Overturned conviction appealed

After Justice Alexander Henderson
set aside convictions against
Marlene Bovell-Swanson for theft, he ordered that the matter go back to Summary Court for
re-trial.

But Crown Counsel John Masters confirmed
last week that he had filed an appeal with the Cayman Islands Court of Appeal
in which he is arguing against the Grand
Court ruling.

Ms Bovell-Swanson was found guilty
after trial of the theft of $6,000 from the Cayman Islands Crisis Centre, where
she worked as acting executive director.
The three alleged thefts occurred in September and October 2006.

The magistrate found her guilty after
trial and imposed a prison term of 21 months (Caymanian Compass, 14 December
2008).

She was subsequently granted bail
pending appeal and the appeal was heard in December 2009. Justice Henderson
released his judgment on 2 March.

During her trial, Ms Bovell-Swanson
agreed that she had made out three cheques to herself under her middle and
maiden names. However, she maintained that this was done with the agreement of
the chairman of the board because her salary was too low and the cheques
represented additional payment for her work as a consultant.

Ms Bovell-Swanson explained that
the board was looking for a permanent executive director and did not want
applicants to know how much she was earning.

The chairman of the board gave
evidence during the trial and denied any agreement with Ms Bovell-Swanson to
pay her additional remuneration. There was also evidence that Ms Bovell-Swanson
was a trusted employee, so any cheques she presented for signatures would have
been signed without question.

The magistrate did not believe the
defendant’s evidence, and there was no other evidence to support it, Justice
Henderson noted in his judgment.

The appeal he heard against conviction was based partly on what happened after the Crown
closed its case in the trial. The defence attorney argued there was no case to
answer because the Crown had failed to prove a necessary ingredient in the charge
of theft.

The argument was that the charges
were defective because they should
have, but did not, allege the theft of a “chose in action”
– that is, the debt owed by the bank to its customer, which was the Crisis Centre.

“The learned magistrate accepted
this argument,” Justice Henderson wrote. “She then rejected a submission by the
defendant opposing any amendment of the charges and ‘invited’ the Crown to
amend them.

“The Crown has asserted before me
that no request was made by it at any time for an amendment. The record
supports that assertion. It contains no indication that the defendant was asked
to plead to amended charges (as is required…) or that any amendments were
reduced to writing and made a part of the record.”

The judge emphasised, “I have
searched through the record in vain for some clear exposition of how the
charges, in their ‘amended’ form, are worded.”

He summarised further that the
magistrate then agreed with the Defence that there was no case to answer to the
amended charges. The Crown had already asked permission to re-open its case and
the magistrate agreed.

The Crown then called the treasurer
of the crisis centre and he said the three cheques filled out by Ms Bovell-Swanson
had been honoured at the bank.

Justice Henderson set out the problems
as he saw them. He said the defendant had been convicted and imprisoned on
three “amended” charges in circumstances were the Crown never requested an amendment,
the amendment was not reduced to writing and the defendant was not asked to
plead to the amended charge as the Criminal Procedure Code requires.

“Without a clear understanding of
the final wording of the charges, I am unable to resolve the remaining grounds
of appeal. The collective impact of
these irregularities satisfies me that the convictions
cannot stand,” the judge said.

Given that Ms Bovell-Swanson was in
a position of trust, the charges were relatively serious and the evidence was
not lengthy. Justice Henderson therefore considered that the proper disposition
of the appeal was to order a re-trial.

Attorney Anthony Akiwumi appeared
for Ms Bovell-Swanson in the appeal, but he was not the trial lawyer.

Mr. Masters was Crown
Counsel for both the trial and appeal.

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