Bean v Cox (Police Constable)

• Jurisdiction: Bermuda
• Judgment Date: 18 December 2003
• Date: 18 December 2003
• Docket Number: Appellate Jurisdiction 2003 No. 67
• Court: Supreme Court (Bermuda)

In The Supreme Court of Bermuda

Kawaley, J

Appellate Jurisdiction 2003 No. 67

BETWEEN:

Yvonne Bean

Appellant

and

Angela Cox (Police Constable)

Respondent

Mr. P. Farge for the Appellant

Mrs. O. Vaucrosson for the Respondent

The following cases were referred to in the judgment:

A-G's Reference No. 1 of 1983UNK (1984) 79 Cr App R 288

R v PreddyWLR [1996] 3 WLR 255

Marks and Marks v R 1982 Criminal Appeal No. 21

De La Chevotiere v RBDLR [1988] Bda LR 31

Evidence Act 1905, s. 29

Criminal Code, s. 368–9

Summary Jurisdiction Act 1930, s. 21

Appeal against conviction — Obtaining money under false pretences — Forgery — Whether sufficient evidence — Requirement to record decision by magistrate — Financial assistance for housing

JUDGMENT of Kawaley, Puisne Judge

Preliminary

On June 25, 2003, the Appellant was convicted in Magistrates Court (the Worshipful Tyrone Chin) of three offences, (a) obtaining $6039 from the Bermuda Government by false pretences between November 1, 2001 and August 31, 2002, contrary to section 369 of the Criminal Code, (b) forging a cheque on August 6, 2002, contrary to section 409 (1) (c) (iii) of the Criminal Code, and (c) uttering a forged document on August 6, 2002 contrary to section 410 of the Criminal Code.

By Notice of Appeal dated June 27, 2003, amended on December 10, 2003, she appealed against these convictions. Although an appeal was initially filed against the concurrent sentences of six months imprisonment suspended for one year and a restitution order of $6039 to be paid by December 31, 2003 or three months imprisonment in default, oral argument focussed on Counsel's penetrating critique of the Learned Magistrate's judgment in which he found the Appellant guilty as charged on three counts of a thirteen count information.

This appeal turns on an analysis of the essential elements of three of the more technical offences known to Bermudian criminal law, and whether Mr. Farge is right in contending that there was no or no sufficient evidence to support any of the relevant charges. Alternatively, the Appellant complains that no sufficient findings were recorded by the Learned Magistrate to allow the convictions to stand.

Findings of the Court below

At the commencement of the trial, the Crown sought to amend four charges under the Housing Allowance Act 1988 which were obviously time-barred in response to the Defendant's application that they be dismissed by virtue of section 452 of the Criminal Code. The Defence objected to this counter-application and the Learned Magistrate dismissed these charges.

Counsel for the Crown then applied to read in the witness statement of Mr. Manuel Moniz, the Defendant's landlord whose signature had allegedly been forged in connection with all of the remaining charges on two alternate bases. Firstly, because under section 29 of the Evidence Act 1905, the statement had been served and not objected to within seven days by the Defence. And, secondly, because the witness was beyond the seas and unable to travel, rendering the statement admissible under section 43(a) of the Evidence Act.

The Court admitted the statement, without clearly explaining the basis on which it did so, but seemingly on the ground that the Defence's objections were raised on June 15, 2003, more than seven days after Counsel was admittedly served on June 5, 2003.

Mr. Moniz's statement was duly read in, and essentially supported the Prosecution case that what purported to be his signature on a rental verification form (by which the Defendant applied for financial assistance in respect of rent) and on the back of the various cheques (only the cheque dated August 1, 2002 is relevant to this appeal) was not his signature. Further, he denied any knowledge of the fact that the Defendant had been applying for financial assistance and of the cheques in question. However, he did not explicitly refute her suggestions that he had in a general way led her to be believe that she was authorized her to sign these documents on his behalf.

Mrs. Maria Moniz, wife of Mr. Moniz, gave evidence. She principally confirmed that the Defendant was a tenant who was behind in her rent and confirmed that her husband had indeed signed the statement read in by Counsel at the trial. Under cross-examination she admitted that the Defendant and Robert Wilkinson were joint tenants at 20 Rose Hill, Southampton, and that the Defendant had spoken to her husband by telephone about the rent situation several times.

The third Prosecution witness was Mr. Gary Malcolm Wilkinson, Financial Assistance Manager with the Bermuda Government. He testified that ‘based on the documentation that the department had received it was decided to extend an award to Mrs. Bean. One of the documents that the department based that decision [on] was the rental verification form.’The form was produced as Exhibit 2. He gave no further evidence in chief on the precise basis on which the award was made in Mrs. Bean's favour and what matters were material to that decision, perhaps because he had no personal knowledge of the application in question. He also produced nine cheques which he described as being payable to ‘Manual Moniz c/o Yvonne Bean’. Under cross-examination, Mr. Wilkinson admitted that the cheques were all payable to ‘Yvonne Bean’, whose name was on the same line as ‘to’, with Mr. Moniz's name one line above hers, and that ‘c/o’ did not appear. He also explained how he came to investigate the Defendant's claim having learned that she had taken certain trips abroad.

The Prosecution's final witness was Mr. Headley Eugene Ingham, who was an Investigative Officer with the Department of Financial Assistance and who took the statement of Mr. Moniz in Canada. However, a question and answer interview record of an exculpatory interview with the Defendant in the absence of a lawyer and under caution was also produced. There is no suggestion of any material inconsistencies between this record and her oral testimony at trial.

The Defendant herself gave evidence and testified that she rented the Moniz apartment for $2700 per month on terms that her co-tenant Robert Wilkinson would be responsible for $1350 per month. She produced a Writ against herself and Robert Wilkinson in respect of arrears of rent taken out by Mr. Moniz in support of her assertion that the rental verification form had been accurate in stating only her share of the total rent. She stated that she signed ‘Care of Mr. Manuel Moniz Yvonne Bean’ on the rental verification form because she believed as a result of discussions with Mr. Moniz that she was authorized to sign on his behalf as his agent. She testified that she dealt with Sylvana ‘Haley’ at the Department of Financial Assistance, and received no guidance on completing the form. Nor was she required to sign a ‘consent form’ or a ‘declaration form’.

The Defendant also testified that she was a trainee teacher, that her husband was away and not supporting her and her child, and that she submitted evidence of her income and arrears of child support owed by her husband. It is not disputed that at the time of trial she was owed at least $20,000 by way of child support. She first dealt with Gary Wilkinson in August 2002 after receiving his letter advising her that her award was suspended due to her having travelled. She accepted that she was obliged to pay the money received from Government to her landlord and that she had signed ‘c/o Mr. Moniz’ on the back of each cheque, in addition to endorsing her own name. She did so:

‘Because Mr. Moniz's name appears at the top of my name on the cheque and I had to explain to this particular teller who Mr. Moniz was at the time. I indicated to the teller that Mr. Moniz is my landlord and that he resides in Canada. I also indicated to her that the cheques were from Government particularly for rent payment for Mr. Moniz and I was presenting these cheques in his care for payment of rent to Mr. Moniz and she did not object to that … [and, as regards the August 1, 2002 cheque in particular] … Because I believe acting as his agent for the purpose of paying him rent being that he was not on the island. I indicated that to the teller at the bank. That is why I put the “care of”…’

The Defendant then sought to demonstrate that she had paid the money received to Mr. Moniz, but that her co-tenant had been delinquent, admitting that her records of her own payments were incomplete. Under cross-examination she admitted that she had made Mr. Moniz's name appear like a signature having written it in cursive, but denied any deceit in this regard: ‘I believe that if that was the case or my intent I would not have put c/o in front of his name and I would not have signed my name at the end. Lastly I informed Financial Assistance that I made the writings and it was not a hidden fact.’

The Defendant's testimony that both the bank teller who cashed the August 1, 2002 cheque and the Department officials who processed the rent verification form were aware that she had signed on behalf of Mr. Moniz was not contradicted by any other testimony and was supported by the documentary evidence. In other words, ‘c/o’ does appear in each case immediately before the purported signature. However, in the case of the cheque there is, in my view, no credible suggestion that Mr. Moniz was being represented as having signed the cheque himself, whereas as regards the rental verification form (and some of the other cheques as well) the possibility of misrepresentation is more plausible.

Mrs. Vaucrosson submitted in the Magistrates Court on the obtaining property by false pretences charge that the rental verification form was false as regards the amount of rent, the number of adults occupying the premises and, ‘most significant she made a writing on the rental verification form which purported to be the signature of Manuel Moniz.’ Further, it was not disputed that the Defendant...