Vonda Minerva Pile v The Commissioner of Police &
| Jurisdiction | Barbados |
| Judge | Gibson CJ |
| Judgment Date | 26 November 2019 |
| Neutral Citation | BB 2019 CA 26 |
| Docket Number | Criminal Appeal No. 13 of 2019 |
| Court | Court of Appeal (Barbados) |
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL
CRIMINAL DIVISION
The Hon. Sir Marston C.D. Gibson KA, Chief Justice
Criminal Appeal No. 13 of 2019
Appeal from Indictment No. 9 of 2016
Mr. Andrew Pilgrim QC for the Applicant
Ms. Krystal Delaney for the Respondents
Bail - Bail pending appeal — Attorney misconduct — Whether appeal process would surpass sentence — Whether there were any exceptional circumstances which would justify grant of bail — The State v. Lynette Scantlebury (1976) 27 WIR 103 — Sinanan et al v. The State (No. 1) (1992) 44 WIR 359 — R v. Watton (1979) 68 Cr App Rep 293.
This is an application of Ms. Vonda Minerva Pile (“Ms. Pile”) seeking bail pending appeal. At the hearing on October 2, 2019, I refused the application and promised to give written reasons. The following are those reasons. I should also add that, at the date of hearing, my oral decision had simply relied on the well-known decisions of The State v Lynette Scantlebury, (1976) 27 WIR 103, and Krishendath Sinanan et al v The State (No. 1) (1992) 44 WIR 359, without the benefit of the trial record. The trial record has since been prepared and has been made available to me.
Although the trial transcript has been prepared and been made available, as I noted above, I desire, for obvious reasons, to say as little as I can about the circumstances of the offence. Accordingly, the facts are taken from the brief remarks of Beckles J at the sentencing rather than from the trial transcript.
Ms. Pile, an attorney of some 27 years' call, was arraigned on 21 May 2019 on charges of theft, contrary to section 3(1) of the Theft Act, Chapter 155 and money laundering, contrary to section 3(l)(b) of the Money Laundering and Financing of Terrorism (Prevention and Control) Act, Chapter 129. She pleaded not guilty.
The particulars of the two offences are that sometime between 29 April 2009 and the 26 October 2010, in the parish of St. Michael, in this Island, she stole USD $96,008.22, equivalent to BDS $192,416.39 belonging to Anstey King (“Mr. King”); and that sometime between those same dates, she engaged in money laundering, that is, she disposed of the money. Following the trial before Beckles J and a jury, she was found guilty on 4 June 2019 of the offence of theft and not guilty of the offence of money laundering.
Beckles J referred to the testimony of the complainant, Mr. King, who had testified at trial that he was a Barbadian who had resided in Brooklyn, New York, USA for many years and had intended to retire and relocate to Barbados. Sometime in 2009, he retained Ms. Pile to assist him with the purchase of a piece of land. Ms. Pile had shown him a piece of land located at Maxwell, Christ Church, and he decided to purchase the parcel of land. Documents were sent to him in the United States of America, which he signed and sent back to Ms. Pile in Barbados. Mr. King also sent money to Barbados in order to have the transaction completed, and the money was received into Ms. Pile's accounts. The total was approximately USD $145,000.00 or about BDS $290,000.00.
In March 2010, on a visit to Barbados, Mr. King was shown a piece of land by a land surveyor. Mr. King immediately recognised that it was not the same piece of land which Ms. Pile had shown to him and which he had agreed to buy. Dissatisfied, Mr. King asked for a refund of the money which he had sent to Ms. Pile. Ms. Pile refunded him only USD $48,000.00 or about BDS $96,000.00 of the approximately USD $145,000.00 which he had originally paid over to her.
Mr. King desired to recover the balance of his money and made several efforts to do so. He retained another attomey-at-law to assist him in recovering the balance of his money and made a complaint to the Disciplinary Committee of the Bar Association but to no avail. When these efforts failed, he reported the matter to the police and Ms. Pile was questioned, arrested and interviewed. She was later charged with theft and money laundering and convicted with the offence of theft as noted above.
On 4 June, Beckles J sentenced Ms. Pile to a term of imprisonment of three years imprisonment (1095 days), less the 94 days she had spent on remand as required by the decision of the Caribbean Court of Justice in Romeo DaCosta Hall v R [2011] CCJ 6 (AJ), for a total of two years and 271 days, or 1001 days.
In her Affidavit sworn to on 17 September 2019 in support of the Application, Ms. Pile stated that she was 55 years old and “currently on remand at Her Majesty's Prison, Dodds” (my emphasis; she is in fact incarcerated as a result of a sentence imposed on her and not on remand awaiting trial). She further deposes that she was convicted on 4 June 2019 and remanded in custody pending sentence. On 5 September 2019, she was sentenced to three years imprisonment, less the 94 days she spent on remand while awaiting sentence. She noted that she was a citizen of Barbados and had been domiciled in Barbados during her entire life. She further stated that she employed four people and had over 1,000 clients with ongoing matters.
Ms. Pile noted that she had no previous convictions and stated that she had been on bail for eight years pending her trial and, with the permission of the court, she had travelled off island numerous times always adhering to any and all bail conditions. She had always attended court when required to do so, and she stated that she had strong ties to Barbados, family, business and property.
Ms. Pile maintained her innocence of the charge, and indicated that she had been informed by her attorney that her appeal is likely to succeed but that the entire matter is unlikely to be resolved in less than three years.
Before me, Ms. Pile's counsel, Mr. Andrew Pilgrim QC, submitted that, in the circumstances of this case, there was a real danger that the appeal could very likely take as long as two years or more resulting in her being required to stay in prison for a little more than two years, thus resulting in irreparable injustice being meted out to Ms. Pile. He said that in the 15 years in which he has been conducting criminal appeals, he had not had one which was completed, from the filing of the notice to the delivery of the decision, within two years.
In what appeared to be a reference to the likelihood of success on the substantive appeal, he contended, citing The State v Lynette Scantlebury, supra, that the intention to permanently deprive was extremely difficult to prove and was not proved in this case. In relying on the case, the Applicant purports that there would be a chance of success in the pending appeal.
In Krishendath Sinanan et al v The State (No. 1) (1992) 44 WIR 359, 366, Bernard CJ had this to say about the inherent jurisdiction of the Court of Appeal to grant bail pending appeal:
In my opinion, the law in [Trinidad & Tobago] at any rate is that the court has no inherent jurisdiction to grant bail to a person convicted on indictment. In this regard, since early times it has been said that the jurisdiction to grant bail to a convicted person only exists if there is in support of it some statutory provision which defines not only the persons empowered to exercise it but also the manner in which it is to be exercised. In Re Lyttleton [1944] WN 24 Hallett J said:
‘In the case of a convicted person no justice or bench of justices and no judge or bench of judges had any inherent jurisdiction to grant bail. The jurisdiction, if it existed, must be found within some statutory provision which defined the persons on whom the jurisdiction was conferred, the extent of the jurisdiction, the manner in which it was to be exercised and the consequences of exercising it.’
This is equally true of Barbados. Hence, there is no inherent jurisdiction to grant bail pending appeal. The statutory conferral of jurisdiction is located in section 53 of the Supreme Court of Judicature Act Barbados Cap 117A of the Laws of Barbados which empowers the Court of Appeal to grant bail to a convicted person pending appeal. Section 53 (l)(a)(v) of the Act provides:
‘Subject to subsection (4) of section 60, a single judge of the Court of Appeal may exercise any of the following powers of the Court of Appeal under the Criminal Appeal Act, namely:
(a) under Part I, the power
….
(v) to admit an appellant to bail.’
Moreover, section 53(3) of Cap 117A provides that “[a]n appellant who is aggrieved by the decision of a single judge made under...
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