R

• Jurisdiction: Bahamas
• Judge: Allen, P.
• Judgment Date: 17 September 2015
• Neutral Citation: BS 2015 CA 114
• Docket Number: SCCrApp & CAIS No. 70 of 2013; SCCrApp & CAIS No. 71 of 2013
• Court: Court of Appeal (Bahamas)
• Date: 17 September 2015

Court of Appeal

Allen, P.; Adderley, J.A.; Isaacs J.A

SCCrApp & CAIS No. 70 of 2013; SCCrApp & CAIS No. 71 of 2013

Taylor V. Regina; Evans

and

Regina

Appearances:

Mr. Roberto Reckley, counsel for the appellant Taylor.

Mr. Murrio Ducille with Ms. Crystal Rolle, counsel for the appellant Evans.

Mr. Franklyn Williams, Deputy Director of Public Prosecutions with Ms. Desiree Ferguson, counsel for the respondent.

Earl Fraser v. The Commissioner of Police MCCrApp 178 of 2011 mentioned

Jacob (Benedict) v. R (1997) 56 W.I.R. 255 mentioned

Jerome Bethel v. R SCCrApp No. 19 of 2013 mentioned

Junior Higgs v. R Criminal Appeal No. 34 of 1996 mentioned

R v. Cristou [1992] QB 979 mentioned

R v. Fedrick [1990] Crim. L.R. 403 considered

R v. Harwood [1989] Crim. L.R. 285 considered

R v Hulusi & Purvis (1973) 58 Cr App Rep 378 mentioned

R v. Martinez-Tobon [1994] 2 All E.R. 90 applied

R v. Matthews (1983) 78 Cr App Rep 23 mentioned

R v. O'Leary 87. Cr App R 387 mentioned

Thompson v. R [1998] A.C. 811 mentioned

Criminal Practice and Procedure - Stealing by reason of employment — Appeal against conviction and sentence — Whether the trial judge should have discharged the jury and empanelled a new jury to hear the case against the remaining Defendants when one co accused had pleaded guilty to the charges where there was no inference which could reasonably have been made by the jury that the co accused could not possibly be guilty unless the other accused were guilty — Accidental prejudice — Consideration of Weaver [1968] 1 Q.B. 353 and R v. Fedrick [1990] Crim. L.R. 403 — Admissibility of confession — Whether the trial judge erred in wrongfully admitting the oral and written confession allegedly made by the employee to his employers where there was nothing before the trial judge which disclosed a state of affairs in which a reasonable judge would have concluded that the admission of statements would adversely affected the fairness of the trial — Whether the trial judge should have conducted a voir dire of the confession made by the employee to his employers — Evidence — Whether the computer records from the bank's computers and interactive teller platform was admitted in breach of section 67 of the Evidence Act — Consideration of Shephard [1993] A.C. 380 — Whether the trial judge erred in posing questions to witnesses where the questions were posed to clarify the evidence so as to reconcile shortcomings — Consideration of principles in Earl Fraser v. The Commissioner of Polic MCCrApp 178 of 2011 and Jerome Bethel v. Regina SCCrApp No. 19 of 2013 — Whether the trial judge had failed to adequately put the defence where the trial judge accurately summarised the evidence of the prosecution and put both the case for the prosecution and for the defence dispassionately — Defendant chooses to remain silent — Consideration of principles in Regina v. Martinez— Tobon [1994] 2 All E.R. 90 — Appeal against sentence — Whether the sentences were too severe where the actions were serious — Appeal against conviction dismissed — Appeal against sentences dismissed — Sections 20, 67 and 178 of the Evidence Act — Section 340(8) of the Penal Code

Both Taylor and Evans are former employees of Scotiabank Bahamas (BNS), having been employed at its Nicholls Town, Andros Branch. The prosecution's case against them was that between April 2008 and July 2008 Taylor, as the bulk teller, and Evans, as the Assistant Manager of Operations and Service (AMOS), along with their co-accused, who changed his plea to guilty during the trial, devised a scheme whereby they were able to appropriate $1,290,400.00 from BNS Nicholls Town.

The scheme operated on the premise that BNS Nicholls Town was only allowed to have $400,000 cash in the branch, inclusive of money in the treasury, money in the tills and money in the ATM, at any given time. Whenever the cash in the bank exceeded the $400,000 limit the excess had to be physically remitted to the Cash Processing Unit (CPU) in Nassau. However, when the packages arrived in Nassau the amount contained in the package was less than that purportedly sent. The banks records were used to link Taylor and Evans to the commission of the offences.

Taylor was convicted on nine out of the ten counts he was charged with while Evans was convicted on the five counts with which she was charged and they were sentenced to 10 years' and fifteen years' imprisonment, respectively. Aggrieved by their convictions and sentences they appealed to this Court.

Held: appeals dismissed.

On appeal, the complaints raised by the appellants are firstly, that the change of plea by the appellants' co-accused prejudiced their case and judge ought to have discharged the jury and ordered a new trial. Secondly, Taylor complains that the learned judge wrongly admitted his oral and written statements as they were taken in breach of his constitutional right to counsel and without him being cautioned. He also complains that the learned judge failed to hold a voir dire with regard to those statements. Thirdly, the appellants complain about the admission of documents generated by BNS' computer software in breach of section 67 of the Evidence Act. Fourthly, Evans complains that the judge assumed the role of advocate during the trial and fifthly, she also complains that the judge did not fairly put her defence to the jury.

In the main, there are four situations whereby the issue of the discharge of a jury arises: where the jury cannot agree on a verdict, when the jury has been inadvertently prejudiced against the accused, when some of the jurors have engaged in misconduct and when they acquire personal knowledge of the accused of his bad character. As such, there is no principle of law which dictates that where a co-accused changes his plea to guilty that the jury ought to be automatically discharged. The present case was not one which required the automatic discharge of the jury, further the learned judge correctly told the jury to disabuse their minds of the guilty plea of the appellants' co-accused and, through her summing up, minimized the effect of any prejudice which may have occurred.

Section 20 of the Evidence Act makes the confession of an accused, made within certain parameters, admissible. Therefore, the prosecution does not have to prove admissibility of a confession, unless the defence, or the Court of its own motion, requires that such admissibility to be proved. Counsel did not object to the statements being admitted, the judge did not consider admissibility to be an issue and the prosecution carefully laid the foundation for the statements to be admitted. In these circumstances the admission of the statements by the learned judge cannot be faulted.

Before a party can rely on computer records they must demonstrate that, inter alia, there are no reasonable grounds for believing that the records are inaccurate because of improper use of the computer, that at all material times the computer was operating properly and that the rules of Court have been satisfied. The Crown called two witnesses to demonstrate that the BNS computer systems were working properly at the material time. Therefore, they discharged their burden of proof and can be said to have complied with section 67 of the Evidence Act.

Finally, the learned judge did not descend into the arena of advocate, nor did her interventions obstruct counsel in developing their case for the defence. Rather, the learned judge sought to clarify matters and curb repetitious questioning which was insisted on by counsel. Further, the learned judge fairly summarized the case for the prosecution and the case for the defence.

Allen, P.

1 The first appellant was jointly charged with the second appellant with five counts of Stealing by Reason of Employment contrary to section 340 (4) of the Penal Code Chapter 84; and was also jointly charged with another co-accused Byron Roberts with five additional counts of stealing by reason of service. All three were arraigned in the Court below in February of 2013.

2 It is necessary here to set out the particulars of each count so that the essence of the case against the appellants is more clearly understood. Those particulars are:

• “Count 1: That the first and second appellants stole cash in the amount of $313,400.00 on 11th April, 2008 from Scotia Bank while being concerned together, and to which they had access by reason of employment.

• Count 2: That the first appellant and Byron Roberts stole Cash in the amount of $6,000.00 on 23rd April, 2008 from Scotia Bank while being concerned together, and to which they had access by reason of employment.

• Count 3: That the first and second appellant stole Cash in the amount of $32,000.00 on 25th April, 2008 from Scotia Bank while being concerned together, and to which they had access by reason of employment.

• Count 4: That the first and second appellants stole Cash in the amount of $235,000.00 on 8th May, 2008 from Scotia Bank while being concerned together, and to which they had access by reason of employment.

• Count 5: That the first appellant and Byron Roberts stole Cash in the amount of $3,000.000 on 9th May, 2008 from Scotia Bank while being concerned together, and to which they had access by reason of employment.

• Count 6: That the first appellant and Byron Roberts stole Cash in the amount of $3,000.000 on 16th May, 2008 from Scotia Bank while being concerned together, and to which they had access by reason of employment.

• Count 7: That the first appellant and Byron Roberts stole Cash in the amount of $1,000.00 on 20th May, 2008 from Scotia Bank while being concerned together, and to which they had access by reason of employment.

• Count 8: That the first and second appellants stole Cash in the amount of $310,000.00 on 22nd May, 2008 from Scotia Bank while being concerned together, and to which they had...