Court name
Court of Appeal of Turks and Caicos Islands
Case number
CR-APM 33 of 2014

Regina v. Bassett (CR-APM 33 of 2014) [2016] TCACA 4 (06 September 2016);

Law report citations
Media neutral citation
[2016] TCACA 4
Coram
Mottley, P
Forte, JA
Stollmeyer, JA

IN THE COURT OF APPEAL IN THE                                                                                              CR-APM 33/2014

TURKS AND CAICOS ISLANDS

CRIMINAL DIVISION

BETWEEN

REGINA

RESPONDENT-APPELLANT

AND                                  

DONAHUE BASSETT

APPELLANT-RESPONDENT

Before

The Honorable Mr. Justice Elliot Mottley, President

The Honorable Mr. Justice Ian X. Forte, Justice of Appeal

The Honorable Mr. Justice Humphrey Stollmeyer, Justice of Appeal

APPEARANCES                               FINBAR GRANT                                                FOR THE APPELLANT

                                                        OREIKA SELVER                                                   FOR THE RESPONDENT

HEARD                                               6th September 2016

1.             On 27th August, 2014 the Appellant was convicted in the Criminal Division of the Supreme Court of Turks and Caicos Islands of five (5) counts of theft of a Chose-in-Action and eight (8) counts of uttering a forged document, and sentenced to four (4) years imprisonment.

2.             On 6th September, 2016, having heard the submissions of Counsel, we dismissed the appeal and affirmed the conviction and sentences. We now set out hereunder, the reasons we then promised to give in writing.

3.             At the trial, the Crown led evidence that on 3rd August, 2010, the Appellant attended at the Grace Bay Branch of the First Caribbean International Bank (FCIB) and presented to the teller a cheque #2674, drawn on Royal West Indies Resort (RWI) for the sum of $4,820.00 in his favour. On his presenting his passport for identification the cheque was cashed, and the proceeds handed to him.

4.             On the same day, the Appellant attended the Leeward Highway Branch of FCIB and presented to the teller a RWI Resort cheque #2717 for $4,760.00 and on identifying himself by his passport, the teller cashed the cheque and handed the proceeds to the Appellant.

5.             On 1st September, 2010, the Appellant opened a savings account #10527130 at FCIB. He was assisted in doing so by Mr. Ira Gibson, a Customer Service Agent of the Bank. In doing so the Appellant again presented his passport as identification, as also an employment letter from the RWI Resort, the latter proven in evidence to be a forgery and the subject of one of the charges for uttering upon which he was convicted.

6.             When the Appellant opened the account he handed Mr. Gibson a cheque #2678 for $17,000, which was deposited into the account. This cheque was also drawn on the RWI Resort. Having deposited the cheque in the account, the Appellant withdrew therefrom the sum of $7,000.00.

7.             On 2nd September, 2010 the Appellant made another deposit with cheque #2818 for the sum of $27,900, also drawn on the account of RWI Resort. He then made two withdrawals that day; one for $9,400.00 and the other for $15,000.00. On this occasion, he was asked by Mr. Swann, a Supervisor at the Bank, the source of the funds. He informed Mr. Swann that he had sold a ‘handicap' van to the RWI Resort, and in doing so, presented an invoice #109 for $28,500.00. He also informed Mr. Swann that he performed “hurricane season work” at the Resort.

8.             On 8th September, 2010, the Appellant, with the help of Ira Gibson, opened a current account #10527173 at the Leeward Highway Branch of FCIB and deposited cheque #2979 for $28,500.00 drawn on RWI Resort. He then withdrew the sum of $21,000.00.

9.             On that same day, the Appellant returned to the Bank, but on this occasion the police was called, and he was arrested.

10.          All the transactions were found to be false and fraudulent as the cheques drawn on RWI Resort which were purported to be signed by Mr. Jeffery Boland, General Manager of the Resort, were not in fact signed by him. In his evidence at the trial, Mr. Boland testified that he did not know the Appellant nor had he written any cheques or documents for the Appellant's benefit.

11.          Ms. Rosemary Jolly, an employee of the Resort, testified that the signature on the cheques, etc. was not that of her boss, Mr. Boland. She also testified that the Appellant:

(i)            was never employed to the RWI; and

(ii)           never sold a “handicap” van to the Resort and

(iii)          all of the cheques totalling $83,680.00 were drawn on the account of RWI Resort's Bank Account #1552047.

12.          On those facts, the Appellant was charged (as already stated) in relation to the cheques and the documents he presented. There were five (5) counts of theft of a Chose-in-Action relating to the moneys debited to the account of RWI Resort, and placed into the accounts he opened, and in relation to the two cheques he had previously cashed. He was also charged with eight (8) counts of uttering, relating to the forged documents he presented to the Bank.

13.          Before us, the Appellant per his Counsel argued three grounds of appeal, which we set out hereunder:

“1. The learned trial judge erred in exercising her discretion in allowing an amendment to add with intent to the indictment after the close of the prosecution and defence cases;

2. The learned trial judge erred in the exercise of her discretion by making a material amendment to the indictment after the close of the prosecution and defence cases, and

3. The injustice caused by the amendment was not cured by the re-arraignment of the Defendant.”

14.          As the three grounds relate to the same issue, it will be convenient to deal with them together.

THE AMENDMENT

15.          The amendment complained of, was done solely on the intervention of the Court. After the Appellant elected neither to testify nor to call witnesses, the Court adjourned for that day. On the resumption on the following morning, the learned judge announced:

“... I propose to make another amendment   I propose to change the complainant from First Caribbean Bank to Royal West Indies Resort ... in the particulars of the offence to be in line with the evidence. I took submissions from you on that.

This morning ... the Crown has not properly particularized the charge of uttering ... because under the law it is an offence to (inaudible word), the specific intent to defraud. And so the charge must read uttering the document with intent to defraud.

... And so I propose to amend the eight counts of uttering with the words ... by adding the words ‘with intent to defraud'. And I will just say with intent to defraud the Royal West Indies Resort which is the complainant.”

16.          Having heard submissions from Counsel for the defence, the learned judge then ruled as follows:

“I am of the view that the offences now charged are under the relevant statutes, and although they were not properly particularized, the defendant and his Counsel were always aware of the case they had to meet. The amendment I propose do not change the case the defendant has to meet. It simply makes the particulars consistent with the offences and with the evidence. There is no charge of uttering unless the particulars allege an intent to defraud. So it is simply an error which has not, in my view, prejudiced the accused. It must be corrected in order for one to properly direct the jury...

The wording I propose (inaudible words) on the first five counts to strike First Caribbean International Bank and put instead Royal West Indies Resort…….. And then the following eight counts to add the words ... with intent to defraud the Royal West Indies Resort.”

17.          The power of the Court to make amendments of an indictment (information) during trial is clearly set out in Sec. 20(1) of the Criminal Procedure Ordinance Cap. 3.03. It states:

“20 (1) Where before a trial upon information or at any stage of such trial it appears to the Court that the information is defective, the Court shall make such order for the amendment of the information as the Court considers necessary to meet the circumstances unless, having regard to the merits of the case, the requested amendments cannot be made without injustice. Any such amendment shall be made upon such terms as to the Court shall seem just”.

The Appellant can only succeed on these grounds if it can be shown that in all the circumstances, the amendments would cause some injustice or prejudice to the Appellant.

18.          We are of the view that the amendments made by the Learned Trial Judge did not result in an injustice to the Appellant. The amendments in respect of the Complainant in the case were clearly done, as the Learned Judge stated, to make the indictment (information) consistent with the evidence.

19.          As the Learned Judge stated in giving her reasons, the evidence clearly revealed that the entity that was defrauded was indeed Royal West Indies Resort whose account was debited with the sum of money that the Appellant received.

20.          The amendment of the uttering counts was to allege that the Appellant uttered the cheques and documents with intent to defraud, which was a necessary element in the offences for which he was charged. No injustice, nor prejudice could have accrued to him, given the evidence for which the necessary implication was that he uttered these cheques to cause the Bank to transfer moneys from the account of RWI Resort to his own account and for his benefit. The same can be said of the uttering of the other documents (the voucher for the ‘disabled' van, the letter of employment, etc.) which were uttered obviously in pursuant of his endeavour to carry out his “dishonest intent”.

21.          In the event, we can find no reason to interfere with the conviction of the Appellant on the basis of the grounds of complaint.

Consequently, we dismissed the appeal and affirmed the conviction and sentence of the Appellant.

Forte, JA