R v Mendes (Fernando Mota) - Judgment

¶ _______________________________________________________________________________ Judgment on an Application to Dismiss. Ind. 52/22 R v. Mendes (Fernando Mota). Coram: St. John-Stevens J (Actg.) Date: 17th March 2023 Page 1 of 7 IN THE GRAND COURT OF THE CAYMAN ISLANDS 1 CRIMINAL SIDE 2 IND. NO: 52 of 2022 3 4 R 5 6 v. 7 8 FERNANDO MOTA MENDES 9 10 11 Appearances: Ms. Toyin Salako Crown Counsel for the 12 Prosecution 13 14 Ms. Lee Halliday-Davis of Brady Law for the 15 Defence 16 17 Before: The Hon. Mr. Justice St John-Stevens, (Actg.) 18 Hearing Date: 17th February 2023 19 Delivery of Judgment: 17th March 2023 20 21 22 HEADNOTE 23 Criminal Law – Section 85A (9) of the Criminal Procedure Code 24 – Application to Dismiss. 25 26 27 JUDGMENT ON AN APPLICATION TO DISMISS 28 29 30 31 32 33 34 35 _______________________________________________________________________________ Judgment on an Application to Dismiss. Ind. 52/22 R v. Mendes (Fernando Mota). Coram: St. John-Stevens J (Actg.) Date: 17th March 2023 Page 2 of 7

¶ [1] This Defendant, Fernando Mota Mendes, was transmitted to the Grand Court in relation 1 to a total of 12 counts. 2 3

¶ [2] The defence on behalf of the defendant has submitted an application to dismiss those 4 counts. 5 6

¶ [3] The Court has had the benefit of reading detailed written submissions which were 7 augmented by oral submissions on the 17th February 2023. 8 9

¶ [4] For completeness, the application from counsel on behalf of the defendant, Mrs. Lee 10 Halliday-Davis, is dated the 6th February 2023. In response, the document from the 11 Prosecution is dated the 17th February and the application was heard on that date. 12 13

¶ [5] During the course of the oral submissions the ambit of the application was significantly 14 reduced as the Crown accepted that there was insufficient evidence to proceed on eight 15 (8) Counts – Counts 1, 2, 3, 4, 5, 6, 8, & 10. Therefore, four (4) Counts remained on the 16 indictment – those being Counts 7, 9, 11 and 12. 17 18

¶ [6] Count 12 was, in fact, a general deficiency Count. At paragraph 63 of the Crown’s 19 written submissions the following was stated: 20 21 “Count 12 will be amended to reflect the Crown’s decision in respect to 22 counts 1, 2, 3, 4, 5 ,6, 8 and 10.” 23 24

¶ [7] Before I outline briefly the factual matrix, I make it clear that, because of the extensive 25 written submissions I don’t intend to rehearse all the detail. 26 27

¶ [8] But what is clear and incontrovertible at this stage is that the Court must reflect on the 28 position in relation to the submission of insufficient evidence on an application to 29 dismiss. The law is well settled in that respect. 30 31

¶ [9] In terms of an application of that law, the Criminal Procedure Code (2021 Revision) 32 s.85A(9) provides as follows: 33 34 35 _______________________________________________________________________________ Judgment on an Application to Dismiss. Ind. 52/22 R v. Mendes (Fernando Mota). Coram: St. John-Stevens J (Actg.) Date: 17th March 2023 Page 3 of 7 “No preliminary inquiry for Category A offences 1 85A. (9) Where a matter has been transmitted to the Grand Court 2 under subsection (1) the provisions of Schedule 5 (which 3 makes provision in relation to the dismissal of a matter 4 transmitted to the Grand Court for trial) shall have effect.” 5 6

¶ [10] That in effect is that the Judge shall dismiss a charge and accordingly quash any count 7 relating to it on any indictment preferred against the Applicant which is the subject of 8 such application - if the Judge is satisfied that the evidence against the Applicant would 9 not be sufficient to put the Applicant on trial. 10 11

¶ [11] It is well rehearsed that the test to be applied at this point is, as it would be from the 12 criteria commonly applied on a submission of no case to answer. The test therefore is 13 whether there is sufficient evidence on which, if the evidence adduced were accepted, a 14 reasonable jury, properly directed, could properly convict. 15 16

¶ [12] I have been helpfully directed in the submissions from counsel for the Applicant to 17 paragraph 1-54 of Archbold 2022 which reads: 18 19 “The relevant words also require the judge to take into account the whole of the 20 evidence against a defendant. It is not appropriate for the judge to view any evidence 21 in isolation from its context and other evidence, any more than it is appropriate to 22 derive meaning from a single document or from a number of documents without 23 regard to the remainder of the document or the other connected documents before 24 the court. Nor is the judge bound to assume that a jury might make every possible 25 inference capable of being drawn from a document against the defendant. The judge 26 must decide not only whether there is any evidence to go to a jury, but whether that 27 evidence is sufficient for a jury properly to convict. That exercise requires him to 28 assess the weight of the evidence. This is not to say that the judge is entitled to 29 substitute himself for the jury. The question for him is not whether the defendant 30 should be convicted on the evidence put forward by the prosecution, but on the 31 sufficiency of that evidence. Where the evidence is largely documentary, and the 32 case depends on the inferences or conclusions to be drawn from it, the judge must 33 assess the inferences or conclusions that the prosecution proposes to ask the jury to 34 draw from the documents, and decide whether it appears to him that the jury could 35 properly draw those inferences and come to those conclusions: R. (Inland Revenue 36 Commrs ) v. Crown Court at Kingston [2001] 4 All E.R. 721, D.C” 37 38

¶ [13] That is a well-known position and I mention that specifically because this case is about 39 documents, and it is about interpretation. 40 _______________________________________________________________________________ Judgment on an Application to Dismiss. Ind. 52/22 R v. Mendes (Fernando Mota). Coram: St. John-Stevens J (Actg.) Date: 17th March 2023 Page 4 of 7

¶ [14] Accordingly, the Court reminds itself that the test is not whether every jury properly 1 directed would convict but it is whether a jury properly directed could, on all evidence 2 at this stage. This test is analogous to Galbraith and the principles flowing from that. 3 4

¶ [15] In terms of the facts of this case, they can be briefly set out for the purposes of this 5 Judgment. 6 7

¶ [16] In 2019 Denise Robbins and another individual purchased the Pink Beach House located 8 at 972 Rum Point Drive, North Side. It transpired that after that they decided to lease or 9 rent that property. 10 11

¶ [17] In 2019 this defendant was introduced to Denise Robbins who had been the owner. The 12 Defendant assisted in leasing or renting that property. 13 14

¶ [18] There came a point in time when Denise Robbins, the owner of the property, asked the 15 defendant, Mr. Mendes, to consider taking on the cleaning and maintenance of the Pink 16 House. The owner Denise Robbins agreed to that, as did the defendant. There was no 17 form of contact. However, he was required, the prosecution say, to inform the owners 18 and direct any possible rental through Karen Anderson who had been the previous 19 owner. 20 21

¶ [19] The original counts on the indictment were a number of counts in relation to dishonestly 22 obtaining money or cash by falsely representing that he, the defendant, was entitled to 23 the rental income from the Pink Beach House over a period. Those Counts were 24 carefully reconsidered by the Prosecution, and it was ultimately accepted by the 25 Prosecution that there was insufficiency of evidence in relation to the eight (8) counts I 26 have already set out in this Judgment1. 27 28

¶ [20] The prosecution submits, however, that there is still sufficient evidence in relation to the 29 remaining 3 substantive counts and the count relating to a general deficiency count, 30 which would be amended to read “the sum of $10,000” rather than the original figure. 31 32 1 Please refer to paragraph 5. _______________________________________________________________________________ Judgment on an Application to Dismiss. Ind. 52/22 R v. Mendes (Fernando Mota). Coram: St. John-Stevens J (Actg.) Date: 17th March 2023 Page 5 of 7

¶ [21] As set out helpfully in Ms Halliday-Davis’ response on 21st February after the oral 1 submissions, I note: 2 “Following the submissions by the prosecution on Friday, the case is now reduced 3 to the following propositions. 4

¶ [1] That Ms Robbins, in the WhatsApp message dated 6th April 2021, withdrew 5 all permission from the defendant to deal with the Pink Beach House. 6 7

¶ [2] That the defendant acted dishonestly when he described himself to the 8 person who was going to rent that property as the owner, and thereafter 9 intended to permanently deprive the owners of rental income.” 10 11

¶ [22] What became clear during the course of oral submissions is that one of the WhatsApp 12 messages was effectively the tipping point in this case – in the sense that the Crown 13 accepted that, before that date, this defendant had been entitled to act on behalf of the 14 owners in terms of renting the property. 15 16

¶ [23] That position was arrived at because the owner of the property, in her first statement, 17 denied that the defendant had any authority whatsoever to rent the property or have any 18 dealings with the rent. However, following that, the owner made a subsequent statement 19 resiling from that position, saying that it was clear from a WhatsApp message dated the 20 6th April at 18:50 when she told the defendant in that message that ‘from now on we just 21 need to send everyone through Karen. Me included. I will speak to Karen and let her 22 know that I will hopefully accommodate her and her friends etc.’ 23 24

¶ [24] The Crown says from that point on it is clear to the defendant that he had no authority 25 to hold himself out as having the permission of the owner to rent the property, however, 26 nonetheless, thereafter, he continued to do so and kept those monies from it as reflected 27 in those counts. 28 29

¶ [25] In terms of whether he held himself out to be the owner is again an issue that was 30 considered during the course of legal argument. 31 32 _______________________________________________________________________________ Judgment on an Application to Dismiss. Ind. 52/22 R v. Mendes (Fernando Mota). Coram: St. John-Stevens J (Actg.) Date: 17th March 2023 Page 6 of 7

¶ [26] Terrence McGlashan who made a statement at page 33 of the bundle, said that when he 1 had dealings with the defendant, the defendant told him that he had purchased the house 2 in 2020. And, at the 2nd page, he said that Mr. Fernando Mendes throughout, portrayed 3 himself as the owner of the Pink House. Mr. McGlashan said that at no point did the 4 defendant ever say that he was the cleaner or property manager. He negotiated the lease, 5 and he had no authority to do so. 6 7

¶ [27] That Lease, which is set out at page 156 of the bundle, was also subject to scrutiny by 8 the parties and the Court. 9 10

¶ [28] That Lease sets out the agreement between “Guardian Properties/Mr. Fernando 11 Mendes, the owners, Kelly McGlashan, the tenants.” That (set out in that way) clearly 12 would be open to interpretation, that is, whether the comma after Fernando Mendes and 13 his company, Guardian Properties, implied that the defendant and or his company were 14 the owners. It is noted that “owners” is recorded in the plural form. 15 16

¶ [29] So that was the tipping point of the application and the basis of the concessions by the 17 Crown. 18 19

¶ [30] In the further written submissions by Ms. Halliday-Davis dated 21st February, I have 20 been greatly assisted by the other emails and documents in the bundles, which the 21 defense say, put a different gloss on the Crown’s contention that this defendant was 22 holding himself out as the owner, and/or taking monies from the rental and not paying 23 back the owner, and that this was done without her knowledge. I have considered these 24 documents and emails carefully. 25 26

¶ [31] It is also of note that in relation to Counts 9 & 11 again, the submissions are that the 27 property was damaged and no one ever lived there. I take account of all those matters 28 set out in that second document from the Defence. 29 30

¶ [32] The Prosecution’s response is that the contention and interpretation in those documents, 31 the tipping point of the 6th April WhatsApp message, the documents supplied or alluded 32 to by the defense, the interpretation of those messages between the defendant and the 33 prosecution witnesses, the involvement of the defendant, whether the defendant was 34 _______________________________________________________________________________ Judgment on an Application to Dismiss. Ind. 52/22 R v. Mendes (Fernando Mota). Coram: St. John-Stevens J (Actg.) Date: 17th March 2023 Page 7 of 7 authorized after that date to act, the circumstances under which the defendant accepted 1 payments and, whether they were paid to the defendant and through to Ms Robbins, are 2 all, in fact, matters for the jury to consider and to determine their position in the case. 3 4

¶ [33] That Mr. McGlashan’s evidence, they say, is clear as to what he was told about the Pink 5 House; the defendant was holding himself as the owner of that property and therefore 6 authorised to enter into a rental agreement with him and also to advertise and enter into 7 an agreement with Mr. Cano and Mr. Ballantyne. Those agreements post the 6th April, 8 which I described as a tipping point, are for the jury, the Crown say. 9 10

¶ [34] The Court, having considered all the written and oral submissions carefully, finds that 11 there is sufficient evidence in relation to those counts and the general deficiency count, 12 for the case to proceed against the defendant, that is on Counts 7, 9, 11, & the general 13 deficiency count – i.e. Count 12. I conclude that the representations made by the Defence 14 are for the jury as, properly directed, it is open to the jury to find that it was clear to the 15 defendant that he had no authority to lease that property. 16 17

¶ [35] Therefore, I conclude as follows: 18 19 a. The application by the defence is upheld, but only in terms of the Crown accepting 20 the insufficiencies of the evidence in the eight (8) counts identified – i.e. Counts 1, 21 2, 3, 4, 5, 6, 8, & 10. 22 b. The application by the Defence is rejected in relation to Counts 7, 9, 11 & 12. 23 24 25 Dated this the 17th March 2023 26 27 ________________________________ 28 Justice St. John-Stevens 29 Acting Judge of the Grand Court 30