Anderson Ryan Ince v The Queen
| Jurisdiction | Barbados |
| Judge | Narine JA |
| Judgment Date | 02 November 2022 |
| Neutral Citation | BB 2022 CA 1 |
| Docket Number | Criminal Appeal No. 10 of 2018 |
| Court | Court of Appeal (Barbados) |
| Year | 2022 |
The Hon. Rajendra Narine, The Hon. Francis Belle and The Hon. Jefferson O. Cumberbatch, Justices of Appeal
Criminal Appeal No. 10 of 2018
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
Ms. Angella Mitchell-Gittens in association with Mr. Martie Garnes for the Appellant
Ms. Olivia Davis in association with Ms. Asante Brathwaite for the Respondent
On the 17 October 2017, the appellant was found guilty of the offences of theft and money laundering of BDS$1,118,500 belonging to the Psychiatric Hospital. He was sentenced to a term of 10 years on each count, less 254 days spent in custody, to run concurrently from the date of sentence, 13 June 2018.
The appellant was employed as an Accounts Clerk at the Psychiatric Hospital, which afforded him access to the computer system known as “smartstream”. It was the prosecution's case that the appellant used his knowledge of the system, and the confidence of his senior officers to dishonestly obtain the sum of $1,118,500, which he then used to acquire expensive items such as motor cars and jewellery.
The appellant elected not to give sworn evidence or to call witnesses on his behalf. Instead, he gave an unsworn statement in which he admitted that he was an accounts clerk and his duties included the creation of local purchase orders (LPO), and the entry of these orders into the system. However, before the LPO is created, requisitions must be made by the Senior Store Keeper and the head of the Maintenance Department, and submitted to the accounts section for approval by the accountant and the senior accountant. When the goods or services are delivered, the invoices are attached to the LPOs and submitted to the accounts section for verification by the accountant and the senior accountant. They are then handed to the accounts clerk who enters them into the system. To access the system, one needs to enter a password created by the user and known only to him. To access the smartstream system, one needs to enter another password known only by the user. After the LPOs are entered into the system, vouchers are created based on the invoices and the list is sent to the accountant and senior accountant for approval.
An important aspect of the defence was that as a clerical officer the appellant was not involved in the assignment of suppliers, the approval of requisitions or the verification of vouchers, which required the input of the accountant and the senior accountant.
The accountant and senior accountant gave evidence that they had often accessed their password in the presence of the appellant.
The prosecution's case was that the appellant was able to have the names Anthony Nurse and Terry Ann Badenock entered into the system as suppliers, and that the appellant often volunteered to collect payable orders from the Treasury, although it was not part of his duties to do so. The evidence revealed that the payable orders to Nurse and Badenock were in batches collected by the appellant. An audit conducted for the financial years 2004 and 2005 revealed that there was no documentation supporting the 42 payments made to Anthony Nurse, and the two payable orders in favour of Badenock.
Anthony Nurse did not give evidence at the trial. He disappeared after the irregularities were discovered. However the prosecution put into evidence several cheques and payable orders made in favour of Anthony Nurse, and established that at least on one occasion, one such cheque was presented to the teller at the Wildey Branch of CIBC First Caribbean International Bank, and deposited to the account of Anthony Nurse.
Ms. Badenock, however, gave evidence that the appellant had solicited her assistance, in return for which he helped her financially. The appellant had told her that he was involved in selling vegetables. She assisted the appellant in receiving the proceeds of two cheques payable to her in the sum of $20,000.00 and $10,000.00.
In his unsworn statement the appellant stated that his only connection with Anthony Nurse was seeing him at the hospital where he was engaged as an electrician. As for Ms. Badenock, he stated that he assisted her with small donations to purchase groceries and pay utility bills. That was the extent of his relationship with her.
Ground 1
The learned trial judge failed to adequately remedy the prejudice caused to the appellant by the prosecution's emotionally charged and inflammatory closing address.
Ground 2
The learned trial judge erred in law by allowing the prosecution to admit evidence which was more prejudicial than probative.
Ground 3
The learned trial judge erred in law in directing the jury on the standard and burden of proof.
Ground 4
The learned trial judge erred by failing to direct the jury with respect to the requisite standard of proof with respect to each element of the offence.
Ground 5
The learned trial judge erred in law by misdirecting the jury as to what constituted evidence of money laundering.
Ground 6
The learned trial judge erred in law when she misdirected the jury as to the approach to take when identifying discrepancies.
Ground 7
The learned trial judge erred in the following ways when sentencing the appellant:
Ground 8
The verdict is unsafe and unsatisfactory.
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i. In the manner in which the breach of trust was analyzed.
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ii. Failing to appropriately take into account the mitigating factors in her sentencing remarks.
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iii. Failing to take into account the excessive delay between charge and conviction.
The appellant contends that the prosecutor made emotionally charged and inflammatory remarks in her closing address which the trial judge failed to address in her summing up, as a result of which the verdict is unsafe.
The remarks which form the basis of the complaint are:
(i) “He used his computer savvy, his technological intelligence and he raped the government system in Barbados….”
(ii) “The only person who does not have either an intimate relationship with him or a personal relationship with him, thank God she knew how to do her job was Ruth Francis, and if it was up to me, she would have an award or she would get some kind of increase….”
(iii) “That thing nearly broke my heart, when I was outside I quarrel with Mr. Seale and Mr. Thomas so bad, you would think it was me. I say that man could be serious? That is what he said in his …. Terryann Badenock did him a big favour man, twice. Wrote cheques for him on the phone, took instructions. She was just a lady in need and I have a soft spot for her because of the season that this man found her in.”
(iv) “You know he made her take a bus home. The least you could do, you send a taxi for a woman 'cause you want something done, you got to look at these things. This is a man that sits in the dock, that is the kind of person he is. He ropes in a woman to do his dirty work and when it is done the woman got to take the bus all the way back to St. Peter. I have a problem with that, but she is just good for donation.”
It is well settled that a prosecutor must conduct himself as befitting his role as a Minister of Justice. His role is not to seek to secure a conviction at all costs. He must not be unfair to the accused. This does not mean that he is required to be bland and uninspiring in his presentation. He is entitled to be forceful and robust in his cross-examination and address, as long as he does not cross the line and make use of inflammatory or emotionally charged comments, which may deflect the jury from a sober and dispassionate consideration of the evidence. Effective prosecutors often possess a certain dramatic flair which they use to hold the attention of the jury. In Caribbean jurisdictions, prosecutors often deliver their addresses in a flamboyant style using the local vernacular to connect with the jury. This is entirely proper and acceptable. However, prosecutors must always conduct themselves with propriety and sobriety, befitting the dignity of the court. ( See: Benedetto v. R (2003) 62 WIR 63 PC; Huggins and Others v State [2009] 2 LRC 295).
In Randall v R [2002] 5 LRC, a Privy Council appeal from the Cayman Islands, Lord Bingham noted that it was not every departure from good practice which renders a trial unfair. He went on to state at para 28:
“Inevitably, in the course of a long trial, things are done or said which should not be done or said. Most occurrences of that kind do not undermine the integrity of the trial, particularly if they are isolated and particularly if, where appropriate, they are the subject of a clear judicial direction. It would emasculate the trial process, and undermine public confidence in the administration of criminal justice, if a standard of perfection were imposed that was incapable of attainment in practice. But the right of a criminal defendant to a fair trial is absolute. There will come a point when the departure from good practice is so gross, or so persistent, or so prejudicial, or so irremediable that an appellate court will have no choice but to condemn a trial as unfair and quash a conviction as unsafe, however strong the grounds for believing the defendant to be guilty.”
The question is whether the remarks of the prosecutor were “so gross, or so persistent or so prejudicial, or so irremediable” as to render the trial unfair or the conviction unsafe.
There can be little doubt that the prosecutrix was forceful in her address, and painted an unflattering portrayal of the accused, as a manipulative and selfish individual who used others, particularly vulnerable women to achieve his fraudulent purposes. While her language was at times strong, we do not believe that the prosecutrix crossed the line and descended into unfairness. Her comments,...
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