Court of Appeal
Criminal Appeal No. 6 of 1997
8th May, 1998

APPEARANCES:

Mr. L. Sooknandan for Appellant
Mr. Adolph Lucas, D.P.P. for Crown.

Appeal against convictions and sentences for forgery, obtaining property by deception, and possession of false documents ? corroboration of evidence of accomplice ? Section 90(4) of Evidence Act, Chapter 75 ?judge must not merely warn jury that they cannot convict without corroboration, he must identify what evidence could amount to corroboration ? judge omitting important link in chain of corroboration ? question whether a reasonable jury, properly directed, would inevitably arrive at the same conclusion? court not so satisfied ? not a case for application of proviso ? appeals allowed ? convictions and sentences set aside ? retrial ordered.

J U D G M E N T

On the 21st July, 1997 the appellant was convicted on three counts of a four count indictment. These were forgery, contrary to sec. 179(l)(a) of the Criminal Code Cap. 84, obtaining property by deception, contrary to sec. 159 of the Criminal Code Cap. 84, and possession of false documents contrary to sec. 186 of the Criminal Code Cap. 84. Each of the offences was alleged to have taken place between the 12th and 14th June 1995 and the subject matter was two U.S. postal money orders each purporting to have a value of U.S. postal money orders each purporting to have a value of U.S. $700.00. The indictment had included a fourth count for the offence of theft but as there was no evidence led to support it the learned trial judge directed the jury to return a formal verdict of not guilty in respect thereof.

The particulars of the first count had charged the Appellant with forgery of the twelve U.S. postal money orders which were designated by their numbers, each purporting to have a value of U.S. $700.00, knowing them not to be genuine with intent to defraud the Government of Belize. The particulars of the second count had charged him with dishonestly obtaining $16,653.00 from the Government of Belize with the intent permanently to deprive the Government thereof by deception, the deception being his false representation that the same twelve money orders had the value of U.S. $700.00 each, when he knew that the orders were not genuine. The particulars of the third count charged the Appellant with possession of the said money orders each purporting to be valued U.S. $700.00 knowing the same not to be genuine. However, in the event, the prosecution was only able to prove that two of the twelve money orders were not genuine and on his conviction the appellant was ordered to pay a fine of $7,000.00 on each count together with costs to the prosecution which were fixed in the sum of $2,000.00. He now appeals against his convictions and sentences.

When presented the indictment had charged not only the appellant but also his brother, Hadrian Hertular, but at the close of the Crown's case counsel on behalf of the latter successfully submitted that the prosecution had failed to make out a case against him on any of the counts and the trial judge directed the jury to return a formal verdict in respect of each of them.

The case for the Crown was as follows: The Appellant and his brother had possession of twelve United States of America postal money orders, each valid for the sum of ten dollars. They however devised a scheme to change the value of each of them from $10.00 to $700.00 and used a decoy to encash them at the post office. The detailed execution of the plan was as follows: By some chemical means the Appellant removed or erased the figures and symbols $10.00 from the orders and substituted $700.00 in their place. About the 9th June, 1995 he sought out Noel Foster a computer technician and programmer and asked him for certain information concerning computers. He left but returned some day or two later with his brother and handed him a piece of paper on which was printed the figure 10, an asterisk and two ciphers, and requested that he change the '10' to '700'. The witness agreed to do so and the Appellant and his brother returned about 5:30 to 6:00 p.m. by which time Foster had made the changes with the aid of his computer equipment, and he gave them what he described as a print out which had three copies of what he had done. They expressed satisfaction and left with the print out. A day or two after the appellant and his brother returned to him and asked whether he could effect similar changes on a piece of film which contained the figure '10', three dollar signs, the word 'and' and two ciphers. Their main enquiry was whether he could convert the figure '10' to '700' as he had done on the previous paper. This entailed changing the dollar sign, inserting a figure '7', changing the figure '1, placing two cyphers in its place, and an 'and' and two other
cyphers. He also requested to insert some vertical lines across the figures. Using his computer he was able to effect these changes in about five minutes and he gave the results to the Appellant and his brother. He did not require any payment for his work and gave as his reason his hope that they would eventually have placed an order for the purchase of computer equipment with him. He kept a copy of his work in his computer and when the police eventually made enquiries of him he gave them a copy. However at the trial he was not asked to compare the copy with the number symbols and letters on the two documents that were proved to be forged.

The next bundle of evidence of importance came from Carla Cabral and the employees of the post office where the alleged forged money orders were cashed. Carla Cabral testified that on the 11th June, 1995 the Appellant asked her to cash four money orders which he said he had received from his sister in Los Angeles, and on the following day he and his brother brought four money orders to her each for a sum of $700.00 and payable to Faye Reyes. They took a photograph of her and said they intended to laminate a driver's licence. The next morning the appellant gave her a driver's licence in the name of Faye Reyes with her photograph in it. He took her by motor car to the Post Office where she cashed the money orders, returned to the motor car and gave the money to the Appellant who was waiting nearby. He gave her $600.00. Two days later he gave her three other orders to encash but the cashier to whom she had presented them referred her to the accountant whom she knew and the orders were returned to her uncashed. Evidence was also led through Marcia Lucas, the cashier and Emily Guy, the accountant, who substantiate the happenings at the post office. Eventually Carla Cabral was arrested and gave a statement which led to the arrest of the Appellant, his brother and a third person, all of whom were later charged. In the meanwhile two of the orders had been sent to the U.S.A. where they were examined by Susan Fortunato, a document analyst attached to the American secret service. This person testified that from the tests that she had carried out she came to the conclusion that the amounts stated on the orders had been changed from $10.00 to $700.00. It is based on the above evidence that the jury found the Appellant guilty. Pivotal to his conviction was the evidence of Carla Cabral who was clearly an accomplice, and counsel's main grounds of appeal are all concerned with what he submits were the inadequacies of the trial judge's summing up on the issue of corroboration. More particularly they are:

1 . The learned trial judge failed to direct the jury adequately and properly on corroboration as is required by s. 90(4) of the Evidence Act Cap. 77 in that:

(a) he identified pieces of evidence to the jury which were not capable of constituting corroboration,

(b) he misdirected himself on the role of the judge and jury in considering the evidence of corroboration;

2. The learned judge failed to identify separately evidence as may
amount to independent corroboration of the prosecution's witness with regard to the counts of obtaining property by deception and possession of false documents.

3. The learned judge failed to identity the witness Noel Foster as an accomplice and accordingly the Appellant was entitled to an acquittal if the jury had so found.

There was a fourth ground of appeal, viz, that the verdict was unreasonable and could not be supported having regard to the evidence, but this ground was not argued.

Sec. 90(4) of the Evidence Act, Cap. 75 reads as follows:

"In a trial before any court, a person shall not be convicted solely on the uncorroborated evidence of an accomplice, and the judge shall direct the jury that the accused is not to be convicted unless there exists confirmation of the accomplice's evidence in a material particular by some fact or circumstance implicating the accused in the commission of the crime."

As was rightly stated in the unreported case of Orceneo Flores v R. Cr App No. 16 of 1980 "This section differs from the English law" (see R v Baskerville (1916) 2 KB 658) "where the warning against convicting on the uncorroborated evidence of an accomplice must ??? be given but where the jury is entitled to convict on such evidence once they are convinced of its truth." As regards grounds one and two of the grounds of appeal, counsel on behalf of the Appellant submits that although the learned trial judge did tell the jury what was corroboration and in conformity with sec. 90(4) directed them that they could not convict the appellant on the evidence of Carla Cabral unless it was corroborated, he failed to identify the pieces of evidence that were capable of amounting to corroboration.

We agree that merely to warn the jury that they could not convict the Appellant on the evidence of Carla Cabral alone would not be an adequate direction. A trial judge must do more and assist the jury by identifying what evidence could amount to corroboration. He said:

"Corroboration is independent evidence, that is evidence that does not come from Carla Cabral herself who is an accomplice. It comes from other independent witnesses and this evidence confirms in some important respect not only that the crime was committed but also that the accused Hertular committed it."

He also said that it was for him "to point out to (them) the type of evidence which if (they) accept it is capable of independently confirming Carla Cabral's evidence", but it was for them as jurors "to decide whether (they) want to accept it or not." And he continued:

"Now if at the end of the day??you conclude that the pieces of evidence which I will highlight are not capable of confirming Carla Cabral's testimony and are not proved to your satisfaction, it simply means that there is no corroboration of her testimony and you will have to return a verdict of not guilty."

The learned trial judge went on to identify the evidence of Noel Foster who testified about transposing $700.00 over $10.00 at the request of the Appellant and the evidence of Susan Fortunato who said that the two money orders that she had examined showed that $700.00 was transposed over $10.00 together with the evidence of the postal officials as capable of corroborating the evidence of Carla Cabral.

As regards Foster's evidence the learned trial judge said:

"Now this is the evidence which the prosecution has said if you believe it (sic) to corroborate the evidence of Carla Cabral. They are saying if you look at the evidence of Noel Foster there is some evidence from which you can come to the conclusion that the changes 10 to 700 was done albeit innocently by Noel Foster. The change was done from 10 to 700 and that is how the U.S. postal order was changed in that way. It was Noel Foster who did the alteration for the accused Robert Hertular. Members of the jury, you can take that evidence in anyway you see it fit. In my view that piece of evidence tends to be tenuous but it is entirely up to you to decide what credibility you will give to it."

He then went on to direct their attention to the evidence of Susan Fortunato, the contents of which he said could also be used as corroborative of the evidence of Carla Cabral. But he also directed them that none of the other evidence led by the prosecution, except that of the postal officials, was capable of amounting to corroboration. This would have included the evidence of the police personnel who tendered several bits of equipment and other material taken from the home of the Appellant and his brother. However, he instructed them, and quite rightly in my view, that the evidence of Foster and Fortunato only corroborated Carla Cabral as to the forgery and that the prosecution was also required to prove in respect of the first count corroboration of Carla Cabral's evidence as regards the Appellant's intention to defraud, and in respect of the second count his knowledge of the deception, and of the third count, his possession of money orders that he knew were not genuine.

He said:

"So if you accept the evidence of Carla Cabral and you accept that there is evidence of corroboration, Hertular through Cabral in tendering the orders to be cashed caused a prejudice to the Government of Belize, she caused a detriment to the Government of Belize. The Government lost revenue by cashing those U.S. postal money orders. So if you accept that evidence you may come to the conclusion that a fraud was in fact committed because there was an intention to defraud the Government of Belize."

And later he said:

"Now what is the evidence which the prosecution has tendered from which you can draw the inference that the accused intended to defraud the Government of Belize? This evidence members of the jury, comes from Carla Cabral who testified that the accused gave her the orders, the U.S. postal money orders, to cash, she cashed them and the accused gave her $600.00 as payment ??. And you will resolve that matters members of the jury, always bearing in mind that the evidence of Carla Cabral has to be corroborated by an independent source. Also bearing in mind that there is some evidence of corroboration with respect to that portion of Carla's evidence which relates to the cashing of the cheques and that evidence comes from Emily Guy and Marcia Lucas and of course there is also the evidence of Noel Foster with respect to alteration of the U.S. postal money orders."

This latter observation was clearly a misrepresentation of the facts as there is no evidence that Foster played any part in alteration of the orders. But more to the point the presentation of the orders for encashment to the postal officials can hardly be corroboration of Cabral's evidence that it was done at the behest of the appellant. However it may well be that the evidence of another witness, Sherlett Andrews in conjunction with the evidence which corroborates the forgery did amount to some evidence of corroboration of Carla's evidence as regards the Appellant's intention. Sherlett Andrews had visited Carla Cabral after she was detained at the police station and Cabral had asked her to speak to the appellant. She met him and told him that Carla was in trouble. He responded that he had already sent his girlfriend to talk to Carla and should Andrews see her again she should tell her not to say anything as he intended to retain the services of a lawyer to represent her. She also told him that Carla had told her that she had told the police everything as she was afraid to go to jail. This discussion coupled with the evidence of Noel Foster and Susan Fortunato may well be considered confirmatory in a material particular of Cabral's evidence that it was the Appellant who had given her the forged money orders to encash and so had the necessary intent to defraud and/or to deprive by deception. But the trial judge omitted to leave this collocation of evidence for the jury's consideration as corroborative of Cabral's evidence as to the appellant's possession and his intention. We shall shortly consider the effect of this omission.

With regard to the second ground of appeal, a perusal of the summing up indicates that the trial judge did deal with the evidence as regards corroboration in relation to each count separately. Admittedly he did this in shorter compass than when dealing with the first count, but he made it quite clear that as with that count the central figure in the other two was Carla Cabral and that the corroborating evidence if any came from Noel Foster, Susan Fortunato and the postal officials.

The third ground of appeal challenges the failure of the trial judge to direct the jury that Noel Foster was himself and accomplice, in the sense, no doubt, that he may have been an accessory before the fact or an abettor under sec. 19 of the Criminal Code Cap. 84. With due respect to counsel however, in our opinion, the evidence falls short of permitting of any such inference. We fail to see how the mere converting of the sign and figures $10.00 to $700.00 on a piece of paper or film without more, could make him an accessory to or an abettor of the offences charged. There was no evidence that he was other than an innocent party or that he knew or could have known the purpose of the requests, let alone that the changes were intended to be used to falsify postal money orders. In this regard in the case of Johnson v Youden (1950) 1 KB 644 Lord Goddard CJ had said that "before a person could be convicted of aiding and abetting the commission of an offence he must at least know the essential matters which constitute the offence." Accordingly, this submission must, in our view, fail.

We now return to the trial judge's failure to direct the jury that the evidence of Sherlett Andrews in combination with that of the other witnesses we have already referred to could have amounted to corroboration of Carla Cabral's evidence as regards the issues of possession; the intention to defraud and dishonestly obtaining money. The learned trial judge on more than one occasion instructed the jury in the charges of forgery and obtaining the money dishonestly that an intent to defraud was an essential ingredient of each of the offences. However by failing to refer to the evidence of Sherlett Andrews, in our opinion, he omitted an important link in that chain of corroboration. The only remaining issue, therefore is whether notwithstanding that omission this is a fit case to invoke the proviso to sec. 31 of the Court of Appeal Act Cap. 73. This provision, as is well known, permits for the dismissal of an appeal if the court considers that, notwithstanding a point in favour of an Appellant, no substantial miscarriage of justice had actually occurred. A decision in this regard would normally depend upon whether the omission resulted in the Appellant losing a chance of acquittal that was fairly open to him.

In R v Lewis (1937) 4 All ER 360 the court refused to apply the proviso in a case in which there was corroboration coming from the accused himself, because it was not satisfied that the corroboration was of such a manifestly cogent nature that had the jury been properly directed they would still have convicted the Appellant. At p. 364 Lord Hewitt CJ said:

"The question for this court is: Does there exist in this case corroboration of such manifest cogency that the conclusion is not to be resisted that the jury, properly directed, would certainly have arrived at the same conclusion. Evidence there was, strong evidence there was, but in the opinion of this court the evidence was not so strong as to enable us to say that the jury must inevitably have convicted if the chairman had not inadvertently omitted to give a proper direction."

The issue in every case where there is corroboration, and the application of the proviso arises because of non?direction, is whether a reasonable jury, properly directed, would inevitably arrive at the same conclusion. (see Davies v DPP (1954) 1 All ER 507 at 512). In the present case it was for the jury, if they believed the evidence of Sherlett Andrews tenuous as its connection would appear to be to decide of in combination with the other evidence of corroboration it was sufficient to corroborate Carla Cabral's evidence regarding the possession and intention of the Appellant. In failing to invite the jury to take this evidence into account the trial judge deprived them of that opportunity, and we are not satisfied that had he done so they would have inevitably come to the same conclusion. And needless to say if they did not think that they could act on that evidence then by virtue of sec. 90(4) of the Evidence Act they would have been bound to acquit.

We would therefore allow the appeals and set aside the convictions and sentences, but in all the circumstances we think this is a fit case for a retrial and we so order.

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