The Court of Appeal quashed the prison sentence imposed on Lyndon Martin last July and substituted a community service order for 120 hours.
Mr. Martin had been convicted in April 2008 of three counts of obtaining property by deception. The Court overturned one conviction because it related to a complainant whose statement was read to the jury.
The remaining convictions do not affect Mr. Martin’s candidature for a seat in the Legislative Assembly. Even if the sentence had not been disturbed he would not be automatically disqualified to serve as an MLA. The Constitution says a sentence must exceed 12 months: his original sentence was eight months.
The Court of Appeal said the trial judge’s decision to allow a witness statement to be read was premature. The complainant, Weldon Shaw, was a Jamaican national who was back in Jamaica. The judge said it was not reasonably practical to obtain his attendance on the day of her ruling.
The evidence was that Mr. Shaw had an arrangement for the care of his two small children so that he could come to Cayman, but that arrangement fell through the morning of the trial.
Court of Appeal President Sir John Chadwick said the trial judge was correct in concluding that Mr Shaw could not come to Cayman that day, but she failed to consider whether he could come later. She failed to explore whether other arrangements could have been made.
Under those circumstances the statement should not have been admitted into evidence. Since it was crucial to the charge of obtaining $350 by falsely representing that the money would be used for an application to the Immigration Department, the conviction was quashed.
That left two counts of obtaining by deception – sums of $250 and $475. These were received from Clint Adolphus Myrie, long-time friend of the defendant.
The trial judge passed sentence on the basis that the offences involved a breach of trust. She said: ‘Mr. Martin was perceived to be a man with the requisite power and position to help them and to my mind he took advantage of that perception.’
Her comment was a reference to the defendant’s term as a Member of the Legislative Assembly for Cayman Brac and Little Cayman, November 2000 to May 2005. The charges against him related to a period between July 2005 and April 2006.
The Court of Appeal said there was a real difference between Mr. Shaw and Mr. Myrie.
Mr. Myrie was an old friend of the defendant and undoubtedly trusted him, but having regard to the relationship between them it was difficult to see that Mr. Martin was in some way exploiting his position in the community.
‘The reality is that Mr. Myrie probably would have trusted him anyway.’
In these circumstances the offences were not breach of trust; they were obtaining by deception and a custodial sentence was not required, Sir John concluded.
He heard the appeal with Justice Ian Forte and Justice Abdullah Conteh.
The appeal was presented by Trevor Burke QC, instructed by Attorney Phillip McGhee. Crown Counsel John Masters responded on behalf of the Crown.