Attorney General v De La Chevotiere, De La Chevotiere v R

• Jurisdiction: Bermuda
• Judgment Date: 22 November 1988
• Date: 22 November 1988
• Docket Number: Criminal Appeal No. 8 of 1988
• Court: Court of Appeal (Bermuda)

In the Court of Appeal for Bermuda

Sir Alastair Blair-Kerr, P.

Harvey da Costa, J.A.

Sir Denys Roberts, J.A.

Criminal Appeal No. 8 of 1988

The Attorney General

Appellant

and

Paul de la Chevotiere

Respondent

-and-

Criminal Appeal No. 9 of 1988

Paul de la Chevotiere

Appellant

and

The Queen

Respondent

Robert McMillan (A.G.'s Chambers) for the Crown in both appeals.

Julian Hall (Messrs. Vaucrosson's) for the Appellant/Respondent in both appeals.

R v ZielinskiUNK [1950] 2 All ER 1114

R v CullinaneUNK [1984] CLR 420

R v WebberUNK [1987] CLR 412

DPP v BaskervilleUNK (1916) 12 Cr App R 81

DPP v HesterUNK (1973) 57 Cr App R 212

DPP v KilbourneUNK (1973) 57 Cr App R 381

DPP v BoardmanUNK (1975) 60 Cr App R 165

R v Thorne and othersUNK (178) 66 Cr App R 6

R v VirgoUNK [1978] CLR 557

R v Hills Time 28 March 1987

R v CrampELR (1886) 5 QBD 307

R v KnightUNK (1966) 50 Cr App R 122

Credland v KnowlesUNK (1951) 31 Cr App R 48

R v LucasUNK (1981) 73 Cr App R 159

R v WilsonUNK (1974) 58 Cr App R 304

Attorney General v Astwood 1978 Criminal Appeal No. 1

R v Dearing 1978 Criminal Appeal No. 20

Reid v RUNK [1979] 2 All ER 904

Gonzalez and Suarez v RUNK (1979) 34 WIR 179

Court of Appeal Act s. 23

Criminal Code s. 408(1), 410(1)

Procuring miscarriage — Forgery of insurance claim — Uttering false document — Appeal by Crown of acquittal of procuring miscarriage — Appeal by accused against conviction of forgery and uttering — Corroboration

JUDGMENT

BACKGROUND

Dr. Paul De La Chevotiere, who is the respondent in the first appeal and the appellant in the second appeal, faced the following three charges, on which he was tried on indictment in the Supreme Court on 9th, 10th, 11th and 12th May, 1988—

COUNT ONE

Statement of Offence

Unlawfully using force or other means with intent to procure the miscarriage of a woman, contrary to Section 194 of the Criminal Code.

Particulars of Offence

Paul De La Chevotiere, on the 31st May, 1986, in the Islands of Bermuda, with intent to procure the miscarriage of a woman named Sharon Laverne Swan, unlawfully used force or some other unknown means.

COUNT TWO

Statement of Offence

Forgery, contrary to Section 408(1) of the Criminal Code.

Particulars of Offence

Paul De La Chevotiere, on or about the 14th day of August, 1986, in the Islands of Bermuda, forged a document of claim in respect of an intended false insurance claim from the Bermuda Fire and Marine Insurance Company Limited.

COUNT THREE

Statement of Offence

Uttering a false document, contrary to Section 410(1) of the Criminal Code.

Particulars of Offence

Paul De La Chevotiere, on or about the 14th day of August, 1986, in the Islands of Bermuda knowingly and fraudulently uttered to Sharon Laverne Swan a false document, namely a document of claim in respect of an intended false insurance claim from the Bermuda Fire and Marine Company Limited.

The accused was found not guilty by the jury on Count 1 and guilty on Counts 2 and 3. A fine of $3,000 was imposed on Count 2 and of $1,500 on Count 3.

The Attorney General has appealed against the acquittal in Criminal Appeal No. 8 of 1988 and the accused against his convictions on Counts 2 and 3 in Criminal Appeal No. 9 of 1988.

So far as this is possible, we propose to deal separately with the two appeals.

FACTS OF THE CASE

The Crown's case depended mainly, as indeed the judge made plain in his summing up, upon the evidence of Miss Sharon Swan.

She testified that she is aged 34, is unmarried and works as a reinsurance accountant for the West International Finance Group. She consulted the defendant at his consulting rooms at Gray's Inn, Joell's Alley, Pembroke, on 7th May, 1986, because she was suffering I from a bad cold. She also suspected that she was pregnant and asked the defendant to give her a pregnancy test, which he did. The test was positive. She was ‘really upset.’ He gave her a prescription for her cold and told her to ‘think about what (she) wanted to do about the pregnancy.’

A week or so later she saw him in the Market Place in Church Street. He asked her ‘what I had decided because time was going on he didin't have much time left.’ She later made an appointment to see him on Friday 30th May. The judge's note of her evidence then reads—

‘He told me how much it would cost. $800 local anaesthetic because not in the hospital. He said would take about 10 minutes or so. $800 was for the abortion. The procedure. $800. And when I mentioned about being in hospital he said not necessary, most doctors think it is, but not necessary.’

The defendant asked Miss Swan to see him next morning at 11.00 a.m., to which she agreed. However, when she returned there ‘to have the abortion’ the following day (31st May) he was absent. He had left a message for her, taped to the door, in his handwriting.

‘May 31/86. Hi, Sharon.

Sorry for the difficulty today. Sometimes things don't always work out as planned. However, I will keep my word to you. I am going to do my best to help you out today if possible.

If 8.00 p.m. suits you, call and let me know. Otherwise it will be some time on Monday.

Doctor D (over)

Don't call before 6.30 p.m. If I am not there simply say if 8 p.m. will be O.K.’

Miss Swan kept this note, which she produced in evidence at the trial.

She spoke to the accused by telephone at 6.45 p.m. that day and told him that 8.00 p.m. was ‘fine’. She went to his consulting room a few minutes after 8 p.m. The judge's note of her evidence continues—

‘He wanted me to pay him. So I wrote him a cheque for the $800 there in his office and I handed it to him …………………………………… We went into the examining room ….. He asked me to undress from the waist down and to cover the gown down. And that's what I did. I lay on the bench. I couldn't see what was being done. I was draped with this sort of like gown. He told me what he was doing. What to expect. He had then instruments in bowl. …….. Told me going to give me an anaesthetic. Told me I would feel just a little prick. I felt the needle. He left me for a couple of minutes. I assumed so that anaesthetic would start to work. When he came back to start the procedure. I could feel pain from the instrument he was using ……… He said I was not numbed enough, so he gave me another shot and tried again a few minutes later and I could still feel pain which he said was very unusual. I think he gave me another shot of anaesthetic ……He said that I was bleeding a lot so he couldn't continue because he couldn't see …………… He said it would be like having a heavy menstrual period and I should have a bit of cramp. He couldn't continue but I should miscarry within a few days. He gave me some medication for the cramp ……………………………. I felt pain from the instrument he was using in the lower part of my stomach. At first it was sort of like a pulling, pricking feeling ……………….’

Her friend, Lionel Van Putten, drove her back to her sister's home, She told him and her sister that the accused had tried to abort her unsuccessfully. After a few days, she stopped bleeding. She phoned the accused. He suggested that she should try ‘the abortion procedure’ again because during the first attempt she was very nervous. But she did not wish to do that again. ‘It frightened me too much’. She thought of going abroad to have the abortion. She asked the accused to give her back her cheque or to destroy it.

On 13th June 1986 Dr. Cordon examined her at the Emergency Department of the King Edward Memorial Hospital. She told him that she ‘had had an attempted abortion.’

On 14th August, 1986, she met the accused by chance in Middle Road. She told him that, as she had not received her cheque from him, she presumed that he had destroyed it; but he said that he had cashed the cheque during the previous week. However, he gave her his cheque, in her favour, for $550 saying that ‘that was to be fair or words to that effect and the balance was for his services.’ He asked her to see him next day ‘to talk’.

Next day she phoned the accused and asked him why he had ‘deposited the cheque for $800 when he only wanted $250, and as to why he had not telephoned to tell her. He said that ‘he couldn't reach me’. She pointed out that her telephone number was on the $800 cheque.

During this telephone conversation, the accused suggested to her that she could claim ‘some of the $250 back from the insurance company’. She spoke to her attorney Miss Keren Lomas, ‘about this’. On 20th August, 1986, she went to the accused's office. He gave her a Bermuda Fire and Marine Insurance Company claim form purporting to inform that company that on 28th July 1986 he had removed, surgically, some warts from her vagina (desribed in the claim as ‘examination and curettement of condylomata’) and that his charges for this surgical procedure were $179.30. The form had been completed, so far as possible, by the accused himself, and the ‘attending physician's statement’ had been signed by him and dated ‘July 28/86’. Stapled to the form there was a receipt purporting to show that on August 20, 1986 the accused received $179.30 from the complainant. The accused told her to take the claim form to the insurance company. She did not do so because she realised that it was a false claim, in that she had never received treatment from the accused for vaginal warts.

In cross-examination, Miss Swan was shown a ‘consent form’. She agreed that she had signed it, though defence counsel did not put it in evidence, perhaps because at that stage she expected the accused to produce it in evidence from the witness box, though this is a matter of speculation.

The relevant part of this cross examination reads—

‘I signed a consent form, yes. This is it, yes …….. It is an operation that has nothing to do with an abortion.’

Miss Swan did not complain to the police till much later. On 3rd April, 1987, D.I. Ramsay sought a warrant to search the...