R v Gibson

• Jurisdiction: Jamaica
• Judge: White, J.A.
• Judgment Date: 18 December 1986
• Neutral Citation: JM 1986 CA 69
• Docket Number: Not Stated
• Court: Court of Appeal (Jamaica)
• Date: 18 December 1986

Court of Appeal

Zacca, P.; White, J.A.; Ross, J.A.

Not Stated

Regina

and

Gibson

Appearances:

B. Macaulay, Q.C. and Mrs. Margaret Macaulay for the appellant.

F.A. Smith and Mr. R. Smellie for the Crown.

Criminal law - Fraudulent conversion — Mens Rea — Larceny Act, s. 24(i)(iii)(a)

White, J.A.

1 We set out hereunder the reasons for the judgment of the Court, which had dismissed the appeal by Lloyd Gibson against his conviction by the Resident Magistrate for St. Andrew, and the sentence of two years imprisonment at hard labour imposed upon him in respect of his conviction on each of the six counts of the indictment upon which he was arraigned. The indictment covers the period from 27th October, 1975 to 12th April, 1977.

2 The charges arose out of the operations of the appellant as a real estate agent which were conducted through two companies - Lloyd's Real Estate and Rental Bureau Limited, engaged in the buying and selling of real property, and Lloyd's Property Development Company Limited, concerned with two sub divisions at Billy Dunn, St. Andrew, and at Clarendon Gardens in the parish of Clarendon. The appellant was the Managing Director of each of these Companies. Each company could he described as a ‘family company’ to the extent that from the documents filed with the Registrar of Companies, the appellant and his wife, Hermine Gibson, were directors; other subscribers were Michael Gibson, Maurice Gibson, Morris Gibson and Godfrey Gibson, sons of the two directors, and Mrs. Winsome Barnaby- Moore who was Secretary for both Companies.

3 The evidence disclosed that the appellant himself was at all times in the effective, exclusive and dominant control over the affairs of the company. He, exclusively, made decisions on any question of company policy, especially the financial affairs of each of the companies. Whatever payments were made to the companies, they could be lodged to the accounts in the Bank only on the instructions of the appellant. No withdrawals from either account could be made without the approval of the appellant. It should also he pointed out that no separate clients' account was kept as was requisite by proper business standards. Nor did the appellant operate a personal chequing account. Money for his personal expenses was always obtained from the funds of one of the above-named companies. What the evidence further disclosed was that deposits made by the complainants mentioned in the indictment were paid into the office of Lloyd's Real Estate and Rental Bureau Limited. These deposits were made with regard to parcels of land which the appellant advertised he had authority to sell as a real estate agent. However, on the instructions of the appellant, except for one instance, these deposits were lodged to the account of the other company, Lloyd's Property Development Company which from all the indications was the separate entity in a different field of activity from that of the Lloyd's Real Estate and Rental Bureau Limited.

4 The six counts of the indictment charged the appellant with Fraudulent Conversion contrary to section 24(1)(iii)(a) of the Larceny Act, in that he received from several persons cheques which were to be applied to the purchase price of certain premises; but he converted the individual amounts of money thereby paid to his own use and benefit. In detail the complaints were as follows: In July 1975, Hyacinth Dunwell and Merle Dunwell deposited Six Thousand, Four Hundred Dollars ($6,400.00) with Lloyd's Real Estate and Rental Bureau Limited, on the purchase price of premises 14 Agualita Vale, Pembroke Hall. When the sale of these premises was not effected, the Dunwell's deposited a further sum of Five Thousand Dollars ($5,000.00) with that company for the purchase of 3 Greendale Avenue, Kingston 10. This was on the suggestion of Miss Barnaby who was then the Secretary for both companies. (Hereafter she will be referred to as Mrs. Barnaby- Moore, she having given evidence for the Crown by the latter name). The total amount to he applied to that transaction was thus Eleven Thousand, Four Hundred Dollars ($11,400.00). This latter sale did not materialise. They were again advised to look at other premises to which they were not attracted. The deposit was demanded back, but up to the time of trial had not been refunded. At first Mrs. Barnaby- Moore promised that the company would refund the money, but whenever Merle Dunwell, acting on behalf of her daughter and herself, went to the company's office for the money, she was put off. Eventually, she said she saw the appellant himself who promised repayment. Although she attended at the office several tunes thereafter, she did not see him. This was Count I of the Indictment.

5 Count 2 of the Indictment related the complaint of Agnes Beckford and Joetta Moo. In October 1976, they deposited a cheque for Three Thousand Dollars ($3,000.00) as down-payment for the purchase of 7 Mimosa Avenue, St. Andrew. They were promised that a mortgage would be raised for them. When this did not materialise after four months, they demanded their money hack. A cheque for Three Thousand Dollars ($3,000.00) drawn on Lloyd's Development Limited and signed by the appellant and Mrs. Barnaby- Moore was sent to these complainants. It was dishonoured by the bank. Up to the time of trial no refund had been made.

6 Count 3 concerned the deposit of Three Thousand Dollars $3,000.00) made by Cassia Grant on the 1st December, 1976 towards the purchase of premises, 7 Mimosa Avenue, St. Andrew. Cassia Grant obtained a mortgage from the Workers Savings & Loan Bank, but the sale fell through. She made several demands in person for repayment of the amount of Three Thousand Dollars ($3,000.00). Her demands were never met. It should here be stated that this complainant at no time dealt personally with Lloyd Gibson. She was always interviewed by Mrs. Barnaby- Moore.

7 On Count 4 the allegation was that Dennis Lee deposited a cheque for Three Thousand, Five Hundred Dollars ($3,500.00) towards the purchase of premises at Bridgeport, St. Catherine. On 30th December, 1976 Mr. Lee had made a down-payment of Five Thousand, Five Hundred Dollars ($5,500.00) on these premises, only to be told two weeks after that something had gone wrong, and he was shown other premises, 9 Corrine Crescent, Edgewater, which he agreed to purchase. Since the price for this second place was Twenty-five Thousand Dollars ($25,000.00) compared to nineteen Thousand Dollars ($19,000.00) for the first house, Mr. Lee was advised that he had to pay a higher deposit. Consequently he paid an extra amount of Three Thousand, Five Hundred Dollars ($3,500.00). When he went to sign the agreement for sale, he observed that Five Thousand, Five Hundred Dollars ($5,500.00) was stated therein as the deposit. He disputed this statement; he was promised a new contract, which he had not received up to the date of the trial. Mr. Lee's was the only purchase which had been effectuated, although his complaint was that what he was demand was the repayment of Three Thousand, Five Hundred Dollars ($3,500.00) which had been overpaid, and which never had been repaid.

8 Then the complaint of Lloyd Biersay in Count 5 is to the effect that he paid two cheques totalling Two Thousand Dollars ($2,000.00) as down-payment of 41 Southern Cross Drive, Harbour View. No sale was effected, and no refund of money was made.

9 Finally, in Count 6, Paulette Jervis' complaint was that she deposited a cheque for Three Thousand Dollars ($3,000.00) on a lot of land in Bridgeport, but later requested that this amount be applied to the purchase of a lot in Williamsfield, Manchester. No sale was effected, and no refund was made. Mr. Austin Jobson, a Real Estate Developer, and sole vendor of lots in that subdivision, received the agreement for sale signed by Mrs. Jervis and sent to him by Lloyd's Real Estate, but as he had no dealing with them, he did not return the agreement for sale.

10 Note should he taken of the fact that evidence led by the Crown showed that, as regards the respective premises, Lloyd's Real Estate and Rental Company Limited did not have any authority to deal with or sell them. For instance, although 3 Greendale Avenue, Kingston 10 had been advertised for sale in ‘The Daily Gleaner’ by the owner, Mr. Clarence Wilson, he had in fact sold the premises sometime in 1973. The new owner Mr. Vincent Matthews, was in possession at the time of trial. Neither of these witnesses had authorised Lloyd's Realty and Rental to advertise those premises for sale in 1976.

11 Likewise, Monica Chambers had in August 1976 instructed her lawyers, Messrs Dunn Cox & Greets, to sell premises 41 Southern Cross Drive, Harbour View. She had not authorised Lloyd's Real Estate and Rental Bureau Limited to sell those premises. She said she never received any deposits from Lloyd's Estate and Rental Bureau, or Lloyd's Property Development Company Limited. She had no business with either of them. She had since sold the premises.

12 In the same vein was the evidence of Mr. George Williams, who was the owner of 7 Mimosa Avenue, Waltham Gardens, St. Andrew, and which he decided to sell. In pursuance, he advertised the sale of the premises between December 1976 and January 1977. He had instructed his lawyers, Messrs. Dunn Cox & Orrett, to sell the premises as, like Monica Chambers, he did not wish to sell through a real estate agent. And in fact the place was sold in 1979. He had been spoken to by Mrs. Barnaby- Moore in relation to the advertised sale; he had told her this and she even sent a representative to him; hut Me representative was told to go to his lawyer. He had not given Lloyd's Real Estate and Rental Bureau written or oral instructions to sell his place. He had not received any deposit from Lloyd's Real Estate.

13 Mr. Reginald Fraser, attorney-at-law, supported the...