Erskine v Goel

• Jurisdiction: Guyana
• Judge: Crane, J.A.,George, J.A.,Haynes, C.
• Judgment Date: 27 July 1977
• Neutral Citation: GY 1977 CA 18
• Docket Number: Criminal Appeal Nos. 62 and 63 of 1976
• Court: Court of Appeal (Guyana)
• Date: 27 July 1977

Court of Appeal

Haynes, C.; Crane, J.A.; George, J.A. (Ag)

Criminal Appeal Nos. 62 and 63 of 1976

Erskine

and

Goel

Goel

and

Erskine

Appearances:

G.H. R. Jackman, Deputy Director of Public Prosecutions for the complainant.

Sir. Lionel Luckhoo, S.C., associated with Edward Luckhoo for the defendant.

Criminal Law - Accomplices

Criminal Law - Mens rea

Criminal Law - Appeal against conviction — Attempted Contravention of Exchange Control Act

Crane, J.A.

1 The appellant Goel, a doctor of medicine, was charged in the Magistrate's Court with the commission of two currency offences. The particulars respectively alleged that he, on Saturday, August 10, 1974, (a) aided and abetted, counselled or procured the sale of foreign currency; and (b) that he, on the same date, not being an authorised dealer, attempted to buy foreign currency, to wit, an American draft for $4,900 (U.S.) from a person other than an authorised dealer, contrary to para. 1of Part II of the Fifth Schedule to the Exchange Control Act, Cap. 86:01.

2 At the instance of the prosecution and with the appellant's consent, the two cases were tried together they having arisen out of the carne transaction, and after a trial lasting three days he was acquitted on charge (a) without reasons being assigned, but convicted on charge (b) on which he was fined the sum of $32,540.00, being three times $10,780.00 (G), — the amount of Guyana currency with which it was his intention and with which it is alleged he attempted to buy the stated amount of U.S. currency. The magistrate also made an order for forfeiture of the said amount. An appeal from his decision was affirmed by the full Court of the High Court with regard to the finding of guilt on the attempt to buy foreign currency, though the order for forfeiture was set aside. The prosecution have now cross-appealed solely against the full Court's order setting aside the magistrate's order for forfeiture.

3 The prosecution based its case that the appellant attempted to buy foreign currency solely on his ipse dixit in an oral and two written statements he gave to the police during their investigations. Both were uncautioned statements, the first of them not being signed by him because he refused to do so; it was made on 11th September, 1974, i.e., approximately one month after the alleged offence, and the second five days afterwards. In the first, he related a story that does not appear on the face of it creditworthy, for one can hardly imagine it could over happen. Nevertheless it did. We have the appellant's own admission that it did; and so I think the conclusion may rightly be drawn that he must either have been desperately in need of foreign currency or must have fallen victim to the idles of an experienced confidence trickster.

4 In his first statement the appellant said that on 10th August, 1974, he was approached by an unknown black man (to whom he referred in his second statement as Rickford Lowe) who offered him the opportunity of purchasing American currency. At first he was disinclined to buy having told Lowe he was not a dealer in currency. Nevertheless, he changed his mind and on inviting him home, the latter disclosed that he had a bank draft for $4,900 (U.S.) for sale at the rate of $2.20 (G) per U.S. dollar. Lowe, however, did not have the draft with him, but this fact did not pose any obstacle to the transaction, because the appellant got together the required Guyana currency from his bankers, gave it to Lowe and they both drove to the National Insurance Scheme building where Lowe said he kept the draft, while the appellant remained seated in his car. The inevitable then happened: Lowe went into the building and did not re-appear.

5 Later the same day, about 3 p.m., the appellant decided to seek police assistance in the matter. He complained to Snr. Supt. Isaac Alexander about what had befallen him expressing the view that he had been robbed of his money. He told Alexander that although he did not then know Lowe by name, he had “seen the man before and that the man was to get an American bank draft for him. In other words, as it seems to me, what the appellant was telling the superintendent was that he had previously arranged with Lowe as his agent to procure American currency for him. I think what Snr. Supt. Alexander had to say in evidence in this regard is of the utmost importance in the light of the appellant's volte face in his second statement — that it was a “friend” of his to whom the draft belonged, the implication being that Lowe was an agent. With this aspect I shall presently deal.

6 The second statement, unlike the first, was signed by the appellant. In detail, it is in all respects identical with the first, save that the appellant was at pains to stress on at least four occasions that Lowe would procure the draft from a “friend” at the National Insurance Scheme building in Brickdam. This was in striking contrast to what he had said in his first statement. Therein he distinctly gave the impression that the “black man” had personally undertaken to sell him the American draft that was his own property, only that the draft was not with him at the time but at the N.I.S. building in Brickdam This important difference between the two statements was perceived neither by the trial magistrate nor by the Full Court. Credit must, however, be given to the learned chancellor for pointing it out in the course of the argument. In my opinion this difference is of paramount importance and has far-reaching consequences, particularly from the standpoint of agency, and failure to have spotted it in the two statements has clearly influenced the decision in the case in both forums below.

7 Following on the abovementioned difference in the two statements, I find these questions automatically arise for consideration: For whom and in what capacity was Rickford Lowe acting when he made the alleged representations in the appellant's two statements, and when he received the $10,780 (G) from the appellant in order to obtain the American draft? Was Lowe then acting as agent of the “friend” of whom he spoke in his second statement and from whom he would obtain the American draft, or was he the appellant's agent, or was he the agent of both parties?

8 An unfortunate feature of the case is the fact that neither did Lowe testify nor did the police seek to explain away his absence from the witness-stand. Other than mention being made of him in the appellant's second statement, the record is silent with regard to Lowe, save that shortly after the incident he called at the office of Det. Snr. Supt. Cecil Roberts where he gave certain information as a result of which instructions were given to Det. Chief Insp. Francis Roberts of Allbertown Police Station. It was from the latter's evidence that the Court was informed that Lowe's home was unsuccessfully searched by the police on Sunday, 11th August, and that on that same day the house of one Bheer, a goldsmith, was also searched and the $10,780 (G) belonging to the appellant was found bearing certain markings on the wrappers which enveloped the bundles into which the rates were packed. Those markings the appellant had himself put on when he counted and packed the money into those bundle n before giving it to Rickford Lowe. It is very significant that Bheer the goldsmith, likewise did not testify, nor did the prosecution seek to give any reason why another important witness who, I think it is reasonable to infer might well have been Lowe's “friend” and have received the money from him, had kept away from the witness-stand. Without any doubt the absence of Lowe and Bheer created a void in the case for the prosecution.

9 So, in order to prove the case against the appellant it was necessary for the prosecution to rely solely on the appellant's self incriminatory evidence, i.e., his oral statement to Supt. Alexander and his two uncautioned statements in writing abovementioned. But what was the evidential nexus between Rickford Lowe and Bheer? How and why did Bheer get possession of the $10,780 (G), which was identified by the appellant as the money he gave to Rickford Lowe to purchase the American draft? Was Bheer the “friend” to whom the appellant referred in his second statement? Was Bheer ever in possession of an American draft to be given in exchange for the Guyana currency notes found in his possession”? Was Lowe the agent of Bheer? I am afraid these are all vitally important questions which necessarily had to be answered in the trial Court by the production of Rickford Lowe and Bheer as witnesses for the prosecution and, in my opinion, the prosecution has only itself to blame for the manner in which they have conducted this case before the magistrate and for the ultimate result which I am bound to say is inevitable.

10 In arriving at their respective conclusions to convict the appellant and to dismiss his appeal, both magistrate and the Full Court appeared to have laid emphasis on the different versions given in the appellant's two statements I have mentioned above. But, as it seems to me, although the magistrate alluded to both statements, it is clear that he based his conviction on the first of them in which Lowe was undertaking to sell the American draft not on behalf of his “friend”, but as his own property to the appellant. The Full Court, on the other hand, in reciting the facts of the case, alluded to the appellant's second statement in which there is an “understanding with a “friend” who awaited with the draft”.

11 From his two statements the magistrate found the appellant had the intention to purchase the American draft, and in dealing with the submission of learned counsel on his behalf that an American draft was not U.S. currency, preferred the argument of state counsel that by s.3(4) of the Exchange Control Act, Cap. 86:01, an American draft can be considered foreign currency since...