Joseph Brice v R

• Jurisdiction: Anguilla
• Judge: Blenman JA
• Judgment Date: 08 April 2020
• Judgment citation (vLex): [2020] ECSC J0408-1
• Date: 08 April 2020
• Court: Court of Appeal (Anguilla)
• Docket Number: AXAHCRAP2016/0001

[2020] ECSC J0408-1

EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Before:

The Hon. Mde. Louise Esther Blenman Justice of Appeal

The Hon. Mde. Gertel Thom Justice of Appeal

The Hon. Mr. Gerard St.C Farara, QC Justice of Appeal [Ag.]

AXAHCRAP2016/0001

Between

Joseph Brice

Appellant

and

Regina

Respondent

Appearances:

Mr. Joseph Brice in person

Ms. Erica Edwards, Senior Crown Counsel and Mr. Ivor Greene, Senior Crown Counsel for the Respondent

Criminal appeal — Appeal against conviction — Theft contrary to section 242 as provided for by section 248(b) of the Criminal Code of Anguilla — Money credited to appellant's bank account by electronic transfer — Debiting of company's bank account and corresponding crediting of appellant's bank account — Charge of theft of credit balance to be proffered in such circumstances — Principles of R v Preddy — Whether learned judge erred in failing to uphold the no case submission — Ineffective assistance of counsel at trial — Whether conduct of counsel undermined safety of conviction

Mr. Joseph Brice (“Mr. Brice”) was a director of a licensed trust management company called Private International Trust Corporation (“PITCO”) which was responsible for the management of Regency Holdings Limited (“Regency”), an international business corporation in accordance to the terms of a Management Agreement. Regency had substantial monies to its credit, in a bank account held at Fortis Bank Curacao (“Fortis Bank”) and on which Mr. Brice had signing rights. Mr. Brice managed the bank account based on written instructions sent to him by Leonard Reyneke and Associates, an accounting and auditing firm in South Africa on behalf of Regency. When Mr. Brice provided trust management services to Regency, he was remunerated based on written instructions from Mr. Leonard Reyneke (“Mr. Reyneke”).

Needing money for his personal use, Mr. Brice sent an email to Mr. Reyneke requesting that Mr. Reyneke ask the principals of Regency to loan him the sum of US$950,000.00 for 8 weeks. By the time Mr. Reyneke read the email, Mr. Brice had already instructed Fortis Bank to debit Regency's account and credit his account in the sum of US$950,000.00. Upon reading the email, Mr. Reyneke contacted Mr. Brice and indicated that there was no approval for the withdrawal of the monies and requested that Mr. Brice immediately return the monies that he had withdrawn from Regency's account. Mr. Brice failed to do so and continued to use the monies for his own use. As a result, Regency and Mr. Reyneke made reports to the police in Anguilla. Mr. Brice was arrested and charged with several counts of money laundering and theft.

He was charged and tried for money laundering and the theft of the sum of US$950,000.00 contrary to section 242 as provided for by section 248(b) of the Criminal Code of Anguilla (the “Criminal Code”) and was convicted and sentenced. Mr. Brice successfully appealed to the Court of Appeal against that conviction and sentence. The Court of Appeal ordered him to be retried. On his retrial, the indictment that was presented by the Crown charged him with several counts of breaches of the Proceeds of Criminal Conduct Act and theft. The judge directed the jury to acquit him of all charges under the Proceeds of Criminal Conduct Act and he was tried only on the count of theft. During his retrial, his then counsel made a no case submission relying on the principle in R v Preddy and the submission was overruled. He was convicted and sentenced to 18 months' imprisonment with time on remand of 2 weeks and 3 days taken into account.

Mr. Brice appealed against his conviction and complains that his counsel at the retrial did not competently represent him and relatedly that the learned judge erred in failing to uphold his no case submission. He contends that the cumulative effect of both breaches undermines the safety of his conviction. Two main issues therefore arise for this Court's determination: (i) whether the learned judge erred in law in failing to uphold his no case submission; and (ii) whether the conduct of Mr. Brice's counsel at the retrial was such that it undermined the safety of his conviction.

Held: allowing the appeal and quashing Mr. Brice's conviction, that:

• 1. Money in a bank account represents a credit balance. A credit balance represents a debt owed by a bank to an account holder. Property in the form of credit balance is the customer's right, as creditor, to recover the debt from the bank. The cases of Preddy, Hilton and Darroux provide the guiding principle and make it patently clear that in circumstances that are analogous to the acts of the appeal at bar, the charge of stealing the credit balance shall be proffered as distinct from a charge of theft of the actual sum of money in order for it to be sustainable. Failure to do so is fatal.

  R v Preddy [1996] AC 815 applied; R v Hilton [1997] 2 Cr App R 445 applied; Darroux v The Crown [2018] EWCA Crim 1009 applied.

• 2. In these circumstances, Mr. Brice was charged and tried for theft of the sum of US$950,000.00 as distinct from theft of the credit balance in accordance with the Preddy and Hilton decisions. The evidence that the Crown led was incapable of establishing a prima facie case that Mr. Brice had stolen the money. If at all, the charge, based on Preddy, ought to have been in relation to theft of the credit balance. Accordingly, the learned judge should have upheld the no case submission in light of this evidential difficulty since no evidence had been led to substantiate an essential element of the offence for which Mr. Brice had been tried, namely the actus reus of theft of US$950,000.00, had not been proven.

  R v Preddy [1996] AC 815 applied; R v Hilton [1997] 2 Cr App R 445 applied; Darroux v The Crown [2018] EWCA Crim 1009 applied.

• 3. The general rule is that not every deviation of counsel from standards of professional conduct during the conduct of the trial will result in a conviction being quashed on appeal. If the appellate court is of the view that, notwithstanding counsel's default, the trial was not affected and the verdict would have inevitably been the same, the conviction may stand. However where counsel's conduct was so egregious, the court may take the view that there has been a denial of due process, thereby undermining the safety of the conviction.

  Boodram (Ann-Marie) v The State (2001) 59 WIR 493 applied; Bethel v The State (No. 2) (2000) 59 WIR 451 applied.

• 4. An appellate court must approach complaints about counsel's incompetence, and its effect with a healthy skepticism. Where it has been demonstrated that counsel's failures were of a fundamental nature, the court must proceed with great care before it concludes that the verdict would have inevitably been the same. Whilst not making a finding of incompetence against Mr. Brice's counsel, there is no doubt that the representation provided by his counsel could have been more helpful and enhanced. The complaints against counsel are serious and the applicable legal principles of Preddy should have been canvassed in more detail and with greater clarity in support of the no case submission.

  Boodram (Ann-Marie) v The State (2001) 59 WIR 493 applied; Bethel v The State (No. 2) (2000) 59 WIR 451 applied.

• 5. On a no case submission, the essential question that the judge has to determine is whether a jury, properly directed, can convict on the evidence that the Crown has led. Essentially, the judge is required to determine whether the prosecution has led evidence to establish a prima facie case that requires the defendant to answer. The critical question in the present appeal is whether the safety of Mr. Brice's conviction has been undermined given the totality of the circumstances. It is clear, based on the Crown's evidence and the principles in R v Preddy, that it would have been impossible for the jury, properly directed, to have convicted Mr. Brice of theft of US$950,000. Therefore, it is evident that the learned judge erred in rejecting the no case submission since an essential element of the offence was not borne out by the Crown's evidence, namely the unlawful taking of US$950,000 as distinct from the credit balance.

  R v Galbraith [1981] 2 All ER 1060 applied.

Introduction

Blenman JA

1 This is an appeal by Mr. Joseph Brice (“Mr. Brice”) against his conviction. At the heart of his appeal are the allegations that his then counsel did not competently represent him and this undermined the safety of his conviction. Relatedly, he contends that the learned trial judge erred in failing to uphold his no case submission. He complains that the effect of both, taken singularly or cumulatively, undermine the safety of his conviction. He therefore urges this Court to quash his conviction. His appeal is strenuously resisted by the Crown.

Background

2 Mr. Brice was a director of a licensed trust management company called Private International Trust Corporation (“PITCO”) which was responsible for the management of an International Business Corporation called Regency Holdings Limited (“Regency”). 1 Regency had substantial monies to its credit in a bank account held at Fortis Bank Curacao (“Fortis Bank”) and on which Mr. Brice had signing rights. Over the years, he managed the account based on written instructions that were sent to him by Leonard Reyneke and Associates, an accounting and auditing firm in South Africa on behalf of Regency. In a word,

Mr. Brice's company PITCO provided management trust services to various offshore companies for a fee. Specifically in relation to Regency, when PITCO provided services, it was remunerated based on written instructions from Mr. Leonard Reyneke (“Mr. Reyneke”)

3 Mr. Brice, needing money for his personal use, sent an email to Mr. Reyneke requesting that Mr. Reyneke ask the principals of Regency to loan him (Mr. Brice) the sum of US$950,000.00 for 8 weeks. Between...