sheets produced to him by the cashiers and forging new sales sheets which were then given to the accounting department. It worked this way. Each of the sales assistants had his or her own cash register. If a customer bought something but then changed their mind, they could bring the item back and either substitute some other item or receive back the cash that they had paid. This had to be authorized by the appellant, as manager of the store, and he was the only person who had the necessary computer access to do so. Where cash was returned it necessarily meant that the total in the till at the end of the day was less than the amount recorded as taken in during that day. At the end of each day the sales assistants totaled up the cash in their tills, deducted their initial float and filled out a sales sheet with the details, and that sales sheet together with the till print-out for any return was handed to the defendant who was supposed to check it, and then add his signature to verify it. He then stapled then all together with something called an X report, and the package was passed to the accountant. The allegation against the appellant was that he rewrote sales sheets to show a false figure for returns, and thus reduced the cash total. In some cases this involved increasing the item price, and it was said that only the appellant had the computer privileges to do that. The case was that, having produced new sales sheets the appellant forged the sales assistant’s signature on the sheet, discarded the genuine original, and pocketed the amount of the false returns. He then produced an X report which included the false sums. The case was that this was done at the end of the business day, when the other staff had left. It was a feature of the scheme that, in the nature of things, the customers would be tourists who would leave very shortly afterwards when their cruise ship departed, thus frustrating investigation or inquiry. The prosecution case was that when the matter came to light on the 17th July the manager of the whole facility, a Mr. Hewie, and the accountant went to the appellant’s office and found two genuine sales sheets which had been discarded and replaced by others which the appellant is said to have forged.

4.             The primary ground of appeal was that it was wrong in law to charge false accounting1 and theft together when they related to the same transaction. In support of this Mr. Skippings relied upon Eden (1971) 55 Crim. App. R. 193. That case turned upon the Jury’s decision on mens rea. It was a post office fraud, in which there were parallel charges of false accounting and theft, and the jury acquitted on theft but convicted of false accounting. When the Judge enquired about the discrepancy the jury gave an answer that suggested they thought the defendant had been covering up a muddle, but that they did not consider that dishonest. In those circumstances the essential element of dishonesty was absent and the conviction for false accounting could not stand, although the court did note that covering up a muddle and thus putting off the evil day when it may be necessary to pay up what might have been kept in error could constitute a sufficient ‘gain’ for the purposes of the offence. However, the Court in Eden then went on to caution:

“The only other matter which needs some mention is this. It seems to this Court to be rather odd that two counts, theft and false accounting, should be put in parallel setting, if it is the object of the prosecution to secure a conviction on the first only if the second is proved. There would seem in those circumstances but little point in putting in two separate counts. It would be better in future that the prosecution make up its mind as to whether or not it really wants a conviction on a count for false accounting only if theft is proved: if so, reliance should be placed on one count only.”

5.             It is that word of caution upon which Mr. Skippings relies. However, it is an observation about good practice, not a statement of law, and it is not a valid ground of appeal that it was not observed. His complaint would have had more force in this case if the Crown had persisted with its original intention of charging the triad of uttering/forgery/false accounting for all the underlying transactions, but it did not persist with that.

1 False Accounting in this jurisdiction is established by section 29 of the Theft Ordinance, and defined in similar terms to the English Theft Act:

“29.        (1) Where a person dishonestly, with a view to gain for himself or another or with intent to cause loss to another—

(a)           destroys, defaces, conceals or falsifies any account or any record or document made or required for any accounting purpose; or

(b)           in furnishing information for any purpose produces or makes use of any account, or any such record or document, which to his knowledge is or may be misleading, false or deceptive in a material particular, he shall be liable on conviction on indictment to imprisonment for a term of seven years.”

6.             As was demonstrated by Eden, an inherent danger with charging false accounting etc. in parallel with a theft charge is the risk of inconsistent verdicts. Although it was not a pleaded ground of appeal in this case that the verdicts were inconsistent, Mr. Skippings’s argument did evolve along the lines that the appellant’s acquittal on the omnibus theft charge was inconsistent with his conviction on the other counts. However, we do not accept that it was. As the Court noted in Eden:

“It is as well to state plainly that it is certainly not the law in cases of the type which are brought by the Post Office for theft and false accounting, that simply because the accused is not guilty of theft it follows that he is not guilty of false accounting.”

7.             Although we were not addressed on the law relating to inconsistent verdicts beyond that statement in Eden, the basic principles are to be found in R v Durante (1972) 56 Cr. App. R. 708 at 714:

“In the case of Hunt (1968) 52 Cr. App. R. 580, Lord Parker, the then Lord Chief Justice, cited from the unreported case of Stone which was tried in 1954 and quoted what he described as a useful passage from the judgment of Devlin J in regard to the approach that the court should adopt in cases of inconsistent verdicts. This is how it reads: “When an appellant seeks to persuade this Court as his ground of appeal that the jury has returned a repugnant or inconsistent verdict, the burden is plainly on him. He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their minds properly to the facts in the case could have arrived at the conclusion, and once one assumes that they were an unreasonable jury, or that they could not have reasonably come to the conclusion, then the convictions cannot stand. But the burden is on the defence to establish that.”

8.             In similar vein is the following passage from McCluskey (1994) 98 Cr. App. R 216 per Henry J at 220:

“The general rule in this Court is that where the jury convict on one count but acquit on another, this Court will quash the conviction on grounds of inconsistency if, and only if, the conclusion reached by the jury is one at which no reasonable jury who had applied their minds properly to the facts of the cause could arrive. . . . But in the case of Trundell (unreported 28th June 1991) it was emphasised that the fact that two verdicts were shown to be logically inconsistent might not by itself be a reason for quashing a verdict unless the only explanation for the inconsistency must or might be that the jury was confused and/or adopted the wrong approach, thus making the verdict complained of unsafe.”

9.             Here, the uttering, forgery and false accounting charges were specimens. That was the basis on which the Judge put it to the jury:

“Instead of loading up the indictment with counts charging many offences, they have selected these two particular incidents as examples - as they are entitled to do.”

The theft count, however, related to the whole series of transactions, both those specifically charged in the specimen counts and those not. As the Judge said:

“Again this is a specimen charge. It does not specify individual counts of theft but simply adds them together to cover the whole of the other offences of false accounting, forgery and uttering.”

10.          Thus the total of the money concerned in Counts 1 - 6 was $7,692.18 as against the theft charge of $83,294.79. It was, therefore, open to the jury to have doubts about the total, but no doubt about the actual specimen transactions. They were not told, on the theft count, that they could have returned verdicts for a lesser sum and so had no way of indicating any uncertainty other than by acquitting on the theft charge. There may be other explanations for the different outcome. We do not think it necessary to speculate as to what they may be. It is sufficient that it is not possible to say that the only explanation for the differing verdicts must or might be that the jury was confused and/or adopted the wrong approach

11.          Ground 2 of the Grounds of Appeal embraces a range of technical errors in the indictment. The indictment charges the forgery offences as being “contrary to section 4 of 6 Victoria Chapter 31 of the Laws of the Bahamas as applied to the Turks & Caicos Islands.” In fact it should have been “section 6 of 4 Victoria”. That is an immaterial error. No-one seems to have been misled by it. The Judge directed on the correct provisions. The jury has no need to be concerned with section numbers. Had the matter been drawn to the Judge’s attention he could have formally amended the indictment to correct it at any stage.

12.          In respect of ‘uttering’ the indictment reads “did utter certain document (sic) which you knew or suspected to be forged” [my emphasis]. The mental state required for uttering under the local statute is, however, knowledge and suspicion will not suffice. In our view nothing turns on that. Again, the Judge gave a correct direction and did not import suspicion as a sufficient state of mind into his summing up. And it is not likely that the jury were misled by the indictment into considering a lower mental threshold, because in this case suspicion simply could not arise, as the appellant was also alleged to be the actual forger. As the jury also found him guilty of forgery, it necessarily follows that he would have known the forged nature of the document.

13.          Similarly the indictment omitted the words ‘with intent to defraud’ in the particulars relating to the offences of uttering (although it did include that intent in the particulars of the counts for the actual forgery). Such an intent is part of the statutory definition - section 6 covers both forgery and uttering, and both offences have the same mens rea-

“6. If any person shall forge ... or shall . .. utter. .. knowing the same to be forged .. . any writing .. . with intent to defraud any person whatsoever, every such offender shall be guilty of an offence ...”

14.          Again we do not think that it matters whether the indictment contained the key words (although it would have been preferable if they had), provided that the Judge addressed the issue properly in his summing up. In this respect what he said was-

“Uttering is simply the name the law gives to passing forged document to another person knowing it to be forged with the intention that they will believe it is what it purports to be.”

15.          We accept that that does not fully state the necessary intent. An intent to defraud has a specific meaning, derived from the leading case of Welham v DPP [1961] AC 103. That is now expressed in Archbold as an intention “dishonestly to prejudice or to take the risk of prejudicing another’s right, knowing that you have no right to do so”: see Archbold 2011, para. 17-62, although older editions omit the word ‘dishonestly’: see e.g. the 39th ed. (1976)2 para. 2186, where it was said that:

“The “intent to defraud” referred to in the subsection and other places in the Act [i.e. the Forgery Act 1913] is an intent to practice a fraud on someone, it being sufficient if anyone may be prejudiced by the fraud.”

16.          As Mr. Skippings rightly points out, an intention to defraud it is also different from a mere intent to deceive:

“On an indictment under section 4, the jury should be directed that an intent to defraud must be established, and it is a misdirection to equate an intent to defraud with an intent to deceive: R v Moon [1967] 1 WLR 1536. The distinction between intent to defraud and intent to deceive, though narrowed by the decision in Welham v DPP (ante), still remains.” [Archbold, 39th ed., para. 2186]

17.          However, in the context of the whole summing up we consider that this is immaterial, as the jury must have found an intent to defraud in order to convict, as they did, on the forgery counts, and dishonesty in order to convict on the false accounting charges. The facts are essentially the same for each, and there is no reason to think that the jury would have come to any different conclusion if the learned Judge had given a proper direction on the mens rea for uttering.

18.          A further complaint that the indictment uses the word “document” when that is not included in the statutory definition is, in our view, utterly without substance.

19.          In respect of the forgery counts there is a complaint that the Act “speaks of forging, knowing the same to be forged” and complains that that is not in the indictment.

However, that is based on a misreading of the section (see above). The requirement that the perpetrator knows the document to be forged in limited to uttering, and, in any event, it takes only a moment’s reflection to see that that aspect of mens rea could have no sensible application to the act of forgery itself.

2 The law was put before us by Mr. Skipping in this version of Archbold, presumably because it contains the old law of forgery in England before statutory amendment.

20.          In respect of false accounting the complaint is that there was no evidence that the relevant document was made for an accounting purpose, but that is misconceived. It was plain from the prosecution case that the documents concerned were very much made for an accounting purpose. In a similar vein it is said that the indictment refers to the document being “maintain (sic) at Margaritaville for accounting purposes” rather than being “made”, as the section says, and also omits the key ingredient of dishonesty. While we stress that it is important for counsel drafting the indictment to ensure that it matches the wording of the charging section, rather than paraphrasing it or importing wording of their own, we do not think that in this case anything turns on it as the Judge used the correct wording in his summing up.

21.          On all of these deficiencies in the indictment we respectfully rely upon the case cited by the Crown, R v Kevin John Williams (1991) 92 Cr. App. R. 158, where the English Court of Appeal said:

“Did the indictment as drawn contain “such particulars as may be necessary for giving reasonable information as to the nature of the charge?” We are of the view that it did. Even if it did not, we consider that no injustice was done ... the Judge gave directions which were more than adequate to bring to the jury’s attention the requirement that the prosecution were obliged to prove not only the appellant’s intention to pervert the course of public justice but also that the tendency of his action was to produce that effect... In other words they were directed accurately upon the matter they had to decide, and there is no reason to suppose that they were under any misapprehension as to what those matters were.”

22.          Ground 3 of the Grounds of Appeal was that the Judge failed to give a Lucas direction in respect of lies alleged to have been told by the defendant to Mr. Hewie on 17 July 2008. It is not entirely clear to what this refers, as no reference is given, but the grounds of appeal say that it was that the appellant told his manager that the total sales for that day were $14,912.29, when in fact it was more. The evidence is that when he later came to put the documents in to the accountant it had crept up to something in the region of $16,000 or $17,000. It would seem, however, that any such falsity was simply part and parcel of his commission of the offence and not a subsequent attempt to cover his tracks. In such a case a Lucas direction is not required, and indeed is likely to be confusing or distracting.

23.          Finally, at the hearing Mr. Skipping sought to add a further ground based on the inadequacy of the transcript. This has to be seen against the background that the matter was listed in the last session of the Court of Appeal, when only the summing-up was available, but was then adjourned on Mr. Skippings’ application, for a full transcript to be prepared. The transcript that was prepared, apparently from a tape-recorder in the courtroom, is full of gaps and omissions in each case marked by “(inaudible)”. Mr. Skippings says that it does not, therefore, meet the statutory requirements of section 12(2) of the Court of Appeal Ordinance:

“(2) In the case of an appeal to which this section applies the Judge of the Supreme Court before whom the appellant was convicted shall give the Registrar of the Supreme Court his notes of the trial and the Registrar of the Supreme Court shall procure the transcript of the record of the proceedings at the trial and of the evidence received therein (if any) and shall transmit the same, together with a copy of the Judge’s notes aforesaid, to the Registrar of the Court and shall also furnish one copy of the record and evidence to the appellant and to the Prosecutor.”

24.          While we accept that the transcript is very poor, and scarcely worth the effort that must have gone into producing it, we do not think that anything turns on it. None of Mr. Skippings’s grounds of appeal require a detailed consideration of the evidence. To the extent that he complains that he would have liked to have had a full transcript so that he could sec if there were any other grounds of appeal he might advance, that is not the purpose of transcribing the evidence. As the section makes plain, the transcript is provided after a notice of appeal is given. Its purpose is to assist the Court of Appeal in resolving the points raised in the grounds of appeal. It is not to facilitate counsel in devising additional grounds of appeal, particularly where, as here, counsel was also counsel at trial. It is for that reason, together with the attendant saving of costs, that in many jurisdictions, including England and Wales, there is a prohibition on full transcripts unless the Court of Appeal orders otherwise.

25.          As to the summing-up itself, the Judge has provided the full text from which he appears to have read. It is not said that that is inaccurate or different in substance from what was said in court, and in that regard the transcript is sufficient to enable that to have been checked.

26.          Finally on this, Mr. Skipping suggests that if the transcriber could not hear what was on the tape-recording clearly, then there is a possibility that the jury could not hear it in the court room. We do not accept that. If the jury were missing that much it is likely that they would have said so, or it would have otherwise become apparent during the trial. Nor does the conclusion follow that, because something is not clear on a tape, it was not clear in real-life, and Mr. Skippings, who was counsel at trial, adduces no other evidence that these proceedings were strangely inaudible.

SUMMARY

27.          We do not think that the convictions on the triad of uttering/forgery/false accounting charges are necessarily inconsistent with the acquittal on the omnibus theft count. We consider that the various deficiencies in the drafting of the indictment are merely formal matters, which do not call the convictions into question. In most cases they were cured by the direction of the learned Judge. We do think that he erred in misstating the necessary intent on the uttering counts, but given the convictions by the jury on the forgery and false accounting charges, where the proper and necessary direction as to intent was given, it is plain that the jury had come to the conclusion that the appellant was operating the system alleged by the prosecution and was doing so with intent to defraud. This is, therefore, an appropriate case for the application of the proviso to section 7(1) of the Court of Appeal Ordinance in that one respect. We therefore dismiss the appeal against conviction. There is no appeal against the overall sentence of 18 months imprisonment which the appellant received.

Dated this 15th day of July 2011

_________________

Edward Zacca P

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Elliott Mottley JA

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Richard Ground JA