_________________________________________________________________________________ 230919 R v. Robb (Garfield Antonio): Ind. 42 of 2022. Coram Williams J, (Actg.) – Verdict Judgment Page 1 of 30 IN THE GRAND COURT OF THE CAYMAN ISLANDS 1 CRIMINAL DIVISION 2 3 INDICTMENT NO. 42 of 2022 4 5 REX 6 V. 7 GARFIELD ANTONIO ROBB 8 9 10 Appearances: Ms. Hema Soondarsingh for the Crown 11 Mr. Crister Brady of Brady Attorneys for the Defendant 12 13 Before: The Hon. Justice Frank Williams (Actg.) 14 15 Judge Alone trial: November 2022: 10th, 11th, 15th, 16th, 17th and 30th. 16 17 Verdict Judgment: 19th September 2023 18 19 20 21 HEADNOTE 22 23 Criminal law - Section 247 of the Penal Code (2019 Revision), Obtaining Property by Deception - 24 Section 149 of the Police Act, Defendant remaining silent, Inferences to be drawn from 25 defendant’s silence 26 27 28 VERDICT JUDGMENT 29 30 31 32 33 34 35 36 37 _________________________________________________________________________________ 230919 R v. Robb (Garfield Antonio): Ind. 42 of 2022. Coram Williams J, (Actg.) – Verdict Judgment Page 2 of 30
In this case, the defendant is charged with the offence of Obtaining Property by Deception, 1 pursuant to s.247 of the Penal Code (2019 Revision). That section reads as follows: - 2 3 “247. (1) A person who by any deception dishonestly obtains property 4 belonging to another, with intention of permanently depriving the 5 other of it commits an offence and is liable to imprisonment for ten 6 years. 7 (2) For purposes of this section a person is to be treated as obtaining 8 property if he obtains ownership, possession or control of it, and 9 “obtain” includes obtaining for another or enabling another to 10 obtain or retain. 11 (3) Section 240 shall apply for this section, with the necessary adaptation 12 of the reference to appropriating, as it applies for section 235. 13 (4) For purposes of this section “deception” means any deception 14 (whether reckless or deliberate) by words or conduct as to fact or as 15 to law, including a deception as to the present intentions of the person 16 using the deception or any other person.” 17 18
The provisions of s.240 of the Penal Code (to which section 247 refers) seek to give greater 19 clarity to the phrase “with the intention of permanently depriving the other of it”, as follows: 20 21 “With the intention of permanently depriving the other of it 22 23
(1) A person appropriating property belonging to another without 24 meaning the other permanently to lose the thing itself is nevertheless 25 to be regarded as having the intention of permanently depriving the 26 other of it if his intention is to treat the thing as his own to dispose of 27 regardless of the other’s rights; and a borrowing or lending of it may 28 amount to so treating it if, but only if, the borrowing or lending is for 29 a period and in circumstances making it equivalent to an outright 30 taking or disposal. 31 (2) Without prejudice to subsection (1), where a person, having 32 possession or control (lawfully or not) of property belonging to 33 another, parts with the property under a condition as to its return 34 which he may not be able to perform, this, (if done for purposes of 35 his own and without the other’s authority) amounts to treating the 36 property as his own to dispose of regardless of the other’s rights.” 37 38 39 40 41 42 _________________________________________________________________________________ 230919 R v. Robb (Garfield Antonio): Ind. 42 of 2022. Coram Williams J, (Actg.) – Verdict Judgment Page 3 of 30 THE COUNTS 1 2
The defendant originally faced a total of 13 counts, relating to agreements which span 2014 3 and 2020. No evidence was offered in respect of two of the counts and those were dismissed, 4 leaving 11 counts remaining. 5 6
As there is considerable similarity in the claims from the complainants, a table with the 7 Counts, which set out the corresponding complainants and amounts paid, may be the best 8 way of presenting a summary of the Counts before going on to discuss particulars. 9 10 Count Complainant Item Amount & date paid Amount refunded Balance due 1 Diana Jackson Shutters $3,500.00 - May 2014 $1,900.00 - last payment February 2021 $1,600.00 2 Anand Adapa Screen patio $3,000.00 - August 2016 Nil $3,000.00 3 Ira Bothwell Shutters $1,650-June 2018 $1,050.00 - last payment September 2019 $600.00 4 Flavio Franca Shutters etc $2,225.00 – 2 November 2018 Nil $2,225.00 5 Burnstein Banks Shutter US$3,414.63.00 - 27 June 2019 CI$1,700.00 $2,600.00 6 Abby Rainford No evidence offered 7 Michalakis Kyberd Shutter $400.00 - March 2020 Nil $400.00 8 Allyson Minus- Phillips Screened patio $1,000.00 - 19 June 2020 Nil $1,000.00 9 Ruby Ann Petrie Shutters $1,250.00 - 25 June 2020 Nil $1,250.00 10 Charles Moore Shutters $1,800.00 - July 2020 $1,800-from civil suit Nil 11 Donnet O’Connor Guttering $1,500.00 - 7 October 2020 Nil $1,500.00 12 Yvonne Williams No Evidence offered 13 Erverlyn Burgess Screens $600.00 - December 2020 Nil $600.00 11
Now it would be useful to give a summary of each case against the defendant. 12 13 14 15 _________________________________________________________________________________ 230919 R v. Robb (Garfield Antonio): Ind. 42 of 2022. Coram Williams J, (Actg.) – Verdict Judgment Page 4 of 30 THE PROSECUTION CASE 1 2 Count 1 – Diana Jackson 3 4
In this count, the complainant, Ms. Diana Jackson, gave evidence that in May 2014 she 5 wanted some shutters for her home in Bodden Town. She made contact with the defendant, 6 and he agreed to do the job. She obtained a loan, received a cheque payable to him in the 7 sum of CI$3,500.00 and gave it to him. He had told her that he would have been in a position 8 to start the job about a month after receiving payment. She called him several times when 9 she became concerned that he was taking too long to start. Some of those calls were made 10 around Christmas of 2014. She testified that when she called and spoke with him: “He would 11 give me excuses, after excuses, after excuses.” 12 13
Around the beginning of 2015, he dropped some material at her premises but returned and 14 picked them back up about a week later. She became aware of his visits only by seeing the 15 material and by seeing him on her premises on her security camera. He said that he would 16 have been coming soon to do her job after finishing another job that he was working on, but 17 “that soon never happened.” She kept calling him and in 2015 he refunded her $1,000.00 in 18 cash. In February of 2019 he refunded her $500.00 and another $400.00. Apart from 19 promising to do the job, he also promised to repay her; but he never did. In September of 20 2022 he again promised to deliver; but never did. 21 22
In cross-examination, she said that he told her that he was ordering the shutters from the 23 United States and that he would get them within two weeks. 24 25 26
She denied suggestions that were put to her that in 2014 he told her that he was having 27 difficulty getting the shutters on island. She stated that, after several months and years, she 28 demanded her money back. She also denied that he only came back to pick up the items after 29 she had told him that she no longer wanted him to finish the job. She said that they had no 30 such conversation. She did not tell him to come and get the shutters from her premises. She 31 would call him every week and he would promise to pay her on the Friday of each week that 32 she called, but he never did. She would call him all the time. She further testified that she 33 had no conversation with him to the effect that she had changed her mind about installing 34 _________________________________________________________________________________ 230919 R v. Robb (Garfield Antonio): Ind. 42 of 2022. Coram Williams J, (Actg.) – Verdict Judgment Page 5 of 30 the shutters. There was also no conversation that he would sell the shutters to be able to pay 1 her. There was never a week that she did not call him. She had begun civil proceedings 2 against him; but stopped that process as it was too “tiresome”. 3 4 Count 2 -Anand Adapa 5 6
Mr. Anand Kumar Adapa, the complainant in this count, testified that in August of 2016, he 7 had requested and received from the defendant, a quotation for a screened patio at his home. 8 The quotation was in the sum of $6,000.00. It was a package deal for him and two other 9 persons who lived in the same residential complex. He paid a deposit of $3,000.00. The only 10 thing that he got from the defendant were some pieces of material some six months after – 11 that is, in about February or March of 2017. They were some aluminium strips. On one 12 occasion, the defendant told this complainant and the other two men who lived at his 13 complex that he had material to do his job in a container in East End. They accompanied 14 him there for him to show them the material, but when they arrived, the defendant said that 15 he did not have the key for the container. The complainant had to get a company to do the 16 job, and he dumped the material that the defendant had left at his premises. He asked the 17 defendant for his money several times, but there was “always an excuse” – “never-ending 18 excuses” – one after the other. 19 20
In cross-examination, he said that the agreement for the defendant to do the job was an oral 21 agreement and that the $3,000.00 that he paid was for the defendant to get material to the 22 island. He did not know the value of the material that the defendant took to his premises. He 23 said he and the defendant had no discussion about the need to pour concrete first. He said it 24 was not true that only the mesh was left to be put in. This complainant said that Hyde and 25 Company did the job in 2017. 26 27 Count 3 - Ira Bothwell 28 29
Mr. Ira Bothwell was the complainant on this count. His testimony was that he telephoned 30 the defendant on the 1st of June 2018 about fitting accordion and Bermuda shutters at his 31 home. The defendant visited his home and took measurements the same day and, on the 8th 32 of June 2018, they came to an agreement for the cost of the job, which was CI$3,300.00. 33 _________________________________________________________________________________ 230919 R v. Robb (Garfield Antonio): Ind. 42 of 2022. Coram Williams J, (Actg.) – Verdict Judgment Page 6 of 30 That same day, he gave him a cheque for US$1965.00, representing 50% of the contract 1 price. The cheque was cashed the same day. 2 3
This complainant said that every time he spoke with the defendant, the defendant had a 4 different excuse. He never did the job. The complainant demanded his money back around 5 the end of July or the 20th of August 2018. He was paid $500.00 in cash on 2 November 6 2018; $250.00 on 25 April 2019; $300.00 in September 2019, which left a balance of 7 $600.00. He made no further payments after that. These payments came after Mr. Bothwell 8 had “bugged” him as often as he could. The defendant stopped taking Mr. Bothwell’s calls 9 on the 1st of October 2019. Mr. Bothwell testified that he got the defendant to confirm by 10 text message that he owed him $600.00 by texting him and pretending that he owed him 11 $900.00. 12 13
In cross-examination, Mr. Bothwell denied that the defendant had told him that he was going 14 to keep the money as he (Mr. Bothwell) had caused him to waste gas and money putting the 15 shutters together. He said that every time they spoke, the defendant had a different “story”. 16 Mr. Bothwell said that after a while, he realized that the defendant was just “a bag of breeze” 17 telling “lies on top of lies”. 18 19 Count 4 - Flavia Franca 20 21
In respect of this count, Mr. Flavia Franca testified that, in late 2018, he and the defendant 22 reached an agreement that the defendant would install hurricane shutters, roll-up doors and 23 other items at his premises before December of 2018. Toward this end, he paid the defendant 24 CI$2,225.00, this being half the contract price. The defendant said that he had to send abroad 25 to have the material he needed to do the job designed, fabricated and shipped. The defendant 26 failed to install the shutters by the agreed time, so Mr. Franca gave him until January 2019 27 and then March 2019 to do so. He again failed to meet that deadline. All that the defendant 28 did was to install some tracks onto which the shutters should have been installed. That work 29 was done without Mr. Franca’s knowledge and when he was not at home. When he inspected 30 them, they were incomplete and full of scratches. He consulted with someone 31 knowledgeable in the field and formed the view that the defendant had installed second- 32 hand material at his home. The defendant later removed the tracks for the roll-up doors, in 33 June 2019, without the complainant’s permission. Around March 2019 the complainant 34 _________________________________________________________________________________ 230919 R v. Robb (Garfield Antonio): Ind. 42 of 2022. Coram Williams J, (Actg.) – Verdict Judgment Page 7 of 30 asked the defendant to return the money but has received no part of his deposit. The 1 complainant received nothing, despite several promises to pay. The defendant became 2 aggressive when the complainant followed up to try to recover his money - insulting him 3 and using indecent language to him. He said the defendant was asked to remove the material 4 that he had left on his premises, but the defendant never came. 5 6
In cross-examination he testified that the defendant put in second-hand parts at his premises, 7 in order to “buy time”. He never received back the $2,225.00 that he had paid the defendant. 8 The defendant removed some of the parts that he had installed and took them away with 9 him. Mr. Franca put the items the defendant did not remove in his pool pump room for 10 storage. He pursued this matter for what he said is the justice of the case. 11 12 Count 5 - Burnstein Banks 13 14
Mr. Burnstein Banks is the virtual complainant on this count. A resident of Cayman Brac, he 15 contacted the defendant in June of 2019 as he wanted accordion hurricane shutters for his 16 garage door. He received a quote from him for CI$2,800.00 but the defendant requested to 17 be paid in United States currency with the explanation that he needed to source the material 18 from the United States. On the 27th of June 2019, he paid him US$3,414.63 in full by bank 19 transfer, the defendant having refused his request to pay a deposit of 50%. He was provided 20 with the exact measurements for the doors. The defendant told him that he had put in the 21 order for the materials and that he would have called him in two or three weeks. The 22 defendant told him that he was shipping the shutters directly to Cayman Brac. On two or 23 three occasions, the defendant told him that the shutters were being shipped by Thompson 24 Shipping; but when he called that entity, it was proved that that was not so. Every time that 25 he called the defendant, the defendant had a different excuse. A shipment eventually came, 26 which he paid CI$53.70 to clear. The defendant told him that he would charge $400.00 to 27 install the shutters. When the shutters came, he examined them with a friend who was 28 knowledgeable about shutters. He discovered that the shutters shipped to him were second- 29 hand with scratches, pins and rollers were missing, and the shutters otherwise showed signs 30 of previous use. Additionally, despite the fact that he provided the defendant with the 31 measurements for the shutters, the shutters provided were too short. The defendant promised 32 _________________________________________________________________________________ 230919 R v. Robb (Garfield Antonio): Ind. 42 of 2022. Coram Williams J, (Actg.) – Verdict Judgment Page 8 of 30 to send the correct shutters but did not do so. The complainant said: “every time he told me 1 a different lie”. 2 3
Around the 13th of October 2020 the defendant promised to send him CI$2,000.00; but only 4 sent $200.00. He eventually paid a total of CI$1,700.00, leaving a balance of approximately 5 CI$1,100.00. He shipped the shutters back to the defendant. 6 7
In cross-examination, the complainant confirmed that he had been repaid CI$1,700.00. He 8 also stated that the defendant telephoned him and told him that was going to repay him but 9 that he should not let his lawyer know. 10 11 Count 6 - Abby Rainford 12 13
No evidence was offered on this count, in which the virtual complainant was Ms. Abby 14 Rainford. It is, therefore, dismissed. 15 16 Count 7 - Michalakis Kyberd-McIntosh 17 18
On this count, Mrs. Michalakis Kyberd-McIntosh testified to requesting the defendant to 19 install hurricane shutters on a property she owned on Eastern Avenue, to protect windows 20 not just from hurricanes, but also from vandals. The defendant had done work for her 21 previously. At his request, she paid him a total of $400.00, which he told her was for the 22 material to do the job. This was in March of 2020, and she gave her evidence on 15th 23 November 2022. She left this jurisdiction in May of 2022 and up to that time he had not 24 installed the shutters or returned her money, in spite of her calling and messaging him 25 numerous times. Although she had left the island, she had not changed her telephone 26 numbers and could still be accessed via those phones. 27 28
In cross-examination, she stated that he had done other jobs for her in the past and had then 29 done good work at reasonable rates. She denied that she had had conversations with him 30 about his inability to complete the job because of Covid-19 restrictions. She said that at one 31 point, he told her that the shutters had arrived on the island. She testified that, even if he had 32 forgotten to do her job, she had made numerous telephone calls and sent numerous messages 33 _________________________________________________________________________________ 230919 R v. Robb (Garfield Antonio): Ind. 42 of 2022. Coram Williams J, (Actg.) – Verdict Judgment Page 9 of 30 to him that would have been a reminder about her job. She did not think of suing him, as 1 based on the amount of money involved, it was not worth it. 2 3 Count 8 - Allyson Minus-Phillips 4 5
Ms. Allyson Minus-Phillips testified to needing a screened-in patio to be done at her 6 premises in the Savannah area. The defendant had done satisfactory work for her previously. 7 He looked at the property, took measurements and gave her a quotation in the sum of 8 CI$1,650.00. She paid him a deposit of CI$1,000.00 around the 19th of June 2020 and he 9 promised to complete the job within that week. She said: “he was always promising, but the 10 work was never done”. He would sometimes turn up at the property and stay for a while but 11 would not do the job. She eventually got him to do the framing for the patio and she was 12 only able to do that by using her car to block his vehicle to prevent him from leaving on one 13 of his visits to her premises. He also installed screens, and she needed a roof to complete the 14 project. He put up a temporary roof. However, she was not satisfied with the work he had 15 done, as some of the screens had holes in the corners; the top of the roof leaked and the 16 flashing had sharp edges, which might have made it unsafe for children. She eventually 17 employed someone else to do the job when the defendant did not respond to her requests for 18 him either to complete the job or to return the balance of her deposit. The last time she 19 contacted him was on the 6th of February 2021. She had started the process of suing him but 20 decided to stop it as she felt that it was not going anywhere. 21 22
In cross-examination, she testified that he had done a screened-in porch for her prior to that 23 time and that she was satisfied with the quality of the job and the price was reasonable. She 24 said that he did take some material to her premises and did do some work there for the 25 current assignment. She said that he did not owe her anything now as she got the job 26 completed. She has put it behind her and wants nothing from the defendant. 27 28 Count 9 - Ruby Ann Petrie 29 30
Mrs. Ruby Ann Petrie testified that in June of 2020 she needed some hurricane shutters and 31 telephoned the defendant to whom she had been referred by a friend. He provided her with 32 a quotation for CI$2,500.00 with a requirement that she provide a 50% deposit before the 33 _________________________________________________________________________________ 230919 R v. Robb (Garfield Antonio): Ind. 42 of 2022. Coram Williams J, (Actg.) – Verdict Judgment Page 10 of 30 job would be started. On 29 June 2020 she gave him CI$1,250.00 as the deposit. The 1 defendant told her that he was ordering the material from overseas. At one point, he installed 2 frames that the shutters would run in but did no other work. He made numerous promises to 3 do the job but never turned up. She made a request for the return of her deposit about a year 4 and a half after it was paid over to him. 5 6
In cross-examination, Ms. Petrie testified that she paid the defendant the deposit in June of 7 2020, and, in September of that year, he sent her a picture of what he said was the bill of 8 lading for the shutters and indicated that the shutters had arrived. At one point, the defendant 9 told her that the shutters appeared to be too big for her windows and that he would have to 10 cut them to fit. In October, he installed a track above the double doors that she believes the 11 shutters should run in. She stated that she did not know the cost of the runner or track or the 12 cost of installing it. She gave a statement to the police in January of 2021. She was not aware 13 that the defendant had been told not to return to the premises. 14 15
In re-examination, she said that she had never seen any of the shutters. 16 17 Count 10 - Charles Moore 18 19
Evidence on this Count came from Mr. Charles Bruce Moore, who testified that, in July of 20 2020, he needed to have hurricane shutters installed over a sliding door and bay windows at 21 his home. The defendant visited him home, took measurements and gave him a quotation of 22 CI$4,500.00. On the 28th of July 2020, he gave him a cheque drawn on Butterfield Bank in 23 the sum of CI$1,800.00 and the defendant signed an agreement acknowledging receipt of 24 the deposit and agreeing to do the job. Around the 8th of August 2020, the defendant finally 25 called him (after numerous attempts by Mr. Moore to contact him) showing him by 26 WhatsApp video shutters that he said were Mr. Moore’s. The explanation that the defendant 27 gave for the delay was that he had wanted to complete all the shutters so that he could install 28 them all at one time. 29 30
Mr. Moore further testified that, on the 12th of November 2020, he called the defendant and 31 told him that he was tired of his lies and dishonesty and would be referring the matter to the 32 authorities. Between August and September 2020, the defendant showed up at his house 33 _________________________________________________________________________________ 230919 R v. Robb (Garfield Antonio): Ind. 42 of 2022. Coram Williams J, (Actg.) – Verdict Judgment Page 11 of 30 with some “old scrap pieces of material and installed two pieces of runners on one window”. 1 Those runners looked like used material that he had salvaged from somewhere else. 2 Additionally, they were too big for his windows and required to be cut. He said that the 3 defendant also brought some clear fiberglass which he said was for use on the arches, when 4 they had no such agreement. 5 6
He sued the defendant, thinking at the time that that was his best recourse and, in fact, had 7 to serve him with the papers twice, as the defendant did not respond to the claim when first 8 served. Once, when confronted by Mr. Moore, the defendant pulled a knife at him. 9 10
The Court ordered the defendant to repay the deposit plus costs and interest. 11 12
In cross-examination, Mr. Moore denied suing the defendant because he had not 13 satisfactorily completed the contract, saying that it was because the defendant had 14 completely failed to do the installation. All he did was to put up two bars (runners). He 15 agreed that he was required to remove bolts on the windows before the installation and said 16 that that was done, and he had so informed the defendant. The items that the defendant left 17 at his premises were still there in August of 2020 before he gave a statement to the police. 18 They have been lying in the same spot for some two years. He removed the tracks that the 19 defendant had installed, and he did so by simply unscrewing them. 20 21 Count 11 - Donnet O’Connor 22 23
Ms. Donnet O’Connor gave evidence that, in October of 2020, she wanted guttering installed 24 and painting done at her premises. One of her church brothers recommended the defendant 25 to her as someone who could do the guttering. The defendant collected the deposit that he 26 had requested of CI$1,500.00 on the 7th of October 2020 at her home. The agreement was 27 for him to complete the job early enough so that she could have painted the whole house 28 before Christmas, 2020. Before the beginning of December, he told her that he had gotten 29 the material. He promised to go to her house several times to do the job, but he never turned 30 up. She requested a refund of the deposit for the guttering on the 16th of December 2020. He 31 called her and asked her to let him do the painting of the house. She agreed to this as 32 Christmas was fast approaching. When he eventually came, he started to power wash the left 33 side of the house. However, he never brought any guttering material – that is, after he had 34 _________________________________________________________________________________ 230919 R v. Robb (Garfield Antonio): Ind. 42 of 2022. Coram Williams J, (Actg.) – Verdict Judgment Page 12 of 30 told her that he had received the material. He did not return, and, about two days before 1 Christmas, she texted him, telling him not to touch her house. She reported the matter to the 2 police on the 24th of December 2020. 3 4
In cross-examination, she said that she had had no discussion with the defendant about her 5 house needing to be power washed, but she just figured that it was a part of the painting. The 6 agreement between them was for the guttering work to begin as soon as he got the material. 7 She said that she did not even know that he had started the power washing, and she had to 8 do all that over. 9 10
In re-examination she stated that she had to get someone else to do the guttering more than 11 a year after. She also stated that she could not definitively say what a photograph that she 12 was shown represented. 13 14 Count 12 - Yvonne Williams 15 16
No evidence was offered on this count, for which the complainant was Ms. Yvonne Williams. 17 As a result, this charge was dismissed. 18 19 Count 13 - Erverlyn Burgess 20 21
Mrs. Erverlyn Burgess was the virtual complainant on this count. She testified to making 22 contact with the defendant as she wanted to install guttering and replace mosquito screens 23 at her home. On the 10th of December 2020 he gave her a quotation in the sum of 24 CI$1,200.00 and requested a deposit of CI$600.00 before commencing the job. She paid the 25 deposit in cash the same day. He had installed the original mosquito screens about nine years 26 before. 27 28
About five days after she paid the deposit, he went to her premises and left a piece of 29 guttering, about 12 or 13 feet long, which would have been able to fit just the back of the 30 premises. He installed that piece about three or four days after that. The agreement was 31 entered into on the defendant’s assurance that the job would have been completed before 32 Christmas. 33 34 _________________________________________________________________________________ 230919 R v. Robb (Garfield Antonio): Ind. 42 of 2022. Coram Williams J, (Actg.) – Verdict Judgment Page 13 of 30
She testified that: “Since that day I have never seen him”. (She gave her evidence on the 15th 1 of November 2022). When he installed the piece at the back, it was not completed as there 2 were no down spouts and it was not sealed. When she contacted him and asked for her money 3 back, he started sending her “masonic signs” via the telephone. On the 24th of December 4 2022, her husband got someone else to finish the job, and the person did so in less than four 5 hours. 6 7
In cross-examination, she indicated that she did not know how much of the deposit went 8 towards purchasing the gutter or for his labour in installing it. He had pulled down the mesh 9 and the frame for the mesh but did not tell her his labour cost for that. However, she wanted 10 her money back. 11 12 EXHIBITS 13 14
Various exhibits were tendered through the witnesses, mainly consisting of copies of 15 cheques and receipts evidencing payments to the defendant, copies of text messages and 16 WhatsApp messages, bills of lading and similar documents. All the exhibits are consistent 17 with each witness’ testimony. 18 19 THE DEFENCE 20 21
At the conclusion of the Crown’s case, the defendant’s counsel made a no-case submission 22 on the basis that the charges were not made out. He stated that the complaints were more in 23 the nature of breaches of contract which would sound in civil law. The submission was 24 rejected and the court ruled that there was a case for the defendant to answer. 25 26
The defendant was, in keeping with s.149(2) of the Police Act, informed by the court of his 27 right to give evidence, the Crown having closed its case, and warned that, should he choose 28 to remain silent or refuse to answer such questions as might be put to him, if he chose to be 29 sworn, it was open to the court to draw such inferences as might be reasonable, having regard 30 to the evidence. He decided to remain silent. 31 32 33 34 _________________________________________________________________________________ 230919 R v. Robb (Garfield Antonio): Ind. 42 of 2022. Coram Williams J, (Actg.) – Verdict Judgment Page 14 of 30 ADMISSIONS 1 2
Twenty-one (21) admissions were made by the Crown and Defence. The admissions made 3 at paragraphs 18 to 20 do not appear to be relevant to this case; and so were not considered. 4 Of particular relevance, however, are paragraph 15, in part, paragraphs 16 and 17 and 5 paragraph 21. They read as follows: - 6 7 “15. On Tuesday the 9th March 2021 Mr. Garfield Robb was Arrested at his home 8 address… 9 10
On the 9th March 2021 and 5th April 2021 Garfield Robb was interviewed 11 under caution. Mr. Robb denied all the allegations. He had a number of 12 explanations as to why the work had not been carried out and or why things 13 had gone wrong. Both interview and transcripts are hereby exhibited. 14 15
On the Monday 17th January 2022 Mr Robb was charged with thirteen 16 [counts] of Obtaining Property by Deception to which he replied “Yes”. They 17 have proof of that? They don’t have any proof “All of the peoples house are 18 finished, complete.” 19 20 … 21 22
Mr. Garfield Robb has no previous convictions.” 23 24 THE INTERVIEWS 25 26
Apart from the general denial of having unfinished work or owing any of the complainants, 27 made in paragraph 17 of the admissions, the defendant also, in his interviews, given under 28 caution, addressed the complaints made by the complainants as is summarised below. 29 30 _________________________________________________________________________________ 230919 R v. Robb (Garfield Antonio): Ind. 42 of 2022. Coram Williams J, (Actg.) – Verdict Judgment Page 15 of 30 COUNT COMPLAINANT DEFENDANT’S RESPONSE 1 Diana Jackson The shutters were bought and were sitting at her premises for some three years. She decided she did not want the shutters again. (Page 7 of 1st interview). 2 Anand Adapa He poured concrete, installed the frame and it was only the mesh that was left to go in; but this complainant got angry and said he got someone cheaper to do the job. (Page 15 of 1st interview) 3 Ira Bothwell Admits to owing him $600.00. Had asked him to call him and remind him. (Page 9 of 1st interview) 4 Flavio Franca He said that he told this complainant that it would have taken up to a month for the shutters to arrive. He put up two bathroom windows and a shutter box and was only waiting for the roll-over tracks. He explained that those would take long to arrive; but the complainant demanded his money back in full. (Page 7 of the 2nd interview). He admitted to owing the complainant but said he did not repay him as the complainant did not call him back. He cannot pay him everything at once (Page 29 of 2nd interview) 5 Burnstein Banks He demanded his money back and he repaid him more than half and he still kept the shutters (Page 16 of 1st interview) 6 Abby Rainford No evidence offered 7 Michalakis Kyberd He had her shutters at the time of the interview. It was just that he had been busy why they had not been installed. (Page 26 of 1st interview). 8 Allyson Minus-Phillips He completed the job and she in fact owes him (Page 11 of 2nd interview) 9 Ruby Ann Petrie He has her shutters but had just been too busy to install them. He was going to do it before the hurricane season of
(Page 28 of 1st interview). _________________________________________________________________________________ 230919 R v. Robb (Garfield Antonio): Ind. 42 of 2022. Coram Williams J, (Actg.) – Verdict Judgment Page 16 of 30 COUNT COMPLAINANT DEFENDANT’S RESPONSE 10 Charles Bruce Moore He said that he told this complainant that he had used shutters and the complainant told him that he did not want new shutters. He used the deposit of $1,800.00 to buy the shutters and put up the tracks; but the complainant said he no longer wanted them. The shutters are still at this complainant’s premises and the complainant has not answered his request to return the shutters so he can sell them. (Pages 13 & 14 of the 2nd interview) He has not returned for the shutters as Mr Moore told him not to go back there (Page 31 of 2nd interview) 11 Donnet O’Connor He took two workers there, rented a power-wash machine and power-washed most of the house; but she wanted back all of the money she paid. He withdrew half the money to give to her: $750.00 (Page 33 of 1st interview) 12 Yvonne Williams He said that this complainant contracted him to put up a fence and power wash her roof. He put up the fence and started to power wash the roof but did not finish because the roof was very steep. She said she did not want him to complete the job again. She gave him $500.00 out of the $1,800.00 he charged her to do the roof. She in fact owes him money for the work on the roof – about $1,500.00 or $1,600.00 (Page 15 of 2nd interview) 13 Erverlyn Burgess He only owes her $50.00. He put the guttering up near to Christmas. The gutter was installed (Page 37 of 1st interview). He went to her premises and installed the gutter; “install everything up”. He did additional work for which he was not paid. Her husband intervened and they agreed that he owed the husband only $50.00 (Page 19 of 2nd interview) 1
In general comments (see, for example, page 50 of the 1st interview) he stated that he made 2 sure to tell his customers before that he had shutters but that they were not brand new. 3 _________________________________________________________________________________ 230919 R v. Robb (Garfield Antonio): Ind. 42 of 2022. Coram Williams J, (Actg.) – Verdict Judgment Page 17 of 30 SUMMARY OF SUBMISSIONS FOR THE CROWN 1 2
In its written submissions in this matter, the Crown urged the court to find the defendant 3 guilty of all the 11 remaining counts on the indictment. It was submitted that the Crown, 4 through the evidence from the complainants, had discharged its burden of proof and had 5 done so to the criminal standard, as required. 6 7 8
The Crown relied on the case of R v Laverty1, to submit that the deception to be proven 9 related to what operated on the mind of the complainant or victim. The Crown also cited the 10 authority of DPP v Ray2, submitting that the intention to deceive on the part of a defendant 11 need not be formed at the inception of the interaction between the parties, but could be 12 formed later in the relationship, citing the following passage to be found at page 2 of the 13 report: 14 15 “[T]he transaction had to be regarded as a whole in that the defendant’s conduct was 16 a continuing representation of his present intention to pay and his change of mind 17 produced a deception, the effect of which was that he was treated as a honest customer 18 whose conduct did not call for precautions and, accordingly, the defendant had been 19 rightly convicted of obtaining the evasion of his debt by that deception.” 20 21
It was submitted that: “If at any point after the initial agreement, the defendant realized that 22 he could not go along with the agreement but continued to behave as if he could, that is 23 evidence of deception and therefore should be considered as such.”3. 24 25
The Crown also submitted that it: “must establish that the deception was made dishonestly.” 26 In this regard it referred to paragraph 21-206 of the 2002 edition of Archbold, which states 27 as follows: 28 “…In the case of a lie or lies told in order to obtain goods on credit, in practice the 29 case which comes to court is the one where the instalments are not paid at all, or are 30 intermittent and late. The evidence relating to the repayment history will, of course, 31 go far towards proving that there never was any genuine intention to pay or 32 expectation of being able to pay: this, in turn, will tend to prove dishonesty. Where all 33 the installments are paid in time, the reality is that there would be little likelihood of 34 prosecution…” 35 1 54 Cr App R 495, CA 2 [1974] A.C. 370 3 (See paragraph 10 of the Crown’s written closing address) _________________________________________________________________________________ 230919 R v. Robb (Garfield Antonio): Ind. 42 of 2022. Coram Williams J, (Actg.) – Verdict Judgment Page 18 of 30
The Crown further referred to two cases in which, in what it said to be similar circumstances, 1 the defendants in those cases pleaded guilty. Those cases are: (i) R v Flynn (Errol)4; and (ii) 2 R v Tripper (Paul David)5. 3 4 FOR THE DEFENCE 5 6
The main thrust of the Defence submissions is that the issues between the complainants and 7 the defendant are more suited to resolution through civil litigation and do not amount to 8 crimes. It was submitted that, in some cases, it is possible that the defendant is owed money 9 by complainants and that, even if the defendant owes money to any of them, a civil trial, 10 where evidence could be taken from both sides and values established, is the most 11 appropriate recourse. 12 13
Paragraph 3 of the written submissions gives the gist of the submissions advanced, and reads 14 as follows: 15 16 “3. There can be little dispute that there were contracts between the defendant 17 and each complainant. In all cases, there was work done to varying degrees. 18 In all cases, there is a question as to what value for money was given. In all 19 cases, there was part performance, all issues which are questions of fact and 20 degree for a civil tribunal, and for each party to prove or disprove by evidence 21 with a view to determining who owes who, and whether or not terms or 22 conditions were in fact breached. That standard is on a balance of 23 probabilities. This is in essence a civil trial in a criminal court.” 24 25
It was also submitted that, in order to establish the crime for which the defendant has been 26 charged, it is necessary for the Crown to prove that there was deception from the inception 27 of the arrangement. In this regard, counsel relied on the case of Vijay Kumar Ghai & Ors. 28 (Appellant(s)) v The State of West Bengal & Ors (Respondent(s))6. It was submitted that, 29 4 [1998] 2 Cr App R 413 5 (1993) 14 Cr App. R (S) 177 6 The Supreme Court of India Criminal Appellate Jurisdiction, Criminal Appeal No. 463 of 2022 (arising out of S.L.P (Crl.) No. 10951 of 2019) _________________________________________________________________________________ 230919 R v. Robb (Garfield Antonio): Ind. 42 of 2022. Coram Williams J, (Actg.) – Verdict Judgment Page 19 of 30 in that case, reference was made, to the case of Uma Shankar Gopalika vs. State of Bihar 1 & Anor. and paragraphs 6 & 7 of that case quoted, so far as is relevant, as follows: 2 “6. Now the question to be examined by us is as to whether on the facts disclosed 3 in the petition of the complaint any criminal offence whatsoever is made out 4 much less offences under Section 420/120-B IPC. The only allegation in the 5 complaint petitioner against the accused person is that they assured the 6 complainant that when they receive the insurance claim amounting to 7 Rs.4,20,000, they would pay a sum of Rs.2,60,000 to the complainant out of 8 that but the same has never been paid. It was pointed out that on behalf of the 9 complainant that the accused fraudulently persuaded the complainant to 10 agree so that the accused persons may take steps for moving the consumer 11 forum in relation to the claim of Rs.4,20,0000. It is well settled that every 12 breach of contract would not give rise to an offence of cheating and only in 13 those cases of breach of contract would amount to cheating where there was 14 any deception played at the very inception. If the intention to cheat has 15 developed later on, the same cannot amount to cheating. In the present case, 16 it has nowhere been stated that at the very inception that there was intention 17 on behalf of the accused person to cheat which is a condition precedent for 18 an offence under 420 IPC. 19 20
In our view petition of complaint does not disclose any criminal offence at all 21 much less any offence either under Section 420 or Section 120-B IPC and the 22 present case is a case of purely civil dispute between the parties for which 23 remedy lies before a civil court by filing a properly constituted suit.” 24 25 DISCUSSION 26 27 THE LAW 28 29
In relation to the cases referred to on behalf of the defendant, it is apparent that those cases 30 are based on s.420 of the Indian Penal Code. It reads as follows: 31 32 “420. Cheating and dishonestly inducing delivery of property.— Whoever cheats 33 and thereby dishonestly induces the person deceived to deliver any property 34 to any person, or to make, alter or destroy the whole or any part of a 35 valuable security, or anything which is signed or sealed, and which is 36 capable of being converted into a valuable security, shall be punished with 37 imprisonment of either description for a term which may extend to seven 38 years, and shall also be liable to fine.” 39 40
In that case, an important finding by the court was also that: “In the case at hand, complaint 41 filed by the Respondent No. 2 does not disclose dishonest or fraudulent intention of the 42 appellants.” This phrase appears to acknowledge an evidential deficiency leading to the 43 ruling in that case. 44 _________________________________________________________________________________ 230919 R v. Robb (Garfield Antonio): Ind. 42 of 2022. Coram Williams J, (Actg.) – Verdict Judgment Page 20 of 30
The requirement for proof of intention at the outset of the transaction appears to be a feature 1 of the Indian jurisprudence. However, in the cases cited by the Crown and which appear to 2 be based on s.15 of the England and Wales Theft Act 1968, there appears to be no such 3 requirement. The following references to sections of Archbold, 2002 edition, seem to 4 support that contention. At paragraph 21-197, the following is stated: 5 6 “[I]n R v Miller (S.H.), 95 Cr App R 421, CA. It was held that to establish that property 7 has been obtained by deception, it is not necessary to isolate the moment when the 8 property is handed over to see if, at that time, the lies told operated to deceive the 9 victim. If, on the evidence taken as a whole, it can legitimately be said that the various 10 deceptions alleged in the indictment were the cause of the property being handed over, 11 it is, or may be, irrelevant that at the final moment the victim suspected or even 12 believed that he or she had been swindled.” 13 14
The terms of s.15 of the English Theft Act, 1968 are almost identical to the provisions of the 15 section under which the defendant is charged in this case. Section 15 reads as follows: 16 17 “15 Obtaining property by deception. 18 (1) A person who by any deception dishonestly obtains property belonging to 19 another, with the intention of permanently depriving the other of it, shall on 20 conviction on indictment be liable to imprisonment for a term not exceeding 21 ten years. 22 23 (2) For purposes of this section a person is to be treated as obtaining property if 24 he obtains ownership, possession or control of it, and “obtain” includes 25 obtaining for another or enabling another to obtain or to retain. 26 27 (3) Section 6 above shall apply for purposes of this section, with the necessary 28 adaptation of the reference to appropriating, as it applies for purposes of 29 section 1. 30 31 (4) For purposes of this section “deception” means any deception (whether 32 deliberate or reckless) by words or conduct as to fact or as to law, including 33 a deception as to the present intentions of the person using the deception or 34 any other person.” 35 36
In the light of the similarity between s.15 of the Theft Act and s.247 of the Penal Code (2019 37 Revision), the section under which this defendant is charged, (they are almost identical) it 38 seems to me that the cases dealing with the Theft Act would be more applicable and more 39 nearly reflect the principles by which we ought to be guided, as opposed to the Indian cases. 40 41 _________________________________________________________________________________ 230919 R v. Robb (Garfield Antonio): Ind. 42 of 2022. Coram Williams J, (Actg.) – Verdict Judgment Page 21 of 30
It appears to be the case that the English authorities seem not to impose a stringent 1 requirement that the deception ought to have been perpetrated at the inception of the 2 transaction; but the deception must precede and be the cause of the obtaining of the property. 3 4 GENERAL GUIDANCE 5 6
The following paragraphs of Archbold appear to include the relevant general guidance in 7 relation to this charge: 8 “21-196 … The making of the deception must precede the obtaining of the property: 9 see R. v. Collis-Smith [1971] Crim L.R. 716, C.A.” 10 11 21-202… “In R. v. Staines, 60 Cr. App R. 160, CA, James LJ said, with regard to the 12 use of the word “reckless” in section 15(4), that the court accepted it meant more 13 than being careless or negligent, and that it involved “an indifference to or 14 disregard of the feature of whether a statement be true or false.” 15 16
Similarly, in DPP v Ray, the court gave the following guidance on the meaning of the word 17 “deception” in the Act: 18 i. " Deception " is a word which is well under- stood. As Buckley J. said in In re 19 London and Globe Finance Corporation 20 Limited [19031 1 Ch.728, 732— 21 22 ' To deceive is, I apprehend, to induce a man to believe that a thing 23 "is true which is false, and which the person practising the deceit 24 " knows or believes to be false." 25 26 BURDEN AND STANDARD OF PROOF 27 28
It is recognized that in respect to these various counts, there is a burden on the prosecution 29 to prove each count against the defendant, and to do so to the criminal standard, which is, 30 so that the court feels sure or has no reasonable doubt of the defendant’s guilt. This burden 31 remains on the Crown throughout and does not shift. A corollary to this is that the defendant 32 is entitled to the presumption of innocence. 33 34 GOOD CHARACTER 35 36
By virtue of paragraph 21 of the admissions, it is accepted that the defendant is a person of 37 good character. In that regard, the court warns itself as follows: 38 a. Good character is not a defence to the charge, but it is relevant in two ways: 39 _________________________________________________________________________________ 230919 R v. Robb (Garfield Antonio): Ind. 42 of 2022. Coram Williams J, (Actg.) – Verdict Judgment Page 22 of 30 i. First, the defendant’s good character is a positive feature which the court 1 takes into account in his favour when considering his credibility – that is, 2 whether the court accepts what he said in his interviews and on being 3 arrested. 4 ii. Secondly, the fact that the defendant has not offended in the past may make 5 it less likely that he acted as the prosecution alleges in this case. 6 b. What importance the court attaches to the defendant's good character and the extent 7 to which it assists, on the facts of this particular case, are for this court to decide. In 8 making that assessment the court may take account of everything it has heard about 9 the defendant. 10 11 ANY UNTRUTHFUL STATEMENTS 12 13
While he was being arrested, the defendant declared that he had completed all the jobs for 14 the complainants. In his interviews, however, he gave varying accounts in relation to at least 15 some of the complainants’ contentions that might be at variance with his initial blanket 16 assertion about completing all the jobs. 17 18
In considering whether his inconsistent statements amount to lying, I consider the following: 19 20 a. A defendant’s lie, whether made before the trial or in the course of evidence or both, 21 may be probative of guilt. A lie is only capable of supporting other evidence against 22 the defendant if the court is sure that: (1) it is shown, by other evidence in the case, 23 to be a deliberate untruth; i.e. it did not arise from confusion or mistake; (2) it relates 24 to a significant issue; (3) it was not told for a reason advanced by or on behalf of the 25 defendant, or for some other reason arising from the evidence, which does not point 26 to the defendant’s guilt. Only if the court is sure that these criteria are satisfied can 27 the defendant’s lie be used as some support for the prosecution case, but the lie itself 28 cannot prove guilt. 29 30
The court is also conscious of the need to consider each count separately, although there are 31 several counts appearing on the same indictment. 32 33
The court bears all these warnings in mind in considering the evidence on each count. The 34 fact that they might not be repeated whilst discussing each count, does not mean that they 35 were not considered. 36 _________________________________________________________________________________ 230919 R v. Robb (Garfield Antonio): Ind. 42 of 2022. Coram Williams J, (Actg.) – Verdict Judgment Page 23 of 30 FINDINGS OF FACT - THE COUNTS 1 2 COUNT 1 - DIANA JACKSON 3 4
The court rejects as untrue the blanket denial of completion of the job for Ms. Jackson that 5 the defendant made on being arrested. It also rejects the assertion made in the first interview 6 that the shutters were bought, delivered, were sitting at Ms. Jackson’s premises for three 7 years and the non-completion of the job was due to her changing her mind (arbitrarily, it 8 seems) about wanting the shutters installed. Going back to the Crown’s case, the court found 9 Ms. Jackson to be a truthful and convincing witness, and accepted her evidence in all 10 respects, in particular, that she expected the defendant to do the job weeks or a month after 11 she paid the deposit. The court also accepts that part of her evidence in particular, the 12 defendant’s dropping material at her premises and then taking away some of it sometime 13 after, without her knowledge or authorisation. In relation to suggestions made, or questions 14 asked, in cross-examination, about his informing her of difficulties in getting the shutters on 15 island or, later, that he would have to sell the shutters to repay her, no evidence in that regard 16 was led. However, in any event, those are rejected. 17 18
The court finds that he deceived Ms. Jackson into parting with her money on the false 19 promise that he would have done the job within a month or so of collecting the deposit; that 20 she had to repay the loan with interest and that he still owes her, after some eight years, the 21 balance of the deposit he collected, less what he repaid. 22 23
The court also finds that the inconsistency arising from his blanket assertion on being 24 arrested, his assertion in the first interview and the questions asked and suggestions put in 25 cross-examination, are the product of his not being truthful. That, in turn, his assertions are 26 deliberate untruths arising from his realization of the predicament that he faces in this trial 27 and its consequences. In the result, the court finds the defendant guilty of this count. 28 29 COUNT 2 – ANAND ADAPPA 30 31
In relation to this count, the court also rejects the blanket assertion by the defendant that he 32 had completed all the jobs and his assertion in the interview that he had poured concrete, 33 done the framing and that it was only the mesh that was left to go in when this complainant 34 _________________________________________________________________________________ 230919 R v. Robb (Garfield Antonio): Ind. 42 of 2022. Coram Williams J, (Actg.) – Verdict Judgment Page 24 of 30 changed his mind. Mr Adappa struck the court as an honest, forthright, and impressive 1 witness and the court accepted his evidence in its entirety, including his evidence as to being 2 reliably informed that the materials delivered were “completely obsolete”, which affected 3 his state of mind and his decision to have the job done by someone else. In particular, as 4 well, the court accepts his evidence of the trip to East End with the defendant, purportedly 5 for the defendant to prove that he had in a trailer the material to do the job, and, on arrival, 6 stating that he did not have the key to open it and his non-performance of the job as a 7 continuation of the deception, further manifested in his non-payment of any part of the 8 deposit of CI$3,000.00 between August of 2016, when it was paid by the complainant and 9 the date of trial. The verdict on this count is “guilty”. 10 11 COUNT 3 – IRA BOTHWELL 12 13
With regard to this count, the defendant’s blanket assertion of completion is contradicted by 14 his admission that he owes this complainant the CI$600.00 to which the complainant 15 testified. His admission at the interview helps to confirm the complainant’s testimony which 16 the court accepts in its entirety. As Mr. Bothwell testified: “He said he had all the material, 17 then only had half, then he was coming and never came”. The court also in particular accepts 18 this complainant’s evidence on all aspects of his interaction with the defendant from the 19 deposit was paid on the 8th of June 2018 to when the defendant stopped responding to his 20 calls and texts on the 1st of October 2019. Another particular aspect of his evidence that is 21 accepted is his testimony that the defendant did not tell him that he would have been keeping 22 the CI$600.00 as he had caused him to waste gas and money putting the shutters together; 23 and that there would have been no need to put the shutters together as they came already 24 “made up” and needing only installation. These contrasting and untrue assertions arising 25 through questions asked in cross-examination are further evidence of the defendant’s 26 continuing deception in order to obtain money on the promise of provision of a job within 27 an agreed or reasonable time, the defendant’s non-performance and, further, his inventing a 28 reason to avoid repaying the deposit. On this count as well, the defendant is guilty. 29 COUNT 4 – FLAVIO FRANCA 30 31
The defendant, in his second interview, admitted to owing this complainant. That is the only 32 truthful aspect of his assertions on this count, in the court’s finding. Mr. Franca was also 33 found to be an honest witness, whose evidence the court had no reason not to believe, and 34 _________________________________________________________________________________ 230919 R v. Robb (Garfield Antonio): Ind. 42 of 2022. Coram Williams J, (Actg.) – Verdict Judgment Page 25 of 30 therefore accepted. In particular, the court accepts his evidence that the defendant requested 1 and accepted his deposit of CI$2,225.00 on the 2nd of November 2018, on the promise of 2 completion of the job before Christmas of that year, which was his main requirement and 3 that he has not been repaid. The court further accepts that the defendant, in perpetuation of 4 the deception, put up a few tracks which were second-hand and had scratches. The court 5 generally rejects the defendant’s assertion, given in interview, that the complainants agreed 6 to accept second-hand shutters and other material; and rejects it in particular in relation to 7 this complainant – it, seeming incredulous that, someone who would go to the expense of 8 installing roll-up doors to enclose a cabana and hurricane shutters, would wish to use 9 scratched, second-hand materials. Further accepted by this court is the evidence that the 10 defendant failed to do the job even when the agreed completion date was varied twice to 11 March of 2019 and that he delivered material, and later removed it, without the 12 complainant’s knowledge. The defendant is guilty on this count. 13 14 COUNT 5 – BURNSTEIN BANKS 15 16
In respect of this count, the defendant admits to owing the complainant about half of the 17 deposit of US$3,414.63 (the price of the shutters in full that was requested), that was paid 18 on 27 June 2019, which balance still remained unpaid at the time of trial. The court accepts 19 that, as Mr. Banks testified, “every time he told me a different lie”, when, with numerous 20 attempts, he tried to get the defendant either to repay the money or install the shutters. In 21 this case as well, the defendant, through the deception of a promise of the provision of 22 competent work within a reasonable time, obtained the complainant’s money, went through 23 the charade of performing the contract by supplying second-hand material and doing his 24 utmost to avoid repaying the complainant. The verdict on this count is one of guilty. 25 26 COUNT 6 - ABBY RAINFORD 27 28
No evidence was offered by the Prosecution on this count and, therefore, the charge on this 29 count is dismissed. 30 31 32 33 34 _________________________________________________________________________________ 230919 R v. Robb (Garfield Antonio): Ind. 42 of 2022. Coram Williams J, (Actg.) – Verdict Judgment Page 26 of 30 COUNT 7 - MICHALAKIS KYBERD-MCINTOSH 1 2
On this count as well, in the court’s finding, the defendant collected the complainant’s money 3 on the promise of doing a job within a reasonable time and has failed to do so more that two- 4 and-a-half years after the payment of the deposit, despite numerous requests for him either 5 to repay the money or provide the hurricane shutter. The defendant’s assertion in interview 6 that the shutters were then available for installation, confirms the complainant’s testimony 7 of a failure to do the job or refund the deposit, despite numerous requests to that effect. The 8 verdict on this count is “guilty”. 9 10 COUNT 8 -ALLYSON MINUS-PHILLIPS 11 12
The interaction between the complainant and the defendant in respect of this count seems 13 somewhat different and the nature of the evidence leaves the court in doubt about the 14 defendant’s guilt. That guilt will be resolved in the defendant’s favour with a verdict of “not 15 guilty”. 16 17 COUNT 9 – RUBY-ANN PETRIE 18 19
The court rejects the assertion made by the defendant in the first interview that he had this 20 complainant’s shutters at the time of the interview but had just been too busy to install them. 21 This, again, conflicts with the general assertion that he made at the time of his arrest. This 22 case as well reflects the obtaining of money on the promise that a job would have been done 23 within a reasonable time, with the complainant having to demand a refund of her deposit a 24 year-and-a-half after it was paid in June of 2020, with none of it refunded at the time she 25 gave her evidence in November of 2022 - even though in September of 2020 he sent her an 26 image purporting to be a copy of a bill of lading evidencing the arrival of her shutters. Again, 27 on going to her house, looking at the job to be done and providing her with the quotation, he 28 deceptively represented to her that he would have done the job she requested within a 29 reasonable time, and has failed to do the job within a reasonable time or at all, using further 30 deception not to do the job or to refund the money. The defendant is guilty on this count. 31 32 33 34 _________________________________________________________________________________ 230919 R v. Robb (Garfield Antonio): Ind. 42 of 2022. Coram Williams J, (Actg.) – Verdict Judgment Page 27 of 30 COUNT 10 – CHARLES MOORE 1 2
The defendant’s assertions in his interviews concerning this complainant agreeing to take 3 second-hand shutters are rejected in their entirety. It must be recognized as well that the 4 assertions run counter to the blanket assertion of completion made at the time of the 5 defendant’s arrest. This complainant was among the more impressive witnesses, appearing 6 to the court to be truthful in every respect. Accepted in particular are those parts of his 7 evidence to the effect that: (i) the defendant visited his premises and, after seeing what 8 needed to be done, requested from the complainant a deposit of CI$1,800.00, which was 9 paid; (ii) it was paid on the defendant's assurance that the work would have been completed 10 within a short period of time and that he would have been able to start working the following 11 week, once the deposit was paid and he got the material; (iii) he did not say where the 12 material was coming from; (iv) on the basis of this representation, the deposit was paid and 13 (v) up to the 12th November 2020, no work had been done or the deposit refunded, even 14 though (vi) in August, the defendant had shown him, by WhatsApp video, shutters that the 15 defendant said were his (the complainant’s). The defendant is guilty on this count. 16 17 COUNT 11 – DONNET O’CONNOR 18 19
The defendant, in interview, spoke about power washing a part of this complainant’s house 20 and of replacing fascia boards. That, again, runs counter to his blanket averment of having 21 completed the job of installing guttering that he made on being cautioned. Ms. O’Connor’s 22 complaint, however, was of the defendant’s obtaining her CI$1,500.00 on the 7th of October 23 2020, visiting her home to collect it, on the representation that he would have installed 24 guttering there so that she could have painted her house before Christmas of that year. Before 25 the start of December, he informed her that he had received the material to do the job; but 26 the job was never done, and the money has not been repaid. On the return of her husband to 27 the jurisdiction, she had to get someone else to do the job. The defendant never took any 28 guttering material to the house, although he turned up eventually and did some power 29 washing there and encouraged her to let him do the painting of the house. When shown a 30 photograph of a man working on a fascia board, she said that she was not aware that the 31 board had been replaced and noted that the photograph was undated and in fact she did not 32 ask him to deal with the fascia board. The court accepts her evidence that the power washing 33 _________________________________________________________________________________ 230919 R v. Robb (Garfield Antonio): Ind. 42 of 2022. Coram Williams J, (Actg.) – Verdict Judgment Page 28 of 30 “was just a stalling process”. The deposit for the installation of guttering was not repaid 1 when it was demanded. Neither was the guttering done. The verdict on this count is “guilty”. 2 3 COUNT 12 – YVONNE WILLIAMS 4 5
No evidence was offered on this count. The charge on this count is, therefore, dismissed. 6 7 COUNT 13 – ERVERLYN BURGESS 8 9
The court found itself left in doubt about the evidence given on this count. Resolving that 10 doubt in favour of the defendant, the verdict on this count is “not guilty”. 11 12 COURSE OF CONDUCT 13 14
Although the court has considered each count on its own facts, and has arrived at each verdict 15 accordingly, it is difficult not to notice that a clear pattern emerges when the facts relating 16 to each count are looked at. Whether the initial contact came through a referral or by a 17 complainant making contact with him through a listing in the Yellow Pages, the defendant’s 18 modus operandi was to collect money from persons on the promise of completing jobs of a 19 certain standard, within the time frame required by them or within a reasonable time, and 20 then either totally failing to perform or doing the barest minimum. Sometimes doing the 21 barest minimum involved using old material, which, in some cases, he would leave at a 22 property and then take back some time after. Additionally, when there was a demand for a 23 refund, it was never made when requested. Also, when there was a repayment, it was never 24 in full, but over a protracted period of time and in several parts, after numerous entreaties 25 and requests by the parties. Untruthful explanations were given to avoid or delay payment 26 for as long as possible. The non-performance and failure to refund the deposits came even 27 after assurances were given of having received the materials necessary to do the job. Claims 28 to the cause of delay being due to shipping issues have been shown to have no basis - in fact, 29 by the documentary evidence before the court (such as, for example, the schedule of goods 30 (exhibit 10c)). The schedule of goods was particularly instructive in relation to the 31 untruthfulness and deception of the defendant especially in the cases of the complainants 32 Franca, Bothwell, Banks, Petrie and Moore. 33 34 _________________________________________________________________________________ 230919 R v. Robb (Garfield Antonio): Ind. 42 of 2022. Coram Williams J, (Actg.) – Verdict Judgment Page 29 of 30
In considering the question of whether the actions of the defendant were dishonest, the court 1 asked itself these questions: (a) what was the defendant’s actual state of knowledge or belief 2 as to the facts and (b) was his conduct dishonest by the standards of ordinary decent people? 3 The court has considered what the defendant knew or believed the factual situation to be in 4 each case and has found that he could not have been and was not mistaken as to the desires 5 of the complainants and finds that he has been shown, through evidence, of being dishonest 6 and deceptive by the standards of ordinary, decent people (as per Ivey v Genting Casinos 7 (UK) (trading as Crockfords Club)7 and Booth & Anor v R8. 8 9
Additionally, even if the correct approach is that reflected in the Indian authorities, that 10 standard, on the facts of this case, has been met. 11 12 INFERENCE FROM SILENCE 13 14
The defendant, having been warned pursuant to s.149 of the Police Act, and having remained 15 silent, the court, having examined all the circumstances of each count, is satisfied that his 16 refusal to testify arises from his recognition of his guilt, and his knowledge of his inability 17 to offer any rational, consistent answer to the charges against him. 18 19
In the result, on each count, (with the exception of counts 8 and 13, and those not proceeded 20 with [counts 6 and 12]) the Crown has satisfied the court, so that it feels sure, of the guilt of 21 the defendant. Sufficient evidence has been presented to prove the main ingredients of the 22 offence, in that: there have been clear instances of dishonest deception by the defendant 23 (deliberate, or, at the very least, reckless) by which he obtained property belonging to others, 24 with the clear intention of permanently depriving those persons of it. A tabular breakdown 25 of the verdicts is set out below for ease of reference. 26 27 28 29 30 31 7 [2017] UKSC 67; [2018] AC 391 8 [2020] EWCA Crim 575 (29 April 2020) _________________________________________________________________________________ 230919 R v. Robb (Garfield Antonio): Ind. 42 of 2022. Coram Williams J, (Actg.) – Verdict Judgment Page 30 of 30 Count Complainant Verdict/Order 1 Diana Jackson Guilty 2 Anand Adappa Guilty 3 Ira Bothwell Guilty 4 Flavia Franca Guilty 5 Burnstein Banks Guilty 6 Abby Rainford No evidence ordered - dismissed 7 Michalakis Kyberd-McIntosh Guilty 8 Allyson Phillips Not Guilty 9 Ruby Ann Petrie Guilty 10 Charles Moore Guilty 11 Dorret O’Connor Guilty 12 Yvonne Williams No evidence offered – dismissed 13 Erverlyn Burgess Not guilty 1 2 Dated this the 19th day of September 2023 3 4 Hon. Justice Frank Williams (Actg.) 5 Acting Judge of the Grand Court 6