The Queen v Simeon Samuel Cornwall

• Jurisdiction: Grenada
• Judge: HENRY J.
• Judgment Date: 25 January 2009
• Judgment citation (vLex): [2009] ECSC J0125-1
• Date: 25 January 2009
• Court: Supreme Court (Grenada)
• Docket Number: CASE NO: 129 OF 2006

[2009] ECSC J0125-1

IN THE SUPREME COURT OF GRENADA

AND THE WEST INDIES ASSOCIATED STATES

HIGH COURT OF JUSTICE

(CRIMINAL)

CASE NO: 129 OF 2006

Between:

The Queen

and

Simeon Samuel Cornwall

Appearances:

Mr. Cajeton Hood for the Accused

Mrs. Pivotte and Ms. Greenidge for the Crown

RULING

HENRY J.

1 The indictment filed against the accused on 22 ^nd January, 2007 charges him with conspiracy. It states that the accused "between July 1, 2004 and October 28 ^th, 2004, at Grand Anse in the parish of St. George's and State aforesaid did conspire with Cassandra Dowden and other known persons, to steal from the Grenada Co-operative Bank Limited, the sum of $1,569,233.30 ECC, contrary to Section 48 (1) of the Criminal Code Cap 1 Vol. 1 of the 1994 Edition of the Continuous Revised Laws of Grenada." Counsel for the accused submits that the court ought to quash or stay the indictment based on certain objections.

The Indictment

2 Counsel first submits that the indictment is drafted contrary to the Criminal Procedure Code; that it lacks clarity and that it would amount to an abuse of process to permit the prosecution to pursue it. He submits that the named co-conspirator Cassandra Dowden has not been charged with conspiracy; that the indictment against her alleged 5 counts of theft by reason of employment; that the indictment against this accused does not mention which theft the accused is accused of conspiring to commit; that simply saying stealing is not enough, since there are different theft offences under the Act. According to him, the indictment ought to be divided into 5 parts because there are 5 transactions. He submits therefore that the indictment is grossly insufficient.

3 The Crown submits that the indictment is not insufficient; that the fact that Cassandra pleaded to 2 of 5 counts of theft is not relevant; that what is important in relation to the count of conspiracy is evidence of an agreement to steal.

Section 129 of the Criminal Procedure Code of Grenada provides;

"(1) Every count of an indictment shall contain, and shall be sufficient if it contains in substance, a statement that the accused has committed some offence there in specified. Such statement may be made in popular language, without any technical averments or any allegations of matter not essential to be proved.

(2) Such statement may be in the words of the enactment describing the offence or declaring the matter charged to be an indictable offence, or in any words sufficient to give the accused notice of the offence with which he is charged.

(3) Every count shall contain so much detail of the circumstances of the alleged offence as is sufficient to give the accused reasonable information as to the act to be proved against him, and to identify the transaction referred to;

Provided that the absence or insufficiency of such details shall not vitiate the count, but the Court may order an amendment or further particulars, as hereinafter mentioned.

(4)……

(5) Every count shall in general apply only to a single transaction.

4 The Court cannot agree that the indictment ought to be in parts because Cassandra Dowden was charged with 5 counts of theft. The offence alleged in the indictment before the court is conspiracy. The crime of conspiracy requires an agreement between two or more persons to commit an unlawful act with the intention of carrying it out. There can be a conspiracy between several persons to steal $200.00. It may be carried out by one person stealing $50.00 on 4 different occasions. That person may in fact be correctly charged with 4 counts of theft. But the conspiracy was still to steal $200.00 and the other parties can be so charged. Cassandra Dowden was indicted for 5 counts of theft by reason of employment. She, at the time of the alleged offence, employed with the Grenada Co-operative Bank Ltd. This accused was not. So simply because Cassandra pleaded to 2 out of 5 counts of theft does not necessarily mean that the indictment for conspiracy must be in 5 parts. Furthermore, the learning in Archbold 2009 para. 33–45 is quite clear. In respect of an indictment for conspiracy, the overt acts need not be set out. The agreement is the offence, and it is immaterial whether anything has been done in pursuance of it (see also the cases cited therein).

5 While Counsel submits that merely alleging stealing is not enough, the court notes that stealing under Title XXI is an offence. Therefore a conspiracy to steal is a conspiracy to commit an unlawful act. The indictment is legally sufficient in that it describes the offence in sufficient words to give the accused notice of the offence with which he is charged. The indictment sets out the amount it is alleged that he conspired to steal; the name of the institution from which the amount was stolen and some information as to his Co-conspirators. Further particulars of the case the accused has to meet are set out in the depositions. I can see no prejudice to the accused.

Abuse of the Process

6 Counsel submits that Cassandra Dowden was the central figure in the alleged conspiracy; that the alleged transactions could not have occurred without her and therefore in the circumstances of this case it is improper to prosecute anyone for conspiracy without the prosecution of Dowden for conspiracy. He states that it is grossly unfair to leave Cassandra out of the conspiracy charge that the effect is to destroy the whole conspiracy. He further submits that in the indictment against Cassandra, there is no mention at all of conspiracy; no hint that someone else was involved in the stealing. He states that the general principle is that all charges related to the one event must be brought together, unless there are exceptional circumstances. In this case, he is adamant that the Prosecutor ought to have brought all the parties before the court so that the court could have the full picture; that to do otherwise amounts to abuse of process. Counsel cites the cases of Bhola v The State (1995) 49 WIR 412; Verrier v Director of Public Prosecutions.

7 It is well settled that at least two persons must agree in order for there to be a conspiracy. Authorities agree that a single accused may be charged and convicted, even if the identities of his fellow conspirators remain unknown, see Blackstone's Criminal Practice 2007, Paragraph A6.15. The indictment against the accused is that he conspired not only with Cassandra Dowden but also with other known persons.

8 Lord Diplock in Hunter v Chief Constable of West Midlands [1982] AC 529 at page 536 confirmed "the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people." Of course as was so aptly stated in Bhola v The State "what is unfair and wrong will be for the court to determine on the facts of the particular case." However, the Court cited with approval the well known principles set out in Connelly v Director of Public Prosecutions in regard to the concept of abuse of process in criminal proceedings. Specifically, the Court referred to Lord Devlin's speech where he stated that if the prosecution failed without good cause to take advantage of the provisions for joining in the same indictment offences arising out of the same facts or offences which were part of a series of offences of the same or similar character, this was an abuse of the process which would justify a stay of proceedings.

9 In Bhola, fourteen days after the appellant and another were convicted and sentenced on corruption charges, they were served with a second indictment alleging conspiracy and other charges stemming from the same incident. The Court of Appeal of Trinidad required the prosecution to show that there were special circumstances for taking the course which it did. After reviewing...