Jones (Sonia) v R

• Jurisdiction: Jamaica
• Judge: FORTE, P.: , FORTE, P:
• Judgment Date: 25 June 2001
• Neutral Citation: JM 2001 CA 28
• Judgment citation (vLex): [2001] 6 JJC 2502
• Court: Court of Appeal (Jamaica)
• Date: 25 June 2001

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR. JUSTICE FORTE, P THE HON. MR. JUSTICE LANGRIN, J.A THE HON. MR. JUSTICE PANTON, J.A

SONIA JONES

VS.

REGINA

Frank Phipps, Q.C. & Garth McBean Gresford Jones

Paula Llewellyn, Senior Deputy Director of Public Prosecutions and L. Gregg,

CRIMINAL LAW - Fraudulent conversion - Whether moneys entrusted to appellant for investment were invested - Whether appellant satisfactorily accounted for funds entrusted to her - Whether sentence manifestly excessive

FORTE, P.:

1 The applicant was convicted in the Corporate Area Resident Magistrate's Court on two counts of fraudulent conversion. She was sentenced on each to eighteen (18) months' imprisonment at hard labour, and it was ordered that both sentences should run concurrently. In so far as the Indictment is concerned, it is sufficient to state that the first count related to the complainant Lloyd Reckord, who it alleged entrusted the appellant with the sum of $33,749.00 United States dollars so that she might invest it on his behalf but instead fraudulently converted that sum to her own use and benefit or to the use and benefit of another. The second count alleged the same offence in respect of $50,000.00 United States dollars entrusted to the appellant by Collin Garland for the same purpose.

2 Both complainants were friends of the appellant and had on one occasion in the past entrusted her with money for investment in the sum of $100,000 US dollars at a rate of 22% p.a. On this occasion they requested the same rate of interest to which the appellant agreed. Mr. Reckord handed over to the appellant a cheque for US$33,749.00 on the 1 ^st February, 1995 with the understanding that he would be paid interest on a quarterly basis. Mr. Garland handed over to the appellant a cheque for the sum of US$50,000 in April 1995 on the understanding that his interest payments would be paid monthly. It appears that interest cheques were paid to the complainants throughout 1995 and into 1996 when the payments ceased. Mr. Reckord acting on behalf of Mr. Garland and himself requested an accounting from the appellant and since he had become concerned about the payments eventually asked that the principal be recalled. In so far as the accounting is concerned the appellant first gave in her handwriting an account in respect of both sums. This 'account' dated 26 ^th April, 1996 stated nothing more than that the sums had yielded interest at 22% and that all sums due for interest accrued from 1 ^st February 1995 to the date of writing had been paid in full to "LR & CG" (Reckord and Garland) and have been acknowledged. She promised to present a formal/typed document in due course.

3 In May of 1996 she presented a typewritten "statement of account" mostly dealing with the previous transaction in which she had invested moneys for the complainants. This account stated merely, that the sums of US$50,000 and US$33,700 had been "paid in" and that interest at 22% p.a. in respect of the former had been paid inclusive of 30 ^th April 1996 and will continue to be paid and that in respect of the latter interest had been paid quarterly. The statement of account alleged that the investment had resulted in a triple gain from capital.

4 Significantly, there was no indication of the subject of the investments and in particular no mention of Seascape Hotel, the relevance of which will soon be seen.

5 Nevertheless, the complainants through Lloyd Reckord continued to complain that the interest payments had stopped, and continued to call for the return of their capital. These requests apparently met without success, at one time the appellant informing Reckord that the investment was on a "roll over" basis and therefore his principal could not be repaid until February 1998 when it would mature - February in each year being the date upon which it would mature. It was not until 1996 that Mr. Reckord was informed by the appellant, that the money was invested in a property named Seascape, a small hotel in Negril. It was after this and also after he received the written statements of account from the appellant that Reckord consulted another Attorney, Miss Janet Mignott who it appears contacted and had discussions with the appellant. As a result in July 1996, the appellant sent to Miss Canolle the owner of Seascape Hotel, a document for her signature seeking to create a legal mortgage in Seascape in relation to moneys allegedly loaned to Seascape by Mr. Lloyd Reckord. Miss Canolle whose evidence will be referred to later, refused to sign the document insisting that she had given the appellant no instruction to negotiate any mortgage of her property. As a result Miss Mignott advised that caveats be lodged against the title of Seascape by both complainants in order to protect their investment. She [Miss Mignott] drafted these documents which legally required Statutory Declarations from both complainants and the appellant through whom it was alleged that the money had been invested in Seascape. These Statutory Declarations will again be referred to later in this judgment for any effect they may have had in the determination of the learned Resident Magistrate as to the guilt of the appellant.

6 The prosecution's case rested on the evidence of the complainants re the entrustment of the money to the appellant, the cessation of the interest payments, and the appellant's information that she had made the investment in Seascape. The question then, was whether or not the money had been in fact invested in Seascape. In order to prove that it was not, the prosecution called Miss Cecile Canolle, the owner of 99% shares in Seascape Ltd which owned the hotel, the other 1 % share being owned by Canolle's mother.

7 Canolle testified that in June 1995, because of death threats she had received, she closed the hotel and came to Kingston. As a French national she went to the French Embassy, and there consulted the appellant who had in the past done legal work for her. She had to leave Jamaica in a hurry, and so handed the Title for Seascape to the appellant along with a document described in the evidence as a Power of Attorney authorizing the appellant "to act as her Attorney and authorized agent in all her business and personal transactions in Jamaica." She insisted in her testimony, that her only desire at that time was to sell the property, and she told the appellant so. She had bought the property for cash and had no interest in securing a mortgage as she had no intention of returning to the property. The only instructions that the appellant had from her were to sell the property and to pay "my outstanding bills". In respect to the latter she gave the appellant US$4,400. The appellant, she insisted, had no authority to enter into any mortgage agreement on her behalf. There was difficulty selling the property and when in November 1995 it had not been sold she made an arrangement with Mr. Robin McFayden to lease the property with an option to purchase. The appellant drafted the lease and sent it to her for approval. She made some amendments and sent it back to the appellant who signed it on her behalf. Mr. McFayden officially took over the property as of the 1 ^st December, 1995 though he was allowed onto the property in November 1995 to get it in condition for the commencement of the lease. The property had been closed from June 1995 until Mr. McFayden took possession of it. He rented it at a rental of US$1,000 which in the first ten months was sent to the appellant to defray expenses owed on the property. Ms. Canolle admitted that she had asked the appellant to pay her outstanding bills and it was to this end that she had left US$4,400 with her and had instructed Mr. McFayden to send the rental to the appellant.

8 Ms. Canolle maintained that she had no reason to mortgage her property, and had given no instruction, nor did she consent, to the appellant creating an equitable or legal mortgage on her property. Consequently, she refused to sign the mortgage document sent to her by the appellant and when she called the appellant and told her that she was not signing it, she (the appellant) said it was O.K. She came to Jamaica in January 1997 and had a meeting with the appellant at a restaurant. At this time the appellant had received on her behalf US$4,400, and US$9,700 from McFayden. She said that amount was calculated by her to take care of all the bills but when she met with the appellant in January 1997 they "came up" to an additional amount of US$2,500 which she gave to the appellant. The appellant told her then she was having problems as she was not agreeing with Guardsman so "she said she would fix that first and send me invoice after." She never ever got an invoice. She admitted employing Guardsman to guard the hotel while it was closed and the appellant in fact produced a letter at trial in which she terminated the services as at the end of November 1995. Canolle's testimony therefore speaks of giving money to the appellant to take care of the outstanding bills, and of Jones in 1997 agreeing to an amount of US$2500 to settle all the bills except with regards to Guardsman, which Canolle impliedly agreed to do when the amount owing was agreed. Significantly, the appellant produced in her own testimony correspondence with Guardsman which discloses no problem in that regard.

9 That was in summary the evidence for the prosecution. It was a story of moneys being entrusted to the appellant for investment, and of the appellant informing that the moneys were invested with Seascape, and the witness Canolle maintaining that it was not so invested.

10 The question arose therefor whether it was so invested, because if it were, then the appellant could not be held criminally liable. If it were not, then the presumption ought to be that it was converted to her own use or to the use of another, The appellant's defence is...