Michael Lorne v R
| Jurisdiction | Jamaica |
| Judge | V Harris JA |
| Judgment Date | 20 October 2022 |
| Neutral Citation | JM 2022 CA 94 |
| Court | Court of Appeal (Jamaica) |
| Docket Number | PARISH COURT CRIMINAL APPEAL NO COA2021PCCR00007 |
[2022] JMCA Crim 45
THE HON Mr Justice F Williams JA
THE HON Mrs Justice V Harris JA
THE HON Mrs Justice G Fraser JA (AG)
PARISH COURT CRIMINAL APPEAL NO COA2021PCCR00007
IN THE COURT OF APPEAL
Mikael Lorne for the appellant
Mrs Sharon Milwood-Moore and Mrs Nickeisha Young-Shand for the Crown
The appellant, Mr Michael Lorne, an attorney-at-law, was convicted on 22 October 2020 by a judge of the Parish Court (‘the learned Judge of the Parish Court’) at the Kingston and Saint Andrew Parish Court (Criminal Division) for the offence of fraudulent conversion contrary to section 24(1) of the Larceny Act (‘the Act’). On 19 March 2021, he was sentenced to pay a fine of $750,000.00 or serve 12 months' imprisonment at hard labour. The fine has been paid.
The appellant was initially charged on an indictment containing six counts, namely conspiracy to defraud (count 1), fraudulent conversion (count 2), forgery (counts 3 and 5) and uttering a forged document (counts 4 and 6). However, at the end of the prosecution's case, following a submission of no case to answer, he was acquitted and discharged on five counts of the indictment and called upon to answer the charge of fraudulent conversion only.
The particulars of that offence, as set out in the indictment (and which are in line with section 24(1)(iii) of the Act), were that the appellant, on a day or days unknown in 2011, in the parish of Kingston, having been entrusted by Mr Howard Wilson to sell property located at 10 Fairbourne Road, Kingston 2, which was bequeathed to him and Mrs Olive Blake jointly in the will of Constance and Herbert Wilson, for the sum of $6,000,000.00, then fraudulently converted Mrs Olive Blake's portion of the proceeds of the sale for his own use and benefit or for the use and benefit of some other person or persons.
Sometime between 2000 and 2005, the appellant was retained to probate the last will and testament of Mr Herbert Wilson (‘the will’). In the will, his children, Mr Howard Wilson (who died in 2016) and Mrs Olive Blake (‘the complainant’), were named as the executors and beneficiaries of his estate. The only asset in Mr Herbert Wilson's estate was a dwelling house located at 10 Fairbourne Road, Kingston 2 in the parish of Kingston registered at volume 1452 folio 667 of the Register Book of Titles (‘the property’). After probate was completed, the appellant was instructed to sell the property. Given the clear language of the will, the proceeds from the sale of the property (‘the proceeds’) were to be divided equally between the complainant and her brother, Mr Howard Wilson.
According to the complainant, her brother had retained the appellant to probate the will and sell the property. However, the appellant contacted her for the first time in 2000 and asked her to send a copy of the will, the “deed” (or title) for the property, and some other notarised documents. She complied with his request.
The sale of the property was completed in November 2011. It was sold to Mr Owen Hamilton for $6,000,000.00, and title was transferred to him on 22 November 2011. Mr Hamilton's evidence (which was agreed) was that he made the final payment on the sale of the property to his attorney-at-law on 24 November 2011. The undisputed evidence was that sometime in early 2012, the appellant paid over $3,500,000.00 to Mr Howard Wilson. This figure represented more than 50% of the total proceeds (and more than 90% of the net proceeds).
During a conversation with her brother in 2011 (presumably after 24 November 2011), the complainant discovered that the property had been sold. After this conversation, the complainant stated that she tried to contact the appellant via emails, telephone calls, and letters to enquire about the purchase price of the property and her share of the proceeds. However, her efforts were in vain. The appellant did not respond to any of her correspondence or telephone calls.
As a result, on 8 October 2012, the complainant made a complaint to the General Legal Council (‘GLC’), alleging that the appellant had failed to account for funds that he had in hand for her, although she had “reasonably required” him to do so. According to the complainant, the appellant contacted her (by letter) after the complaint was made to the GLC. In that letter, the appellant informed her that he had sent her brother his portion of the proceeds, but sums were still outstanding on the sale. He also indicated that she would get her share as soon as he collected the rest of the money.
On 12 July 2013, at the request of an attorney-at-law whom the complainant had retained to represent her at the GLC hearing, the appellant submitted a statement of account for the sale of the property (‘the statement of account’) and a cheque for $410,000.00, which, according to the appellant, represented the amount that was “available for” the complainant. The statement of account was admitted into evidence, on the prosecution's case during the cross-examination of the complainant, as Exhibit 6.
On account of the complaint to the GLC, disciplinary proceedings against the appellant ensued. Arising from those proceedings, on 30 April 2014, the appellant agreed to pay the complainant $2,500,000.00, being her portion of the proceeds plus interest and costs. These sums were to be paid incrementally over 12 months from 2 May 2014 to 2 May 2015. The document setting out this arrangement and headed “Agreement dated 30 th April, 2014” was tendered into evidence and marked Exhibit 2 (‘the Agreement’). However, the appellant failed to honour his obligations as set out in the Agreement.
Being both out of patience and pocket, the complainant reported the matter to the police on 22 December 2014. Subsequently, the appellant was arrested and charged with several offences, including fraudulent conversion.
The trial of the matter commenced on 4 September 2019. Up to that time, the complainant had not received any payment from the appellant. In fact, on 24 October 2019, the third day of trial, it was revealed during cross-examination of the complainant that the appellant had made payment of the outstanding sums (per the Agreement) to the complainant's attorneys-at-law. However, it is not clear exactly when this payment was made. Also, during cross-examination, the complainant agreed that she was shown a letter by the appellant (during the disciplinary hearing) written by her brother, containing instructions to the appellant not to pay over any of the proceeds to her.
The appellant's defence at trial was a complete denial of the allegations. In his unsworn statement from the dock (‘dock statement’), he relied on certain documents that were admitted into evidence on the prosecution's case to show that between 2000 and 2010, he had been in touch with the complainant (contrary to her evidence that the last time she had contact with the appellant before 2012 was in 2000). He also relied upon the statement of account, which he said was sent to the complainant through her attorney-at-law “long” before he was charged, to show that he had satisfactorily accounted for all of the proceeds. According to the appellant, the statement of account showed that he had made significant expenditures relating to the probate and sale from his own funds (which were later recouped by him from the proceeds) and that he had not fraudulently converted any of the proceeds, much less the complainant's portion. The appellant also stated that the Agreement made during the GLC hearing was a “without prejudice” document meant to settle the matter and not an admission of guilt by him. The appellant called two witnesses who both spoke in glowing terms about his good character.
The learned Judge of the Parish Court rejected the appellant's position that the Agreement was a “without prejudice” document on the bases that this issue was not raised before the document was tendered as an exhibit, and there was no reference to that term in the body of the document.
Having considered the evidence, relevant statutory provisions and authorities, the learned Judge of the Parish Court found that the appellant was accountable to all the beneficiaries named in the will, even if he had been instructed by the complainant's brother, who had retained him, not to pay out any of the proceeds to her. She also found that although the appellant had communicated with the complainant during the “probate process”, he failed to respond to her enquiries about her portion of the proceeds and, when required by her to do so, failed to provide a satisfactory account. As a result, the learned Judge of the Parish Court concluded that the requirements of sections 64(2)(b) and (c) of the Act (set out at para. [24] below) had been met, and the prosecution had established a prima facie case of fraudulent conversion.
It was also the learned Judge of the Parish Court's finding that no reasonable or plausible explanation had been given for the eight-year retention of the complainant's portion of the proceeds and why the complainant had not received any payment even after the appellant had agreed in 2014 to do so. Concerning the statement of account, she concluded that it did not provide any satisfactory explanation why the appellant had waited for over a year and a half (from November 2011 to July 2013 when the sum of $410,000.00 was sent to the complainant's attorney-at-law along with the statement of account) to pay over to the complainant the portion of the proceeds that he would have had in hand since November 2011.
Ultimately, the learned Judge of the Parish Court decided that in all the circumstances, taking into account the appellant's “egregious, unprofessional and questionable” conduct in the manner he handled the distribution of...
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