Gajraj v the State et Al
| Jurisdiction | Guyana |
| Judge | Crane, C.,Luckhoo, J.A.,Massiah, J.A |
| Judgment Date | 11 June 1982 |
| Neutral Citation | GY 1982 CA 13 |
| Docket Number | No. 12 of 1979 |
| Court | Court of Appeal (Guyana) |
| Date | 11 June 1982 |
Court of Appeal
Crane, C.; Luckhoo, J.A.; Massiah, JJ.A
No. 12 of 1979
S.D. S. Hardyal, S.C., Dabi Dial with him, for the appellant.
G.H. R. Jackman, Deputy Director of Public Prosecutions, Miss Claudette Singh, Principal Legal Adviser (ag), with him, for the respondents.
Criminal practice and procedure - Appeal from decision of Court of Appeal in Gajraj v. The State et al (1977) 27 WIR 199 to order a new trial by the court martial within 42 days — Order not carried out within 42 but 44 days — Court does have jurisdiction to entertain the appeal — Appellant convicted of stealing public property, the sum of $5,792.80 — Court should have been directed on the burden of proof — Corpus delecti had not been established — Misdirection by trial judge when he suggested to the court martial that it did not really matter who handed over the money to H. Gajraj — Appeal allowed.
It is universally acknowledged to be a matter of prudence and common sense, that whenever money is in the process of being paid over or entrusted by one person to the care of another, it must be counted out in the payee's presence by or on behalf of the payer.
I know it will be astonishing for me to say it, but it was the failure to observe this simple, yet very necessary precaution, that has occasioned than unfortunate case.
It is always advisable that a physical count be made to the deliveree before any sum of money departs from the deliverer's possession into the deliveree's. Generally, delivery anal receipt of money are concurrent transactions de manu in manu; mistakes are made and serious doubts are apt to arise if they do not simultaneously accompany each other. There cannot in law any more than in fact be an effective receipt unless the deliverer and deliveree both together at one and the same time have knowledge of what is being delivered and received. It is for this reason that a physical count is a categorical imperative if a payee is to be held legally accountable for any money committed into his charge. In everyday monetary intercourse at a bank, no other requirement is generally needed to render a payee legally accountable for receipt other than the normal cashiers count; provided, of course, this takes place in his presence; although it is sometimes required in addition that the payee should acknowledge receipt by his signature. For the purpose of the criminal law, mere signature, that is to say, signature without a physical count of the sure handed over is insufficient to render a payee liable for theft; and the reason is not difficult to see: in law signature alone cannot be adequate proof of mens rea, i.e.,, guilty knowledge of what was actually received whenever that fact is called in question or doubt arises whether a count was ever made, or when there is an admission there was no count.
I make the above remarks by way of preliminary observations in view of the system I am about to examine in the light of the evidence in the present case, a system no one can imagine should ever exist, but evidently sanctioned by the military authorities of the Guyana Defence Force – the delivery of payrolls to paying officers without a count of the exact amount of money being made by the cashier at the moment of delivery to the payee, but reliance being placed instead on the paying officers’ own count, and on instructions that should make a report to the cashier of any underpayment or overpayment after they and their payclerks have counted the amount received behind the back of the cashier.
During the course of the hearing, this court expressed its disappointment at the present system of payroll payment to paying officers and asked that our sentiments be conveyed to the Commanding Officer. We were relieved when Mr. Jackman later informed us that he had done as we requested, and that the Commanding Officer had sent his compliments and respectfully begged to inform us that the system had since been changed.
The present appeal emanates from the decision of this court to allow the appeal in Ronald Gajraj v. The State and Brigadier Price, (1977) 27 W.I.R. 119, and to order a new trial by court-martial within 42 days. That order was not, however, carried out within 42 days, but within 44 days instead, and failure to comply with it is now being challenged on the point of the jurisdiction of this court to entertain the present appeal.
I have seen in draft the viewpoint of my brother R. H. Luckhoo, J.A. on the matter of jurisdiction, he having been mandated to deal specifically with it. I agree with his thinking and conclusion that we do indeed have jurisdiction to entertain this appeal. He has based his conclusion on the majority decision of the English Court of Appeal in Hodgson v. Armstrong [1967] 2 Q.B. 299, the ratio decidendi of which is virtually on all fours with the principle that confronts us; and I would say no more on the matter, but would proceed to consider the appeal on its merits.
The appellant, a second lieutenant in the Guyana Defence Force, was charged, tried by court-martial and convicted of stealing public property. The particulars of the alleged theft are that between 23 rd and 30 th December, 1976, at Timehri, he stole the sum of $5,792.80.
In December, 1976, the appellant was an Administration Officer of the Timehri Training Command and in that capacity he invested with the powers and responsibilities of a paying office, which included the disbursing of salaries for that command. According to the prevailing system, paysheets were prepared by a payclerk from pay casualties, cash deductions made and, thereafter, a cheque for the net amount was drawn by an authorised officer in the paymaster's office and encashed at the Bank of Guyana. The money was then broken down and placed into several envelopes on each of which was indicated the sum contained in it in various denominations. The cashier to whom these envelopes were given in a sealed condition for safe custody, would deliver them later on to their respective paying officers to count and afterwards sign the Guyana Defence Force payee book as an acknowledgement of receipt. Contrary to universal practice abovementioned, the prevailing system required no count to be made by the cashier before signature. The cash having been received and counted by the paying officer in the presence of pay-clerks, he would then proceed to the distribution of it at the pay-table to soldiers in accordance with the individual amounts as indicated on the pay-sheets before him.
The appellant was, in course of duty, required to keep a pay-book of his own in which he recorded such particulars as the number, rank, name, the amount received by, and signature of each payee. And it was expected that of the paying officer were in fact to receive any sum in excess of that required to that disburse soldiers listed on the pay-sheets, he would return it immediately to the cashier, and in accordance with the evidence led on the duties of paying officers – “he should normally arrive at an overpayment in his possession after checking his cash against the pay-sheets on hand, and upon realising that he is in possession of an excess, he should balance his pay-book and submit it to the paymaster together with the duplicate pay-sheets. This should be done before the ending of the current month for which he is paying salaries. If a paying officer receives less, than the amount called for on the pay-sheets, he is required to draw the attention to this shortage to the cashier, paymaster, and the pay-clerk.” (Emphasis mine.)
Such was the evidence of Capt. Burchell Jordan, himself a paying officer on the duties of military paying officers. By way of comment, I think Jordan's account is of primary importance because it enables us to ascertain from a fellow paying officer, that the important principle of a cashier's counting money prior to its receipt so that it could be precisely ascertained what sum is being handed over to a paying officer, was lacking; that the duty to count generally rested on the paying officer and his assistant-payclerks and not the cashier who is merely a conduit pipe for handing over envelopes to paying officers. Jordan's evidence is instructive on the duties of paying officers in the event of their receipt of an underpayment and overpayment.
The charge on which the appellant was arraigned is based on an inference from facts the prosecution sought to prove – that he must have in hand a balance of $5,792.80, being the residue from an overpayment to him of $16,000 on 23 rd December, 1976, and an underpayment to him of $10,000 on 20 th December, 1976, after disbursing salaries and making deductions on two pay-sheets (Exs ‘F1-F11’ and ‘E1-E10’). The alleged overpayment being greater than the underpayment, he is charged with stealing the difference between the amounts after a credit of $4,891.50 was allowed him for the return of unpaid salaries and deductions from salaries between 23 rd and 30 th December, 1976.
Marilyn Babb, an employee payclerk at Camp Ayanganna in December, 1976, gave evidence on both the matter of the alleged overpayment and underpayment. It was she who was responsible for the alleged errors on both pay-sheets when she used a calculator as an aid to adding up the total figures on them. In the case of Exs ‘F-F11’ (the normal salaries paysheets for December, 1976) correct total when added up, Babb said, ought to have been $51,855.30 and not $41,855.30 as stated on those paysheets, and that her error was caused by striking the figure ‘4’ instead of ‘5’: this resulted in an underpayment to the appellant of $10,000 with which to disburse the salaries of the Training Corps recruits at Tacama for December, 1976. But strange thing to say, payclerk Marilyn Babb had also prepared supplementary paysheets, Exs ‘E1-E10’, for the Tacama...
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