Attorney General v Davis and Caroli
| Jurisdiction | Bermuda |
| Judgment Date | 26 July 1990 |
| Docket Number | Criminal Appeal No. 21 of 1988,Criminal Appeal No. 1 of 1990 |
| Date | 26 July 1990 |
| 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. 21 of 1988
and
Mr. D.S. Schofield Attorney General's Chambers for Appellant
Mr. Julian Hall (Vaucrosson's) for First Respondent
Mr. Richard Hector (R.A. Hector) for Second Respondent
R v GalbraithUNK (1981) 73 Cr App R 124
Jones v Great Western Railway CoUNK (1840) 1 Ry & Can Cas 210
De La Chevotiere v R 1988 Criminal Appeal No. 9
Attorney General v De La Chevotiere 1988 Criminal Appeal No. 8
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 1964, s. 17(2)(a)
Forgery — Falsified invoices — Appeal against acquittal — Sale of produce to ‘Atlantic’— Whether sufficient evidence — No case to answer — Whether retrial should be ordered
Originally, five defendants were charged, on 1st March, 1988, with various offences. Davis was the second defendant and Caroli the third. Davis pleaded not guilty to 101 Counts and Caroli not guilty to 97 counts.
On 16th August, the other three defendants, Mulder (D1), Goluya (D4) and Marangon (D5) pleaded guilty to 30, 67 and 6 counts respectively and were sentenced on these pleas.
No further evidence was offered by the Crown on the remaining counts against the three latter defendants.
After submissions by the defence, the Crown decided to proceed on twenty counts; all involved Davis and eighteen of them Caroli.
At the close of the Crown's case the Chief Justice ruled, after hearing submissions on each side, that the defendants Davis and Caroli had no case to answer. He therefore directed the jury accordingly and both of the accused were found not guilty of each of these counts.
The Attorney-General has brought an appeal against that acquittal under Section 17(2)(a) of the Court of Appeal Act, 1964.
Counsel for the respondents both relied on a passage from R v. Galbraith, 1981, 73 Crim. App. R. 124, and in particular on the guidance given by Lord Lane C.J. at p. 127, as to the correct approach which should be adopted by a trial judge.
In paragraph 11 of his Ruling (p. 382 of the record) the Chief Justice relied upon paragraph 2(a) of the Galbraith Ruling, finding that the case ‘lacks evidence on important elements and, moreover, such evidence as there is of a tenuous character, vague and uncertain.’
The Crown, however, argues that the case falls squarely within paragraph 2(b) of the Galbraith guidelines, which states that—
‘if on one possible view of the facts there was evidence on which the jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury.’
In paragraph 2 of his Ruling (p. 380) the Chief Justice correctly states the law, namely that each of the 20 counts must be established by the Crown ‘with probative evidence, either direct or inferential’.
The principles as to inferences are set out in Jones v. Great Western Railway Co.477 L.R. 39 (H.L.) although this was a civil case. At p. 44 Lord MacMillan observed—
An inference in the legal sense is a deduction from the evidence, and if it is a reasonable deduction, it may have the validity of legal proof.’
He added, on the same page—
‘From every fact that is proved, legitimate and reasonable inferences may, of course, be drawn, and all that is fairly deduced from the evidence is as much proved for the purpose of a prima facie case as if it had been proved directly. I conclude, therefore, that in discussing whether there is in any case evidence to go to the jury, what the court has to consider is this, whether, assuming the evidence to be true, and adding to the direct proof all such inferences of fact as in the exercise of a reasonable intelligence the jury would be warranted in drawing from it, there is sufficient to support the issue.’
The Chief Justice's main reason for deciding that there was no case to answer was set out in paragraph 8 of his Ruling (p. 381) in these words—
‘In my view, the jury should be given some direct or express evidence that Home Lines Inc. did not approve the scheme. I do not think there is any proper or direct evidence before the court which could be left to the jury to infer that Home Lines Inc. would not have approved the scheme if they had known about it.’
This appears to have been the reason for the Ruling, combined with the comment, in paragraph 10, that Davis would have the defence that he ‘was acting under the fair and reasonable impression that he had the authority to make the documents’. This appears to be a finding by the Chief Justice that no evidence was given that Butterfield & Co. did not authorize false invoices to be made on the Company's stationery and that the absence of such evidence was of importance to the Crown.
On 18 of the counts the two accused were charged with committing forgery. On the other two counts, Davis and Goluya were similarly charged.
In each count there was a charge of forgery, the accused being charged with being concerned in making a false document, namely a Butterfield & Co. invoice, purporting to reflect the sale of produce to the Cruise ship ‘Atlantic’ on various dates between 27th April 1983 and 22nd October 1985.
It was...
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