The Queen v Willis Todman

• Jurisdiction: British Virgin Islands
• Judge: d'Auvergne J
• Judgment Date: 11 July 2003
• Docket Number: CRIMINAL CASE NO. 8 OF 2003
• Court: High Court (British Virgin Islands)
• Date: 11 July 2003

IN THE HIGH COURT OF JUSTICE (CRIMINAL)

CRIMINAL CASE NO. 8 OF 2003

BETWEEN

The Queen

and

Willis Todman

Appearances:

Mr. Terrance Williams Principal Crown Counsel, Miss Odia Reid with him for the Crown

Mr. J.S. Archibald Q.C., Miss Anthea Smith with him for the Accused

RULING

d'Auvergne J

1 On the 26 ^th of March 2003, the Attorney General preferred an indictment containing three counts against the Accused. The indictment reads as follows:

‘Willis Todman is charged with the following offences:

FIRST COUNT STATEMENT OF OFFENCE

CONSPIRACY TO DEFRAUD contrary to common law.

PARTICULARS OF OFFENCE

WILLIS TODMAN on divers days between April 2001 and April 2002, in the Territory of the Virgin Islands conspired with William Archer and ADD Services Ltd. to defraud such ministries and departments of the Government of the Virgin Islands as might award contracts to the said ADD Services Ltd. by dishonestly causing the said William Archer, at all material times an employee of the Government of the Virgin Islands, to improperly and secretly promote and assist ADD Services in such contracts.

SECOND COUNT STATEMENT OF OFFENCE

FALSE ACCOUNTING contrary to section 221(1)(b) of the Criminal Code, 1997.

PARTICULARS OF OFFENCE

WILLIS TODMAN on or about the 2 ^nd day of August, 2002 in the Territory of the Virgin Islands, in furnishing information for the processing of payment to ADD Services on contract number 357/2001 between the said ADD Services and the Government of the Virgin Islands, dishonestly and with a view to gain for himself or another or with intent to cause loss to another made use of to the Government of the Virgin Islands a document namely an invoice which to his knowledge was misleading, false or deceptive in a material particular in that it purported to show that:

• (i) drawings submitted had been the original work of ADD Service when it was in fact the original work of the Government of the Virgin Islands

• (ii) ADD Services had done a survey and entered co-ordinates when in fact they had done no survey and entered no co-ordinates.

THIRD COUNT STATEMENT OF OFFENCE

ATTEMPT TO OBTAIN PROPERTY BY DECEPTION contrary to section 217 of the Criminal Code, 1997 of the Laws of the Virgin Islands.

PARTICULARS OF OFFENCE

WILLIS TODMAN on the 2 ^nd day of August, 2002 in the Territory of the Virgin Islands dishonestly attempted to obtain $7,980.00 from the Government of the Virgin Islands with the intention of permanently depriving the Government of the Virgin Islands thereof by deceptiveness namely by:

• (i) falsely representing that the designs for drawings submitted were the ADD's original design when in fact they were based on a design plagiarized from the Government of the British Virgin Islands' Public Works Department

• (ii) falsely representing that ADD Services had carried out survey work and produced same on the diagram when they had not.’

On the 8 ^th hearing day of the trial the Crown closed its case.

2 Submissions of no case to answer were then heard in the absence of the Jury over a period of 5 ¹/₂ hearing days.

3 In order to appreciate the submissions made, I think it essential that the aspects of the Crown's evidence which will be used by both Counsel in order to show that a prima facie case has or has not been made out should be noted.

PROSECUTION'S CASE

4 Counsel for the Prosecution opened the case by saying ‘You have heard the three counts, a conspiracy to defraud the Government of the BVI, obtaining, attempt to obtain by deception and false accounting.’ Counsel went on to tell the jury that in the BVI there were several construction companies and drafting companies who drew designs and plans for buildings, that some of those companies got contracts to do work for the Government which contracts were supervised by the Public Works Department. That the said department employed persons whose duties comprised of the approving or disqualifying of the submitted contracted work.

5 Counsel told the Jury ‘what a thing it would be Madam Foreman and members of the jury you have one of those private companies doing work for the Government, but secretly you have one of these Public Work supervisors actively involved in your company……. Here it is the same man who is going to supervise your work on behalf of the Government is actively involved with you, working with you privately……There it is you have your secret man working in the Government and working with you supervising your own contracts when they come to Government.

This is what ADD is all about…. You will hear that the people who ran ADD, this gentleman here, Mr. Willis Todman, a lady named Harriette Jan Archer, and a third gentleman Mr. William Archer. They ran ADD and we are going to show you documents which came from the ADD's office which showed, these are the minutes of meetings which showed this is that it was the three of them who ran that business.’

6 He told the jury that Willis Todman and Jan Archer held jobs outside the government but Mr. William Archer was a supervising officer a Public Works. He said that one Sirron Scatliffe would give evidence of how he worked at the Public Works and that he drew a plan for a wall to go around the Bregado Flax Educational Centre in Virgin Gorda, that there was some delay and the contract to draw the wall was given to ADD. That William Archer got the drawing which Sirron Scatliffe had done and gave it to a draftsman named Ernest Haynes at ADD to do some alterations. That upon completion, the Accused, Willis Todman took the corrected plans to the Government and demanded his payment which included fees for surveying and co-ordinates. No survey had been done.

7 Counsel insisted that there was a dishonest agreement between Mr. Todman, the Accused and Mr. Archer to use Mr. Archer's position in the Government to get any benefit for ADD; that the two were involved in a conspiracy, that the Accused, Todman presented documents which were false and then sought money from the Government.

8 The first witness for the Prosecution was Ernest Haynes, (a draftsman) who was first interviewed by the Accused, Jan Archer and William Archer and later employed as a draftsman at the newly formed company ADD, owned and managed by the three persons who interviewed him. This witness told the Court that William Archer, Jan Archer and Mr. Todman told him ‘with reference to William Archer…well, no one was really to know that he was associated with the business.’

9 The witness said that ‘after a while I got to understand that he was employed at Public Works Department’, and that it was William Archer who told him so himself.

10 That ‘William Archer would prepare the applications and from time to time would bring in some plans…. We just did additions and redraw.……. He brought in work to be done in the West End Recreational Park, the Bregado Flax Education Center and the Anegada Recreation grounds.’

11 This witness further told the Court that with regard to the Bregado Flax Education Center he had some changes and designs to do on the school walls; that it was a wall to be constructed all around the school. That he received that piece of work via a zip disk which was given to him by William Archer and who asked that it be completed in two weeks, that the drawing on the zip disk was done by Public Works. He never visited the site and was never asked to do so. The information concerning the Bregado Flax Education Centre was on the disk as well as on the hard drive. That he was ordered by William Archer to erase most of the data on the hard drive and that if anyone came investigating asking questions about the Bregado Flax Education Centre, to tell them that I knew nothing about them.’

12 This witness said that no survey was actually done although an estimate was given by Mr. Burton Chalwell, a quantity surveyor who later confirmed that statement.

13 Objection was taken by Learned Senior Counsel for the Accused as to the permitting of directions given by William Archer. The objection was overruled and the direction by William Archer was admitted since it constituted a declaration in furtherance of the conspiracy provided that there would be some further evidence beyond that direction.

14 Sirron Scatliffe, a Trainee Draftsman at Public Works told the court about his work and the chain process of work at Public Works. He said that the original drawing for the Bregado Flax Education Centre was done by him and that he placed the information (drawing) for the wall and security booth on the public server. It was a wall only for the front of the centre.

15 Later, this same drawing came back to him with additions and redesigns made by ADD Services. This witness emphasized that the fence he drew was only to the front whereas the fence on ADD's drawings went right around the building.

16 Julia Christopher, acted as Director of Public Works from October 2001 to July 2002. She told the Court that she knew William Archer before that period, she knew him to be an officer responsible for handling matters pertaining to Public Works and that during her stint as Director she relieved him of that post.

17 This witness spoke of the General Orders, the public service code and the various circulars sent to civil servants as reminders of how they were to conduct themselves. General Order 3.6 reads:

‘Subject to sub paragraph (d) of this order an officer may not at any time engage in any private activity which might

• (i) bring the officer or the Government into disrepute;

• (ii) conflict with his official duties or responsibilities, place him or give the appearance of placing him in a position to use his official position for his private benefit;

• (iii) make him unavailable for reasonable out of hours duties or official...