Patricia Scotland v R

• Jurisdiction: Jamaica
• Judge: Morrison JA
• Judgment Date: 07 November 2014
• Neutral Citation: JM 2014 CA 111
• Docket Number: RESIDENT MAGISTRATES' CRIMINAL APPEAL NO 3/2013
• Court: Court of Appeal (Jamaica)
• Date: 07 November 2014

[2014] JMCA Crim 45

JAMAICA

IN THE COURT OF APPEAL

Before:

The Hon Mr Justice Morrison JA

The Hon Miss Justice Phillips JA

The Hon Mr Justice Brooks JA

RESIDENT MAGISTRATES' CRIMINAL APPEAL NO 3/2013

Patricia Scotland

and

R

Glenroy Mellish for the appellant

Miss Paula Llewellyn QC, Miss Patrice Hickson and Miss Kerri-Ann Gillies for the Crown

CRIMINAL LAW - Embezzlement - Whether verdict unreasonable

Morrison JA

1 At the conclusion of the hearing of this appeal on 24 July 2013, the court reserved its judgment to 31 July 2013. On the latter date, the appeal was dismissed and the court ordered that the appellant's sentence should run from 13 August 2012. These are the reasons which were at that time promised for that decision, with apologies for the delay.

2 On 18 May 2012, the appellant was convicted in the Resident Magistrate's Court for the Corporate Area, after trial before Her Honour Mrs Stephane Jackson-Haisley on an indictment charging her with 12 counts of embezzlement. (The appellant was originally indicted for the offence of larceny by a servant, but at the end of the Crown's case the indictment was amended on the Resident Magistrate's direction to charge embezzlement instead.) On 13 August 2012, the appellant not having availed herself of the opportunity given to her by the court to make restitution should she choose to do so, she was sentenced to 18 months' imprisonment on counts one to three (to run concurrently) and admonished and discharged on the nine remaining counts.

3 The complainant, Kendel Trade Corporation Ltd (“Kendel”) is a distribution company which is involved in the business of importing goods from abroad and selling them to supermarkets and wholesalers island wide. From some time in the year 2008 to 4 January 2010, when she tendered her resignation, the appellant was employed to Kendel as an accounting clerk. Her duties included the receipt and recording of cash and cheques from sales representatives and preparing deposit slips for the lodgment of the amounts received to one of the company's bank accounts with FirstCaribbean International Bank (“FCIB”), National Commercial Bank (“NCB”) and/or RBTT Jamaica Ltd (“RBTT”).

4 The evidence accepted by the learned Resident Magistrate described the following system. Each sales representative employed to Kendel was equipped with a collection book, in which he would enter on a daily basis all proceeds of sales collected from customers, both in cash and by cheques. The cash would be handed over to the accounting clerk, who would sign on receiving it. The accounting clerk would then record the receipts on a form described as a cash register or cash reporter form. The accounting clerk would at the end of the day be responsible for making up the bank cash deposit slips, which should reflect the same amount shown on the cash reporter form, to enable the cash to be sent by courier to the bank.

5 David Johnson was employed by Kendel as a sales representative. Dealing mostly with cash sales, he was responsible for collections in the areas of downtown and uptown Kingston and Spanish Town areas. On various occasions between 2008 and 2009 he collected cash from several customers and handed it over to the appellant in her capacity as accounting clerk. Whenever he did so, she would sign for the cash received in his collection book, alongside the entry made by him in it. As required by her position, she usually wrote up the cash reporter form and the bank deposit slips. However, in relation to the various sums which became the subject of the charges against her, the evidence was that the appellant neither completed the cash reporter form nor wrote up bank cash deposit slips in preparation for lodgment. The evidence which the Resident Magistrate accepted was that whatever sums were not recorded in the cash reporter form would not have gone to the bank for deposit to one of the company's accounts.

6 A problem arose towards the end of 2009 when amounts paid by customers, as reflected in Mr Johnson's collection book, did not appear to be recorded on the corresponding cash reporter form. From the standpoint of the company's records therefore, these customers appeared to be delinquent. After initial checks were carried out by its managing director, the company called in its external auditor. The auditor's examination of the collection books, the cash reporter forms and the bank deposit slips revealed that, other than in the collection books, the questioned sums were not mentioned anywhere else. For the period January to December 2009, the auditor listed a total of 52 sums totalling over $2,300,000.00 which were listed in the collection books as having been collected by the appellant from Mr Johnson, but were never reported in the cash reporter forms and were never written up on any deposit slips for the purposes of lodgment to Kendel's accounts at any of the named banks.

7 The prosecution did not tender the company's bank statements in evidence at the trial. This led to a submission of no case to answer at the end of the prosecution's case, on the basis that, absent the bank statements, there was no evidence that the various sums had not been deposited to the bank accounts. The Resident Magistrate ruled that there was a case to answer, whereupon the appellant rested on her submission and the matter proceeded to addresses.

8 At the end of the day, the learned Resident Magistrate agreed that the absence of the bank statements was a lacuna in the Crown's case which rendered inadmissible any reference in the auditor's report to their contents. Nevertheless, the Resident Magistrate considered that there was sufficient in the evidence to be garnered from the collection books, the cash reporter forms and the bank cash deposit slips, that did not relate specifically to the bank statements, as well as the evidence of the other witnesses, to satisfy the court beyond reasonable doubt that the appellant embezzled the sums of money on the auditor's list. The magistrate accepted as true the...