Quin J
IN THE GRAND COURT OF THE CAYMAN ISLANDS CRIMINAL SIDE INDICTMENT NO: 15/10 THE QUEEN V DAVE BRYAN Appearances: Mr. Michael Snape on behalf of the DPP for the Crown Mrs. Margeta Facey-Clarke for the Defendant Before: The Hon. Mr. Justice Charles Quin Heard: 21st February to 15th March 2012 JUDGMENT
The Defendant has pleaded not guilty to two counts namely, one count of obtaining money transfer by deception contrary to s.251 of the Penal Code. The particulars of this count are that the Defendant, between the 1st January 2007 and the 31st May 2008, within the jurisdiction of the Cayman Islands, dishonestly obtained money transfer to the value of CI$309,981.37 from Foster’s Food Fair Limited by deception, namely by falsely representing the quantity of goods supplied by Cayman Bakery Limited to Foster’s Food Fair Limited.
On the second count the Defendant pleaded not guilty to making a document without authority, contrary to s.293 of the Penal Code. The particulars of this offence are that the Defendant, on or about the 18th October 2007, within the Cayman Islands, with intent to defraud or deceive, and without lawful authority, did sign a document, namely a Cayman Islands Development Bank ("CIDB") loan application in the name of Bernie Alfredo Bush ("Mr. Bush") CROWN CASE
The Defendant was a 40% owner in a Cayman Islands company named Cayman Bakery. He was actively involved in the day-to-day operation of the Bakery, whilst the 60% owner, Mr. Bush, was effectively a silent partner.
Cayman Bakery baked the bread and other Cayman Bakery products and supplied them to Foster’s Food Fair. The regular Cayman Bakery delivery persons, who were Richard Sinclair ("Mr. Sinclair") and Gary Brown ("Mr. Brown"), would bring along with them the invoice for the products and hand it over to the Foster’s Food Fair Airport Branch Receiving Clerk who was supposed to check that the Cayman Bakery products corresponded with the Cayman Bakery invoice.
The Receiving Room at the Foster’s Airport Branch was open from 7 a.m. to 2 p.m.
Having checked the Cayman Bakery products being delivered against the items on the Cayman Bakery invoice, the Foster’s Receiving Clerk would then generate a Foster’s Receiving Invoice. The Foster’s Receiving Invoice, together with the Cayman Bakery Invoice, were supposed to be delivered by the Foster’s Receiving Clerk to the Foster’s accounts department.
The Foster’s accounts department would assume that the Cayman Bakery products on the invoices were actually the bakery products checked and received by the Foster’s Receiving Clerk, and would therefore stamp the Foster’s Receiving Invoice and the Cayman Bakery Invoice for payment and issue cheque payments to Cayman Bakery which matched the invoices provided.
This system broke down because the Foster’s Receiving Clerks would not always check the amounts of Cayman Bakery products being received against the Cayman Bakery Invoice. Consequently, Fosters Receiving Invoices would be generated and attached to the Cayman Bakery Invoice with no physical check of the bread and other bakery products being delivered ever being carried out.
The Crown alleges that the Defendant saw an opportunity to ensure that the Foster’s Receiving Clerk did not check the Cayman Bakery products being delivered against the Cayman Bakery Invoice provided, or, alternatively, the Defendant would visit Foster’s Food Fair later in the day – at a time after 2:00 p.m. when the Receiving Office is closed – to ask a Foster’s manager or another authorized person to sign the Cayman Bakery invoice without having checked the products that were delivered.
Indeed, the Crown contends that sometimes the system ceased to operate and, at such times, the Cayman Bakery Invoices were sent directly to the Foster’s accounts department without the Foster’s Receiving Invoice and the Cayman Bakery Invoice would, nevertheless, be paid.
On Saturday the 31st May 2008 the manager of the Foster’s Food Fair Airport Branch, Mr. Greg Mitchell (“Mr. Mitchell”), saw two invoices from Cayman Bakery, namely invoice #826508 and invoice #826509. These invoices were dated the 30th May 2008. Both invoices included 500 loaves of bread, 600 spicy buns, 120 cinnamon buns and other items amounting to a total of CI$5,266.60.
Mr. Mitchell noted that both Cayman Bakery invoices had been signed off by Foster’s Food Fair manager – Mr. Seymour Morgan (“Mr. Morgan”) – and the invoices were to be sent directly for payment with no Foster’s Receiving Invoice attached.
A search was made at Foster’s for the bread and the other Cayman Bakery products which would match the two invoices but that quantity of Cayman Bakery baked products could not be found.
On the 31st May 2008 Mr. Mitchell went to Mr. Morgan and asked him about the invoices. Initially Mr. Morgan told Mr. Mitchell that he had checked the order and had signed off on the Cayman Bakery invoices provided to him by the Defendant. Mr. Morgan initially told Mr. Mitchell that he was concerned about the size of the delivery, and as a result of this concern the Defendant had agreed to take some of the baked products back. Accordingly, there was a credit note in the sum of CI$3,767.50 on invoice #826510.
Sometime afterwards Mr. Morgan admitted that he had lied to Mr. Mitchell. He had lied because he was worried about his job, and, in fact, he never checked off the Cayman Bakery products delivered in connection with the Cayman Bakery invoices #826508 and #826509.
Mr. Morgan told the Court that he had only received the Cayman Bakery credit note on the following morning, on the 31st May 2008.
As a result of this incident Foster’s Food Fair conducted an internal inquiry.
On the 7th June 2008 a meeting, which included Mr. Neville “Sam” Wright (“Mr. Wright”), who did deliveries for Cayman Bakery for only one week, Mr. Woody Foster (“Mr. Foster”), the Defendant, and other Foster’s Food Fair staff members, took place at Foster’s Food Fair.
The Defendant said Mr. Wright made the delivery of Cayman Bakery products, which were under discussion, in the afternoon, and it was Mr. Wright who had also delivered the credit note on the same afternoon, to Mr. Morgan.
Consequently, at the end of this meeting on the 7th June 2008, Mr. Wright was arrested.
However, on reviewing the CCTV footage of the Foster’s Food Fair entrances and exits Mr. Ulyses Gomez (“Mr. Gomez”), the Foster’s Operations Manager and Loss Prevention Officer, discovered that there was no delivery of that quantity of Cayman Bakery products made on the 30th May 2008.
Furthermore, on analysis of the size of the store space allotted to Cayman Bakery, compared with the amount of baked products on the invoice, it was impossible for Foster’s to accommodate this amount of baked products. It was established that the shelf space for Cayman Bakery only allowed for approximately CI$500.00 worth of baked products.
Mr. Sinclair, the usual Cayman Bakery delivery person, said he never delivered an order the size of the invoices #826508 and #826509 and, in fact, he said that that amount of baked products would not fit into the delivery van.
The Cayman Bakery head baker, Mr. Lascelles Williams ("Mr. Williams"), said Cayman Bakery does not bake enough bread each day for an order of that size.
The evidence from Foster’s is that Foster’s’ mark-up on bread was somewhere between 26% and 32%, and that, normally, the total sales from Cayman Bakery amounted to CI$74,000.00 per annum. The evidence adduced by the Crown was that Foster’s Food Fair paid CI$56,000.00 to Cayman Bakery for the quantity of bread it sold for CI$74,000.00, allowing for the mark-up.
On a review of the Cayman Bakery invoices and the Foster’s accounts, it was established that Cayman Bakery had charged Foster’s CI$395,000.00 for $56,000.00 worth of bread.
On further investigations it was established that Mr. Sinclair wrote 603 invoices over the period of time in question, and his average invoice amounted to $142.00. The Defendant wrote a total of 211 invoices, and his average invoice was CI$1,387.00. In fact the Defendant’s average invoice was more than 9 times the average for all other Cayman Bakery invoices delivered to Foster’s Food Fair.
The Crown submits that on the evidence the accused inflated the Cayman Bakery invoices by adding quantities of baked products which were not delivered. Foster’s paid these invoices. The Defendant picked up the cheques and banked them, thereby dishonestly obtaining money transfer to the value of at least CI$309,981.37.
The Crown’s evidence is that Blossom Bush (“Mrs. Bush”), Mr. Bush’s wife, did the accounts for Cayman Bakery and itemized all the products sold to Foster’s Food Fair. After some months had elapsed the Defendant stopped providing Mrs. Bush with the cheque stubs from Foster’s Food Fair, which would confirm the payments made by Foster’s. The Defendant then persuaded his stepdaughter, Racquel Bryan, to prepare fictitious accounting statements which he, the Defendant, provided to Mrs. Bush, thereby concealing the invoices that had been submitted to Foster’s and also concealing the payments made by Foster’s Food Fair to Cayman Bakery.
On the 11th July 2008 the Defendant was spoken to by the police. The Defendant said that the responsibility for the delivery on the 30th May 2008 was Mr. Wright’s.
On the 29th September 2008 the Defendant told the police that he had written the two invoices (#826508 and #826509) at Cayman Bakery. However, he said that he and Mr. Wright made the delivery on the 30th May 2008. He said that he and Mr. Wright had packed the bread and other baked products tightly into the shelves, but had to take some back. The Crown submits that, on the evidence, this is a lie. These Cayman Bakery products were never delivered and never packed into the shelves. The Crown adduces that neither Mr. Wright, the Cayman Bakery delivery person, nor Mr. Morgan, the Foster’s manager, knew the invoices were inflated.
It is the Crown’s case that on the 29th September 2008 the Defendant eventually admitted that he was solely responsible for the crime.
The Crown relies on the fact that the Defendant told Detective Constable Francelia (“DC Francelia”) and Detective Sgt Michael Montague (“DS Montague”) on the 29th September 2008 that Foster’s Food Fair never received all the amounts of baked products which he wrote on the invoices. The Defendant said he never paid Mr. Wright or Mr. Morgan for handing the inflated invoices. The Defendant told the police, "The other guys who signed for inflated invoices did not know that they were inflated either. They just did not count the bread in the deliveries, but they didn’t know a crime was being committed."
Regarding the second count, Mr. Bush said he knew nothing about any loan from CIDB. He gave no authority for the Defendant to sign his name, and he did not give the Defendant any authority to extend the existing loan on his house.
A Justice of the Peace, Mr. Lewis Ebanks (“Mr. Ebanks”), admitted that he signed the attestation clause under Mr. Bush’s purported signature because the Defendant had told him that Mr. Bush had signed it. It is the Crown’s case that the JP mistakenly assumed that it was Mr. Bush’s signature.
The Crown’s case from the police officers is that, on the 29th September the Defendant admitted that he signed Mr. Bush’s name and that he had to sign Mr. Bush’s name on many other occasions for other things when he was in Jamaica. DEFENCE CASE
The Defendant pleads not guilty to both charges. The Defendant does not have to prove his case. The burden of proof is always on the Crown from the beginning to the end of the case. The Defendant is entitled to remain silent and leave the Crown to prove the case against him.
S.18(b) of the Evidence Law (2011 Revision) reads: "The failure of a person charged with an offence to give evidence shall not be made the subject of comment by the prosecution, but the court or jury may draw any reasonable inference from such failure."
I remind myself that the Defendant does not have to give evidence. The Defendant is entitled to sit in the dock and require the Prosecution to prove its case. I must not assume that the Defendant is guilty because he has not given evidence. The fact that he has not given evidence proves nothing one way or the other. It does nothing to establish his guilt.
On the other hand it means that there is no evidence from the Defendant himself to undermine, contradict or explain the evidence put before me by the Prosecution.
I have been told that the Defendant is a man of good character, in the sense that there are no previous convictions recorded against him. I must remind myself that good character, by itself, cannot provide a defence to a criminal charge, but it is evidence which I should take into account in the Defendant’s favour.
Although the Defendant has answered questions posed to him by the police, he has chosen not to give evidence before me. Accordingly, I can give what weight I should to his explanation to the police and bear that in mind, and that the explanation was made by a person of good character and take that into account when deciding whether I can believe him.
It is for me to decide what weight I should give to his account of the facts in this case and, in doing so, I must take into account that he has no previous convictions, and that may mean that he is less likely than otherwise might be the case to commit the crimes with which he is now charged.
It is the Defendant’s case that he wrote up the two invoices on or before the 30th May 2008, namely, #826508 and #826509.
The Defendant told the police that the size of the delivery was high, but he would normally ask the Cayman Bakery delivery man how much in terms of patties or bread should be delivered.
The Defendant said that on the 30th May he did not tell Mr. Wright to bring those quantities; the Defendant said it was the drivers who would tell them at Cayman Bakery how much, in terms of products, “…they want, and then we bake it.”
In addition the Defendant told the police that he tells his delivery men to “…push as many goods as possible.”
The Defendant told the police that he wrote up the invoices and gave them to Mr. Wright, who loaded the van and delivered the products.
The Defendant told the police that he recalls Mr. Wright calling him on the telephone but he was with a friend in West Bay – a lady friend. The Defendant recalls Mr. Wright saying that there was too much bread and Mr. Wright returned with a credit note. The Defendant told the police that Mr. Wright returned with the bread and he wrote up a credit note, and Mr. Wright took the credit note back to Foster’s Food Fair on that night. The Defendant said that Mr. Wright gave the credit note to Mr. Morgan.
The Defendant said he never made any deliveries with Mr. Wright.
The Defence submits that the matter happened so long ago that the Court cannot rely on the testimony of the Crown witnesses.
I am concerned with events which the Defence submits have taken place a long time ago. I must appreciate that, because of this, there may be a danger of real prejudice to the Defendant. I must remind myself that this possibility must be in my mind when I decide whether the Prosecution has made me sure of the Defendant’s guilt.
I have to make allowances for the fact that, with the passage of time, memory fades. Witnesses, whoever they may be, cannot be expected to remember with crystal clarity events which occurred some four years ago. Indeed, it has been said that sometimes the passage of time may even play tricks on memory.
The Defendant told the police that he recalled being called to come to Foster’s Food Fair on the 7th June 2008, and he went into a boardroom where he met Mr. Foster and Mr. Gomez. Mr. Wright was also included in that meeting.
The Defendant said that Mr. Wright told him that he made a number of trips to deliver the products related to those invoices, and Mr. Foster and Mr. Gomez did not believe him. The Defendant said Mr. Wright told him that he made a number of trips to deliver the products on those invoices – it may have been six trips. It was then that someone called the police and Mr. Wright was arrested, handcuffed and taken away.
The Defendant told the police that he called a lawyer and the lawyer suggested that Mr. Wright should be terminated and that he, the Defendant, and his co-owner, Mr. Bush, decided to fire Mr. Wright.
The Defendant told the police that he did not tell Mr. Wright to take those quantities of products.
It is the Defence case that Mr. Morgan checked the Cayman Bakery items relating to invoices #826508 and #826509, and signed off on them as received. The Defence also submits that Mr. Morgan told Mr. Mitchell and the police that he had counted the items and that he had signed off on them to match the invoices provided.
The Defence submits that Mr. Morgan has lied to the Court, and in fact, the version he gave to the police is the correct version. The Defence submits that Mr. Morgan had been terminated by Foster’s Food Fair in June 2008 and therefore, what Mr. Morgan told the police about checking the items and signing off on them to save his job, is untrue.
The Defence submits Mr. Morgan is not to be believed when he said that he did not sign in relation to quantities or price or amounts, but he only signed the items.
The Defence submits that Mr. Morgan had in fact told Mr. Mitchell on the 31st May 2008 that he received the goods, and Mr. Morgan had also told the police that he received the Cayman Bakery products related to invoices #826508 and #826509, and, in fact, Mr. Morgan did not have any job to protect.
The Defence submits that Mr. Morgan would say anything to have the Defendant convicted and to “save his own skin.”
The Defence also submits that there would not be any signed Cayman Bakery invoices if the Cayman Bakery products listed on the invoices had not been delivered. The Defence explains that the receipts themselves are proof that the goods were delivered. The Defence also explained that none of the Foster’s Receiving Clerks were forced to sign the Cayman Bakery invoices.
In relation to the Defendant’s purported admission of guilt on the 29th September 2008, the Defence says that the Court should not rely upon this evidence. The Defence submits that the Defendant did not have his attorney present at the time of the alleged confession and the police should have ensured that he did have his attorney present. Also, the fact that the Defendant was told that it was likely that his stepdaughter was going to be charged acted as undue pressure on the Defendant and caused him to breakdown and to give a statement he would not have otherwise given. The Defence submits that on this occasion the Defendant’s free will was sapped and this evidence should not be taken into account by the Tribunal of fact.
The Defendant elected to be tried by Judge Alone rather than by a Judge and Jury pursuant to s.129 of the Criminal Procedure Code.
The Defendant is charged with one count of obtaining money transfer by deception contrary to s.251 of the Penal Code, in that he, between the 1st January 2007 and the 31st May 2008, within the jurisdiction of the Cayman Islands, dishonestly obtained money transfer to the value of CI$309,981.37 from Foster’s Food Fair by deception, namely by falsely representing the quantity of goods supplied by Cayman Bakery to Foster’s Food Fair.
Deception in this case means that the Defendant falsely inflated invoices without providing the items on the invoice, and thereby inducing Foster’s to make a money transfer for goods the supermarket had not received.
In relation to the second count of making a document without authority, the Crown has to prove that the Defendant, on or about the 18th October 2007, with intent to defraud, and without lawful authority, did sign a document, namely, a CIDB loan application in the name of Bernie Alfredo Bush. The Crown has to prove that the Defendant signed the document without Mr. Bush’s authority and with the intent to defraud or deceive in order to obtain the sum of $27,000.00.
As the Tribunal of fact I have endeavoured to remind myself of the prominent features of the evidence because it is my responsibility as the Tribunal of fact to judge the evidence and decide on the relevant facts of this case.
Accordingly, I have reviewed the evidence and I have also taken into account the arguments and the speeches of Crown counsel, Mr. Michael Snape, on behalf of the DPP, and of counsel for the Defence, Ms. Margeta Facey-Clarke.
I remind myself that the burden of proof is always on the prosecution. It is for the Prosecution to prove that the Defendant is guilty, and further, it is never for the Defendant to prove his innocence. I also have to remind myself that the Prosecution must prove the Defendant’s guilt to a high standard of proof, namely, that I must be satisfied that the Defendant is guilty of the charge of obtaining money transfer by deception, and the second charge of making a document without authority, beyond all reasonable doubt, or alternatively, I must be sure that the Defendant is guilty.
I must look at each count separately. If I find that the Prosecution has not made out the case so that I am sure, I must find the Defendant not guilty.
Accordingly, I must review all the evidence and decide whether the Defendant is guilty of obtaining money transfer by deception, and of making a document without authority. ANALYSIS AND CONCLUSION EVIDENCE RELATING TO 30TH AND 31ST MAY 2008 AND CAYMAN BAKERY INVOICES, #826508 AND #826509 Mr. Neville 'Sam' Wright.
The Court heard from Mr. Wright who said he did one week of deliveries for Cayman Bakery when Mr. Brown was on leave. Mr. Wright recalled that on the 30th May 2008 he did one early morning delivery. He could not recall the exact order but it included patties, ackee loaves, regular patties and turtle patties. Mr. Wright was shown Cayman Bakery invoice #570955 dated the 30th May 2008, which came to $22.80 and he agreed that this was the delivery he made on the date in question.
Mr. Wright told the Court that he never made a delivery outside the Foster’s delivery hours of 7 a.m. to 2 p.m.
He recalled the 7th June 2008 that the Defendant had called and asked him to meet him at Foster’s Airport. He said they met at Foster’s and they went upstairs and met Mr. Foster and Mr. Gomez.
At the meeting on the 7th June 2008 with Mr. Foster, Mr. Gomez and the Defendant, Mr. Wright said he was asked if he made a delivery on the 30th May 2008 and he said he replied yes. A video of the CCTV camera was then shown and he was next asked what time did he make the delivery, and he said in the morning. Mr. Wright said that at that point the Defendant butted in and said, "No, it was in the afternoon." Mr. Wright said when the Defendant said that, "I was kind of lost but I told him it was early morning before people start going to work. They saw me make the delivery early morning but they didn’t see me make any delivery after that."
Mr. Wright told the Court that the Defendant insisted that he, Mr. Wright, made a delivery in the afternoon and Mr. Wright insisted "No, no, no, in the morning."
At the meeting of the 7th June 2008 Mr. Wright was shown Cayman Bakery invoices #826508 and #826509. He said the first time he saw these invoices was at that meeting with Mr. Foster and Mr. Gomez, and he said he knew nothing about those invoices. Mr. Wright said, "I never delivered them nor do I know anything about them."
Mr. Wright told the Court that Mr. Foster and Mr. Gomez became upset and called the police and he, Mr. Wright, was taken away and arrested. Ultimately his permit was revoked and he was forced to leave the island.
Mr. Wright told the Court that he spent 30th May 2008 with Mr. Brown. He recalled Mr. Brown buying a car and the two of them driving (in their separate vehicles) to Breakers and then Mr. Brown driving them back to town, and they spent time together until they went to a bar later in the evening and then he, Mr. Wright, went home around 9 p.m.
Mr. Wright’s evidence was that he had never met Mr. Morgan and he had not seen the two Cayman Bakery invoices - #826508 and #826509 – until the meeting on that day. Mr. Lascelles Williams
The Court recalls the evidence of Lascelles Williams, the head baker at Cayman Bakery.
Mr. Williams was shown invoice #826508. He said Cayman Bakery never baked that amount of bread. He said they never bake 600 spice buns. He said, "Foster’s just don’t get that in one day. They might get 120 maybe 150." He said, "It’s not possible to bake that amount or to deliver that amount. We don’t bake that amount of bread."
Mr. Williams also said that the Defendant does not make a lot of deliveries and he said he has never baked 600 spiced buns for one order. Mr. Williams said that both #826508 and #826509 reflect a tremendous amount of baked products that would cause him great concern. He said "It just does not make any sense, there is no logic, because the bakery would lose so much money." Mr. Seymour Morgan
Mr. Morgan told the Court that he did not check the Cayman Bakery deliveries relating to invoices #826508 and #826509.
He said he recalls being called on the Tannoy "by Mabel or Emmy" to come to the bakery section at Foster's which was where he received the Cayman Bakery invoices #826508 and #826509. Mr. Morgan acknowledged that it was his signature on these two Cayman Bakery invoices. He said he did not check the Cayman Bakery items when he signed the Cayman Bakery invoices. He said the invoices just had the Cayman Bakery products, and had no quantities, no prices and no numbers.
Mr. Morgan explained that he had told Mr. Mitchell and others, including the police that he had counted the delivery, and did that only because he was afraid of losing his job. He admitted that he told them a lie and that he should have told the truth.
Mr. Morgan recalls leaving the Cayman Bakery invoices in the balancing room because he was so busy doing other tasks that he forgot about them. Mr. Morgan said he had also intended to check the delivery but he was too busy and just forgot.
On the following morning, that is, on the 31st May 2008, Mr. Morgan said he called Foster's to say he would be slightly late. He said that on leaving home and on his way to work the Defendant came towards his house near Northward and flagged him down and stopped him, at which point the Defendant gave him a credit note, which he, Mr. Morgan, brought in to Foster's.
Mr. Morgan said Mr. Mitchell confronted him about invoices #826508 and #826509 and he, Mr. Morgan, provided Mr. Mitchell with the credit note, but had no conversation with Mr. Mitchell. Gary Brown
Mr. Brown, a Cayman Bakery delivery person, made a delivery around 5 a.m. on the 30th May 2008.
He said that he and Mr. Wright finished working at around 1 p.m. on that day and they never made any more deliveries to Foster’s, other than the ones in the early morning. He said that he and Mr. Wright spent the rest of the afternoon together and went to a bar in the evening, and Mr. Wright went home around 9 p.m. Mr. Gregory Mitchell
Mr. Mitchell was the Foster’s Food Fair store manager. He recalls the 30th May 2008 and that at about 5:30 a.m. he was in the balancing room and he saw the two Cayman Bakery invoices, #826508 and #826509 near to the computer. He noted immediately that they were for a very large amount and, in fact, he was shocked by the amount. He said he would not expect to see invoices there and he would not expect to see that amount of bakery products on an invoice. He then did a search and checked with the Grocery Manager, Alex, and they could not find that amount of Cayman Bakery products anywhere. It was not on the racks or near the bread room. He said if that quantity of items had been delivered he would have noticed it.
He told Mr. Foster about the invoices. Mr. Mitchell said they discovered that there had been another delivery that morning from Cayman Bakery and both Mr. Mitchell and Mr. Foster thought this was extremely peculiar.
Mr. Mitchell said the Defendant came in to Foster’s on that morning and said Cayman Bakery had taken back some the products on that invoice and Mr. Mitchell said he told the Defendant that Foster’s would not take any more Cayman Bakery deliveries until they found out what had happened.
On the following morning, the 31st May 2008 Mr. Mitchell said that he approached Mr. Morgan when he came to work and Mr. Morgan immediately reached into his pocket and gave him, Mr. Mitchell, the credit note #826510. Mr. Mitchell said he told Mr. Morgan, "I am not talking to you now, I want to investigate this." Mr. Mitchell said Mr. Morgan told him that he had thought "it was an awful lot" so he refused some of it. Mr. Woody Foster
Mr. Foster’s evidence accords with Mr. Mitchell’s evidence when Mr. Mitchell brought to Mr. Foster Cayman Bakery invoices #826508 and #826509 and he realized the invoices reflected a tremendous amount of products, which caused great concern. Mr. Foster said he knew the space and he did not know how that amount of baked products could fit into the space allotted for Cayman Bakery.
Mr. Foster recalls calling the Defendant and Mr. Wright into the office. Mr. Foster said, "Mr. Bryan (the Defendant) told us, or led us to believe, that it was Mr. Wright who made the delivery" and consequently Mr. Wright was taken away by the police and arrested.
Mr. Foster said he realized that invoices #826508 and #826509 reflected far too much baked products and there was no logic for it because Cayman Bakery would have to take back the unsold bread and suffer a very substantial loss. Mr. Ulyses Gomez
Mr. Gomez was the Operations Manager and Loss Prevention Officer – dealing with accidents, shoplifting and similar matters.
Mr. Gomez explained to the Court about the cameras at the doors and at the cash registers. He said the cameras work 24 hours a day, 7 days per week and go for a period of 28 days.
Mr. Gomez viewed the video footage for the 30th May 2008 from 7 a.m. to 11 p.m. He was looking for a large delivery to match invoices #826508 and #826509.
He noted that Cayman Bakery made 2 deliveries early in the morning. a. One was at 6:44:06 hrs when the delivery was a small parcel of Jamaican patties and pastries. Camera 3.7 and 3.10 picked up the delivery being made in a small pastry box and the Cayman Bakery delivery person left at 6:49:29 hrs. b. Another delivery was picked up on system 4 which occurred at 8:35:15 hrs and for that delivery the driver left at 9:09:24 hrs.
Mr. Gomez checked the CCTV cameras for the whole day and he said it took him approximately two days to view the footage from the four camera systems and he did not see any further deliveries from Cayman Bakery. He said the footage covered the entire day and also all the entrances and exits. He was looking for deliveries that would match the Cayman Bakery invoices #826508 and #826509. He said a delivery like that would have been in trays or crates in order to transport that amount of baked produce. He again confirmed that a delivery or deliveries which would match Cayman Bakery invoices #826508 and #826509 never arrived at Foster’s on the 30th May 2008.
Mr. Gomez explained that he gave the CCTV footage to the police and in the transfer of the footage he did lose a couple of hours during the day. There is a gap between 10:9 hrs to 3:45 hrs on the footage. Donald Aitkin
Finally, on the evidence relating to the 30th May 2008, and the large Cayman Bakery invoices, Donald Aitkin, the new Loss Prevention Officer at Foster’s, gave evidence. He produced Exhibit DA1 which is Foster’s floor plan, along with photographs and measurements. The floor plan shows the Foster’s bakery area and the photographs show seven racks of bread with a total of 85 trays and 850 loaves.
Mr. Aitkin said that Cayman Bakery invoice #826508 had 1275 units on it and it would equate to a similar size of delivery as in picture #1. He said a delivery of that size would be clearly visible as it passes through and around the store.
Mr. Aitkin confirmed that he surveyed the space provided by Foster’s for Cayman Bakery and he checked the number of shelves and the depth of the shelves. Mr. Aitkin said he measured the depth from front to back, the height from top to bottom and the width from left to right for Cayman Bakery products. He said the space allocated would only take about 200 units of Cayman Bakery products.
Mr. Aitkin agreed that the area for Cayman Bakery identified by Mr. Sinclair as RS1 and RS2 was the Cayman Bakery space and it could only accommodate $500.00 worth of Cayman Bakery goods even when they were “stacked and packed like soldiers.”
Mr. Aitkin told the Court that Cayman Bakery was not allowed to store bread in the Foster’s bread room. The Foster’s bread room was for overseas bread alone and Foster’s would never act as a warehouse for any local bakery.
Mr. Aitkin confirmed that if the shelves allotted for Cayman Bakery were empty, the shelves would only be able to hold 15% of all the products listed on invoice #826508.
Having reviewed all the evidence before the Court, the Court finds that the Cayman Bakery products on invoices #826508 and #826509 were never received by Foster’s Food Fair Airport. There is no evidence whatsoever that the products on these Cayman Bakery invoices ever arrived at Foster’s on the 30th May 2008 or on the 31st May 2008.
The Court accepts Mr. Morgan’s evidence that he never checked to see of the items on invoices #826508 and #826509 matched the delivery made to Foster’s on that day. I also accept Mr. Morgan’s explanation that he panicked and lied to his employers and to the police in the interest of preserving his job.
Mr. Morgan has admitted that he made a previous statement to the police, which was untrue and inconsistent with the evidence he gave in Court.
When Mr. Morgan was interviewed by the police in July 2008 he confirmed that he had checked the items on the Cayman Bakery invoice with the items that came into Foster’s Food Fair. Mr. Morgan in his evidence to the Court said that he did not see the items being delivered in relation to invoices #826508 and #826509. Mr. Morgan accepted that he told a lie and said that he was trying to secure his job. He accepted that he did not see the goods. In addition Mr. Morgan said he felt a compulsion to set the record straight and that is why he said he would clear up everything. He said: "You have something hanging over your head and you want to get it clear."
When considering Mr. Morgan’s reliability as a witness I must take into account these inconsistencies, and also Mr. Morgan’s explanation for them.
It is for me to judge the extent and the importance of these inconsistencies. If I conclude that Mr. Morgan has been inconsistent on an important matter, I should treat both his accounts with considerable care. If, however, I am sure that one of Mr. Morgan’s accounts is true, in whole or in part, then it is evidence that I may consider when deciding upon my verdict.
I am satisfied that Mr. Morgan is now telling the truth. Mr. Morgan told the Court that he first lied to Mr. Mitchell. He then told the police the same lie. In between first lying to Mr. Mitchell and then lying to the police, he was dismissed. It is clear to the Court that he deeply regrets lying about the two invoices. He had been with Foster’s for 26 years and he said that he would dearly love to turn the clock back. I find that he is genuinely remorseful for problems caused to himself and others by his lies, and, in the Court’s view, has been honest in his evidence before the Court.
The Court also finds that it is clear that the system of delivery of Cayman Bakery products to Foster’s, and the system of receiving Cayman Bakery goods at Foster’s, had broken down so completely, from many angles, including the fact that the Defendant had engendered trust throughout the Foster’s staff. This breakdown was so widespread, and over such a long period, that there was no complicity needed on the part of Mr. Morgan to facilitate the passage of falsified Cayman Bakery invoices through to the Foster’s accounting department. Accordingly, I find that Mr. Morgan is a witness of truth who did not corroborate with the Defendant for the passage of falsified Cayman Bakery invoices through to the Foster’s accounting department.
The Court accepts Mr. Wright as a witness of truth and accepts his evidence that he never made any delivery relating to Cayman Bakery invoices #826508 and #826509, and that he had no knowledge of these invoices.
I also accept the evidence of Mr. Williams that Cayman Bakery never baked that amount of products on the 29th or 30th May 2008.
I accept the evidence of Mr. Gomez that the CCTV cameras would have picked up such a delivery and that no deliveries matching Cayman Bakery invoices #826508 and #826509 were ever made. The Court viewed the CCTV footage and saw the early morning deliveries brought by Mr. Brown on the 30th May 2008.
The Defendant accepts that the handwriting on invoices #826508 and #826509 is his hand writing.
I reject the Defendant’s evidence that Mr. Wright made the delivery or deliveries relating to these invoices and I fully accept Mr. Wright’s evidence that he never delivered the Cayman Bakery products set out in invoices #826508 and #826509.
I also find beyond all reasonable doubt that the products reflected on these invoices never existed and was never delivered to Foster’s on the 30th May 2008 or at any time.
The Court finds beyond all reasonable doubt that the Defendant knew that the Cayman Bakery products on these two invoices were neither baked nor delivered to Foster’s. The Defendant had falsified invoices #826508 and #826509 in order to obtain money transfers to the value of $5,266.60 by deception. Once the Defendant realized that Foster’s had discovered this fraud the Defendant tried to put the blame for the inflated invoices and the deception on to Mr. Wright. CAYMAN BAKERY TO FOSTER’S FOOD FAIR INVOICE SYSTEM
The evidence is that the two Cayman Bakery delivery drivers, Mr. Sinclair and Mr. Brown, would monitor the amounts of Cayman Bakery products needed by Foster’s Food Fair, and report back to the head Cayman Bakery baker, Lascelles Williams and his team, on the amount of baked products that would be needed in the forthcoming days. This was the system adopted so that Cayman Bakery would not have to take back baked products that had not been sold by Foster’s. This system was put in place to safeguard Cayman Bakery from suffering any losses on unsold produce.
The products would be baked at Cayman Bakery and the Cayman Bakery delivery drivers would deliver the products, usually, early in the mornings. The deliveries would normally be made anytime between 7 a.m. and 2 p.m., when the Receiving Office at Foster’s Food Fair Airport branch was open, and the two main Receiving Clerks, Anthony Shaw (“Mr. Shaw”) and Paula Hughes (“Ms. Hughes”), would receive the products.
It was for the Foster’s Receiving Clerks to check that the items on the Cayman Bakery invoices matched the items being delivered, and the Cayman Bakery delivery drivers, Mr. Sinclair and Mr. Brown, would pack the products on the shelves – which can be seen in red and blue on the floor plan of the Foster’s Airport Bakery area.
Mr. Wright was hired by Cayman Bakery when somebody was on holiday and he worked for one week along with Mr. Brown.
The evidence from Mr. Sinclair and Mr. Shaw was that one would normally enter through the back of Foster’s Fair, which is covered by CCTV cameras, although, sometimes, the front entrance would be used, which was also covered by CCTV cameras.
If the Foster’s Receiving Clerks, Mr. Shaw or Ms. Hughes were busy, the Cayman Bakery delivery persons would seek out a manager or someone else in authority at Foster’s to check the Cayman Bakery invoice and accept the delivery. Mr. Sinclair said he would write up the Cayman Bakery invoice whilst unpacking the products outside. He said he would check the products one by one and he was the one who started that system. He said the Cayman Bakery invoice would be taken to the Foster’s Receiving Clerk who would check the products being delivered against the Cayman Bakery invoice. He said the Foster’s Receiving Clerk would not normally give back the invoice to him. He said he would keep his copy. Mr. Sinclair said: “You give them the top sheet, and then you [have] got your copy, and then you carry the bread around to the bread room. As you are putting the bread on the shelves you would check and estimate what would be needed in the future. A normal week would be 20 or 30 white sandwich bread and 20 whole wheat sandwich bread, and some bullas and buns. You certainly don’t want to have to take bread back because that would cause a loss.” Mr. Sinclair said that a typical delivery was: “…Sandwich bread and whole breads, 50 to 60; bullas – 60 to 70 or maybe 100.”
Mr. Sinclair produced Exhibits RS1 and RS2 which delineated the amount of space available for Cayman Bakery at the Foster’s Food Fair and Mr. Sinclair said there were no other shelves for Cayman Bakery products.
Mr. Sinclair gave evidence that very few of his Cayman Bakery invoices would exceed $400.00 and he said that the highest invoice was in July 2007 for $520.00. The Court has been very impressed by the evidence of Mr. Sinclair who was clearly a very honest, trustworthy and reliable employee.
The Court then heard from a number of Foster’s employees including the Receiving Clerks and other employees who were authorised to receive Cayman Bakery produce. The following personnel received the Cayman Bakery products and signed off on invoices written by the Defendant: Foster’s Employee Date Cay Bakery Invoice # Quantity Product Description Total $ Jose Salinas 4.4.07 #428037 110 3lb Easter buns; 260 2lb Easter buns 120 2lb Easter buns $1,894.00 Mr. Salinas said that that the quantity listed was more than he received. This was 590 Easter buns and Mr. Salinas said this was too much. He said it should be about 150. He said he worked in the bakery section and he knew how many baked products would fit in the shelves. He said: "That can’t be. It makes no sense. The quantity here is not the one I signed off on." Foster’s Employee Date Cay Bakery Invoice # Quantity Product Description Total $ Jose Salinas 16.6.07 #328705 110 46 sandwich bread; $1,034.70 Mr. Salinas said this was more than the amount he would receive. He said Foster’s would only usually receive approximately 12. He said the shelf cannot hold this amount. Foster’s Employee Date Cay Bakery Invoice # Quantity Product Description Total $ Jose Salinas 15.12.07 #996431 481 Miscellaneous $1,006.80 Mr. Salinas said the amount was too high. He said, “Every time we count it, but when we are busy we must trust the vendors. I know how much bread fits on the shelves. This amount is too high.” Foster’s Employee Date Cay Bakery Invoice # Quantity Product Description Total $ Wade Thompson 30.1.08 #960854 450 Miscellaneous $912.00 Mr. Thompson said he does not recall receiving this amount. There is too much on the invoice. The normal load would be 80 to 100, maybe at a stretch 120, but not this amount. Foster’s Employee Date Cay Bakery Invoice # Quantity Product Description Total $ Wade Thompson 28.2.08 #997951 1600 Easter Buns $5,475.00 Mr. Thompson said that that was his signature: “….but this is too much.” Foster’s Employee Date Cay Bakery Invoice # Quantity Product Description Total $ Wade Thompson 29.2.08 #997955 2412 Easter Buns $5,626.00 Mr. Waide Thompson said he never received this and: “the ticks on the invoice are not my ticks.” Foster’s Employee Date Cay Bakery Invoice # Quantity Product Description Total $ Wade Thompson 9.3.08 #997964 2031 Easter Buns $7,735.00 Mr. Thompson said, “This is ridiculous. This amount seems ridiculous. Although my signature is there I don’t recall this amount” Foster’s Employee Date Cay Bakery Invoice # Quantity Product Description Total $ Wade Thompson 15.3.08 #997965 1420 Easter Buns $3,860.00 Mr. Waide Thompson said he never received this amount. Foster’s Employee Date Cay Bakery Invoice # Quantity Product Description Total $ Wade Thompson 15.3.08 #998069 604 Miscellaneous $1,279.00 Mr. Thompson said he never received this amount. Foster’s Employee Date Cay Bakery Invoice # Quantity Product Description Total $ Ofalina Hall 17.3.08 #997982 1560 Easter Buns $6,120.00 Ms. Hall said she never got that amount of products, "...not that I recall. I signed the invoice but I did not check the number of items." Foster’s Employee Date Cay Bakery Invoice # Quantity Product Description Total $ Seymour Morgan 27.2.08 #997959 1150 Easter Buns $3,762.50 Mr. Morgan said he never received that amount of products. He said, "I received buns but not in that number. I did not see the prices on or the numbers on the invoice. I trusted Mr. Bryan." Foster’s Employee Date Cay Bakery Invoice # Quantity Product Description Total $ Seymour Morgan 17.3.07 #428005 405 Miscellaneous $750.80 Mr. Morgan said, "I don’t accept that I received that amount." Foster’s Employee Date Cay Bakery Invoice # Quantity Product Description Total $ Seymour Morgan 1.4.08 #977227 1600 Easter Buns $8,600.00 Mr. Morgan said he never received that amount. He said he could not receive so much when Easter was almost over. He said: “No bakery on the island would have so much left over. I did not receive that. It just can’t hold on the shelves. There are not enough shelves to hold that amount of bread. Zeroes have been added. 12 had gone to 1200, 14 changed to 1400 and 16 to 1600. Two zeroes have been added to each figure. I am positive it was Bryan.” Mr. Morgan also said that this amount of baked products: “...could not come into the store. The U-boat is very high – 8 feet high and can take 120 boxes by 10.” Foster’s Employee Date Cay Bakery Invoice # Quantity Product Description Total $ Seymour Morgan 25.6.07 #635331 380 Miscellaneous $801.90 Mr. Morgan said, “I cannot say that I received all that amount.” Foster’s Employee Date Cay Bakery Invoice # Quantity Product Description Total $ Peter Smalldon 28.6.07 #529255 341 Miscellaneous $685.85 Mr. Smalldon said he could not remember receiving this delivery. Foster’s Employee Date Cay Bakery Invoice # Quantity Product Description Total $ Peter Smalldon 18.8.07 #326811 400 Sandwich loaves 285 Whole wheat loaves $1,295.75 He said, "We would never receive a delivery of that size or a quantity of that amount. We might receive 40 sandwich loaves but not 400. We might receive 25 to 30 whole wheat loaves but never 285. I would remember if we had received 685 because it is a very large amount." Foster’s Employee Date Cay Bakery Invoice # Quantity Product Description Total $ Peter Smalldon 2.11.07 #992552 544 Miscellaneous $1,079.70 Mr. Smalldon said, "I don’t remember it." Mr. Shaw said, "I developed a trust with Dave Bryan. I would not question him. Dave Bryan would bring a delivery with one invoice and say he has three more. I would sign it and not check it. There were times when I should have been more careful. If the Receiving Office was closed I would tell Dave Bryan to come back tomorrow or take the invoice to our Control Manager" Foster’s Employee Date Cay Bakery Invoice # Quantity Product Description Total $ Yoani Bird 30.11.07 #996407 543 Miscellaneous (including 30 banana cakes) $1,013.75 The witness said she never received this amount and she never received 30 banana cakes. "I did not put the ticks that are on that invoice." Foster’s Employee Date Cay Bakery Invoice # Quantity Product Description Total $ Yoani Bird 18.2.08 #960866 562 Miscellaneous $1,079.80 The witness said, "I didn’t receive this in one go. It would never fit on four trays. This invoice was not given to me by Cayman Bakery." Foster’s Employee Date Cay Bakery Invoice # Quantity Product Description Total $ Paula Hughes 20.3.08 #997986 2062 Easter buns $7,324.00 Asked if she ever received that amount in a delivery from Cayman Bakery she said, "Not that I can remember."
In addition, and by way of example, the Foster’s store manager, Mr. Mitchell, on looking at the invoices on the 20th March 2008, there were three Cayman Bakery invoices numbers #997985, #997986 and #997987 entered by the Defendant and amounting to $16,340.00. He said each of those amounts would alarm me. “It’s an awful lot of products.”
It is clear from Mr. Mitchell’s evidence and Mr. Foster’s evidence that the system, in Mr. Foster’s words, “had broken down dramatically” and in fact didn’t operate effectively.
It is noted from the spreadsheets produced by Mr. Alistair Fletcher (“Mr. Fletcher”) of Foster’s Food Fair that the for the first 3 or 4 months Mr. Sinclair made all the deliveries and his invoices were always received by a Foster’s Receiving Clerk.
The first invoice where there is no Foster’s Receiver is dated the 16th December 2006, invoice #228664 for $86.40 and issued by Racquel Bryan. It is not until the 13th January 2007 that there is a delivery purportedly made by the Defendant. The Defendant made 6 or 7 deliveries in January and February, of which the highest is CI$601.20. But the first time there is a delivery with no Foster’s Receiver and no Foster’s Receiving Invoice is on the 24th February 2007 in a delivery purportedly made by the Defendant.
The Court notes that the Defendant purportedly made 211 deliveries, but for 97 of those the system broke down completely and nobody from Foster’s Food Fair created a Foster’s Receiving Invoice. When this is compared on Mr. Fletcher’s spreadsheet to the period when Cayman Bakery’s Mr. Sinclair made the deliveries, all his deliveries had Foster’s Receiving Invoices prepared by Foster’s staff which accompanied the Cayman Bakery invoices.
The compelling inference is that the Defendant realized that the invoice would be accepted by the Foster’s accounting department without the Foster’s Receiving Invoice accompanying the Cayman Bakery invoice, and that Foster’s would pay out on the Cayman Bakery invoice alone.
Mr. Sinclair made 603 deliveries of products for Cayman Bakery for which Foster’s paid the sum of $86,180.00, which is an average of $142.92 per delivery.
The Defendant made 211 deliveries of Cayman Bakery products for which Foster’s Food Fair paid $292,716.00, which is an average of $1,387.28 per delivery.
A total of 954 Cayman Bakery deliveries were made to Foster’s by Mr. Sinclair, Mr. Brown and others, for which Foster’s paid the far less amount of $98,000.10.
The evidence from several witnesses clearly reveals that the Foster’s employees trusted the Defendant to complete the invoice and ensure that a Foster’s Receiving Invoice was created to accompany the Cayman Bakery invoice. It is quite clear from the evidence of all these witnesses that the Cayman Bakery products were not checked against the Cayman Bakery invoices.
I am satisfied beyond all reasonable doubt that these witnesses are truthful and reliable, and that they did not sign off on the products that appear on the invoices attributed to them.
It is clearly not an accident that almost 50% of the Defendant’s purported deliveries never went through the system, in that, a Foster’s employee never created a Foster’s invoice to accompany the Cayman Bakery invoice, and that the Foster’s accounting department simply honoured the Cayman Bakery invoices because, as Mr. Foster said, "Foster’s always paid their bills." EASTER BUNS
The Court finds that the Defendant developed a high level of trust with the Receiving Clerks and particularly with Mr. Shaw, that is, Mr. Anthony Shaw, who would allow the Defendant to take the Cayman Bakery invoice away, giving him, the Defendant, the opportunity to alter the Cayman Bakery invoice.
Secondly, the Defendant, more often than not, would arrive when the Foster’s Receiving Office was closed. The Defendant would then ask other Foster’s authorized staff to sign off on the Cayman Bakery invoices. The duly signed Cayman Bakery invoice was given back to the Defendant who then, either got a Foster’s Receiving Clerk to create the Foster’s Receiving Invoice, or, alternatively, sent the Cayman Bakery invoice directly through to the Foster’s accounting department for payment.
Explicit examples in relation to Easter Buns are: a. From the 2nd March to the 7th April in 2007 the Defendant created 9 invoices for 7,194 Easter Buns at a price of $24,074.70. b. In 2008 the Defendant created 18 invoices from the 27th February to the 1st April, totaling 26,743 Easter Buns at a total cost to Foster’s of $87,128.00. c. On the 29th March 2008 alone the Defendant purportedly made 3 deliveries – invoices #997985, #997986 and #997987. The first and third invoice had no Foster’s Receiving Clerk identified and those two invoices totalled 5,612 Easter Buns at a cost of $14,293.00.
Mr. Morgan gave evidence that he did not receive the Easter Buns on invoices #997985 and #997987.
Relating to the other invoice, #997986, Ms. Hughes was asked if she ever received the amount reflected on the invoice in a delivery from Cayman Bakery, she said, "Not that I can remember."
If that were not bad enough, the Defendant, on the 1st April 2008, one week after Easter got a Cayman Bakery invoice #977227 in the sum of $8,600.00. Again, Mr. Morgan said he did not receive that amount, but the Cayman Bakery invoice was submitted to Foster’s accounts department and paid without the Foster’s Receiving Invoice accompanying it. I am satisfied beyond all reasonable doubt that this is another example of how the Defendant dishonestly obtained money transfer by deception.
In relation to the Easter Bun deliveries Mr. Thompson described them as "…wholly ridiculous."
Mr. Morgan’s evidence was that the usual level of an Easter Bun delivery from Cayman Bakery would be somewhere in the region of 60 buns.
The Crown, through John Thistle ("Mr. Thistle"), has produced Exhibit JT1 – the total sales for Easter Buns for the entire period amounted to $2,348.76, rather than the Defendant’s figure of over $130,000.00.
I accept the Crown’s submission that the Defendant became too greedy. The Defendant produced false invoices for 33,937 Easter Buns at a total of $111,202.70 which monies Foster’s paid out. Yet, based on Foster’s internal figures produced by Mr. Thistle on Exhibit JT1, the total Foster’s sales of Easter Buns was $2,348.76. Even allowing for the lowest level of markup of 26%, it can be seen that, on Easter Buns alone, the Defendant dishonestly obtained money transfer to the value of over $100,000.00 by falsely representing the amount of Easter Buns delivered to Foster’s.
I find that the employees of Foster’s, including Mr. Morgan, had unwittingly participated in the Defendant’s deception by processing the inflated Cayman Bakery invoices to the Foster’s accounting department for payment. DEFENDANT’S INTERVENTION BETWEEN CAYMAN BAKERY’S ACCOUNTANT AND FOSTER’S ACCOUNTANT
Mrs. Bush was employed as an accountant/bookkeeper by Cayman Bakery and paid $1,000 per month.
In the early stages of the operation of Cayman Bakery the Defendant would provide Ms. Bush with copies of all the Cayman Bakery invoices setting out the items sold, at what price and in what quantities. The agreed system was that Mrs. Bush would input this information into her computer, and create a statement. For example the Cayman Bakery statement dated the 31st August 2006 has on every invoice, the Cayman Bakery products sold, the prices at which the products were sold and the quantity sold to Foster’s Food Fair. Mrs. Bush would then give the Cayman Bakery statement to the Defendant, who would then deliver the statement to Foster’s. At Foster’s the statement would be checked by Ms. Solomon, now Mrs. Connor, and she would make sure that the Cayman Bakery invoice copies and the Foster’s invoice copies matched the amounts on Mrs. Bush’s Cayman Bakery statements. Once these were checked through they would be cleared for payment and a cheque issued by Foster’s to Cayman Bakery. This cheque would be picked up by Cayman Bakery personnel, banked and the cheque stub and information would come back with the cheque to Mrs. Bush. This was a safe and proper bookkeeping system which served to protect both Cayman Bakery and Foster’s.
Although there is no evidence that Foster’s made any complaints regarding Mrs. Bush’s statements, the Defendant alleged that Foster’s made such a complaint and consequently the Defendant stopped giving Mrs. Bush copies of the invoices, and persuaded his stepdaughter, Racquel Bryan, to prepare a handwritten statement from selected invoices.
The evidence shows that the Defendant stopped giving Foster’s Mrs. Bush’s statements. Instead, Racquel Bryan prepared a handwritten statement of the invoice copies, given to her by the Defendant, and that is the Cayman Bakery statement that went to Foster’s and on which basis Foster’s did its reconciliations and made its payments to Cayman Bakery. Racquel Bryan’s evidence was clear that she never entered any quantities or prices on the Cayman Bakery invoices, although she admitted preparing the handwritten statements as instructed by the Defendant.
The Defendant did not give the cheque stub or any official record of receipt of the payment back to Mrs. Bush, but instead, provided Racquel Bryan with a reduced amount to hand write into a payment schedule, which would then be given Mrs. Bush.
By way of an example, in March 2008, it is known, based on the Foster’s spreadsheet prepared by Mr. Fletcher, that the total Cayman Bakery invoices paid by Foster’s for March 2008 totalled $83,251.54. The Cayman Bakery statement which was located at Foster’s has the ticks and the Foster’s “PAID” stamp, which were all placed on the invoice by Mrs. Connor.
The statement prepared by Mrs. Bush for Cayman Bakery on the selected information given to her by the Defendant had a total of $25,224.03.
The statement Mrs. Bush prepared for March 2008 – Exhibit BB14 – has total sales of $20,000.00.
These Exhibits demonstrate how the Defendant seized control of the statements, accounts and information passing from Cayman Bakery to Foster’s and from Foster’s to Cayman Bakery.
The March cheque from Foster’s to Cayman Bakery was in excess of $90,000.00. Neither that cheque, nor the cheque stub ever got to Mrs. Bush or Cayman Bakery. Mrs. Bush was provided with a handwritten schedule prepared by Racquel Bryan on the instructions of the Defendant – found at Exhibit BB1 – that is, instead of $90,000.00, the payment on the handwritten schedule refers to $25,000.00 being paid by Foster’s to Cayman Bakery.
Based on Mrs. Bush’s evidence, Racquel Bryan’s evidence, and these exhibits, this Court finds, beyond all reasonable doubt, that the Defendant concealed the invoicing and the payment from Cayman Bakery’s own bookkeeper and its majority shareholder. The Court further finds beyond all reasonable doubt that the Defendant did this every month throughout 2007 and until May 2008.
Mr. Fletcher of Foster’s has provided the Court with Exhibit AF 1205 which is the chart regarding Foster’s purchase of Cayman Bakery products, for which figures were taken from the Cayman Bakery invoices and the sales of Cayman Bakery products. Total Month $ Purchases from Cayman Bakery $ Foster’s Sales $ Difference August 06 3,786 2,154 836 September 06 4,694 3,751 943 October 06 5,139 3,915 1,224 November 06 3,269 3,364 -96 December 06 2,665 3,006 -340 January 07 5,068 3,036 2,032 February 07 5,676 3,127 2,549 March 07 22,629 3,850 18,780 April 07 15,990 3,677 12,313 May 07 8,718 2,756 5,962 June 07 11,577 4,137 7,440 July 07 11,320 2,602 8,718 August 07 16,299 5,230 11,069 September 07 10,458 2,939 7,519 October 07 13,136 2,301 10,835 November 07 22,185 4,943 17,241 December 07 22,368 2,475 19,893 January 08 28,175 3,728 24,447 February 08 35,339 3,270 32,068 March 08 81,777 3,420 78,356 April 08 38,435 3,086 35,349 May 08 26893 3,519 23,374 June 08 0 718 -718 Total 394,800 75,006 319,794
The Court notes that for the first six or seven months of Cayman Bakery’s operations, Cayman Bakery sales were between $2,000.00 and $5,000.00. Then there was a sudden hike in March 2007 when the Defendant became inexplicably involved in the deliveries to Foster’s and made nine deliveries, for which there was no corresponding Foster’s Receiving Invoice.
Mr. Fletcher produced AF 1205, a chart, which I record below, showing the cheques made out by Foster’s to Cayman Bakery. Total Date Cheque # $ amount Exhibit 14 Sept 06 085350 5,252.00 AF1207 13 October 06 085784 6,594.55 AF1208 14 Nov 06 086202 7,626.95 AF1209 14 Dec 06 086740 6,179.64 AF1210 12 January 07 087111 5,092.60 AF1211 15 February 07 087551 7,566.18 AF1212 14 March 07 087881 8,440.25 AF1213 16 April 07 088211 27,559.84 AF1214 15 May 07 088673 21,589.83 AF1215 15 June 07 089262 12,309.62 AF1216 15 July 07 089726 15,705.02 AF1217 14 August 07 090276 15,311.03 AF1218 14 Sept 07 090817 22,416.60 AF1219 16 October 07 091374 14,942.37 AF1220 15 Nove 07 091894 20,241.87 AF1221 17 Dec 07 092489 23,641.09 AF1222 15 January 08 093027 29,366.93 AF1223 15 February 08 093562 27,939.68 AF1224 14 March 08 094087 43,438.13 AF1225 11 April 08 094627 90,636.12 AF1226 14 May 08 095273 43,216.78 AF1227 $374,067.08
Based on this incontrovertible evidence I am satisfied beyond all reasonable doubt that the Defendant committed a massive fraud and is guilty of dishonestly obtaining money transfer to the value of at least $309,981.37 by deception, namely, by falsely representing the quantity of goods supplied by Cayman Bakery to Foster’s Food Fair. POLICE EVIDENCE
The evidence shows that DC Francella, the officer in charge of the investigation, and DS Montague, went to the Defendant’s premises on the 9th July 2008 and executed a search warrant. At approximately 4:15 p.m., after the search, DC Francella arrested the Defendant on suspicion of obtaining property by deception; she read him his rights, cautioned him and took him to the George Town police station to be processed.
On the 11th July 2008 DC Francella and DS Montague attended on the Defendant at George Town police station. DC Francella read the Defendant his rights and cautioned him again.
The Defendant was taken from the George Town Police Station to the Financial Crimes Unit (FCU). At the beginning of the interview the Defendant was given the opportunity to speak to his attorney. His attorney, Scott Wilson, was called and the Defendant spoke with him by phone.
After the call the Defendant advised DC Francella and DS Montague that he would be happy to proceed without an attorney, and that if he did not feel comfortable with any questions he would just say, "No comment."
On the 29th September 2008 the Defendant and his stepdaughter, Racquel Bryan, attended the FCU to answer their bail.
On that occasion, initially, DC Francella spoke with Racquel Bryan and then, subsequently, she spoke with the Defendant.
The Defence challenges the veracity of the of the police evidence taken on this occasion. In addition, the Defence says that the Defendant was not cautioned on the 29th September 2008 at the FCU. Defence counsel relies upon the fact that DS Montague said that the police would give the usual caution because it was the normal thing for the police to do – submitting that DS Montague was not sure that the caution delivered.
Furthermore, Defence relies upon the fact that DC Francella said that she wrote down the caution on an interview sheet, and yet that interview sheet has not been produced at the trial. Accordingly, the Defence says that this throws doubt on whether the Defendant was cautioned on the 29th September 2008.
The Defence also submits that DC Francella’s statement to Mr. Bryan on that occasion that “...the evidence against him and Racquel was overwhelming and Racquel would likely be charged” was oppressive and sapped the Defendant’s free will, causing him to make an involuntary confession.
The Defence also submits that because the Defendant had asked for his attorney to be present, any statement he made on the 29th September 2008 should be ruled inadmissible. The Defence submits that, the fact that the Defendant broke down crying, is evidence of oppression. THE ALLEGED CONFESSION
The Crown submits that the Defendant made a confession to DC Francella and DS Montague on the 29th September 2008 on which I can rely.
Counsel for the Defendant says that although he made the confession, it was obtained by oppression, in that, he was told that the evidence was overwhelming and that his stepdaughter is likely to be charged, therefore rendering the confession unreliable and possibly untrue. In addition, the Defence says that because the Defendant did not have his attorney present, the feeling of “oppression” was exacerbated, thereby rendering any confession given by the Defendant, involuntary.
I have to ask myself the question: If I think that the confession was or might have been obtained by something said by DC Francella, which was likely to make it unreliable, I must disregard it, even if I think that it was, or may have been true.
If, however, I am sure that the confession was not obtained as result of any oppression or due to some inducement or improper statement to the Defendant, and that it was true, I may take it into account when considering my verdict.
The evidence before me is that the Defendant had been arrested on the 9th July 2008. He was told of his rights and he was cautioned.
On the 11th July 2008, the Defendant was cautioned again and told of his right to remain silent and of his right to have an attorney present. At the interview on the 11th July 2008 I find that the Defendant spoke to his then attorney, and after speaking with his attorney he said he was happy to proceed with the interview, and if there were any question about which he did not feel comfortable, he would just say "No comment."
It is clear to this Court that the Defendant fully understood the nature of the caution and his right to remain silent.
On the 29th September 2008 both the Defendant and his stepdaughter were answering to their police bail. It would be quite apparent to the Defendant at that time that both he and his stepdaughter could well be facing serious charges relating to Cayman Bakery and Foster's Food Fair.
On the question of whether a caution was delivered on the 29th September 2008, the Court notes that in the interview conducted on the 3rd November 2008, with the Defendant’s then attorney, Clyde Allen, being present, the Defendant was asked specifically about the conversation on the 29th September 2008 and the conversation ensued as follows: DC Francella: “I wrote down your rights to counsel and caution on an interview form and read them to you, is that correct?” Defendant: “Yes.”
Having reviewed the evidence of both DC Francella and DS Montague, and having read the interviews conducted on the 11th July 2008 and the 3rd November 2008, I am satisfied beyond all reasonable doubt that the Defendant was properly cautioned and understood the nature of the caution. I am satisfied that the Defendant knew that he had right to remain silent. I do not find the words said by DC Francella to constitute oppressive conduct, and I do not find that the Defendant’s free will had been sapped to such an extent that any statement he made to DC Francella and DS Montague could be deemed involuntary.
I find that the Defendant was cautioned on the 29th September 2008, and this caution amounted to at least a third caution, which demonstrates that the Defendant was well aware of his right to remain silent. The fact that he chose not to remain silent was a voluntary decision he took on his own.
From all the evidence I have heard from DC Francella and from DS Montague, I find that on the 29th September 2008 the Defendant was properly cautioned. The Defendant was no longer in custody and therefore could have rearranged the time for the interview. The Defendant was familiar with the meaning of the caution, he was fully aware of his right to an attorney during any interview with the investigating officers, and, he was fully aware of his right to remain silent.
I am satisfied beyond all reasonable doubt that the statements he made to DC Francella and DS Montague on the 29th September 2008 were not the product of any threat, promise or inducement by them as persons in authority. I find that the Defendant spoke voluntarily to the police officers in full knowledge of what he was saying, understanding the nature of the caution and the previous cautions that had been delivered to him. I find that the statements the Defendant made on the 29th September 2008 had not been obtained by any oppression or unfairness.
In his statement to DC Francella and DS Montague on the 29th September 2008 the Defendant explained that he had used fictitious names for a practice that he called “kiting”. He would write a cheque from the Cayman Bakery account to someone whose name he made up. He would cash the cheque at National Building Society then take the cash and go and deposit it into the Cayman Bakery account at CNB. The Defendant reported that he got into trouble for bringing so many thousands of dollars to CNB.
In this statement the Defendant told DC Francella and DS Montague that he and Mr. Wright made the delivery on the 30th May 2008. He said they stopped and packed the shelves as tight as they could and left bread in the bread room. The Defendant said Mr. Morgan called him to take some of the bread away, so they went back and took some of the bread away and gave Mr. Morgan a credit note.
The Defendant told the police that neither Mr. Wright nor Mr. Morgan knew the invoices were inflated. Moreover, the Defendant said Foster’s never received all the bread that he wrote on the invoices.
The Defendant said he never paid Mr. Wright or Mr. Morgan for inflated invoices. The Defendant also said, "The other guys who signed for inflated invoices did not know they were inflated either. They just didn’t count the bread on their deliveries, but they didn’t know a crime was taking place." The Defendant added that he did not want anyone else to get fired or be charged as they did not know what was going on.
I find that, on the basis of the Defendant’s confession to the police on the 29th September 2008 that he admitted that he was responsible for the inflated invoices and that he further admitted that Foster’s never received all the products that he wrote on the invoices.
I am satisfied beyond all reasonable doubt that the Defendant made this admission and confessed, to DC Francella and DS Montague, that he was solely responsible for inflating the invoices. I am also satisfied beyond all reasonable doubt that the Defendant confessed to the officers that Foster’s never received all the bread that he wrote on the inflated invoices.
It is alleged that the Defendant lied to the police in saying that Mr. Wright made the delivery on the 30th May 2008, and that Mr. Wright was responsible for delivering the items on Cayman Bakery invoices #826508 and #826509.
The Crown submits that I am entitled to consider what it believes to be lies made by the Defendant to support the case against the Defendant.
Accordingly, I must decide whether the Defendant did in fact deliberately tell these lies. If I am not sure he did, I should ignore the matter.
If I am sure that he lied, I must remind myself that the mere fact that he told a lie is not in itself evidence of guilt of the charges facing the Defendant. The Defendant may lie for many reasons. They may possibly be innocent lies, in the sense that they do not denote guilt, for example, lies to bolster a true defence to protect somebody else or to conceal some disgraceful conduct, other than the commission of the offence, or, indeed, out of panic, distress and confusion.
If I think that there is or may be an innocent explanation for these lies, then I should take no notice of them.
It is only if I am sure that he did not lie for an innocent reason that the Defendant’s lies can be regarded by me as evidence supporting the case for the prosecution.
Based on the evidence before me I find that the Defendant did lie. He lied because he had falsified invoices #826508 and #826509. He realized that Foster’s had discovered the protracted fraud and he tried to deflect the blame for the falsifications and deception on to Mr. Wright.
Having reviewed all the evidence and for the aforesaid reasons set out above, I find the Defendant guilty of dishonestly obtaining money transfer to the value of CI$309,981.37 from Foster’s Food Fair by deception, namely, by falsely representing the quantity of goods supplied by Cayman Bakery to Foster’s Food Fair during the period between the 1st January 2007 and the 31st May 2008.
Accordingly, I find the Defendant guilty of obtaining money transfer by deception contrary to s.251 of the Penal Code. MAKING A DOCUMENT WITHOUT AUTHORITY
Mr. Bush gave evidence that he obtained a loan of $257,000.00 to invest in Cayman Bakery by obtaining a mortgage over his matrimonial home in the said sum from CIDB.
It is unchallenged that the Defendant wrote a letter, dated the 6th August 2007, to Mr. Ralph Lewis, ("Mr. Lewis") the General Manager of CIDB. In this letter the Defendant asked for a further loan to buy a standby generator for Cayman Bakery. The letter was purportedly copied to his business partner, Mr. Bush.
Mr. Lewis recalls the original application on behalf of Cayman Bakery for a loan for $257,000.00, for which the bank took a first charge over Mr. Bush’s property at West Bay North West Block 1D Parcel 0462.
As a result of the Defendant’s application Mr. Lewis wrote a signed letter of offer dated the 2nd October 2007 for an increase of $27,000.00. This increase was granted because the Defendant had told Mr. Lewis that the transaction was one of urgency to acquire a generator in the hurricane season.
Mr. Bush’s evidence is that the Defendant never discussed a loan extension with him. Mr. Bush said he never received a copy of the Defendant’s letter dated the 6th August 2007 to CIDB.
Mr. Ebanks, a Justice of the Peace, said that the Defendant came to see him on or about the 18th October 2007 and asked him to witness the Defendant’s signature and Mr. Bush’s signature. Mr. Ebanks said that Mr. Bush wasn’t present, but he trusted the Defendant, who told him that it was Mr. Bush’s signature.
Accordingly, Mr. Ebanks witnessed Mr. Bush’s signature, although Mr. Bush was not present. Mr. Bush’s signature was purportedly on the acceptance of the loan, the irrevocable authority to deduct, and, the Unanimous Resolution of the directors – all of which documents accompanied the loan. Mr. Ebanks’s evidence is that he would not have done this if he had not known Mr. Bush and he had not trusted the representation that the Defendant made to him. Mr. Ebanks said that the only reason he signed the documents was because he trusted the Defendant. Mr. Ebanks accepted that he had made a mistake and that he should never witness a signature without the person making the signature being present in front of him at the time he makes his signature.
On the 13th May 2009 Mr. Frank Norwitch, a handwriting expert, who resided in Florida, received the loan documentation with the questioned signatures of Mr. Bush, together with Mr. Bush’s original standard signatures.
Mr. Norwitch stated: “Although the questioned signatures bore some pictorial resemblance to the standard signatures, the questioned signatures do not compare favourably with the individual characteristics present in the standard signatures and, in fact, display significant departures from the genuine signatures. These dissimilarities are beyond the range of normal variation found within the standard signatures and are indicative of and consistent with simulation. Other indications normally associated with simulated signatures such as tremor, hesitation and a slow drawn appearance are present.”
Mr. Norwitch concluded by stating: “In view of the above findings it is the opinion of this examiner that the questioned Bernie Bush signatures on the documents are simulations and as such are not genuine.”
Mr. Andrew Thomas (“Mr. Thomas”), an accountant employed with CIDB, gave his statement on the 21st August 2003. He said that he dealt with the Defendant in relation to the request for the additional $27,000.00 for the purchase of a heavy-duty generator. He said he only ever dealt with the Defendant in relation to this loan.
Mr. Bush said he knew nothing about any additional loan on his house until one day somebody from CIDB called him to say “the cheque is ready.” Mr. Bush said he asked, “What cheque?” and the reply was that there was a cheque for $27,000.00. Mr. Bush said he told the lady at the bank that he neither requested the funds nor signed any application. Mr. Bernie Bush then called the Defendant, and the Defendant said that there had been a "mix up". Mr. Bush recalled discussing the matter with the Defendant and the Defendant said, "Everything's okay." Mr. Bush said, "I didn't sign for anything and I knew there was no cheque for me."
Mr. Bush confirmed that he never discussed increasing the loan by $27,000.00, he never signed any documentation or the documentation on the purported application for the extra $27,000.00, he did not sign the irrevocable authority to deduct, nor did he sign the Unanimous Resolution. Mr. Bush said he never discussed any loan with the Defendant and he never saw or signed any documentation in relation to any loan. I entirely accept Mr. Bush's evidence in this regard.
Based on the evidence of the employees of CIDB, the JP, Mr. Ebanks, the document examiner, Mr. Norwitch, and the evidence of Mr. Bush, I am satisfied beyond all reasonable doubt that the Defendant is guilty of making a document without authority contrary to s.293 of the Penal Code, in that the Defendant, on the 18th October 2007, with intent to defraud, and without lawful authority, did sign a document, namely, a CIDB loan application in the name of Bernie Alfredo Bush.
Accordingly, I find the Defendant guilty on Counts 1 and 5. Dated this the 3rd April 2012 Honourable Mr. Justice Charles Quin Judge of the Grand Court