Williams v Walters
| Jurisdiction | Guyana |
| Judge | Massiah, C.,Harper, J.A. |
| Judgment Date | 18 July 1985 |
| Neutral Citation | GY 1985 CA 9 |
| Docket Number | No. 24 of 1985 |
| Court | Court of Appeal (Guyana) |
| Date | 18 July 1985 |
Court of Appeal
Massiah, C.; Fung-a-Fatt, J.A.; Harper, J.A.
No. 24 of 1985
C.R. Ramson for the appellant.
Ian Chang, Deputy Director of Public Prosecutions (Ag), for the respondent.
Criminal law - Appeal against conviction and sentence of two years for falsification of accounts allegedly perpetrated in the course of his duties — Defense that appellant was an innocent agent who was obliged to obey the instructions of his superior officers — No evidence that employees of company were ever informed that only the Managing Director could authorise payment in lieu of leave — Appellant's defense not properly considered — Other circumstances and inferences to be drawn since appellant was accountant at company — Appeal dismissed and conviction and sentence affirmed.
The appellant Norman Williams, an accountant attached to the Guyana Transport Services Ltd, appeared before a magistrate of the Georgetown Magisterial District on two charges of falsification of accounts allegedly perpetrated in the course of his duties. On 19th November, 1984, he was convicted on both charges and sentenced to a term of two years' imprisonment on each of them. It was ordered that the sentences run concurrently. The appellant has appealed to this court against the magistrate's decision.
In relation to change C. J. 2297-98/84, that is to say the joint charge with Oscar Haynes, I am completely satisfied that the police made a genuine mistake, when they asserted in the charge that the date of the alleged offence was 30th August, 1983. Sergeant Ivan Walters who laid the charge made the same mistake when he testified. There can be no doubt that the prosecution's case was that the falsification in relation to this particular charge occurred on 24th March, 1983,
the date when the material voucher 34029 was prepared by one Roxanne Williams on the instructions of the appellant. Indeed, the case cannot be properly understood on any other basis. I am satisfied that the appellant so understood it. So did the magistrate who spoke of the offence having been committed on 24th March, 1983.
Nor was the appellant in any way prejudiced by the mistake. For him the dates possessed neither relevance nor significance. His defence, in essence, was that he authorised the preparation of the voucher (which he approved) on the instructions either of the Managing Director, Oscar Haynes, or of the Chief Accountant, Khemraj Singh. Although he did not expressly say so, the appellant's contention appeared to imply that he was obliged to obey their instructions since they were his superior officers, and that the question of an intent to defraud on his part in those circumstances could not therefore arise. He conceived himself to have been an innocent agent and the date of the alleged offence was therefore immaterial to him. His defence would have been the same irrespective of the date mentioned. He suffered no prejudice by the mistake. In my opinion, the charge should therefore be amended by substituting the word and figures “24th March” for the word and figures “30th August”, which the magistrate could himself have. done under the provisions of s. 95 of the Summary Jurisdiction (Procedure) Act, Cap. 10:02.
In relation to this charge the prosecution's case was as follows: In 1982 Oscar Haynes was due for six weeks' annual leave. If, however, instead of going on leave, he wished to continue working and to receive money equivalent to six weeks' salary, he could only do so if he first obtained the consent of his superior officers. It was the prosecution's case that on 11th February, 1983, Haynes requested the payment of money in lieu of the same period of leave, but Seeram Prashad who was then functioning as the company's Executive Chairman (although never formally appointed to the post) withheld his consent. Prashad was then the proper official to authorise payment of money in lieu of leave. All of this was accepted by the defense.
But by March, 1983, Seeram Prashad had left the service of the company and, no one succeeded him. On 8th March, 1983, Roy McArthur, Executive Vice President of Guystac, to which the Guyana Transport Services Ltd was subject by virtue of the Public Corporations Act, Cap. 19:05, directed Haynes to revert to his post as Managing Director. Haynes had been appointed to that post in 1979 but appeared to have been seconded to the post of Operations Manager some time before March, 1983, for special reasons that are not too clear. It was the prosecution's case that after Seeram Prashad left the company's service, permission to receive money in lieu of leave had to be obtained from McArthur. The prosecution claimed that the appellant. Williams, and Haynes as well, knew this to be so, so that when they signed and approved voucher 34029 on 24th March, 1983, they were falsifying it in the respect that they were thereby purporting to declare by implication that the sum of $3,229.91 mentioned therein was due and payable to Haynes “as six weeks' pay in lieu of annual leave” for 1982. The prosecution contended that it has false to state by implication that the money was due and payable since it could only, have been due and payable when McArthur so decided, which in fact he did not. I am not sure that that thesis is correct as a matter of law but I do not find it necessary to decide it, interesting though the point is and despite Mr Ramson's lucid arguments that the prosecution's case disclosed no falsification in law. I would reach no conclusion by means of an entirely different jurisprudential route.
Before I deal with the magistrate's general approach to the case, I shall refer very briefly to a submission made on the appellant's behalf. It related to the question of acting in concert, proof of which is essential for a conviction on a joint charge. The very pith and substance of the complaint was that Haynes and the appellant were acting together to defraud their employers. It was contended for the appellant that there was no proof, direct or circumstantial, that that was so. There was no evidence, counsel emphasised, to show what part the appellant played in the alleged crime, and without such evidence the conclusion that the appellant was acting in concert with Haynes could not be sustained. That was a correct statement of the law, for in order to succeed the prosecution had to prove a common design to do the very act forming the subject-matter of the charge.
Counsel had in mind the line of cases in which the principle is enunciated that it is impossible to hold that an accused person on a joint charge had: the specific intent to commit the crime charged unless there was clear evidence pointing thereto, since the accused may have intended the commission of some lesser offence and not the one said to have been committed. It may well be, on the other hand, that there is sufficient evidence to prove the intent to commit the graver offence (that, is to say, the one charged) in relation to his co-accused, who alone, in such a case, should be found guilty of the crime charged. One way of testing the matter is to examine closely the part played by each accused person and to deduce therefrom whether or not the conclusion could be reached that he had the intent to commit the offence charged.
It is important to remember this, because there is often the tendency when dealing with a point charge to lump all the cases together in disregard of their individual differences and reach the erroneous conclusion that since the accused were all together at the scene of the crime they must therefore all be equally guilty. A moment's thought would show this line of reasoning to be flawed, for our jurisprudence teaches us that each case must he considered separately and guards us against the fallacy that a person's mere presence at the scene of a crime is proof of his guilt. Although, in the company of his co-accused he may be a mere onlooker, or his, felonious purpose may be essentially different from that required for proof of guilt in relation to the particular offence charged. The Guyanese case Harry Persaad, Bholonauth and Doodnauth v. The Queen (1969) 20 W.I.R.49, to which Mr Ramson referred, exemplifies the application of these principles. In that case Bholonauth was outside his victims(dwelling-house while one of his companions in crime was upstairs violently assaulting the victim while robbing her of her goods. Bholonauth's conviction of robbery with violence was quashed on appeal the court holding that his mere presence at the scene of the crime was not necessarily consistent with the view that his intention was to participate in the crime of robbery with violence. It was equally consistent with an agreement to commit the nonviolent crime of burglary, and the jury ought to have been so instructed. The convictions of Bholonauth's companions in respect of whom there was clear evidence of the use of violence, were affirmed.
The same approach was taken by the Court of Appeal two years later in The State v. Lalta Persaud & Others, (1971) 2 W.I.R.30 and in The State v. Neville Corbin (Criminal Appeal No. 16 of 1976) as the court had done much earlier in R. v. Abdool Samad & Others, (1970) 15 W.I.R.35. In The State v Balkarran Singh & Others (Criminal Appeals Nos 3, 4, 5 and 6 of 1981) decided on 28th September, 1983 Vieira, J.A, and I applied the principles stated in those cases in reference to the appeal of James Lawrence whose conviction was quashed and sentence set aside. I trust that I would never be reluctant to admit it if I were found to be in error, but I see no reason to recant from the views expressed in that case inasmuch as they were based on legal principles that I considered to be sound and which are so deeply embedded in the common law as to have compelled the adherence of this court on several occasions. There are,...
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