Henderson J
IN THE GRAND COURT OF THE CAYMAN ISLANDS HOLDEN AT GEORGE TOWN, GRAND CAYMAN S.C.A. No. 48 of 2008 12 MARLENE BOVELL-SWANSON V. REGINA 20 Appearances: Mr. Anthony Akiwumi of Stuarts Walker Hersant for the Appellant 24 Mr. John Masters of the Government Legal Department for the Crown, Respondent 28 Before: Hon. Justice Henderson 31 Heard: December 10, 2009 35 JUDGMENT 41
This appeal concerns the manner in which a charge may be amended in the Summary Court during a trial. 42
Ms. Bovell-Swanson was tried in the Summary Court on three similar charges of theft. The first such charge read that she was: "charged with the following offence: Theft Contrary (sic) 235(1) of the Penal Code, (2006 Revision) Particulars of Offence On or about the 14th September, 2006, you stole $2,000 from the Cayman Islands Crises (sic) Centre, namely by writing a Cayman Islands Crises Centre cheque for that amount in your maiden name and subsequently cashing it." The second and third charges were identical except that they alleged the theft of $1,500 and $2,500 on September 28th and October 31st, 2006 respectively.
The crux of the case for the Crown was presented by Mr. Lendell Layman, the Chairman of the Board of the Cayman Islands Crisis Centre. He said that Ms. Bovell-Swanson worked on the night shift at the Centre and, when the Executive Director left in July, 2006, was appointed Acting Executive Director. Although Ms. Bovell-Swanson did not have authority to sign cheques on behalf of the Centre, it was customary for her to fill out the cheques and present them to board members for signature. The degree of trust reposed in her was such that the board members did not feel the need to question the cheques before signing them.
The three cheques in question were made out by Ms. Bovell-Swanson herself and made payable to "Ingrid Welch." That is her maiden name, a fact which was entirely unknown to any of the board members (including Mr. Layman) who were invited to sign the cheques. It was admitted that Ms. Bovell-Swanson cashed the cheques and used the proceeds for her own purposes.
In her defense, Ms. Bovell-Swanson testified that the three cheques represented legitimate payments to her for consulting services which had been agree upon in advance by Mr. Layman. She said that she has a Bachelor of Science degree in social work, a Masters degree in human resource management, and a Law degree with honours. While working at the Crisis Centre at night, she was going to law school during the day.
Upon her appointment as Acting Executive Director, she had a discussion with Mr. Layman (who was speaking for the board) about her terms of employment. She said that she considered the salary too low in light of her qualifications. She made reference to “the bad state of the Centre” and pointed out that it “was beyond the stated duties of the Executive Director” to “improve conditions” there. Ms. Bovell-Swanson says she told Mr. Layman that she would do her best to improve those “deplorable” conditions and proposed that she should be paid an additional “consultancy fee” for this work. She asserted that Mr. Layman agreed upon a fee of “between $2,000 - $3,000 per month” for “a maximum period of three months.” She then said that the two of them came to an agreement as to how these payments should be made. Every pay period “or so” Ms. Bovell-Swanson would submit a cheque payable to “Ingrid Welch” and present it for signature. As to the use of her maiden name on the cheques, Ms. Bovell-Swanson said that this was done to conceal the arrangement from other board members and from the person who would ultimately be hired as Executive Director.
She said she was not interested in obtaining a permanent appointment as Executive Director. The arrangement was to be concealed from the other board members because it represented additional remuneration of which they would not approve; it was to be concealed from the new appointee to avoid the possibility that this person might insist on the same arrangement for herself. The salary paid to Ms. Bovell-Swanson during her tenure as Acting Executive Director was $3,500 per month. Thus, the alleged oral agreement to pay her a consulting fee virtually doubled her remuneration.
When asked about the additional duties she had performed which fell outside those which might be expected of the Executive Director by virtue of her position, Ms. Bovell-Swanson said that she met with the Fund-Raising Committee whenever they wanted to meet, she arranged to get some flowers to brighten up the Crisis Centre, and she worked on weekends at the Centre to clean the place up and attend to a sewage problem. She also described a report she had written on “marketing strategy” and a PowerPoint presentation on the same subject which she made to the board of directors.
Mr. Layman rejected categorically the assertion that he had entered into a separate, oral agreement with Ms. Bovell-Swanson to pay her additional remuneration. He accepted that she had raised with him the fact that she felt the salary was too low but denied that there was any discussion about consultancy work, overtime pay, or any remuneration beyond the usual salary. He said he had no authority to vary the terms of her employment. Mr. Kyle McLean, another board member who also signed the three cheques, emphasized that the board had a great deal of trust in its Acting Executive Director and that there was “no proper accounting system.” The Learned Magistrate did not believe Ms. Bovell-Swanson’s evidence (which was unsupported by any other evidence), and found that the Crown had proved its case on all three charges. The first three grounds of appeal concern events which occurred immediately after the Crown closed its case. Ms. Bovell-Swanson argued that there was no case to answer because the Crown had failed to prove a necessary ingredient of the offence of theft. Citing Regina v. Kohn (1979) 69 Cr App R 395 (Court of Appeal), she said that the charges were defective because they should have, but did not, alleged the theft of a chose in action, i.e., the debt owed by the bank to its customer, the Crisis Centre. For further elaboration on this point, see R. v. Williams [2001] Crim LR 253 (Court of Appeal); R. v. Ngan [1998] 1 Cr. App R 331 (Court of Appeal); and “Checks and Balances”, Russell Heaton, Criminal Law Review, 2005, page 747. The Learned Magistrate accepted this argument. She then rejected a submission by the defendant opposing any amendment of the charges and “invited” the Crown to amend them (Reasons for Judgment, page 121).
The Crown has asserted before me that no request was made by it at any time for an amendment. The record supports that assertion. It contains no indication that the defendant was asked to plead to amended charges (as is required by section 74 (1), Criminal Procedure Code, 2006 Revision) or that any amendments were reduced to writing and made a part of the record. I have searched through the record in vain for some clear exposition of how the charges, in their “amended” form, are worded.
The Learned Magistrate then turned her attention to a further submission by Ms. Bovell-Swanson that there was no case to answer to the charges in their amended form. That submission was accepted. The Crown had already asked for leave to re-open its case, a request which the defendant opposed. The Learned Magistrate decided that the request should be granted. The Crown then re-called Mr. McLean, who said that he was Treasurer of the Crisis Centre at the material time and that the three cheques were honoured by its bank. This evidence was intended to remove the difficulty identified in the authorities mentioned above.
After convicting the defendant, the Learned Magistrate sentenced her to imprisonment for twenty-one months on each count, the sentences to run concurrently.
In summary, the defendant has been convicted and imprisoned on three “amended” charges in circumstances where the Crown never requested an amendment, the amendment has not been reduced to writing, and the defendant was not re-arraigned, in contravention of the mandatory requirements of section 74.
I accept that a court may order the amendment of a charge or an indictment on its own motion, even in circumstances where the Crown does not wish that to happen. It is, however, essential that any amendment of substance be reduced to writing so that the parties and the court understand clearly what it is that the Crown must prove. A charge cannot be amended in the abstract; the party seeking the amendment should propose express wording. If the court amends a charge of its own motion, the presiding judge or magistrate should ensure that the wording of the amendment is made clear to both parties. All amendments, even trivial ones, must form part of the written record. While a failure to follow the re-arrangement process mandated by section 74 may be excusable in the case of very trivial amendments, such as those which correct a typing or spelling error, there was no justification for a failure to follow it here.
Without a clear understanding of the final wording of the charges, I am unable to resolve the remaining grounds of appeal. The collective impact of these irregularities satisfies me that the convictions cannot stand.
The Crown has asked that, should the convictions be set aside, I order a re-trial in the Summary Court. Section 181 of the Criminal Procedure Code (2006 Revision) authorizes me to do that.
The flawed process which I have described can be attributed partly to Ms. Bovell-Swanson's attorney (who was not her attorney on the appeal), who advanced an argument against the Crown's right to amend when the Crown had made no such application. He anticipated an argument which was never made and contributed to the confusion. Given the position of trust in which the defendant was placed, the charges of theft are relatively serious. The evidence was not at all lengthy. In light of these considerations, I am persuaded that the proper disposition of this appeal is to order a re-trial on all three counts, which I now do. Dated this 2nd day of March, 2010 Henderson, J. Henderson, J. Judge of the Grand Court