Vieira v The State

• Jurisdiction: Guyana
• Judge: Persaud, J.A.
• Judgment Date: 14 September 1972
• Neutral Citation: GY 1972 CA 30
• Docket Number: Criminal Appeal No. 140 of 1971
• Court: Court of Appeal (Guyana)
• Date: 14 September 1972

Court of Appeal

Luckhoo, C.; Bollers, C.J.; Persaud, J.A.

Criminal Appeal No. 140 of 1971

Vieira

and

The State

Appearances:

J.O.F. Haynes, S.C., associated with A.F.R. Bishop, for appellant

J. Kisson, associated with N. Kisson, for the State

Practice and procedure - Order for costs

Persaud, J.A.

1 The appellant was convicted on a twenty-count indictment charging him with falsification of accounts and larceny by a public officer. At the relevant time he was in the employment of the Government as Senior Education Officer is in the Ministry of Education, and was concerned principally with the administration of Government Secondary Schools, which included the purchase of science equipment for those schools. Whenever a school required chemicals, the appellant would prepare a detailed list of the requirements which was then transcribed to a requisition purchase form. If the value of the articles exceeded fifty dollars, the list, together with a tender board form, would be examined by a departmental tender board who must consider the list and the prices offered by at least three suppliers, after which the members of the tender board would sign the tender board form thereby indicating their approval of the purchase. There need not be a meeting of the Board: the form and the list could be circulated to the members. At the relevant time, the appellant was the Chairman of the Board. After the Board's approval, the tender board and other related documents are sent to the Central Accounting Unit where a number is affixed to the form by a clerk. The form is then passed to another clerk who makes out a local purchase order (the L.P.O.), showing the list of the articles to be purchased. These forms are kept in a book, and are numbered in sequence. A local purchase order is prepared in quadruplicate, the copies being described as the A, B, C and D forms, and are signed by a supervisory officer. The D form is retained in the book, and forms part of the records of the Ministry; the C form goes to the person making the requisition; and the A and B forms are despatched to the supplier. The supplier retains the B form, delivers the goods, and then submits the A form together with his charge bill to the Ministry for payment. The person receiving the goods must check them against the local purchase order, and he is required to sign a certificate on the C form to indicate that he has received the goods, and has taken them into his custody. That certificate constitutes the authority to pay for the goods. The A and C forms are then sent to the Central Accounting Unit for payment which is made by cheque. The cheque is either sent to the supplier through the post, or it can be collected from the Ministry by the supplier or his duly authorised agent, in which event, it must be signed for in a register.

2 The case for the State was that the appellant and one Stanley Headley, the manager of the Midget Paper and Book Store, entered into a conspiracy, the relevant details which were that the appellant would send the A and B forms, duly completed, to Headley, who would issue a bill for goods supplied, whereas in fact, no goods were to be supplied, and would render a bill to the Ministry. A cheque for the amount or amounts would then be issued to the Midget Book Store; Headley would bank that cheque to the credit of the Midget Book Stare, and would himself then issue a cheque against the Midget account for an amount less about 10% of the original amount to the appellant. Thus the appellant and Headley would have gone through the motions of a genuine transaction up to a point, thereby defrauding the Government of several sums of money which the two of them divided 90% and 10%, respectively. There were fifteen local purchase orders involved and five cheques and the evidence was that the appellant had placed the order contained in each local purchase order, had certified having received the items, and had uplifted each cheque and signed for it; that pursuant to the scheme agreed upon, had sent the cheque to Headley, who in turn issued his own cheque in favour of the appellant, less 10%, and the appellant had banked Headley's cheque to his own credit. The defence was that whatever had been certified as having been received, had been, in fact, received: that he had not received any of the cheques, and had not signed for them.

3 Arising out of these circumstances, only the essence of which has been reproduced here, the appellant was indicted for falsifying the fifteen local purchase orders, and on five counts for the larceny of the various sums of money obtained thereby in five instances.

4 It is self-evident that Headley could properly have been regarded as an accomplice, and that being so, it was necessary for the judge to give the jury the requisite directions as regards corroboration of the accomplice's evidence. The judge has essayed to point out certain portions of the evidence that could amount to corroboration, but counsel submits that those portions did not, in fact, amount to corroboration, and as a result, there was a fatal misdirection, in which event, following R. v. Sailsman (No. 2), (1963) 6 W.I.R. 46, the appeal ought to be allowed. Further, that in the circumstances of the case, the judge should have instructed the jury not to convict on Headley's evidence alone.

5 In the course of his summing-up the learned judge left it to the jury to find whether or not Headley was an accomplice, directed them as to what was meant by an accomplice, and then attracted their attention to certain portions of the evidence from which they would be required to make the finding. He also directed them as follows:

“Now members of the jury, I wish you to pay especial importance to what I shall now tell you. If you consider the witness, Stanley Headley, to be an accomplice, or if you believe that he has some interest to serve, then I must warn you that, although you may convict on his evidence, it is dangerous and unsafe to do so unless it is corroborated.”

6 Learned counsel submits that the judge should have told the jury that Headley had not disclosed to the police the details of the plan which he and the accused had formed until it became apparent to him that he was in danger of himself being charged, and to remind them of the various answers which Headley gave, which tended to show that he had only given information to the police to save himself.

7 The fact that an accomplice may wish to avoid the inconvenience of being prosecuted, may very well be the motivation behind his giving information to the police, but that does not, in our view, alter the principles governing the directions which must be given as regards the evidence of an accomplice. These were set out in R. v. Baskerville by Viscount Reading in the Court of Criminal Appeal, [1916–17] All E.R. Rep. at p. 41, as follows:

“……… it has long been a rule of practice at common law for the judge to learn the jury of the danger of convicting a prisoner on the uncorroborated testimony of an accomplice or accomplices, and, in the discretion of the judge, to advise than not to convict up an such evidence; but the judge should point out to the jury that it is within their legal province to convict upon such unconfirmed evidence: see R. v. Stubbs and Re Meunier. This rule of practice has become virtually equivalent to a rule of law, and since the Criminal Appeal Act, 1907, came into operation this court has held that, in the absence of such a warning by the judge, the conviction must be quashed: see R. v. Tate. If after the proper caution by the judge the jury nevertheless convict the prisoner, this court will not quash the conviction merely upon the ground that the testimony of the accomplice was uncorroborated. It can but rarely happen that the jury would convict in such circumstances. In considering whether or not the conviction should stand, this court will review all the facts of the case, and will bear in mind that the jury had the opportunity of hearing and seeing the witnesses when giving their testimony. But this court, in the exercise of its powers, will quash a conviction, even when the judge has given to the jury the warning or advice above mentioned, if this court, after considering all the circumstances of the case, thinks the verdict ‘unreasonable’ or that it ‘cannot be supported having regard to the evidence’.”

8 We should say that the court must be guided by the principles enunciated by Viscount Reading particularly so as this is exactly what s. 61(5) of our Evidence Ordinance, Cap. 25, provides. But, no doubt, counsel places great store in in the sentence ‘and in the discretion of the judge, advise them not to convict upon such evidence’. This situation would only arise, in our opinion, where the accomplice's evidence remains uncorroborated, which is not the case here. In any event, by using the words ‘dangerous’ and ‘unsafe’, the judge sufficiently attracted the attention of the jury to the correct manner to approach Headley’ s evidence.

9 The judge then dealt with corroboration, and, we feel, accurately. He went on to cite three portions of evidence which he offered to the jury as being capable of corroboration. Counsel submits that at least in two instances, they do not amount to corroboration, and while conceding that in the third instance it may amount to corroboration, he would prefer to deal with it under another submission. So we shall deal at this juncture with two only:

10 Edward Kidman, an employee of Barclays Bank, gave evidence to the effect that the Midget Paper and Book Store has an account with Barclays Bank in Water Street, and that the cheques which Headley said he had issued to the appellant had been sold by the bank to Midget, and had, in fact, found their way back into the bank. Those cheques have not been found, but the counterfoils were in the possession of Headley, and these show...