Anderson Ryan Ince v The State
| Jurisdiction | Barbados |
| Judge | Narine JA |
| Judgment Date | 15 December 2023 |
| Neutral Citation | BB 2023 CA 1 |
| Docket Number | Criminal Appeal No. 10 of 2018 |
| Court | Court of Appeal (Barbados) |
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 Games for the Appellant
Ms. Olivia Davis for the Respondent
On 8 July 2022, this Court allowed the appeal, and set aside the convictions and sentences. The issue as to whether a retrial should be ordered was adjourned upon the application of the Respondent.
On 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 13 June 2018, the date of sentence.
The appellant was employed at the hospital as an Accounts Clerk. The prosecution alleged that he used his position, and his knowledge of the smartstream system to dishonestly obtain the money, which he used to acquire expensive items such as jewellery and motor vehicles.
The offences were alleged to have been committed during the period 1 August 2003 to 1 August 2005. The appellant was charged on 13 July 2006 and indicted on 4 January 2016. The trial began on 19 September 2017 and was completed on 17 October 2017. Sentencing took place on 13 June 2018.
Ms. Davis has referred us to may authorities on the issue of the discretion to grant a retrial. The locus classicus is the decision of Reid v R (1978) 27 WIR 254, in which Lord Diplock suggested a non-exhaustive list of matters to be considered in exercising the discretion. These include:
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(i) the seriousness and prevalence of the offence;
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(ii) where the previous trial was prolonged and complex, the expense and length of the time entailed in a new trial;
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(iii) the ordeal which the accused is likely to undergo for a second time through no fault of his own;
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(iv) the length of time that would have elapsed between the commission of the offence and the new trial, if one is ordered and its effect on the availability and quality of the evidence;
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(v) the strength of the case against the accused, and
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(vi) the public interest in seeing that persons who have committed serious offences should be brought to justice.
In this case Ms. Davis stressed the seriousness of the offence which resulted in a loss of over $1 million to the State, the serious breach of trust involved and the public interest in seeing that justice is done. Ms. Davis further submitted that the case against the accused was a strong one, notwithstanding the fact that it was based on circumstantial evidence.
For the appellant, Ms. Mitchell-Gittens submitted that the ultimate question for this court to decide, is whether it is in the interests of justice to order a retrial. She relied heavily on the case of The State v Ashraf Haniff (1981) 29 WIR 190, in which the Court of Appeal of Guyana considered the principles enunciated in Reid. Counsel stressed in particular the delay in the prosecution of this matter and its effect on the appellant's right to a fair trial within a reasonable time as guaranteed by section 18(1) of the Constitution.
We will now examine the relevant considerations to be taken into account in the exercise of our discretion to order a new trial.
There can be little doubt that these are serious offences. The State has been defrauded of a sum in excess of $lm. The offence involves a serious breach of trust by an employee, who allegedly used his considerable knowledge of the smartstream system, and the intimacy and confidence of his superiors to accomplish his dishonest ends. While there is no specific evidence before this court on the prevalence of these offences, in recent years there have been cases brought before us, of substantial sums of money being dishonestly misappropriated by persons placed in positions of trust, and laundered by the miscreants. We cannot turn a blind eye to the frequency of such occurrences within recent times.
The previous trial lasted about a month. The state called some 52 witnesses. The matter involves a rather complex scheme allegedly employed by the appellant to have fictitious suppliers entered into the system, and ultimately receiving monies for goods and services which were not supplied. The legal issues involved were by no means simple ones for the determination of the jury. They required careful and detailed directions on the law relating to theft and money laundering and how the jury should examine the circumstantial evidence in the case. Having regard to the duration of the last trial and the multiplicity of the witnesses for the prosecution, a retrial will likely involve a substantial cost to the State.
The appellant was charged in 2006, for offences allegedly committed between 2003 – 2005. He had this matter hanging over him for about 12 years, when he...
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