A woman serving a four-and-a-half-year prison term for her role in a permanent residence scam was released earlier this month after the Court of Appeal quashed her convictions.
Marcia Angella Hamilton, 46, had been found guilty of six out of eight counts of obtaining property by deception. Victims said they had been told that permanent residence was being made available to longtime residents for a fee of $2,500. The charges related to the period from September to November 2009.
Hamilton pleaded not guilty, saying she had been deceived and innocently dragged into the scam – that if she had known, she would never have applied for permanent residence for her own child.
She chose to be tried by judge alone. Justice Charles Quin announced his verdicts last December. A co-accused, Judith Douglas, earlier pleaded guilty to nine charges. Their appeals were heard on Nov. 3. The Court of Appeal made an order restraining publication of the outcomes and the court’s judgment in the matter until after the trial of Paul Anthony Hume Ebanks, who faced the same kind of charges. Ebanks was found guilty on Nov. 8 and sentenced to 14 years.
The judgment in the case of Hamilton and Douglas was released last week.
Defense attorney Margeta Facey-Clarke argued “that the judge’s reasoning did not support the conclusion that he reached that [Hamilton] was guilty and that there was no basis for saying that she had been dishonest throughout the period of the events which formed the basis of the indictment.”
The trial judge found that Hamilton and her child’s father paid $1,800 to Judith Douglas on the basis that the applicant was a student and so the fee was less. This payment was made in July or August of 2009 and Douglas told them the permanent residence would come through within a month.
It was the child’s father who had found out about the scheme, and he told Hamilton. He gave this evidence during her trial and it was clear the judge believed him.
The Court of Appeal identified this point as crucial. If Hamilton had been dishonest throughout, then either the Crown had to establish that it was not true that Hamilton had paid money to obtain permanent residency for her child, or the Crown had to “explain why it was that someone dishonest throughout should have bothered to pay over money to Judith Douglas for the purpose, which she knew to be hopeless, of obtaining permanent residency.”
Trial judge Justice Quin found that Hamilton had asked for her money back in late September/early October 2009. He concluded that she was dishonest because she continued to collect money from members of the public after she had asked for her own money back.
“It is clear that the judge, therefore, was rejecting the Crown’s contention that she had been dishonest throughout but was convicting this appellant because he was sure that after she herself had asked for money back, and therefore did not believe in the scheme, was nevertheless representing it as an effective scheme to other members of the public,” the appeal judges stated.
But four of the charges against her pre-dated when Hamilton asked for her money back. The appeal judges said the trial judge could not be sure when Hamilton asked for her money back, saying late September/early October. The appeal court said there was “no precise or safe basis on which he could be sure that she was collecting money after she has tried to get her money back.”
There was some evidence that Hamilton collected money from two victims toward the end of October or even early November. The court determined that the two convictions in these cases were not safe because the evidence as to dates was too vague, adding that this was hardly surprising as the trial took place nearly six years after the events alleged. Further, in the court’s judgment, the trial judge’s conclusion on the first four counts had tainted his conclusion on the next two.
Since the judge’s finding contradicted the basis of the prosecution and could not be justified on the facts that he found, the appeal was allowed.
Judith Douglas, 50, applied to appeal against her sentence of two-and-a-half years, with attorney Guy Dilliway-Parry arguing that it was manifestly excessive. She had pleaded guilty to nine counts on a 39-count indictment for obtaining property by deception.
The appeal court agreed with Justice Quin’s assertion that Cayman is a small jurisdiction and the offenses attacked the integrity of the immigration laws and procedures. The court had to impose a punishment that reflected the gravity of the offense and acted as a serious deterrent to others who might contemplate such dishonest conduct. The court therefore refused permission to appeal.