Maureen Peters Appellant v The Queen Respondent

• Jurisdiction: British Virgin Islands
• Judge: BAPTISTE, J.A.
• Judgment Date: 01 October 2010
• Neutral Citation: VG 2010 CA 10
• Judgment citation (vLex): [2010] ECSC J1001-1
• Court: Court of Appeal (British Virgin Islands)
• Docket Number: HCRAP 2009/005
• Date: 01 October 2010

[2010] ECSC J1001-1

IN THE COURT OF APPEAL

Before:

The Hon. Mde. Ola Mae Edwards Justice of Appeal

The Hon. Mde. Janice George-Creque Justice of Appeal

The Hon. Mr. Davidson Kelvin Baptiste Justice of Appeal

HCRAP 2009/005

Between:

Maureen Peters

Appellant

and

The Queen

Respondent

Appearances:

Mr. William Hare for the appellant

Ms. Grace Henry-McKenzie (Acting Director of Public Prosecutions),

Ms. Tiffany Scatliffe (Senior Crown Counsel) and Ms. Leslie Ann Faulkner (Crown Counsel) for the respondent

Criminal Appeal – 8 counts of theft – 2 counts of false accounting – appeal against conviction – whether unsafe – whether the verdict of the jury in respect of count 1 of theft was perverse – inconsistent verdicts – logical inconsistency – no case submission – drawing of inferences – competing inferences – whether non-disclosure on the part of the crown would render the verdict unsafe – non-disclosure – prosecutorial misconduct – whether the crown failed to present its case fairly – fairness of trial – regulating questions from the jury – precedence in closing speech – s. 24 (i) Criminal Procedure Act – jury irregularity – appeal against sentencing – whether it was excessive or wrong in principle – aggravating and mitigating factors – whether the judge took those into consideration before passing sentence –

The appellant was indicted on 8 counts of theft and 2 counts of false accounting. She was convicted on the first count of theft and both counts of false accounting and was sentenced to two years imprisonment on count 1 of theft and eighteen months imprisonment for each count of false accounting to run concurrently with the sentence of theft. Not guilty verdicts were returned on the other 7 counts of theft. The appellant appealed against her conviction and sentence. The prosecution's case is that the appellant who worked with Marine Insurance Office had been responsible for bookkeeping and accounts as well as depositing the premiums at the banks. After an audit was conducted it was discovered that during the period 2002 to 2004 several sums of money were missing and were never deposited at the bank or accounted for. The appellant denied that she had stolen any money. She advanced several grounds of appeal including that (1) her conviction was unsafe and unsatisfactory; (2) that the verdict of the jury in respect of count 1 of theft was perverse as having regard to the vice voce and documentary evidence there was no qualitative difference in relation to counts 1 to 8; (3) that it was perverse to convict her on count 10 of false accounting charges stated to have arisen in respect of her covering up the alleged thefts said to have occurred in 2004 having cleared her on the said thefts; (4) that the learned judge failed to accept a submission of no case to answer at the close of the prosecution's case; (5) there was serious and material non-disclosure on the part of the crown; (6) prosecutorial misconduct; that the trial was unfair, that the judge wrongly and without reason invited the jury to ask questions of the 1 ^st prosecution witness at the close of counsel's questioning, that the judge invited the defence to give its closing arguments before the prosecution; (7) that the judge erred by taking an unduly deferential approach to the crown's witness affording greater credibility to such evidence; (8) and there were a number of irregularities by the jury. The appellant appealed against her conviction on the ground that is was manifestly excessive and wrong in principle.

Held: that the appeal against conviction and sentence is dismissed and the conviction and sentence are affirmed.

• 1. That the conviction could not be regarded as inconsistent or perverse and was not unsafe. The test for determining whether a conviction can stand is whether the verdict is safe. The appellant bears the burden of establishing that the conviction is unsafe. Where an appellant alleges logical inconsistency he has to persuade the Court of Appeal that the nature of the inconsistencies is such that the safety of the guilty verdict is put in doubt. The question will turn on the facts of the particular case. R v Ashley Mote [2007] EWCA Crim 3131. The appellant has to satisfy the court that no reasonable jury who had applied their minds properly to the facts of the case could have arrived at the conclusion. R v Durant [1972] 1 WLR 1612. In other words there is no rational explanation to justify the jury's conclusion. R v Dhillon. It does not inexorably follow that verdicts are logically inconsistent just because they all depended on the evidence of the same person. The existence of a commonality of factual issues relating to an offence does not begin to establish that the verdicts are inconsistent. The correct approach is to consider whether the directions given to the jury were correct and, if so, to ask whether on those directions the verdicts are logically consistent.

  R v Dhillon (Sukhbir) [2010] EWCA Crim 1577 applied.

  R v B&Q Plc [2005] EWCA Crim 2297 applied.

• 2. Apart from the first count, the amounts averred in all the other counts were at variance with the amounts revealed on the evidence; it is therefore conceivable that this may have led the jury finding the way they did. Assuming that there was a logical inconsistency, a satisfactory explanation exists for the jury's findings on the different counts.

• 3. For the court to quash the conviction on count 10 the appellant must show that there is a logical inconsistency between the conviction on that count and the acquittal on counts 6, 7 and 8, and that there is no sensible explanation for it. The jury's verdict demonstrated that they were sure of the guilt of the accused as it was open to them on the evidence to find her guilty. Further, apart from the element of "dishonesty" the ingredients of theft and false accounting differ. Therefore there is no logical inconsistency or perversity in the verdict.

• 4. That there was evidence on which the jury could properly come to a conclusion that the appellant was guilty. In deciding on a submission of no case at the end of the evidence adduced by the prosecution, the correct approach would be to ask whether a reasonable jury, properly directed, could on that evidence find the charge in question proved beyond reasonable doubt. On the evidence adduced by the prosecution the jury were entitled to draw the inference that since the appellant was responsible for the deposit of funds and the keeping of the books, in circumstances whereby funds were missing, she had dishonestly appropriated the money. Given the factual matrix the correct approach would be to ask whether a reasonable jury properly directed would be entitled to draw an adverse inference. The correct test is the conventional test of what a reasonable jury would be entitled to conclude. In the circumstances the trial judge did not err in leaving the case to the jury.

  R v Jabber [2000] EWCA Crim 2694 applied.

  R v Shippey [1988] Crim LR 767 distinguished.

• 5. The law as to the duty of disclosure is now reasonably well settled. The law requires the crown to disclose to the defence any material of which it is aware which would tend either to materially weaken the crown's case or materially strengthen the case for the defence. Non-disclosure by itself does not automatically lead to the conclusion that a trial is unfair. The significance and consequences of the non-disclosure must be assessed. The test that should be applied is whether taking all the circumstances of the trial into account, there is a real possibility that the jury would have arrived at a different verdict. The non-disclosure, taken by itself did not affect the safety of the appellant's conviction and did not deny the appellant the real possibility of securing a different outcome. The undisclosed material would have made no difference to the outcome of the trial as similar cheques were tendered by the appellant. It was open to the jury to infer that the appellant had in fact stolen money from MIO and that the personal cheques of the appellant made out to MIO was for the repayment of money stolen. It stands to reason that the four nondisclosed cheques had they been tendered into evidence may have strengthened the inference that the appellant had stolen the money.

  Mc Innes v Her Majesty's Advocate (Rev 1) (Scotland) [2010] UKSC 7 at paragraph 20 applied.

• 6. That the closing speech of the prosecution had not reached the threshold which would lead the court to conclude that the trial was unfair and that the conviction should be quashed. The closing speech was in keeping with the evidence, was accurate on the facts and not prejudicial to the appellant.

• 7. That the overriding requirement that the accused be fairly tried was not compromised. The comment ascribed to the judge by the appellant's counsel to the effect that "you've got your client and she's got hers" is not illustrative or demonstrative of a lack of appreciation of the respective roles of counsel in a criminal trial.

• 8. That it is well established practice in the courts of the Eastern Caribbean for the trial judge to invite the jury to ask questions of witnesses. The foreman of the jury should forward the questions in writing to the judge who would decide whether the question is a proper one for the witness to answer. The questions asked of the witness by the jury sought clarification of an initial on an exhibit produced by him and was not of a nature as to affect the fairness of the trial.

  R v Barnes [1990] 155 JP 417 applied.

• 9. That the judge wrongly directed counsel for the defendant to give his closing speech before counsel for the crown. However absent this irregularity a reasonable jury would have brought back the same verdict.

• 10. That the separation of one of the jurors from the jury bailiff was not so fundamental as to vitiate the entire...